Non Raceday Inquiry RIU v D Walker – Decision dated 27 March 2016 – Chair, Mr T Utikere

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decisiondate: 30/03/2016

hearing_title: Non Raceday Inquiry RIU v D Walker - Decision dated 27 March 2016 - Chair, Mr T Utikere

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND DAVID WALKER

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mr P Williams (Member)

Appearances: Mr D Walker (Respondent)

Dr L Molloy (representing the Respondent)

Mrs V Walker (supporting the Respondent)

Mr S Irving (for RIU)

Registrar: Mr N Goodwin

Hearing: Held at the Distinction Hotel, Palmerston North, 23 March 2016

Written Decision Date: 27 March 2016

DECISION OF JUDICIAL COMMITTEE

[1] Mr David Walker appears before this Judicial Committee on the first charge:

Information Number A4173

THAT On the 14th January 2016, David James WALKER, a Disqualified person under the Rules, was riding the NZTR registered horse ‘Casino’ at the training facility occupied by Class B registered trainer Gloria Kenny at 1785 State Highway 1, Marton.

[2] The relevant rule reads as follows:

1104(1) – “A person who is disqualified in accordance with this Part XI, or whose name appears in the list of disqualifications of Another Racing Authority shall not during the period of that disqualification:

(b) train any horse or ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses;”

[3] The relevant Penalty Provision is contained in Rule 1104(3) which states:

“A person who contravenes this Rule shall, in addition to any other penalty which may be imposed under any of these Rules, be disqualified for an additional period of not less than six months to commence at the end of the period of the current disqualification. For every second or subsequent breach he shall, in addition to any other such penalty, be disqualified for a period of not less than 12 months to commence at the expiry of the immediately previous period of disqualification.”

[4] Mr David Walker also appears before this Judicial Committee on the second charge:

Information Number A4177

THAT on the 14th January 2016 at Marton, David James WALKER, a Disqualified person under the Rules, wilfully failed to perform an act in that he would not stop and speak with RIU Investigators when directed to.

[5] The relevant rule reads as follows:

801(1) – “A person commits a Serious Racing Offence within the meaning of these Rules who:

(k) wilfully fails to perform an act ordered by a Tribunal, NZTR, Stipendiary Steward or Investigator to be performed by him;

[6] The relevant Penalty Provision is contained in Rule 801(2) which states:

“A person who commits a Serious Racing Offence shall be liable to:

(a) be disqualified for any specific period or for life; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $50,000.”

[7] Four teleconferences have been held prior to the hearing of this matter. Four Minutes (Minute No.1 dated 16 February 2016, Minute No.2 dated 3 March 2016, Minute No.3 dated 14 March 2016 and Minute No.4 dated 17 March 2016) were issued by the Chairman of this Judicial Committee as a result of the teleconferences. For completeness, all four (4) Minutes are appendices to this decision. The Minute dated 17 March 2016 confirmed that the Respondent admitted both charges. Directions were subsequently issued, setting this matter down for a Penalty Submissions Hearing at the Distinction Hotel on Wednesday 23 March 2016.

[8] Mr Irving tabled two signed authorities from the Racing Integrity Unit (RIU) to proceed with the charges against Mr Walker. Copies of the Informations, the appropriate notices to the various parties, and the appointment of the Judicial Committee have also been received.

FACTS

[9] Prior to the hearing, a number of documents were circulated to all parties, including the RIU’s Summary of Facts which outlined the circumstances from which the charges arose. The salient points of the Summary of Facts stated:

The respondent David James WALKER is a Disqualified Person under the Rules of New Zealand Thoroughbred Racing (NZTR). He was disqualified for five and a half years effective from the 19th September 2014 for serious racing offences. He is 40 years old and has been involved in the racing industry for the majority of his life.

On Thursday 14th January 2016 RIU Investigator Simon Irving and RIU Manager Integrity Assurance Neil Grimstone went to the property of NZTR Licensed Trainer Gloria Kenny at 1785 State Highway 1, Marton.

At 7.45am investigators observed both the respondent and NZTR Licensed track-rider Tracy Kenny riding two horses, walking from the training track toward the stable complex.

Upon seeing the investigators approximately 20 metres ahead of him, the respondent turned his horse around and proceeded to trot back the way he had come. Both Investigator’s yelled at the respondent “Stop David”, “David, we need to speak to you” and “Don’t be stupid David, stop.”

The respondent continued riding away from investigators down a laneway, opening two gates as he did so before galloping further away. The horse was located untethered in a paddock some distance away.

Tracy Kenny was spoken to and identified David Walker as the person riding track-work with her. In explanation she stated that she’d asked the respondent to help ride the horse ‘CASINO’ and he’d been there for the last four days to help work him. She also confirmed that she had heard the investigators tell the respondent to “stop”.

A short time later Gloria Kenny arrived at the property. She was informed of what had occurred and admitted that the respondent had ridden some of her horses in track-work on her track. She stated that she paid the respondent cash for doing “farm work”.

The respondent could not be located that morning and was therefore not spoken to about the incident.

At 12.45pm on Friday 22nd January Investigator Irving went to the Respondents home address to speak to him and serve the Information. As a result of Mr Irving’s visit, Mr Walker was served the Information.

DECISION

[10] As noted in the Minute dated 17 March 2016, the charges are admitted and the Committee find the charges proved.

INFORMANT’S PENALTY SUBMISSIONS

[11] For the RIU, Mr Irving submitted written submissions that covered the following points:

It is expected that licence holders will at all times act professionally, properly and honestly. Good character is one of the conditions upon which a Rider’s Licence is granted.

Disregard for a JCA sanctioned disqualification and a failure to comply with the direction of an official must be viewed seriously and any penalty must act as a deterrent to others.

Penalties are not retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.

It is the Informant’s position that, having regard to all factors, a disqualification of six months on the first charge and a disqualification of three months on the second charge is appropriate.

In regards to the second charge it is submitted that a period of disqualification is more appropriate than a monetary penalty which may unduly affect the Respondent’s family and personal circumstances.

In support of penalty I refer to three recent decisions:

RIU v AJ Couchman (14 March 2016) - Couchman, a disqualified NZTR track rider, was found riding track work for a Class B trainer. Couchman admitted the breach and received the minimum six months additional disqualification and ordered to pay $350 JCA costs.

RIU v A Lynch and P Screen (14 March 2016) - the HRNZ disqualified person Lynch was twice found on the property of harness trainer Screen. Lynch received the minimum six month additional disqualification for each breach and ordered to pay costs of $1000 to the RIU and $1000 to the JCA.

RIU v T Campbell (19 January 2016) – Campbell, a NZTR track rider, failed to comply with the direction of an Investigator to attend a facility for the purpose of a drug test. She admitted the breach and received a nine month suspension. As the hearing was on a race-day, no costs were sought.

In addition, the RIU are seeking costs of $650.

MITIGATING FACTORS

The Respondent has admitted both breaches, albeit at a late stage of proceedings.

AGGRAVATING FACTORS

The respondent has been involved in the racing industry for the majority of his life and is an experienced senior rider. It is obvious from the reaction of the Respondent to RIU investigators that he was fully aware of the implications of his disqualification - that he was not permitted to ride track work at the Kenny’s - yet he chose to ignore the sanction.

The Respondent was clearly identified by name and as he turned his horse around was loudly instructed to stop by both RIU investigators. Tracey Kenny who was riding beside the Respondent at the time stated that she heard the investigators instructing “David – stop.”

The Respondent left the horse he was riding untethered in a paddock at the back of the Kenny’s property. This caused concern to the Kenny’s who had to locate and retrieve the horse which was unharmed.

A business card was left with both Gloria Kenny and the Respondent’s wife Vicki Walker with instruction for the Respondent to make contact with Investigator Irving to progress the matter. No contact was initiated by the Respondent. A week later when Irving went to serve the Information on the Respondent at his home address was handed the charging documents.

The Respondent’s actions placed Gloria and Tracey Kenny in a difficult and somewhat embarrassing position. Gloria was charged for permitting a disqualified person to work horses for her and received a $500 fine. Tracey was initially charged with associating with a disqualified person, however the charge was withdrawn in lieu of a formal warning. Both Kenny’s, long time family friends of the Respondent and his family, were compromised by their loyalty to the Respondent and their obligations under the NZTR Rules.

Following the completion of the investigation it became apparent that many industry participants were aware that the Respondent was continuing to ride track-work since being disqualified. This sends the wrong message to the industry - that JCA imposed sanctions only apply to the ‘public arena’.

COSTS

Although the intervention of Dr Molloy has seen the Respondent now admit the charges, the hearing process has been prolonged. With the Respondent’s engagement of Counsel Mr Hart the RIU responded by also engaging legal representation and preparation for a defended hearing was commenced. The cost of these legal fees to the RIU is $650, this being a discounted rate as to the total time accrued.

CONCLUSION

Given the mitigating and aggravating factors as listed and the overall circumstances considered in this case, I believe a further total disqualification of nine months and costs of $650 to the RIU is an appropriate penalty.

[12] In addition to his written submissions, Mr Irving stated that the RIU were not seeking a financial penalty upon Mr Walker. In response to a question from the Committee as to the reason why the RIU decided to engage legal counsel at an early stage in proceedings, he advised that Mr Brian Dickie of Meredith Connell had been engaged in reaction to Mr Walker seeking the services of Mr Barry Hart. Mr Irving emphasised that the costs sought, some $650, were a discounted rate and did not represent the full amount. He also submitted the invoice for Mr Dickie’s services to the committee.

[13] He confirmed the position of the RIU in that they were seeking the two (2) periods of disqualification to be served cumulatively, so a total disqualification period of nine (9) months. He submitted that this would hold Mr Walker to account for his actions.

RESPONDENT’S PENALTY SUBMISSIONS

[14] The Respondent’s Lay Advocate Dr Molloy submitted written submissions which covered the following points:

The Respondent David James Walker has admitted the charges as per the information laid, and this admission is so that he might “move on“ and diminish the costs, time, and stress involved to all parties, particularly to his young family.

The Summary of Facts is acknowledged but not generally supported in their entirety but because the charges have been admitted it’s something of a distraction from the crucial issues to debate or refute in detail the facts as described.

The penalties are clear and appear to be non-negotiable although we'd like it noted that a further disqualification does seem absurd when a suspended sentence would be perfectly adequate given the treatment of Walker to date, and the arguably excessive penalty he has already been burdened with.

Before we enter into our own background comments we'd like to address the RIU submissions.

The RIU submits that license holders must be of good character and act professionally at all times. That is not in dispute although how Walker can be licensed and disqualified simultaneously is of curious interest.

To suggest Walker was non-compliant with an official’s directives is in fact correct, but the actions need context and given the historical circumstances it's of little surprise that Walker chose to ignore the RIU investigators who'd arrived at daybreak to inflict further insult and injury to a young man who'd been guilty of nothing more than a misguided wish to provide for his young family.

The RIU selectively identifies three compare and contrast penalties. Our comments follow.

1. Cleghorn and Couchman were given warnings before action proceeded.

2. Lynch and Screen were given a warning prior to reoffending which resulted in action being taken.

3. Campbell is odd given that it has no obvious relationship with these charges and the culprit was given a modest suspension for drug related offences.

The RIU very conveniently neglects to mention the RIU v. G Bull case of 23/05/2013.

This case is remarkably similar to Walkers original transgression in every aspect except that Bull received a penalty of fourteen months compared to the seven years (reduced to five and a half) inflicted upon Walker.

We would urge the panel to scrutinize the Bull case microscopically, and the appeal of the same dated 4/11/2013 because that will be a critical part of this submission.

Walker has admitted the charges and wishes to “move on”.

The JCA should ignore the immediate history and the complicated involvement of Barry Hart.

Walker has come to realize that as of now the system doesn't actually afford him any “blue sky”, hence the guilty plea.

The aggravating factors as described by the RIU should perhaps be considered but ignored.

Walker’s decision not to comply was regrettable, but any reasonable person would surely ask why would he or should he stop when two apparently hostile investigators make demands of him that will inevitably lead to further unnecessary and unwarranted stress and hardship on his young family.

Walker might be described as a simple uncomplicated young man given his two dimensional racing life, but he's no fool, in fact he's in year two of a four year degree in computing, and he has a degree of pride left despite the battering he's had from the RIU in recent years, and it's that pride and dignity that persuaded him to unwisely ignore the RIU investigators and trot off that morning of January 14th.

We note also that the RIU makes great store of the fact Walker left his mount in the paddock whilst he “went bush“. We point out that the horse was unsaddled, the bridle was removed, it was a nice summer’s morning, and the animal was left to graze happily in the paddock, as horses do.

The Kenny’s did display loyalty to Walker, and it placed them in an invidious position, but many would say loyalty is a precious commodity, and circling the wagons around a friend being (as they see it) victimized is admirable in the extreme.

It's noted that the Kenny fine of $500 has been crowd funded through Racecafe, and that is a fair indication of the prevailing disenchanted sentiment that prevails within the wider racing community with regard to this case.

I doubt the Kenny’s have any regrets actually, other than that a dear family friend who's fallen on hard times has once again been the subject of what appears to be victimization on their property.

Our summary of events.

In the first instance Walker had inflicted upon him a manifestly excessive penalty of seven years for an unfortunate transgression that brought shame on him as an individual, on his colleagues, and on the industry.

When the initial penalty was applied the RIU invited the JCA to use Eddie “betfair” Ahern as a global measure, and that no doubt influenced the panel and the penalty imposed, but what the RIU didn't tell the JCA then was that Ahern transgressed on ten occasions, over multiple betting platforms, and one single bet alone was for fifty thousand pounds. The comparison is thus absurd and it was misleading in the extreme. That initial penalty was of course reduced to five and a half years on appeal.

To convert the penalty to dollars, in order to give it some scale, Walker, his wife, and their two beautiful young daughters were given a fine of some five hundred and sixty thousand dollars in lost riding fees, but in effect a lifetime fine with a career destroyed, a career demolished, forever. There is no proportion here between the crime and the punishment.

This is draconian in the extreme and the absurd penalty simply doesn't stand scrutiny when compared to Denis Quirke, the high ranking official and chief handicapper who transgressed not once, but a dozen times, who spent more money than Walker but won a similar amount, yet he only received a ten month disqualification, he continued with his employment until late February, his professional career is intact.

We invite the panel to carefully consider why a licencee should be so brutally punished when a high ranking official who arguably should know far better is given a penalty that is less than ten percent in magnitude. It's inexplicable and sends the wrong message to the industry.

You gentlemen have a chance today to show the racing industry where the Justice is.

The second compare and contrast case is that of Gavin Bull. Bull, for all intents and purposes, did what Walker is alleged to have initially done, he backed other horses to beat his own runner, and he was found guilty of not giving his own horse every opportunity to win.

There is no fundamental difference between the two events other than that Bull was an amateur and thus a penalty didn't impact on his life to the degree it has on Walkers. Bull got fourteen months, it was appealed, but the appeal was unsuccessful.

Is it any wonder Walker is bitter and disenchanted, so uncooperative, when he is so disproportionately treated in terms of penalty?

As a person Walker is both incredibly simple and extremely complicated, but this should never be about personality or demeanour.

He has an earthy perspective of life, a legacy of a life of hard work and a dangerous career choice, that's the simple side of the man. His complicated side is his attitude to others.

David isn't a sociable chatty or charismatic person, he might in fact be accused of being insular and a touch self-absorbed, and that doesn't always endear him to others or cast him in a positive light, but we’re not all peas in a pod and David shouldn't be judged or penalized because he's “difficult” and misunderstood.

To his credit, and I cannot emphasise how significant and admirable this is, and how proud his family and the racing industry should be of him, David is now in the second year of a four year degree in computing. Here's a young man whose career was demolished, destroyed, but he has picked himself up by the laces and endeavoured to create a plan B in his shattered life.

Along the way he's worked without pay, but on a barter system, for the Kenny’s, dear friends who've supported him on a reciprocal basis for the length of his working life.

So one day, or to be exact on the odd day spread over a few months, Walker obliged his dear friends by riding the odd difficult horse work, for no material reward, but because his dear family friends, a sixty nine year old widow and her forty five year old daughter, didn't have to risk their own life and limb on a difficult animal.

Why didn't the RIU make a phone call and advise Walker or Kenny they were in breach and that a simple application to be allowed to ride work on the property would've resolved and ameliorated the matter.

If it's good enough to verbally warn Cleghorn and Screen for identical breaches why couldn't the Kenny/Walker axis be treated in an identical fashion?

Why could the RIU not ring me (or the Trainers Association) given that I have a good relationship with them and ask that I ring Walker, advise him that he was transgressing in a minor way, and allow me to assist him with advice on how to comply and obtain permission to ride on a private property as Jason Waddell has.

This entire chapter is nothing more than smashing walnuts with a sledge hammer and we'd respectfully ask the JCA to see it that way and to interpret Walker’s actions and reactions accordingly.

To conclude our overview we invite the JCA panel to consider carefully the directives of the Attorney General and the guidelines for prosecution.

Given that it's clear under the Racing Act, S31, that the rules of racing are subservient to the rules of the land you can reasonably argue that the Attorney General’s guidelines for prosecution apply here, S 5.1.2, prosecution ought to be initiated or continued only where the test for prosecution is met.

In summary then. Walker’s initial penalty doesn't stand scrutiny. He's disenchanted and understandably feels victimized, just because he's David Walker. He's largely uncooperative because he's a proud man who feels abused and abandoned by the system. He now wishes to “move on“.

He's mid-way through a degree in computing. He has a young family to feed and give shelter to. And herein lies the challenge to the JCA panel. Mr McKechnie has of late shown that he's prepared to abide by the spirit of the rules and depart from a literal interpretation. Your challenge today gentlemen is to do the same.

Walker carries a heavy burden. He doesn't deserve to be here today, and we throw ourselves at your feet and ask for two things only.

1. Compassion and understanding, then translate that into the absolute minimum penalty.

2. That you acknowledge today that you will support an application for Walker to apply to ride work, on designated private properties, under supervision, as soon as we can process the appropriate application. The RIU has said they will not oppose this proposition. We require the JCA support on this matter because it is your body that had imposed the penalty of disqualification.

We implore you to see the human element of this chapter gentlemen, understand the complicated personality of the respondent, and facilitate his rehabilitation because he’s a good man, a good family man with a loving wife and two beautiful young daughters, he’s a very good rider, a hugely valuable industry asset, but his life has been torn apart by virtue of one stupid action that he regrets immensely, and will regret for the remainder of his working life.

Please do not add to the ludicrous burden he carries already but rather lighten the load and help a good young man, and his family, in his time of need.

Penalty submissions & recommendations;

Clearly we favour no significant penalty despite the fact we've entered a guilty plea. Should the JCA elect to impose the minimum penalty under the first charge we'd then ask please that any additional penalty for the second charge is concurrent.

We also ask that the panel thinks laterally and investigates any possibility of a suspended sentence for the first and second charges.

We ask please that no monetary fine be imposed given the extreme financial penalty the respondent has already been burdened with. The RIU’s modest application for costs are not contested.

We thank you kindly for your consideration and understanding. Finally we include two indicative letters of support for Walker from industry heavyweights.

[15] Dr Molloy tabled the two letters from senior Trainers Gary Vile and Michael Pitman in support of a programme of rehabilitation for Mr Walker.

[16] In addition to his written submissions Dr Molloy also identified that it was clear that Mr Walker could have approached things differently. He could have applied for a dispensation as other disqualified persons had done, in the absence of resistance from the RIU.

[17] In response to a question from the Chairman, Dr Molloy conceded that the Attorney-General Guidelines for Prosecution were largely irrelevant to the matters before the committee as Mr Walker had admitted both breaches, and as such, pursuing an argument as to whether such charges should be laid under the ‘greater public good’ dimension of the Guidelines was no longer timely.

[18] Further, he re-emphasised the need for Mr Walker to be rehabilitated, that marginalising a skilled asset was not in the industry’s best interest, and as a result an application for Mr Walker to seek some form of exemption would be likely to be pursued.

[19] In relation to the costs being sought by the RIU, he noted that from his experience there had often been a desire for the RIU to ‘lawyer up’ in some situations, that largely seemed to depend on the personalities that may be involved.

[20] Dr Molloy summarised Mr Walker’s behaviour as in response to how he was treated by the RIU. He referred to the very recent case of RIU v O’Sullivan and Scott where there was an aspect of non-co-operation and raised the difference between a farmhand being a non-co-

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