Non Raceday Inquiry RIU v G Vile – Reserved Decision dated 31 January 2017 – Chair, Mr T Utikere

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decisiondate: 31/01/2017

hearing_title: Non Raceday Inquiry RIU v G Vile - Reserved Decision dated 31 January 2017 - Chair, Mr T Utikere

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE A NON RACEDAY JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER OF The New Zealand Rules of Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)

Informant

AND GARY VILE

Class A Licensed Trainer

Respondent

Judicial Committee: Mr Tangi Utikere (Chairman)

Mr Noel McCutcheon (Member)

Appearances: Mr Steve Symon (Counsel for the RIU)

Mr John Tannahill (Counsel for the Respondent)

In Attendance: Mr Gary Vile (as the Respondent)

Mr Simon Irving

Mr Gordon Jack

Ms Karena Wilson

Mr Brian Bateup

Mr Alasdair Robertson

Mr David Howarth

Registrar: Mr Darrin Balcombe

Hearing: Wellington Airport on 24 January 2017

RESERVED DECISION OF NON RACEDAY JUDICIAL COMMITTEE

Dated 31 January 2017

Facts

[1] Mr G Vile, a Licensed Trainer, has been charged with breach of Rule 340 of the New Zealand Thoroughbred Rules of Racing.

[2] Rule 340 states: A licensed person, owner, lessee, racing manager, official or other person bound by these rules must not misconduct himself in any matter relating to the conduct of races or racing.

[3] Information A4189 alleges a breach of Rule 340 by Mr Vile. The specific allegation is that: "on 3 December 2016 being a Class A Licensed Trainer did misconduct himself by verbally abusing and threatening to assault Red Badge Security Guard Gordon Jack at the Wellington Racing Club's meeting at Trentham on the 3 December 2016."

[4] Following a Telephone Conference with all parties, a Minute dated 9 January 2017 attended to some of the procedural matters for this hearing; which was set down as a defended fixture in Wellington on Tuesday 24th January 2017.

[5] At the conclusion of the hearing the committee indicated that it would issue a Reserved Decision, which we are now in a position to do.

Procedural Matters

[6] Acting for Mr Vile, Mr Tannahill, confirmed that Mr Vile did not admit the breach.

[7] There were also procedural matters that counsel wished to raise with the committee.

Late Disclosure and Admissibility of Subsequent Evidence

[8] Mr Tannahill explained that on the day prior to this hearing in the afternoon he received further Disclosure from the RIU namely an amended Brief of Evidence for Mr Simon Irving and accompanying photographs. The photographs appeared to be taken on 14 January. He drew the committee's attention to the contents of the Minute dated 9 January 2017 which made it clear that the RIU had at that point confirmed that all Disclosure had been provided to counsel. He submitted that to receive further Disclosure at such a late stage was completely unacceptable. For the RIU, Mr Symon accepted that the items were late Disclosure. He advised that all Disclosure had been provided, however as a result of conversations with Mr Irving on 19 January, existence of the photographs had come to light and the decision was made to send them through as late Disclosure as they could be of assistance to all parties including the committee. He stated that if the committee was of a mind to determine that they could not be used then they would not have a significant impact on the Prosecution's approach.

[9] The committee determined that the provision of late Disclosure was far from ideal, but accepted that the photographs may be of assistance to all parties and allowed Mr Tannahill a brief adjournment to confer with his client before making an informed submission on this matter. When he returned from the adjournment he advised that after discussions with his client he accepted that the pictures will be of help to all parties. The committee therefore ruled that while the photographs and the subsequent amended Brief of Evidence were late items of Disclosure they were able to be placed before the committee as part of the hearing.

Hearsay and Admissibility Issues

[10] Mr Symon indicated that during the Teleconference on 9 January 2017, Mr Tannahill raised a concern regarding potential hearsay evidence being called by the RIU. Mr Tannahill advised that he still objected to possible hearsay evidence being called and wished for his objection to be formally noted.

[11] In response to this possibility, Mr Symon had prepared detailed written submissions in the form of a Memorandum on the rationale for having such evidence determined as admissible at this hearing.

[12] He referred the committee to Rule 915 of the New Zealand Thoroughbred Rules of Racing which states:

915(1) Where at the hearing of an information both the informant and the defendant appear, the following provisions shall apply:

...

(b) The judicial committee may, in its discretion, admit any evidence it deems relevant whether admissible in a Court of Law or not;

...

[13] With reference to s4 of the Evidence Act he also submitted that a hearsay statement is edited as a statement that was made by a person other than a witness, and is offered in evidence at the proceeding to prove the truth of its contents.

[14] Mr Symon stated that if Mr Tannahill objected to the fact that the evidence of witnesses contain prior consistent statements of the complainant, then the position of the Informant was that the statements were admissible by reference to s35 of the Evidence Act. In short, such a statement would only be admissible to the extent that it was necessary to respond to a challenge to the witnesses' veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness. Such a statement would only be admissible if the circumstances relating to that statement provided reasonable assurance that the statement was reliable and the statement provided the committee with information that the witness was unable to recall.

[15] Mr Tannahill, in response, submitted that he still objected to the admissibility of the evidence as it was 'basic hearsay'.

[16] After considering submissions, the committee ruled that the statements were to be admitted into evidence. The committee is able to determine its own processes , and as referred to by the RIU, we may determine admissibility issues based on relevance. There may be an issue over the contestability of the evidence we are about to hear. This is why the admissibility of such evidence will be important as it may assist the committee in determining potential issues of witness credibility. Fundamentally it is our view that the admissibility of such evidence will not prejudice Mr Vile, as counsel will have the opportunity to cross-examine witnesses on the evidence they give and to put any alternative perspectives to the witness to assist the committee in reaching views around veracity and credibility.

Witnesses

[17] Mr Symon advised that it was his intention to call five witnesses: Mr Gordon Jack, Ms Karena Wilson, Mr Brian Bateup, Mr Alasdair Robertson and Mr Simon Irving. He said that all were present and available to give evidence. Mr Tannahill indicated that he may call Mr Vile and Mr Haworth, but that he would make that determination based on the prosecution's case.

[18] The Chairman gave an order directing all witnesses to leave the hearing and to be out of hearing but within call. Permission was granted for Racing Investigator Mr Irving to remain in the hearing, as the lead investigator.

The Informant's Case

[19] Mr Gordon Jack gave evidence. He stated that he was 52 years of age and was employed part time for Red Badge Security. He had a Private Security Accreditation and had worked for Red Badge Security since 2008. He had tertiary qualifications and was also currently employed as an Optics Engineer for Higgins Concrete. On Saturday, 3 December 2016 he was working for Red Badge at Trentham racecourse, where he was stationed at an entry point to the stabling area. Two photographs labelled Exhibit 1 and Exhibit 2 were produced to assist all parties with the location of the alleged offence.

[20] He confirmed that he was in uniform and was displaying his Certificate of Approval. He had been stationed at that location on one or two previous occasions and was in position at approximately 10:50am on the day. He had been briefed by his supervisor, Karena Wilson, who had the communications designation of 'Control' for the day. The briefing took place in the morning, and she had indicated that everyone had to show accreditation to gain access to the stables. Even if they were carrying a saddle she told Mr Jack that they must still show a pass to gain access.

[21] He stated that the alleged altercation with Mr Vile took place at approximately 12:30pm. He had observed a man coming towards him with a saddle and from approximately three metres away he had asked the man "can you show me your accreditation please?". The man's response was that he didn't need a pass and that he tried to physically push Mr Jack out of the way telling him to "get the f*** out of the way, I will smash you to the ground". Mr Vile had then eventually reached into a pocket, got his accreditation, and waved the pass directly in front of his face. He then let him through the gate.

[22] Mr Jack believed that he had politely asked to see his accreditation so he contacted control immediately after the event. He had told Ms Wilson that he had been assaulted and threatened with a bashing to the ground. He had subsequently gone to the stabling area and looked left and right. While there he noticed stipendiary steward Mr Brian Bateup. He approached Mr Bateup and he had recounted the incident to him and told him that he wanted something done about it. When he had pointed the man who had allegedly assaulted him out to Mr Bateup, he had been given the name "Gary".

[23] Mr Jack advised the hearing that when Mr Vile returned some minutes later he had told him "you picked on the wrong person and will regret it." Mr Jack did not respond to those alleged remarks. Ms Wilson then arrived at the site with Red Badge Management and Mr Jack went through what had happened with them. Shortly after, Mr Alistair Robertson and Mr Simon Irving arrived as well.

[24] He then went back to write a statement down within 10 to 15 minutes of the alleged incident. He stated that he felt as if he was in a state of shock as this was not a member of the public who behaved in this way towards him and the purpose of writing his report was to have something done about it. He did not believe he provoked or acted in a way to warrant such a response.

[25] Mr Symon then asked that the statement prepared by Mr Jack on the day be entered into evidence. Mr Tannahill objected to this, citing that such a statement was nothing more than self-serving to the witness.

[26] After consideration the committee determined that Mr Tannahill would have the opportunity to challenge the veracity of the statement by way of cross-examination. Accordingly the committee ruled that the statement could be entered into evidence and was labelled as Exhibit 3.

[27] Mr Jack advised the hearing that later in the day he was positioned back on the gate. He had seen Mr Vile as a result of that later positioning and stated that Mr Vile called him a "dick head". He did not recollect Mr Vile passing through at any other time in the day however he stated that Mr Vile could have been through without his knowledge but he could only recollect two times on the day in question.

[28] Under cross-examination from Mr Tannahill, Mr Jack confirmed that the photographs (labelled Exhibits 1 and 2) were taken the next time that he was stationed at Trentham, not on 3 December 2016. Mr Irving had taken the photographs and had asked Mr Jack to stand in the position at the time of the alleged incident. He stated that Mr Irving had not played a recording of an interview with Mr Vile nor did he tell him Mr Vile's version of events. Further, he confirmed that he had not seen any transcript of any interview that had taken place between Mr Vile and Mr Irving.

[29] Mr Jack expressed surprise that Mr Vile had denied that the incident had occurred. He confirmed his observation that Mr Vile was carrying one saddle when he approached Mr Jack and that he had asked him politely for accreditation. He rejected the suggestion that his tone was unreasonable. He also did not recall any mention of a bag of bananas by Mr Vile. Mr Jack was simply standing in his position and did not move. He did not grab Mr Vile's arm, he did not push Mr Vile and he was not aware of the saddle falling on the ground. He labelled Mr Vile as the aggressor.

[30] In response to Mr Tannahill's on-going cross-examination, he said that he knew nothing about a lost saddlecloth. He confirmed that approximately four minutes after the alleged incident Mr Vile had come back through the gate. Mr Jack labelled Mr Tannahill's alternative view that he had hidden a saddlecloth that had fallen on the ground as a complete fabrication.

[31] He reiterated that Mr Vile had pushed him out of the way and then threatened him with violence. He said that had Mr Vile offered a reason as to why he could not show his accreditation then he would have listened to him. He confirmed that after two to three requests Mr Vile eventually showed him his accreditation.

[32] Mr Jack had asked, or had attempted to ask, for accreditation from all people on the day and he could not remember an incident involving Mr Howarth. Mr Vile was the only person with whom he had any problems on that day. He confirmed that Mr Robertson had asked him if he had physically touched Mr Vile to which he had advised that he had not touched him.

[33] Under re-examination from Mr Symon, Mr Jack confirmed that he did not know what the point of a missing saddlecloth was in relation to this hearing and that he had worked at Trentham since the last incident and had seen numerous people since that time.

[34] In response to questions from the Chairman, Mr Jack confirmed that there were boards located on the racecourse indicating the accreditation requirements and that he had previously worked at another race track as part of the RACE Inc group, namely Otaki, so was familiar with accreditation requirements.

[35] Ms Karena Wilson gave evidence. She confirmed that she worked full-time as the Operations Manager for Red Badge Security. She had been in that position for 18 months, having previously been employed as a bank manager for BNZ. She was the designated event manager at Trentham on 3 December 2016 with the call sign 'Control'.

[36] Mr Jack had contacted her via RT and had advised her that he had "just been verbally assaulted and told I would be f***en smashed". She confirmed that this communication was not received via a closed network, so 46 staff had heard the communication on the day. She believed Mr Jack had been trembling and that it was quite unlike him and that perhaps he was in a state of shock.

[37] She went on to notify the stipendiary stewards with her Regional Manager, Pete Gill. She had also made contact with RACE employee Mr Kim Treweek who also provided assistance before she went to the stabling area. Upon arrival, she said that Mr Jack had taken her through what had allegedly occurred step by step.

[38] She confirmed that she had gone through some briefing notes with all teams in the morning and that she told Mr Jack that all personnel wishing to gain entry into the stabling area would be required to produce accreditation. She had also written a statement and that item was produced as Exhibit 4.

[39] Under cross-examination, Ms Wilson confirmed that she was not present when the alleged incident at the gate happened. Mr Tannahill put it to her that as such, she was not in a position to know what had actually happened. She said that Mr Irving, as part of his investigations, had not told her that Mr Vile's version of events was different from that of Mr Jack. She also accepted that there was no mention of physical contact between the two men in her report, but rather that Mr Jack had been verbally assaulted.

[40] Under re-examination, with reference to the RT communications, she recalled that Mr Jack had talked about being verbally assaulted, that her report was a summary of the events on the day and that the responsibility for the full recording of events as they were alleged to have occurred lay with Mr Jack.

[41] Mr Brian Bateup was called as a witness. He confirmed that he had been a stipendiary steward for approximately 25 years, having been a jockey prior to that. His role was largely as an outside steward; checking brands, markings, gear and general liaison with licence holders. He was working at Trentham on 3 December 2016.

[42] After Race 1 had been completed he was preparing for his associated duties for Race 2. Once all jockeys had weighed out, he went to the stabling/saddling area. As he was walking to the stabling area, a security guard had approached him and told him "I've just been abused, I want something done about it". The guard had pointed to Mr Vile in the stabling area, identifying the person who had alleged abused him. Mr Bateup described the security guard's demeanour as being upset.

[43] Mr Bateup then continued with his duties in preparation for Race 2, when Mr Vile approached him and said "I'd like to make a complaint; I've just been manhandled." Mr Bateup confirmed that he had no contact with Mr Vile or Mr Jack before the alleged incident, and that Mr Jack appeared upset to the stage that he appeared affected.

[44] Under cross-examination, Mr Bateup said he knew nothing about a missing saddlecloth. He confirmed that Mr Vile approached him and that he did not appear upset. He had passed on the information he had received to Mr Irving as soon as Mr Bateup had returned to the birdcage. Mr Bateup was able to confirm that one of Mr Vile's horses, JACKSTARR, was always led to the start by the Clerk of the Course. He further stated that he was very busy with his duties on the day.

[45] Mr Symon had no re-examination of Mr Bateup.

[46] Mr Alasdair Robertson was called as a witness. He confirmed that he was the CEO of RACE Inc., responsible for Awapuni, Otaki and Trentham racing venues. He had been in that role for three years and was responsible for overseeing the operations of all three venues. He was at Trentham on 3 December 2016.

[47] He recounted that he had had a discussion with Mr Vile in the Weighing Room at approximately 12:30pm on that day. Mr Robertson described Mr Vile as being upset at the time, that he advised him that Mr Jack had grabbed his arm, that he had had enough and was going to press charges. Mr Robertson told Mr Vile to slow down with his explanation of the alleged incident, but it was clear to him that Mr Vile was displaying an upset demeanour.

[48] Mr Symon asked the witness about the nature of the conversation with Mr Vile when he was told to slow down. In response, Mr Robertson could not remember specifically what Mr Vile had said to him during the conversation that led to Mr Robertson responding with "don't threaten me". Upon reflection, he said couldn't tell the committee that he had actually been threatened by Mr Vile, only that the he had responded with "I'll threaten you if I want to".

[49] Mr Robertson then saw Red Badge Security Regional Manager Mr Peter Gill before proceeding to see Mr Jack. When he arrived, Mr Robertson had asked Mr Jack if he had physically touched Mr Vile, to which he responded no. Mr Robertson then asked Mr Jack if he had been in Mr Vile's face, to which Mr Jack responded no but that "he was in my face". When asked to describe Mr Jack's demeanour at the time Mr Robertson described him as being calm, while he described Mr Vile as being upset and that Mr Jack did not appear upset to him. He also confirmed that Mr Vile used swear words during exchanges on the day.

[50] Under cross-examination, Mr Robertson was asked about a missing saddlecloth. He confirmed that he had found the saddlecloth when he went down to observe Mr Jack after the alleged incident had been bought to his attention. He advised the committee that his reason for going to see Mr Jack was to observe his demeanour and to provide some coaching around how to interact with licence holders.

[51] Using the photographs (Exhibits 1 and 2), he indicated where he located the missing saddlecloth. He confirmed that Mr Jack was in position on the nearby gate when Mr Robertson had observed that the saddlecloth was on the ground. Mr Robertson simply picked it up and returned it to Mr Robin Tapp, the Clerk of the Scales. The witness was unable to specifically recall when this occurred, but that he had had discussions with Mr Jack prior to collecting the saddlecloth from the ground.

[52] It was the witness' view that Mr Vile was adamant that he had been assaulted, and Mr Jack was adamant that he had been verbally assaulted. Mr Robertson accepted that there were no independent witnesses to the incident and confirmed that he was not in a position to know who was right and who was wrong. He was also not aware of the contents of any interview with Mr Irving.

[53] Upon re-examination, Mr Robertson confirmed that he collected the saddlecloth from the ground but that he was unaware if Mr Jack had observed him collect it. The first time he had been to see Mr Jack was with Peter Gill. When Mr Robertson went to see Mr Irving he was in the Oaks Room. Mr Robertson was fairly certain that he went into the Stipendiary Stewards Room to indicate something had happened as the Stewards replied that they were aware of it and that Mr Irving was in the process of interviewing. He confirmed that he definitely found the saddlecloth whilst on his second visit to Mr Jack.

[54] In response to a question from the committee, Mr Robertson said when he returned the saddlecloth to Mr Tapp, it was clear to him that it was missing and that they were looking for it.

[55] Mr Simon Irving was called as a witness. He confirmed that he was a designated Racing Investigator employed by the RIU based in the Central Districts. Prior to taking on this role he had been a Detective Sergeant in the New Zealand Police with 17 years experience.

[56] He confirmed that he was at Trentham on 3 December 2016 and had been approached by Mr K Treweek at approximately 12:45pm regarding an alleged incident between Mr Vile and Red Badge Security Guard Mr Gordon Jack. At approximately 12:50pm he arrived in the control room where he found Mr Jack writing his report. He confirmed that Brian Bateup had also mentioned the incident to him in his capacity as a Racing Investigator.

[57] Mr Irving had never met Mr Jack before but he observed him to be quite upset, and in some form of mild shock. He had explained the process to Mr Jack and indicated that he would be in contact with him further. He spoke with Mr Vile at approximately 4:30pm near the birdcage and told him that he would need to speak to him about this at some stage. As Mr Vile had horses at Waipukurau the next day, they tentatively booked an interview for Tuesday 6 December at 11am at Mr Vile's Awapuni stables.

[58] The transcript of the interview was produced as Exhibit 5, and at Mr Tannahill's request, the full audio of the interview was played to the committee as part of the hearing. At the conclusion of the audio, there was a minor edit to the transcript made upon the request of both parties.

[59] On Saturday 10 December Mr Irving informed Mr Vile that he had been charged with misconduct. He also confirmed that the photographs (labelled Exhibits 1 and 2) were taken by him at Trentham on 14 January 2017.

[60] Under cross-examination, Mr Irving was asked why Mr Jack was in the photographs that were taken on 14 January, to which Mr Irving replied that he was working on the gate. He confirmed that he had taken the photographs with the possible intention of producing them at the hearing. He also confirmed that Mr Vile was cooperative during the interview process and that although he then became aware of Mr Vile's version of events, it was not his practice to put Mr Vile's version to Mr Jack.

[61] He also believed that the missing saddlecloth had limited relevance to Mr Vile's behaviour and that it certainly had no relevance to the behaviour of Mr Jack. Mr Tannahill asked Mr Irving why it was not important to talk to Mr Jack about the saddlecloth, and Mr Irving, in response, confirmed his view that he did not believe that it was relevant. Further, he was asked that if he had got the impression from Mr Vile that the saddlecloth had been hidden, why did he not follow it up; suggesting that that would be of relevance to the credibility of a witness. Mr Irving conceded that he guessed it could be.

[62] When questioned as to why there was no independent corroborative evidence whatsoever, Mr Irving stated that the corroborative evidence were the actions of Mr Jack, immediately after the incident in drafting a report and speaking to other witnesses. Mr Tannahill put it to Mr Irving that Mr Vile had spoken to Messrs Bateup and Robertson and to others about making a complaint, including licensed trainer Mr Kevin Gray. Mr Irving responded that he did not recall Mr Gray's involvement in this matter.

[63] Mr Irving had simply made the decision to charge Mr Vile once he had interviewed all witnesses. He did not believe that Mr Vile's conduct was corroborative of Mr Jack's conduct. Mr Tannahill posed to him that his client had simply explained to him his version of events at his earliest opportunity, which was during the interview, to which Mr Irving replied that he did not consider Mr Vile's version of events relevant.

[64] Upon re-examination, Mr Irving confirmed that nobody mentioned, in his recollection, the missing saddlecloth on 3 December and that Mr Vile was the first person to raise it as part of his recorded interview with Mr Irving at his Awapuni stables.

The Respondent's Case

[65] Mr Gary Vile gave evidence to the hearing. He identified himself as a Licensed Trainer with 30 years experience and is based at Awapuni. On 3 December 2016 he had two horses entered in Race 2 of the Wellington Racing Club's meeting: DRAGON BEAUTY and JACKSTARR. He also confirmed that the transcript of the audio interview between Mr Irving and himself was true and accurate.

[66] In preparation for Race 2 on 3 December, he obtained the saddle for JACKSTARR from its rider Mr Cameron Lammas and made his way to the stabling area. He stated that Mr Jack was on the gate and that he was carrying the saddle and walked straight past Mr Jack without being asked for any accreditation.

[67] He then went back to the Weighing Room to obtain the saddle for DRAGON BEAUTY from its rider Mr Brendan Hutton. As he was returning to the stabling area with the second saddle, Mr Jack had approached him and asked him for his accreditation. Mr Vile identified that Mr Jack was not polite in his manner when he asked to see his accreditation.

[68] Mr Vile then went to step around him, to be confronted by Mr Jack saying "Where's your accreditation?" in a tone that Mr Vile said he took issue with. Mr Jack then allegedly grabbed his arm and pushed him, which meant that his saddle fell on the ground. Mr Vile said that on his way back to the Weighing Room after this incident, he did not see any saddlecloth on the ground, but that Mr Jack was near the gate that second time.

[69] Mr Vile then spoke with Mr Bateup indicating he wanted to lay an official complaint before also talking to Mr Robertson about the incident. Mr Vile said that he also complained to fellow Trainer Kevin Gray and others in the Weighing Room.

[70] When Mr Irving arrived at his Awapuni property, he thought he was there to talk to him about his complaint, rather than being the subject of the investigation. He had taken advice from a Police Sergeant, who indicated that the Police were unlikely to get involved. He was clear in his recollection that he did not assault Mr Jack, but that he himself had been the subject of the assault and that he had complained to Messrs Bateup and Robertson in this regard.

[71] Under cross-examination, Mr Vile confirmed that he had never met Mr Jack prior to 3 December, and that he had no reason for any animosity. He understood that it was his responsibility to monitor access at that gate and Mr Vile did not dispute that there may have been signage requiring accreditation as he had seen them at other racetracks and was aware of the process.

[72] He accepted that Mr Jack was obliged to ask for accreditation as a requirement of entering the area. He disputed that Mr Jack was primarily there for accreditation checking purposes, but rather for security, health and safety. Mr Vile also disputed that he was judg

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