Non Raceday Inquiry – RIU v KW Morton heard 26 August 2015 – Decision dated 8 September 2015 – Chair, Mr M McKechnie

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hearing_title: Non Raceday Inquiry - RIU v KW Morton heard 26 August 2015 - Decision dated 8 September 2015 - Chair, Mr M McKechnie

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE
JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred
Rules of Racing

RACING INTEGRITY UNIT (the RIU)
INFORMANT

KEVIN MORTON, Licensed Trainer
DEFENDANT

Judicial Committee: Mr Murray McKechnie, Chairman and Mr Richard Seabrook, Committee Member
Present: Mr Steve Symon, Counsel for RIU, Mr Bryan Oliver, Mr Paul Dale, Counsel for Mr Morton, Mr Greg Purcell, Mr Kevin Morton, Ms Philippa Kinsey, Registrar

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE HEARING ELLESLIE RACEWAY ON 26 AUGUST 2015

DECISION DATED 8 SEPTEMBER 2015

1. FACTS NOT IN DISPUTE
1.1 Race Café is a website. Persons interested in thoroughbred racing exchange opinions and share views on this website. It was a posting on Race Café by Mr Morton on 12 January 2015 which has led to his appearance before the Committee.

1.2 Many persons who post on Race Café do so under a pseudonym. It is accepted that Mr Morton used the pseudonym midget.

1.3 On 10 January this year a race meeting was held at Awapuni. In the first race of the day the horse TOUCHE slipped on a number of occasions when approaching the home straight and almost fell. The meeting was delayed. There was a track inspection. This involved stipendiary stewards, jockeys and track staff. The senior stipendiary steward on duty on 10 January 2015 at Awapuni was Mr Ross Neal the Co-Chief Stipendiary Steward for Racing Integrity Unit.

1.4 After some delay the meeting was resumed. How the track conditions came to be as they were at Awapuni on 10 January, the delay before the meeting was resumed and the explanations given by stewards in relation to these issues was a matter of interest to many people who follow thoroughbred racing.

1.5 On the following Monday 12 January 2015 Mr Neal appeared in a television programme on the racing channel which is known as Weigh In. He was interviewed by the panellists about the events at Awapuni the previous Saturday. Mr Morton who had been watching the racing on 10 January also watched the Weigh In interview on the following Monday. At 9.49p.m. on the evening of Monday 12 January Mr Morton under his pseudonym midget posted an email upon Race Café.

1.6 Two passages in the posting on Race Café by Mr Morton are alleged to constitute breaches of Rule 801(1)(s)(ii) of the NZTR Rules of Racing. As explained in paragraph 2.5 below and in the preliminary rulings of the Committee there are now alternative charges laid under Rule 340. The first of those passages makes references to Mr Neal and his interview on the Weigh In television programme. The words complained of are as follows:

“I thought R Neal came across as incompetent and out of his depth as a Co-Chief Steward”.

Later in the same posting on Race Café Mr Morton made reference to Mr Greg Purcell the Chief Executive of NZTR. The passage said to be in breach of the rules is as follows:

“So I say enough is enough and G Purcell can sue me as I know he did not race 90 horses”.

2. THE CHARGES BEFORE THE COMMITTEE
2.1 On 16 April 2015 Mr Oliver an investigator for the RIU laid an information against Mr Morton in relation to the passage quoted above in reference to Mr Neal which had been posted on Race Café on the evening of 12 January this year. On 7 May this year Mr Cruickshank an RIU investigator swore an information against Mr Morton in relation to the words quoted above with reference to Mr Purcell posted on Race Café by Mr Morton on the evening of 12 January 2015. Both Informations were laid under Rule 801(1)(s)(ii).

2.2 The Committee held a telephone conference on 22 May this year. Mr Symon appeared as counsel instructed for the RIU. Mr Oliver was in attendance. Mr Leo Molloy a licenced trainer appeared and explained that he was a friend of Mr Morton. When asked if he was formally appearing as Mr Morton’s lay advocate Mr Molloy was uncertain and indicated that Mr Morton might seek representation by legal counsel. Mr Morton was not present at the telephone conference on 22 May. A number of directions were made at that telephone conference and in the result a further telephone conference took place on 29 May 2015. The same persons were in attendance together with Mr Morton. A question had arisen as to whether there might be an apology to Mr Neal. The RIU indicated that what had been proposed informally was not adequate or appropriate and after some discussion, as the minute records, it became apparent that no apology would be made. Mr Oliver had a part in endeavouring to secure the apology. Mr Oliver gave evidence before the Committee. When asked about the proposed apology by Mr Dale Mr Oliver told the Committee “I lost control of the file”. At the 29 May teleconference Messrs Morton and Molloy confirmed that pleas of not guilty were entered. For his part Mr Symon indicated that the prosecution would proceed in both cases under Rule 801(1)(s)(ii). Directions were issued for the exchange of briefs of evidence and for a further telephone conference to then set the time and place for hearing.

2.3 On 28 July a third telephone conference took place. In advance of the conference the Committee had received a memorandum from Mr Paul Dale of Auckland Barrister advising that he was instructed by Mr Morton. Given Mr Molloy’s historical involvement with Race Café and his litigation in the High Court with Mr Purcell it was a sensible decision by Mr Morton to instruct counsel. At that telephone conference on 28 July the Committee drew attention to a number of issues. These included evidence that might be led in relation to the number of horses raced by Mr Purcell or in which Mr Purcell had an interest, the number of witnesses who might be called, the relevance of the Weigh In television programme and relevant previous decisions of Non-Raceday Judicial Committees where licence holders had directed inappropriate language to persons involved in thoroughbred racing.

2.4 For a complete understanding of the involved circumstances leading up to the hearing of the Informations which took place on 26 August 2015 reference should be made to the three (3) minutes of the Committee dated 22 May, 29 May and 28 July 2015. Each of those minutes is attached to this decision.

2.5 On 21 August this year Mr Oliver swore two (2) further Informations. Both were laid under Rule 340. That Rule is as follows:

Misconduct
340 – A licenced person, owner, lessee, racing manager, official or any other person bound by these rules must not misconduct himself in any matter relating to the conduct of races or racing.

2.6 The RIU advised that in each case these Informations laid under Rule 340 were alternative to the earlier Informations laid under Rule 801(1)(s)(ii). For completeness we set out that rule.

A person commits a serious racing offence within the meaning of these rules who:
Either by himself or in conjunction with any other person;

At any time writes or causes to be written, publishes or causes to be published, or utters or causes to be uttered, any insulting or abusive words with reference to a Tribunal, NZTR, Committee of a club or a member or official of any such body or a stipendiary steward or investigator, or registered medical practitioner.

Rule 801(2) sets out the penalties for a serious racing offence. Any 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 twelve (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.

2.7 Mr Dale objected to the late filing of the alternative Informations. The Committee sought an explanation from Mr Symon. It was said that following the third telephone conference the RIU had further considered the position. As to delay Mr Symon indicated that this was, in part, a result of his having been on leave from his legal practice. It was accepted by both counsel that the Committee had the power to amend a serious charge to a less serious charge if the Committee thought that were appropriate. It was further accepted that the evidence in respect of the alternative Informations alleging misconduct under Rule 340 was precisely the same as that to be called in support of the more serious charges under Rule 801(1)(s)(ii). The Committee made clear that it felt the filing of alternative Informations ought to have occurred earlier but took the view that Mr Morton would not be materially prejudiced and accordingly ruled that the alternative Informations could be accepted and that the hearing would proceed with all four (4) Informations in place.

2.8 The Committee’s detailed reasons are set out in the preliminary rulings made before the commencement of the hearing on 26 August. Those rulings also address other issues. These were:

(i) The absence of Mr Neal
(ii) The playing of the Weigh In programme from Trackside T.V.
(iii) The proposed evidence of Mr Gardiner
(iv) The proposed evidence of Mr Purcell

The preliminary rulings of the Committee given on the morning of 26 August 2015 is attached to this decision and is to be read as part of the decision.

3. THE ROLE OF THE JUDICIAL CONTROL AUTHORITY
3.1 The Judicial Control is established by s.37 of the Racing Act 2003. The JCA is charged with enforcing and determining compliance with the Rules of Racing.

3.2 Reference should also be made to s.29 of the Act which imposes an obligation upon New Zealand Thoroughbred Racing to make and maintain rules regulating the conduct of racing. The section bestows a discretionary power to enact rules which provide for “all other matters relating to the conduct of….racing” that it thinks fit. Rules that are made in accordance with s.29 of the Act must be read within this limitation. Further Rule 101(1) of the Rules of Racing provides as follows:

These rules shall apply to all races and race meetings and all matters connected with racing and shall apply to and be binding on …
(c) All licenced persons.

3.3 Whether or not the subject matter of a complaint comes within the scope of a particular Rule of Racing is for the Judicial Committee to determine: see Carter v JCA & Ors High Court Hamilton CIV-2006-419-814, 7 December 2006, Harrison J.

4. BURDEN OF PROOF
4.1 The Judicial Control Authority is a domestic disciplinary tribunal. Proof of any charge under the Rules of Racing is the civil standard of proof on the balance of probabilities. The more serious the allegation the more compelling the evidence must be for that allegation to be found proven. The leading authority in relation to the standard of proof required at professional disciplinary proceedings is the judgment of the Supreme Court in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1.

5. THE CHARGES IN RELATION TO MR NEAL
5.1 It is convenient to deal with these charges first. The first information laid was that alleging a serious racing offence by Mr Morton with respect to the posting on Race Café reference the Weigh In television interview. Mr Morton is a licenced trainer. He was formerly a jockey. He was for a time a riding master in Canterbury. He has been involved in thoroughbred racing almost all of his adult life. Mr Morton’s evidence made plain that he is genuinely concerned about animal welfare and the safety of jockeys and with particular reference to race meetings being conducted when track conditions may prejudice animal welfare or jockeys’ health. It was repeatedly put to Mr Morton in cross examination that he had set out to “insult Mr Neal”. This Mr Morton repeatedly denied. Very little imagination is required to think of insulting or abusive language available to Mr Morton if his primary purpose had been to insult or abuse

5.2 Mr Dale drew attention to the New Zealand Bill of Rights contending that the application of rules must be for a proper purpose and that the interpretation and application of the rules must be reasonable. In support of this submission Mr Dale quoted the judgment of the Supreme Court in Cropp v Judicial Committee [2008] 3 NZLR 774.

5.3 It is important to look at the words complained of. These were:
Came across as incompetent and out of his depth as a Co-Chief Steward. [Emphasis added]

The introductory words make plain that the author is speaking about the view which he personally took of what was said in the interview. Other viewers of the interview may well have come to a different conclusion i.e. thought that Mr Neal came across differently from the way Mr Morton saw it.

5.4 A person, in whatever role they may be undertaking, can be said to be competent if they demonstrating sufficient skill and knowledge and appear to be capable. The word “incompetent” does not carry any overtone of impropriety or dishonesty and in no way reflects upon the integrity of the person being spoken of.

5.5 It is not for the JCA to measure Mr Neal’s competence. That is a matter entirely between Mr Neal and his employer. Nor is it appropriate for the JCA to comment upon the impression that Mr Neal created in the interview that was played in evidence before the Committee.

5.6 Mr Neal in his written brief of evidence and about which he could not be questioned said that he was insulted by what Mr Morton said. That is not a determining consideration in assessing whether there has been a serious racing offence committed or misconduct by Mr Morton. It is the language that Mr Morton used which must be examined rather than the response of the person towards whom the language was directed.

5.7 There is nothing in the words used by Mr Morton which is insulting, abusive, obscene or vulgar. Nor is then anything which suggests any lack of integrity on the part of Mr Neal. Mr Morton was speaking only of the performance of Mr Neal in his role as a Co-Chief Stipendiary Steward. There may be legitimate differences of opinion as to how persons who fulfil public roles have carried out the function or functions required of them. Providing such criticism is not intemperate, insulting or abusive, (the words “insulting” and “abusive” are disjunctive) or with reference to the integrity of the office holder we can see nothing in what was said which could constitute a breach of either Rule 801(1)(s)(ii) or Rule 340.

5.8 Both the Informations in respect of Mr Neal are dismissed.

6. THE CHARGES IN RELATION TO MR PURCELL
6.1 Mr Purcell is the Chief Executive of NZTR. Before that appointment he held a number of senior management positions in Australian racing. These are set out on the NZTR official website. The website also states that Mr Purcell has been the owner of more than ninety (90) horses.

6.2 It was Mr Purcell who complained to the RIU about the posting of comments relating to Mr Neal. This he did on 13 January this year the very day after the posting on Race Café by Mr Morton. An extraordinary sequence of events then followed. These are set out in the evidence of Mr Purcell in paragraphs 1 to 15. Those paragraphs are now set out verbatim:

1. On 13 January 2015 I wrote to Mr Mike Godber, Operations Manager of the Racing Integrity Unit making a formal complaint against Mr Kevin Morton the holder of a Class B Trainer’s Licence regarding comments he published on the Race Café website which state:

“…our current Stewards do NOT cut the chase. I thought R Neal came across as incompetent and out of his depth as a Co Chief Steward and that his other Co is also in the same category. What is his history to have acquired a critical role in policing Racing. I do know that he was a Grocer and was on the JCA and prior to that was in Macau with B Court and J Barnes. Is that the ideal criteria? His partner was an employee of R Cameron (harness) and as I believe had no experience in Thoroughbreds and yet is promoted to Co Chief…”

2. Whilst NZTR respects fully an individual’s right to comment on matters relating to the racing industry in New Zealand and welcomes open debate, NZTR is not prepared to tolerate the publication of personalised abusive comments which have no place in proper debate.

3. I found Mr Morton’s conduct in relation to his published comments about RIU Co-Chief Steward Mr Ross Neal to be incompatible with his status of the holder of a Class B Trainer’s Licence and requested that the RIU investigate the matter and place charges before the Judicial Control Authority.

4. In the same post Mr Morton also published the statement:

“So I say enough is enough and G Purcell can sue me as I know he did not race 90 horses and was not the leading country bookmaker in NSW”

5. I found that statement to be insulting and abusive towards me. However, to minimise the scope of the complaint, in my letter of 13 January 2015, I finished by stating:

“Please note that this complaint relates solely to Mr Morton’s comments made against RIU Co-Chief Stipendiary Steward M Ross Neal (and not the comments Mr Morton makes about myself).” The Committee has underlined this passage.

6. I understand that following an investigation by the Racing Integrity Unit Mr Morton was charged with a breach of Rule 801(1)(s)(ii) on 15 April 2015.

7. On 22 April I was contacted by Mr Mike Godber and advised that Mr Kevin Morton, through his lay advocate Mr Leo Molloy, representing Mr Morton, had requested that the RIU lay an additional charge in relation to Mr Morton’s comments that:
“Could you help us understand how NZTR (according to your RIU staff) is driving this, in particular we are told the CEO Greg Purcell, and he is the subject of two (allegedly) serious allegations in the Morton outburst, but you neglect to include those two allegations within the charges as laid…certain individuals involved in this process have more of a puppeteer type role and they don’t wish to be scrutinized and have evidence or comments attributed to them tested in a formal hearing.

We’d request that if Morton is to be charged with insulting and offending any one person without reasonable justification, then he be charged with insulting and offending each and every individual named in his (allegedly) offensive epistle.

We can then mount a fair and balance defence which will include robust dissection of all parties in order that we might possibly establish frailties or deficiencies that could support the notion put forward by Morton, that being (my words) that we might be currently operating within a racing framework that does have some degree on infectious or malignant incompetence prevailing”.

8. On 29 April 2015 I advised Mr Godber that I was happy for the RIU to investigate to proceed, as contrary to Mr Morton’s false accusations, I have had an ownership interest in more than 90 horses. I also advised Mr Godber that I was prepared to provide a statutory declaration to that effect and am prepared to attend a hearing in person should that be necessary or desirable to the RIU or JCA.

9. I understand that on 7 May 2015, as requested by Mr Morton, an additional charge was laid in relation to his publishing of insulting words in relation to my race horse ownership interests.

10. On 15 May 2015 I notified the RIU that I was prepared to meet expeditiously with Mr Morton in Auckland and present documentary evidence (which I have provided in this brief of evidence) of my horse ownership interests, together with the context of my statements made. At that point Mr Morton could have decided to plead guilty or proceed to a hearing. If he still wished to proceed to the hearing then I expected the RIU would write to him recording what was put to him in the meeting.

11. On 15 May 2015 Mr Morton published at 5.42p.m. on Race Café under the thread “It’s all Happening” (this has now had 9,868 views) this statement”

“Well it is getting worse. Now I have a 2nd charge, this time for saying G Purcell didn’t race 90 horses.

We will find out the truth, as they tell me they can prove it. I wonder if the connections of Eyed Raced Ninety will also be charged?

I was going to throw my licence in, especially after working them on the beach this morning in the wind and rain, but decided that this would look like throwing the while flag up, so will press on and defend the 2 charges.

You would think that there is more important issues to address in our damaged industry, other than this ego filled complaint”.

12. I find Mr Morton’s above post disingenuous and particularly offensive, given he was the one that requested the charge be laid.

13. However I am not surprised with Mr Morton’s conduct as I believe he is part of a continuing campaign being undertaken to inappropriately damage my reputation and personal and professional credibility in the eyes of racing industry stakeholders.

14. On 27 May 2015 I again advised the RIU that I was prepared to meet informally with Mr Morton and present documentary evidence of my horse ownership interests and the context of statement I have made.

15. I understand that Mr Molloy, acting as Mr Morton’s lay advocate, rejected the offer with a very clear statement that the meeting I have offered to Mr Morton “would not be happening”.

6.3 It can be seen that Mr Purcell expressly did not complain with reference to his own position in the letter he wrote to Mr Godber on 13 January this year. It is apparent that it was only after the request of Mr Leo Molloy as set out in paragraph 7 of Mr Purcell’s evidence that a decision was taken to charge Mr Morton with reference to the Race Café posting relating to Mr Purcell’s horse interests.

6.4 Mr Dale drew attention to events in 2013. At that time Mr Dale was counsel for Mr Molloy in relation to the application then before NZTR for the renewal of Mr Molloy’s trainers licence. Mr Dale wrote to Mr Godber on 15 October 2013 raising a number of issues. These included Mr Molloy having asserted that Mr Purcell had not owned ninety (90)+ horses and that it was understood that Mr Neal had undertaken an exercise to establish just how many horses Mr Purcell may have owned and Mr Dale sought that information. Mr Godber in reply to Mr Dale said as follows:
“the dispute your client has with Mr Purcell regarding the number of horses he has raced does not come under the Rules and therefore the RIU has no comment to make”.

Mr Purcell was asked by Mr Dale how the stance taken by the RIU appeared to have changed in as much as a matter which was said not to come within the rules October 2013 was now the subject of serious charges against Mr Morton. Mr Purcell could not explain. He told the Committee that he had not seen the letter written by Mr Godber to Mr Dale which contains the passage quoted above. That is curious. In the first place it might have been expected that Mr Godber would discuss the letter with Mr Purcell before its dispatch. Secondly and perhaps more significantly it might be thought that Mr Godber would have had some discussion with Mr Purcell before initiating the prosecution of Mr Morton and drawn attention to the position which the RIU had taken in the letter to Mr Dale. Mr Purcell’s evidence was that there was no such discussion. Further the letter spoken of from Mr Godber to Mr Dale was attached to documents filed on behalf of Mr Morton quite some time before the hearing. For reasons unexplained the documents including a copy of Mr Godber’s letter had not been referred to Mr Purcell.

6.5 A comment made by Mr Morton in relation to Mr Purcell’s ownership of horses in no way reflects upon Mr Purcell’s performance of his position as CEO of NZTR. Mr Purcell has been asked on previous occasions about the number of horses in which he has had an interest. It was put to him in cross examination that in a television interview with the well-known racing commentator Steve Davis he had given answers which were not consistent. Mr Purcell said that he could recall little of what was said on that occasion. It was Mr Purcell’s evidence that what was said by Mr Morton was abusive, insulting and threatening. When questioned closely about this Mr Purcell retreated from his earlier position in relation to the alleged abuse and being threatened but maintained that he felt insulted.

6.6 Mr Purcell was asked about Mr Morton having offered to undertake that he would not in future make reference to Mr Purcell’s interest in horses. Mr Purcell’s evidence left the Committee quite uncertain as to whether Mr Morton’s position had been conveyed to him. It became apparent to the Committee that Mr Purcell had not read Mr Morton’s brief of evidence. That material ought to have been made available to Mr Purcell in advance of the hearing. Directions are made for the exchange of the briefs of evidence in advance of hearing in order that witnesses can be aware of what other persons will say in evidence and be prepared to respond.

6.7 Mr Morton in denying that he had set out to insult Mr Purcell did say that he had a genuine belief that Mr Purcell had not raced or had an interest in ninety (90) horses and that there had been “some elasticity with the truth”.

6.8 The committee has reached the conclusion that Mr Morton’s posting on Race Café in relation to Mr Purcell’s interest in horses was clearly an expression of scepticism that the number was ninety (90). For reasons earlier explained it is quite impossible for the Committee to determine precisely how many horses Mr Purcell may have had an interest in. Clearly there were a great many and the Committee accepts Mr Purcell’s evidence that his interest in horses has been extensive over many years. The Committee cannot see that the precise number is of any significant moment. Nor can the Committee see why so much has been made of just how many horses there may have been. As earlier observed the precise number of horses in which Mr Purcell has had an interest does not in any way relate to the performance of his role as Chief Executive of NZTR.

6.9 The Committee is left with the distinct impression that there may have been no charge brought against Mr Morton in relation to what was said about Mr Purcell’s horse interests but for the email which Mr Molloy sent to the RIU and which is set out in paragraph 7 of Mr Purcell’s brief of evidence quoted above. The email sent by Mr Molloy was provocative. Clearly it was intended to be. In as much as that email may have influenced the RIU in proceeding against Mr Morton with reference to Mr Purcell that is regrettable. The email should not have been sent. It should not have led to an apparent change in the position of the RIU.

6.10 In our view the posting on Race Café with reference to Mr Purcell is not abusive. It is not insulting. It expresses some scepticism about the precise number of horses in which Mr Purcell said he had an interest. It has nothing whatever to do with Mr Purcell’s role as CEO of NZTR. It invites Mr Purcell to take some action against Mr Morton if he chooses. Action before the Judicial Control Authority must be with reference to the conduct of racing or behaviour by licenced persons which goes beyond the expression of criticism or scepticism. We do not consider that those boundaries have been crossed. The charges in respect of Mr Purcell are dismissed.

7. CONCLUSION AND COSTS
7.1 All of the Informations brought by the RIU against Mr Morton are dismissed. In our view the prosecution was misguided. It needs to be made plain however that persons licenced under the Rules of Racing cannot engage in criticism of persons administering thoroughbred racing if that criticism involves insults, abuse, obscenities or asserts misconduct or corrupt practice. In an industry where colourful language is not uncommon the identification of objectionable wording or language that is plainly intended to be insulting or abusive or to suggest dishonesty or want of integrity should not, in most cases, be difficult to identify.

7.2 Mr Dale on behalf of Mr Morton repeated that Mr Morton undertakes that he will not make further postings on Race Café in relation to Mr Purcell’s horse interests. We record that undertaking and expect it to be

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