Non Raceday Inquiry RIU v L Molloy – Decision dated 7 May 2013
ID: JCA10600
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
INFORMANT
LEO MOLLOY, Licensed Trainer
DEFENDANT
Judicial Committee: Murray McKechnie, Chairman & Jeff Holloway, member
Present: Mr Murray Branch, counsel for Racing Integrity Unit, Mr Ross Neal, Stipendiary Steward, Mr Leo Molloy, Licensed Trainer
DECISION OF JUDICIAL COMMITTEE DATED THIS SEVENTH DAY OF MAY 2013
1. INTRODUCTION
1.1 The Racing Integrity Unit (RIU) has laid informations against the licensed trainer Mr Leo Molloy. It is alleged that between the 22 October 2011 and the 12 July 2012 Mr Molloy committed thirty three (33) independent serious racing offences or misconducted himself by writing and causing to be published on The Race Café various Posts which contained insulting or abusive language with reference to New Zealand Thoroughbred Racing.
1.2 This proceeding has extended over many months. It is helpful to set out a timeline of the significant dates:
22 December 2012 The RIU laid no fewer than thirty three (33) informations against Mr Molloy under Rule 802(1)(s)(ii) of the NZTR Rules of Racing and a further thirty three (33) charges under Rule 340. The first mentioned rule had to do with serious racing offences. Rule 340 speaks of misconduct. As to what constitutes misconduct under Rule 340 see the judgment of the High Court in C v JCA et al, High Court Hamilton CIV-2006-419-814, 7 December 2006.
22 January 2013 The Committee held a telephone conference with Mr Branch, counsel for the RIU and Mr Molloy. A minute was issued the same day. In summary it recorded that Mr Molloy denied all of the charges and that he would put in writing a request for disclosure from the RIU.
24 January 2013 Mr Molloy filed with the Registrar of the JCA a detailed request for disclosure.
13 February 2013 Mr Branch filed a memorandum for RIU responding to the request for discovery. Shortly stated that memorandum made clear that some of Mr Molloy’s requests would be agreed to but a good many others were not agreed to.
18 February 2013 Mr Molloy was requested to file a response to the memorandum filed on behalf of the RIU.
1 March 2013 Mr Molloy was given an extension of time to file his response and a time was fixed at 4.00p.m. on Wednesday 13 March.
13 March 2013 Mr Molloy filed submissions on disclosure. He drew attention to the New Zealand Bill of Rights Act 1990, in particular s.14 and to a decided authority in the High Court on the issue of pre-trial discovery.
19 March 2013 A further telephone conference took place. In the course of this conference Mr Branch indicated that it was proposed that RIU representatives would meet with Mr Molloy to see if some common ground could be found in relation to disclosure. Mr Branch also indicated that it might be possible to reach some agreement upon pleas to be entered. Mr Branch further advised:
• The charges which alleged serious racing offences and misconduct were laid in the alternative.
• That each charge related to a separate posting upon The Race Café.
• The RIU sought a monetary penalty and not a suspension or disqualification of Mr Molloy’s trainer’s licence.
18 April 2013 On this day a further conference took place and the Committee was advised that the parties had reached a measure of agreement. In summary the relevant matters were:
• Mr Molloy would plead guilty to certain charges of misconduct and all other charges would be withdrawn.
• That the parties had discussed a monetary penalty in the range of $600.00 in toto.
• That a joint memorandum would be made available to the Committee by 4p.m. on the 26 April 2013.
• The Committee made clear to Messrs Branch and Molloy that while a submission on the appropriate penalty might be helpful it was for the Committee to determine the correct penalty and that it was not bound in that regard by any agreement said to have been reached by the parties.
30 April 2013 Two documents were received. The first, a consent memorandum signed by Mr Branch and Mr Molloy. There was a second document. This is headed up Molloy Memorandum.
2. THE POSITION ARRIVED AT BY THE RIU AND MR MOLLOY
2.1 The consent memorandum signed by both Messrs Branch and Molloy was in these terms:
(1a) The RIU seeks leave to withdraw all but the charges under Rule 340 numbered 15, 16 and 31.
(1b) Mr Molloy has agreed to plead guilty to those three charges.
1(c) The RIU recommends that the appropriate penalty, in light of the guilty plea, be $200 per charge, being a total of $600.
2. The RIU’S position has been taken after careful consideration of a number of factors and in particular what is in the best interests of racing in this particular instance.
3. The RIU is of the view that these fines will be sufficient deterrent.
4. The RIU does not seek any costs in relation to this matter.
5. If Mr Molloy wishes to submit by separate memorandum his own reasons for why the penalty is appropriate, then the RIU has no objection that that course being taken by him.
2.2 The Molloy memorandum is too extensive to set out verbatim. In summary it emphasised the following:
(a) That the guilty pleas were entered “because he wishes to put the issue behind him with the minimum of fuss for all concerned parties”.
(b) The allegations made in the various postings on Race Café were true.
(c) That he still believed that he could have obtained discovery of all the material which he sought from the RIU.
(d) What Mr Molloy described as ”the crusade” was “absolutely justified…”.
(e) As to penalty “the JCA imposed the absolute minimum penalty, a mere token $1 per charge perhaps,…”.
2.3 Many of the postings on Race Café which were the subject of the informations made reference to the Chief Executive of New Zealand Thoroughbred Racing Mr Greg Purcell. The three (3) informations to which Mr Molloy indicated guilty pleas under Rule 340 are as follows:
No 15.
Date 12/12/11 Comment
“If Purcell hasn’t had time to think about this we might be able to help (how could he, airline food and liquor has to be consumed 24/7 as you flit around the globe, then there’s the escargot in gay Paris, and the Yum Cha in Hong Kong, and more airline food as you to and fro across the equator, up and down the island twisting the truth as you go).
“….What say you RV, you big strong powerful racing authority, will you just roll over and let the short wheel based walking barrel of airline food hijack your prime time race starting times? Aaaaahhhhhhh Purcy, you intellectual lightweight, you don’t seriously think you’ll get this over the line do you?”
No 16.
Date 13/12/11 Comment
“Purcell is just so intoxicated by his own ill placed self belief that he doesn’t seem to care how he uses and abuses our money and his authority”.
No 31.
Date 19/05/12 Comment
“I can but post the figures provided by the donut, and whilst there are lies, damned lies, and statistics….I would always trust a man who raced ninety horses!!!! Does that answer your queery?”
3 DECISION
3.1 The Committee accepts the pleas of guilty in respect of informations 15, 16 & 31 as set out above and convictions are entered.
3.2 Leave is granted to withdraw all those informations to which guilty please have not been entered.
3.3 In the view of the committee the penalty proposed in the joint memorandum is inadequate. The language used in the informations is abusive. It is personally insulting and it is hard to escape the conclusion that it was intended to be so.
3.4 Persons who hold strong views upon the governance and administration of thoroughbred racing are entitled to express the opinions which they hold. Those opinions can be made known without abuse or insult. It is plain that Mr Molloy is a determined commentator upon the administration of thoroughbred racing in New Zealand. He is currently the Auckland Branch President of the New Zealand Trainers’ Association. Horses trained by Mr Molloy have enjoyed considerable success in recent years. A person in Mr Molloy’s position ought to have exercised a measure of restraint. That did not happen. The separate memorandum filed by Mr Molloy contains no apology or expression of regret.
Penalty:
The monetary penalty which Mr Molloy proposes, referred to in paragraph 2.2(e) above, is risible. In the Committee’s view the appropriate penalty on each charge is a fine of $350.00 being a total of $1,050.00 in respect of the three (3) informations.
4. COSTS
4.1 Of the thirty three (33) charges laid by the RIU guilty pleas have been accepted to three (3) being less than 10%. As demonstrated by the timeline set out earlier this proceeding has extended over many months. There have been a number of telephone conferences and exchanges of submissions. The JCA by this Judicial Committee and its staff have been put to considerable time and trouble.
4.2 When numerous charges are laid it is to be hoped that the informant holds sufficient evidence to support the allegations made. Given the outcome which has been arrived at here it is difficult for the Committee to appreciate why so many informations were laid in the first instance. A careful examination of the numerous postings by Mr Molloy on Race Café might have led to laying of representative informations. Alternatively informations could have been framed to include a number of postings rather than lay an information in respect of every instance where it was alleged that inappropriate language had been used. Moreover reference to previous decisions of Non-raceday Judicial Committees and Appeal Tribunals on charges laid under Rule 802(1)(s)(ii) would suggest that the behaviour required to demonstrate a serious racing offence is at a level of conduct considerably more culpable than was alleged in the informations lodged against Mr Molloy.
4.3 While the Committee is conscious of the sentiments set out in paragraph 2 of the joint memorandum what is said there does not adequately explain why all of the informations laid under Rule 802(1)(s)(ii) were withdrawn and nor does it explain why thirty (30) of the thirty three (33) informations under Rule 340 were withdrawn.
4.4 A further consideration is the time involved in dealing with the issue of disclosure. This did not proceed to a contested hearing but nonetheless the Committee is of the clear view that there was little prospect that Mr Molloy could have sustained the extent and breadth of his request(s) for information.
4.5 In the circumstances outlined both parties to this proceeding shall be required to make a realistic contribution towards the costs incurred by the JCA. The RIU shall pay the sum of $500.00 towards those costs. Mr Molloy shall pay the sum of $300.00 towards the costs of the JCA.
Dated this seventh day of May 2013
_________________________________
Murray McKechnie
Chairman
Signed pursuant to Rule 920(4)(a)
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 07/05/2013
Publish Date: 07/05/2013
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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plea:
penaltyrequired:
decisiondate: 07/05/2013
hearing_title: Non Raceday Inquiry RIU v L Molloy - Decision dated 7 May 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
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
INFORMANT
LEO MOLLOY, Licensed Trainer
DEFENDANT
Judicial Committee: Murray McKechnie, Chairman & Jeff Holloway, member
Present: Mr Murray Branch, counsel for Racing Integrity Unit, Mr Ross Neal, Stipendiary Steward, Mr Leo Molloy, Licensed Trainer
DECISION OF JUDICIAL COMMITTEE DATED THIS SEVENTH DAY OF MAY 2013
1. INTRODUCTION
1.1 The Racing Integrity Unit (RIU) has laid informations against the licensed trainer Mr Leo Molloy. It is alleged that between the 22 October 2011 and the 12 July 2012 Mr Molloy committed thirty three (33) independent serious racing offences or misconducted himself by writing and causing to be published on The Race Café various Posts which contained insulting or abusive language with reference to New Zealand Thoroughbred Racing.
1.2 This proceeding has extended over many months. It is helpful to set out a timeline of the significant dates:
22 December 2012 The RIU laid no fewer than thirty three (33) informations against Mr Molloy under Rule 802(1)(s)(ii) of the NZTR Rules of Racing and a further thirty three (33) charges under Rule 340. The first mentioned rule had to do with serious racing offences. Rule 340 speaks of misconduct. As to what constitutes misconduct under Rule 340 see the judgment of the High Court in C v JCA et al, High Court Hamilton CIV-2006-419-814, 7 December 2006.
22 January 2013 The Committee held a telephone conference with Mr Branch, counsel for the RIU and Mr Molloy. A minute was issued the same day. In summary it recorded that Mr Molloy denied all of the charges and that he would put in writing a request for disclosure from the RIU.
24 January 2013 Mr Molloy filed with the Registrar of the JCA a detailed request for disclosure.
13 February 2013 Mr Branch filed a memorandum for RIU responding to the request for discovery. Shortly stated that memorandum made clear that some of Mr Molloy’s requests would be agreed to but a good many others were not agreed to.
18 February 2013 Mr Molloy was requested to file a response to the memorandum filed on behalf of the RIU.
1 March 2013 Mr Molloy was given an extension of time to file his response and a time was fixed at 4.00p.m. on Wednesday 13 March.
13 March 2013 Mr Molloy filed submissions on disclosure. He drew attention to the New Zealand Bill of Rights Act 1990, in particular s.14 and to a decided authority in the High Court on the issue of pre-trial discovery.
19 March 2013 A further telephone conference took place. In the course of this conference Mr Branch indicated that it was proposed that RIU representatives would meet with Mr Molloy to see if some common ground could be found in relation to disclosure. Mr Branch also indicated that it might be possible to reach some agreement upon pleas to be entered. Mr Branch further advised:
• The charges which alleged serious racing offences and misconduct were laid in the alternative.
• That each charge related to a separate posting upon The Race Café.
• The RIU sought a monetary penalty and not a suspension or disqualification of Mr Molloy’s trainer’s licence.
18 April 2013 On this day a further conference took place and the Committee was advised that the parties had reached a measure of agreement. In summary the relevant matters were:
• Mr Molloy would plead guilty to certain charges of misconduct and all other charges would be withdrawn.
• That the parties had discussed a monetary penalty in the range of $600.00 in toto.
• That a joint memorandum would be made available to the Committee by 4p.m. on the 26 April 2013.
• The Committee made clear to Messrs Branch and Molloy that while a submission on the appropriate penalty might be helpful it was for the Committee to determine the correct penalty and that it was not bound in that regard by any agreement said to have been reached by the parties.
30 April 2013 Two documents were received. The first, a consent memorandum signed by Mr Branch and Mr Molloy. There was a second document. This is headed up Molloy Memorandum.
2. THE POSITION ARRIVED AT BY THE RIU AND MR MOLLOY
2.1 The consent memorandum signed by both Messrs Branch and Molloy was in these terms:
(1a) The RIU seeks leave to withdraw all but the charges under Rule 340 numbered 15, 16 and 31.
(1b) Mr Molloy has agreed to plead guilty to those three charges.
1(c) The RIU recommends that the appropriate penalty, in light of the guilty plea, be $200 per charge, being a total of $600.
2. The RIU’S position has been taken after careful consideration of a number of factors and in particular what is in the best interests of racing in this particular instance.
3. The RIU is of the view that these fines will be sufficient deterrent.
4. The RIU does not seek any costs in relation to this matter.
5. If Mr Molloy wishes to submit by separate memorandum his own reasons for why the penalty is appropriate, then the RIU has no objection that that course being taken by him.
2.2 The Molloy memorandum is too extensive to set out verbatim. In summary it emphasised the following:
(a) That the guilty pleas were entered “because he wishes to put the issue behind him with the minimum of fuss for all concerned parties”.
(b) The allegations made in the various postings on Race Café were true.
(c) That he still believed that he could have obtained discovery of all the material which he sought from the RIU.
(d) What Mr Molloy described as ”the crusade” was “absolutely justified…”.
(e) As to penalty “the JCA imposed the absolute minimum penalty, a mere token $1 per charge perhaps,…”.
2.3 Many of the postings on Race Café which were the subject of the informations made reference to the Chief Executive of New Zealand Thoroughbred Racing Mr Greg Purcell. The three (3) informations to which Mr Molloy indicated guilty pleas under Rule 340 are as follows:
No 15.
Date 12/12/11 Comment
“If Purcell hasn’t had time to think about this we might be able to help (how could he, airline food and liquor has to be consumed 24/7 as you flit around the globe, then there’s the escargot in gay Paris, and the Yum Cha in Hong Kong, and more airline food as you to and fro across the equator, up and down the island twisting the truth as you go).
“….What say you RV, you big strong powerful racing authority, will you just roll over and let the short wheel based walking barrel of airline food hijack your prime time race starting times? Aaaaahhhhhhh Purcy, you intellectual lightweight, you don’t seriously think you’ll get this over the line do you?”
No 16.
Date 13/12/11 Comment
“Purcell is just so intoxicated by his own ill placed self belief that he doesn’t seem to care how he uses and abuses our money and his authority”.
No 31.
Date 19/05/12 Comment
“I can but post the figures provided by the donut, and whilst there are lies, damned lies, and statistics….I would always trust a man who raced ninety horses!!!! Does that answer your queery?”
3 DECISION
3.1 The Committee accepts the pleas of guilty in respect of informations 15, 16 & 31 as set out above and convictions are entered.
3.2 Leave is granted to withdraw all those informations to which guilty please have not been entered.
3.3 In the view of the committee the penalty proposed in the joint memorandum is inadequate. The language used in the informations is abusive. It is personally insulting and it is hard to escape the conclusion that it was intended to be so.
3.4 Persons who hold strong views upon the governance and administration of thoroughbred racing are entitled to express the opinions which they hold. Those opinions can be made known without abuse or insult. It is plain that Mr Molloy is a determined commentator upon the administration of thoroughbred racing in New Zealand. He is currently the Auckland Branch President of the New Zealand Trainers’ Association. Horses trained by Mr Molloy have enjoyed considerable success in recent years. A person in Mr Molloy’s position ought to have exercised a measure of restraint. That did not happen. The separate memorandum filed by Mr Molloy contains no apology or expression of regret.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
The monetary penalty which Mr Molloy proposes, referred to in paragraph 2.2(e) above, is risible. In the Committee’s view the appropriate penalty on each charge is a fine of $350.00 being a total of $1,050.00 in respect of the three (3) informations.
4. COSTS
4.1 Of the thirty three (33) charges laid by the RIU guilty pleas have been accepted to three (3) being less than 10%. As demonstrated by the timeline set out earlier this proceeding has extended over many months. There have been a number of telephone conferences and exchanges of submissions. The JCA by this Judicial Committee and its staff have been put to considerable time and trouble.
4.2 When numerous charges are laid it is to be hoped that the informant holds sufficient evidence to support the allegations made. Given the outcome which has been arrived at here it is difficult for the Committee to appreciate why so many informations were laid in the first instance. A careful examination of the numerous postings by Mr Molloy on Race Café might have led to laying of representative informations. Alternatively informations could have been framed to include a number of postings rather than lay an information in respect of every instance where it was alleged that inappropriate language had been used. Moreover reference to previous decisions of Non-raceday Judicial Committees and Appeal Tribunals on charges laid under Rule 802(1)(s)(ii) would suggest that the behaviour required to demonstrate a serious racing offence is at a level of conduct considerably more culpable than was alleged in the informations lodged against Mr Molloy.
4.3 While the Committee is conscious of the sentiments set out in paragraph 2 of the joint memorandum what is said there does not adequately explain why all of the informations laid under Rule 802(1)(s)(ii) were withdrawn and nor does it explain why thirty (30) of the thirty three (33) informations under Rule 340 were withdrawn.
4.4 A further consideration is the time involved in dealing with the issue of disclosure. This did not proceed to a contested hearing but nonetheless the Committee is of the clear view that there was little prospect that Mr Molloy could have sustained the extent and breadth of his request(s) for information.
4.5 In the circumstances outlined both parties to this proceeding shall be required to make a realistic contribution towards the costs incurred by the JCA. The RIU shall pay the sum of $500.00 towards those costs. Mr Molloy shall pay the sum of $300.00 towards the costs of the JCA.
Dated this seventh day of May 2013
_________________________________
Murray McKechnie
Chairman
Signed pursuant to Rule 920(4)(a)
hearing_type: Non-race day
Rules: 340
Informant: Mr R Carmichael - Racing Integrity Unit
JockeysandTrainer:
Otherperson:
PersonPresent: Mr M Branch - Counsel for Racing Integrity Unit, Mr R Neal - Co-Chief Stipendiary Steward
Respondent: Mr L Molloy - Licensed Trainer
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