Non Raceday Inquiry RIU v L Molloy – Reasons on Respondent’s Preliminary Application as to Procedural Issues Delivered Orally on 30 July 2020 – Chair, Hon J W Gendall QC

hearingid: 52e98144225b50a46e9820a77084a489

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 03/08/2020

hearing_title: Non Raceday Inquiry RIU v L Molloy - Reasons on Respondent's Preliminary Application as to Procedural Issues Delivered Orally on 30 July 2020 - Chair, Hon J W Gendall QC

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

AND IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN-RACING INTEGRITY UNIT (RIU)

Informant

AND-MR LEO MOLLOY

Thoroughbred Owner

Respondent

Information No: ---A8714

Judicial Committee:---Hon J W Gendall QC, Chairman

Mr L N McCutcheon, Member

Present:----Mr S Symon and Ms E Smith, Counsel for the Informant

Mr Andrew Cruickshank, Investigator, Informant

Mr Leo Molloy, Respondent

JUDICIAL COMMITTEE REASONS ON RESPONDENT’S PRELIMINARY APPLICATION AS TO PROCEDURAL ISSUES DELIVERED ORALLY, BEFORE HEARING ON 30 JULY 2020

1.-Mr Molloy made a preliminary application by email late last week that the Chair of the Committee recuse himself from participation in the hearing. He alleged that the Chair was “biased” so as to deprive him of a fair hearing. He alleged that it arose out of the teleconference designed to settle relevant issues. The Committee’s Minutes No 3 and 4 are self-explanatory.

2.-After making his email claim, Mr Molloy was advised by the Executive Officer/Acting Registrar of the JCA that he was required to file a formal application and any affidavit evidence in support of it. He responded to the Executive Officer that he did not intend to do so. By our Minute No 5 dated 27 July 2020 we recorded that Mr Molloy may present his submission today prior to any substantive hearing taking place. This has occurred. He has not provided any affidavit evidence to support his claim. He said that his application concerned comments attributed to the Chair by another.

3.-The basis of Mr Molloy’s claim seems to be in that the Chair of the Committee exhibited bias, and retains partiality, because he says that at the teleconference on 21 July 2020 (at which Mr Molloy was not present) both Counsel were referred to the Harmful Digital Communications Act 2015. All Counsel were asked to consider whether any of its provisions had any relevance to this proceeding and to Mr Molloy’s defence. Mr Molloy’s claim that this was “to assist the prosecution case” is incorrect and is without foundation.

4.-The primary purpose of a prehearing telephone conference is to identify and clarify relevant legal and factual issues upon which the parties may focus and which are relevant for a Tribunal (or Court) to confront at a hearing. The Committee’s Minute No 4 issued following the teleconference accurately reflects the then positions of each party.

5.-During the teleconference, his then Counsel advised that the defences to be advanced included “the truth” of his statements, the protection arising out of the Bill of Rights relating to freedom of expression or opinion, as is recorded in the Minute. Both Counsel were invited to consider the legislation and reflect on whether it had, or had not, any relevance. That is a normal and usual occurrence, and one of the purposes of a prehearing conference and provides no foundation for a claim of bias.

6.-Counsel for the Informant submitted that Mr Molloy has not provided any affidavit evidence and is not aware of any basis for a recusal to occur in terms of the test in Saxmere or otherwise. The Chair is well aware of the test for “apparent bias” as outlined by the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122 [2010] NZLR 16, namely:

“whether a fair minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the tribunal was biased.”

7.-As stated, Mr Molloy was not present at the teleconference which involved only the Committee, two Counsel for the Informant, and Mr Molloy’s former Counsel. No Counsel has provided any support whether in affidavit or submission, or in argument for Mr Molloy’s allegations.

8.-Applying the Saxmere test to the circumstances of the conference call we conclude that Mr Molloy’s claim unsupported by any evidence, is without any foundation and is rejected.

9.-A second issue dealt with was our concern that any suppression orders made by a Court in criminal proceedings – we are told named “Inca” – not be breached. We have no knowledge of the substance of those criminal proceedings, or the persons charged, or the charges or any material relating to those. But we expressed concern that Mr Molloy not venture into areas that were protected by the Court orders. He assured us he did not intend to do so. But he wished to traverse his claims that the RIU’s behaviour in relation to such proceedings was “appalling” and he intended to expose, in time, the RIU for the “sham” of the proceedings. We accepted his assurance that no breach of a suppression order would arise, and we made it clear to him that he was free and able to present to the Committee whatever relevant evidence, or submission including his criticisms of the RIU, he wished. We made that comment to rebut his claim to us that “these proceedings are to muzzle me”. That was not the case and we emphasised that he could advance whatever he wished, provided the orders of a Court were complied with. We made it clear he was not to be “muzzled” in what he wanted to say.

10.-Thirdly, we ruled that the proceedings be held without public or media presence. Rule 915(1)(a) provides that the Committee may conduct a hearing as it thinks fit. Mr Molloy had publicly stated on social media that he was “looking forward to having quite some fun at this hearing”

and “even the Herald want a slice of the action now as this is evolving into quite a story”

and “I intend to use this as a platform to divulge the truth about some rather unsavoury goings on these past few years.”

We said in our Minute No 4 dated 22 July 2020 that the proceedings will be held in private if Mr Molloy’s stated intentions remain. We concluded that those remain his intentions and have advised him that he may do so, but not with a public audience today. As is the usual procedure of the JCA, any wish for media presence requires an application but none has been made.

11.-The hearing of the Information and Mr Molloy’s defence will be held without public or media presence. Naturally any outcome and reasoned decision will, in the usual way, be made public.

Hon J W Gendall QC

Chair

Judicial Committee

3 August 2020

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: