Non Raceday Inquiry – RIU v LJ Justice – August 2011 – Decision of Judicial Committee 31 October 2011

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startdate: 08/04/2011

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hearing_title: Non Raceday Inquiry - RIU v LJ Justice - August 2011 - Decision of Judicial Committee 31 October 2011

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Decision:

HRNZ v L J JUSTICE
Hearing before Non Raceday Judicial Committee

Judicial Committee: Mr Bruce Squire QC (Chairman) - Professor Geoffrey Hall

Counsel: Mr C J Lange – Counsel for HRNZ, Ms M J Thomas and Mr R Donnelly – Counsel for Mr Justice

DECISION OF JUDICIAL COMMITTEE

1. Introduction: Outline of Case:

1.1 On Friday 8 April 2011 the Inter Dominion Pacing Grand Final was run at Alexandra Park in Auckland as part of the Inter Dominion Championships conducted by the New Zealand Metropolitan Trotting Club. The Pacing Grand Final which was Race Eight on the card was won by a horse named "Smoken Up" which was trained and driven by Mr Lance Justice of Victoria Australia.

1.2 Following the race urine samples were taken from the first five placed horses. On subsequent analysis at the New Zealand Racing Laboratory Services Laboratory in Auckland the urine sample taken from "Smoken Up" showed the presence of dimethyl sulphoxide ("DMSO") at a level of 25.8 mg/L. Under the New Zealand Rules of Harness Racing ("The Rules") DMSO at a concentration in excess of 15 mg/L of urine is a Prohibited Substance by reason of its inclusion in the Prohibited Substance Regulations.

1.3 As a result Mr Justice, as the trainer of "Smoken Up", was charged with a breach of Rules 1004 (1) and (2) of the Rules. The charge was served on him on 14 June 2011 and a fixture made for its hearing to commence on 23 August 2011.

1.4 Mr Justice denied the charge. Over three days on 23, 24 and 30 August 2011 the Committee heard and received evidence from eleven witnesses for the Informant and eight witnesses for Mr Justice, including Mr Justice himself. At the conclusion of evidence on 30 August 2011 a timetable was put in place for Counsel to provide written submissions to the Committee on a range of issues relating to the charge and its proof. Counsel have provided the Committee with their submissions as required and we are now in a position to deliver our Decision.

1.5 The evidence of the witnesses who gave viva voce evidence at the hearing either in person or by way of audio or video facilities was recorded by an audio recording device for later transcription. In some instances the evidence in chief of the witnesses was taken as read and only the cross examination recorded on the audio recording device; in other cases the whole of the evidence of the witness was recorded on the device. Unfortunately it has transpired the device used has been less than satisfactory with parts of the evidence of some witnesses not being able to be transcribed at all and in relation to other witnesses there have been difficulties in picking up clearly what the witness has said and providing a transcript of guaranteed accuracy. In those cases where such difficulties have arisen, and where it has been possible, the members of the Committee have referred to their own notes taken at the time the witness gave evidence in order to clarify aspects of the transcript which do not appear to accurately record what the witness said or where what has been transcribed is confused or does not make sense.

2. The Alleged Breach of the Rules:

2.1 Mr Justice is charged with a breach of Rules 1004 (1) and (2). Those Rules provide:

"1004 (1) A horse shall be presented for a race free of prohibited substances.

(2) Where a horse is taken, or is to be taken, to a racecourse for the purpose of engaging in a race otherwise than in accordance with sub-rule (1) the trainer of the horse commits a breach of these Rules."

2.2 The penalties provided in sub-rule (7) for a breach of sub-rule (2) are:

(a) a fine not exceeding $10,000; and/or

(b) disqualification or suspension from holding or obtaining a licence for any specific period not exceeding five years.

In addition sub-rule (8) provides:

"(8) Any horse connected with a breach of sub-rule (1), (2) or (3) shall be disqualified from any race entered and/or liable to a period of disqualification not exceeding five years".

For reasons which follow later in this Decision it is necessary to refer also to sub-rule (4) which provides:

"(4) A breach of these Rules under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse".

2.3 The charge brought against Mr Justice as formulated in the Information laid is that:

"On the 8th day of April 2011 Lance James Justice being the trainer and/or the person for the time being in charge of the horse "Smoken Up" which was presented to race in the Sky City Inter Dominion Pacing Championship Grand Final(Race Eight), at a race meeting conducted by the New Zealand Metropolitan Trotting Club Incorporated at Alexandra Park when not free of a prohibited substance namely Dimethyl Sulphoxide at a mass concentration above 15 milligrams per litre in urine; being a breach of Rules 1004 (1) and 1004 (2); and that Lance James Justice is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 1004 (7) and that the horse "Smoken Up" is liable to the penalty that may be imposed pursuant to R. 1004 (8)".

3. Preliminary Matters:

3.1 Counsel for the Informant and Mr Justice have made submissions on a number of legal issues which we consider can conveniently be dealt with as preliminary issues.

(a) The evidence of Mark William Jarrett:

3.2 At the commencement of the hearing Ms Thomas indicated she wished to challenge the admissibility of the evidence of Mr Jarrett. Mr Jarrett is an Analyst with the Racing Science Centre in Queensland (hereafter "The QRSC") who carried out an analysis of the reserve sample of urine taken from "Smoken Up" on 8 April 2011. The analysis was carried out at the request of Mr Justice and the Informant proposed to lead evidence of the result of the analysis of the reserve sample as part of its case against him. For the reasons set out in the Ruling which is delivered contemporaneously with this Decision, we have ruled the evidence of Mr Jarrett admissible.

(b) The refusal of the QRSC to make disclosure:

3.3 This issue is linked to that relating to the admissibility of the evidence of Mr Jarrett dealt with under paragraph (a) above. The refusal of the QRSC to make the disclosure sought by Ms Thomas for the reasons outlined in the Ruling by which Mr Jarrett's evidence has been held to be admissible, also formed the basis of an application by her to have the charge against Mr Justice dismissed. The submission by Ms Thomas was advanced effectively in two stages; firstly at the commencement of the hearing on 23 August 2011 before any evidence had been called and secondly in her legal submissions dated 8 September 2011 lodged after the completion of the taking of evidence. Mr Lange has responded to both submissions. Despite the fact each of the submissions from Ms Thomas is slightly differently focussed we think it preferable to deal with them together.

3.4 In her first submission in relation to the issue of disclosure Ms Thomas submitted the charge should be dismissed because the Informant could not prove its case. This was because the Informant had refused to provide disclosure in relation to the reserve sample analysed by the QRSC which Ms Thomas submitted was fatal to the Informant's case. Ms Thomas developed the submission by reference to paragraphs 5 and 6 of that part of the Harness Racing New Zealand Regulations relating to Notification of Analysis from Samples which provide that it is not a defence to proceedings brought as a result of tests taken under directions contained in the Regulations that there was insufficient urine or blood available for a reserve sample or that the reserve sample was lost or damaged prior to or during analysis. From that Ms Thomas extrapolated a submission it was a defence to such proceedings if the reserve sample test was not completed. She then submitted any Certificate of Analysis arising from such a test must be put to one side because Mr Justice had not been given any opportunity to challenge it. We have assumed, because it is not clear from Ms Thomas' submission, that she is referring to the Certificate of Analysis relating to the reserve sample which she later confirmed had been provided to her. Then by reference to prosecutions taken under the Misuse of Drugs Act 1975 where the prosecution relies on evidence from the Institute of Environmental Science and Research Limited (ESR) to establish a particular substance is a controlled drug under the Act, and disclosure obligations which arise in such circumstances, which she submits are analogous to the present situation, the submission is made that the Informant is not absolved of its obligation to make disclosure where a Certificate of Analysis is challenged. The submission, expanded upon orally by Ms Thomas at the hearing, however, does not proceed to define precisely why in those circumstances, the failure on the part of the QRSC to make the disclosure sought by her was fatal to the Informant's case as she put it.

3.5 Mr Lange responded to these submissions on the basis outlined in paragraph 2.3 of our Ruling on the admissibility of Mr Jarrett's evidence. He submitted that the Informant was under no legal obligation to provide disclosure of materials held by the QRSC which he contended was in relation to the Informant, a third party. In support of that proposition he cited by way of analogy the case of Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2005] 3 NZLR 447 in which reference is made to Attorney-General v Otahuhu District Court [2001] 3 NZLR 740.

3.6 Ms Thomas returned to the issue in her legal submissions of 8 September 2011 by referring to s.27 of the New Zealand Bill of Rights Act 1990 which requires a Tribunal or other public authority which has the power to make a determination in respect of a person's rights, obligations or interests protected or recognised by law, to observe the principles of natural justice. Ms Thomas submitted it is a fundamental principle of natural justice that a Defendant be provided with material that might reasonably assist in his or her defence and that in this case the failure of the QRSC to provide disclosure deprived Mr Justice of an opportunity to adduce material to the Committee that might deter (as she put it) a finding that would adversely affect Mr Justice. Later Ms Thomas made the further submission that the failure of the QRSC to provide disclosure prejudiced Mr Justice's defence because it removed any ability on the part of his Counsel to meaningfully question the QRSC Analysts about their analyses and the quantitative results that had been obtained from the analysis of the reserve sample.

3.7 Responding to Mr Lange's submission that in relation to the Informant the QRSC was a third party and under no obligation to provide disclosure of material held by the QRSC, Ms Thomas sought to distinguish the authorities Mr Lange relied on, submitting that one of the authorities referred to in fact supported her submission that failure to make disclosure by the QRSC should result in the charge against Mr Justice being dismissed.

3.8 In our Ruling on the admissibility of Mr Jarrett's evidence we accepted the QRSC should properly be regarded as a third party in its relationship with the Informant based on the authorities cited by Mr Lange and we confirm that finding for the purposes of our decision on this issue. The involvement of the QRSC in the analysis of the reserve sample was due to Mr Justice exercising the right available to him under the Regulations to have the reserve sample analysed and to have the analysis carried out at the QRSC rather than another laboratory. The role of the Informant in that exercise was simply to make the reserve sample available for analysis and to receive the result of the analysis which was also required to be independently reported to Mr Justice who had requested it. Nothing in the relationship between the Informant and the QRSC arising in those circumstances, in our view, gave rise to any express or implicit obligation on the part of the Informant to provide by way of disclosure, material held by the QRSC. Further, nothing was put before us which would indicate the Informant had any enforceable right to require the QRSC to disclose the material sought from it by Ms Thomas. In our view if any such right arose from the procedures leading up to the analysis of the reserve sample by the QRSC that right is likely to have been exercisable only by Mr Justice himself rather than by the Informant.

3.9 As we have noted in our Ruling on the admissibility of Mr Jarrett's evidence the Committee has no power to require any party to make pre-hearing disclosure. Even if there was such a power we doubt it could extend to requiring the Informant to disclose materials in the possession of the QRSC for the reasons referred to in the previous paragraph. The Committee does have the power to refuse to admit evidence where there are proper grounds for doing so. One circumstance where there might conceivably be such a ground is where the Committee is satisfied it would be unfair to admit evidence where a reasonable request for relevant disclosure has been unjustifiably refused and there are proper grounds to conclude a party is prejudiced by the refusal of such disclosure. But in those circumstances the Committee's power is simply to refuse to admit the evidence concerned not to dismiss the charge by reason of the failure to make disclosure which could not otherwise be ordered. In this case for the reasons set out in our Ruling we have held Mr Jarrett's evidence to be admissible. Even if we were to have reached a contrary conclusion, the Informant would still have been left with the evidence of the result of the analysis carried out by the New Zealand Racing Laboratory Services which, putting aside for the moment the challenges made to its accuracy, provides prima facie support for the allegation that "Smoken Up's" DMSO levels exceeded the prescribed threshold at the relevant time. In those circumstances there could be no justification for dismissal of the charges against Mr Justice simply by reason of the failure of the QRSC to make the disclosure Ms Thomas required.

3.10 Even assuming for the purposes of argument the Committee did have power to dismiss the charge against Mr Justice by reason of the refusal of the QRSC to make the disclosure sought by Ms Thomas, we would not have been disposed to exercise it in this case. In order to do so we would have needed to be properly satisfied that within the material withheld by the QRSC was something which was fundamental to Mr Justice's defence of the charge in the sense he could not have received a fair hearing without access to that material. In such circumstances there may have been a basis for the view a continuation with the prosecution of the charge may have infringed his right to natural justice under s.27 New Zealand Bill of Rights Act 1990. In this case however there was no evidence of anything of such a fundamental kind being withheld by the QRSC and given its limited function in this case, we doubt there was likely to be any material of that kind withheld. At best Ms Thomas was able to put her case in this regard no higher than that the refusal to make the disclosure she sought prevented her from meaningfully questioning or challenging the analysis carried out by the QRSC. But Ms Thomas elected not to cross-examine Mr Jarrett when he gave evidence before the Committee when she had the opportunity to raise issues of this kind with him. And we have found in our Ruling on the admissibility of his evidence there was no sufficient basis to conclude that within the material the QRSC refused to disclose, was there anything which compromised the accuracy and validity of the analysis carried out. The same applies in relation to the application to dismiss the charges by reason of the same refusal of the QRSC to make disclosure. To justify that step, on the assumption we have the power to do so, we would have needed to be satisfied of the existence of material not disclosed by the QRSC which prevented Mr Justice from getting a fair hearing on the charge he faces. There was no evidence of the existence of any such material and as recorded, Ms Thomas elected not to cross-examine Mr Jarrett about the possible existence of any such material when he gave his evidence before the Committee. In those circumstances the Committee could not be justified in taking the extreme step of dismissing the charge against Mr Jarrett solely on the basis of speculation such material might exist.

3.11 The application to dismiss the charge against Mr Jarrett by reason of the refusal of the QRSC to make the disclosure sought by Ms Thomas is accordingly dismissed.

(c) The Categorisation of a Breach of R.1004:

3.12 In his opening submissions at the hearing on 23 August 2011 and later submissions on legal issues, Mr Lange submitted that a breach of R.1004 should properly be viewed as "…akin to an offence of absolute liability". In support of that submission he referred to a number of factors which we think it is convenient to list as follows:

(i) the clear purpose of the Rule which Mr Lange submitted was to ensure horses raced free of prohibited substances, an objective which he said had been recognised by those responsible for the promulgation and amendment of the Rule as important in maintaining public confidence in the integrity of harness racing;

(ii) against that clear purpose Mr Lange submitted the provision of sub-rule (4) providing that a breach of sub-rules (2) and (3) was committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse was a clear pointer towards an intent that such breaches should be regarded in the same way as offences of absolute liability. In his submission sub-rule (4) applied even when the circumstances of the case showed the person charged was without fault. In support of that submission he drew attention to the predecessor to R.1004, which was R.340 (4) which provided:

"when a horse, which has been taken to any racecourse for the purpose of engaging in a race, is found by the Judicial Committee to have had administered to it any drug, stimulant or depressant capable of affecting its speed, stamina, courage or conduct the trainer and/or any other person who, in the opinion of the Judicial Committee, was in charge of such horse at any relevant time, may be disqualified for any specified period or for life, his licence may be suspended for any specified period or for life and/or he may be fined a sum not exceeding $2,000.00 by the Judicial Committee unless he satisfies them that he had taken all reasonable precautions to prevent the administration of such drug, stimulant or depressant. In the event of the horse being disqualified for the race by the Judicial Committee, it shall make the appropriate placings of other horses affected accordingly".

(the underlining of the bold passage is for emphasis).

Mr Lange submitted the removal from R.1004 of the reasonable precautions defence found in R.340 (4) and the inclusion of sub-rule (4) was a clear indication the "reasonable precautions" defence hitherto available under R.340 (4) was no longer available and that R.1004 (4) in its clear terms is intended to cover circumstances in which the prohibited substance came to be present in or on the horse without any fault on the part of the trainer or the person left in charge of the horse alleged to be in breach of either sub-rules (2) or (3) as the case may be;

(iii) Mr Lange drew further support for his submission from the Judgment of Panckhurst J in McInerney v Templeton & Ors (CP 187/98; High Court Christchurch; 10 November 1999). In that case Mr McInerney was the trainer of two greyhounds which returned positive tests for a drug following their winning of races at a greyhound race meeting in Christchurch in 1997. Mr McInerney as the trainer of the two greyhounds was charged with two breaches of R.138 (6) of the New Zealand Greyhound Racing Association Rules which provided:

"Where the Judicial Committee finds that a greyhound taken to any racecourse for the purpose of engaging in a race has had administered to it any drug, stimulant or depressant capable of affecting its speed, stamina, courage or conduct, the owner or trainer or other person who, in the opinion of the Judicial Committee was in charge of such greyhound, may be disqualified for any specific period or for life, his licence may be suspended and/or he may be fined and if the greyhound is disqualified the Judicial Committee shall make the appropriate placings of other greyhounds affected accordingly".

Previously R.138 (6) had incorporated a reasonable precautions defence by the inclusion of the words:

"…unless he satisfies the Committee that he had taken all reasonable precautions to prevent the administration of such drug, stimulant or depressant".

But that defence was removed from the Rule when it was amended in 1995 to the form set out above. Mr McInerney was found to have committed breaches of R.138 (6) as charged by a Judicial Committee set up under the Rules, that finding later being upheld by an Appeals Tribunal. In the course of the hearing before the Judicial Committee Mr McInerney's Counsel had submitted that R.138 (6) should be treated as akin to an offence of strict liability and susceptible to a defence that all reasonable precautions had been taken. The Judicial Committee rejected the submission and following its Decision being upheld by the Appeals Tribunal, Mr McInerney instituted Judicial Review proceedings in which, inter alia, the Judicial Committee's finding that R.138 (6) should not be treated as the equivalent of an offence of strict liability was challenged. In dealing with that submission Panckhurst J noted R.138 (6) was in the nature of what he called a "status offence"; that is an offence simply requiring proof (in this instance) of the fact Mr McInerney was the trainer or person in charge of the greyhound which had been taken to a race meeting when the fact, or circumstance, of the administration of a performance affecting drug to it was established. Panckhurst J considered that such an interpretation reflected the plain purpose of the Rule which was to ensure greyhounds competed on level terms and no dog had present in its system any drug capable of affecting its performance. Noting that against that purpose the Rule had been amended in 1995 to remove the reasonable precautions defence, Panckhurst J concluded:

"But accepting the Rule as it is now drafted, I see no basis for importing an absence of fault or due diligence defence."

One aspect of the Judge's reasoning was that under the relevant penalty provisions the Judicial Committee enjoyed what he called "an unfettered discretion" as to disqualification of the greyhound and the penalty to be imposed on the trainer or person in charge of the greyhound, noting it need impose no personal penalty at all.

Panckhurst J's view of how the Rule should be interpreted and applied was subsequently upheld by the Court of Appeal.

Mr Lange drew the obvious comparison between the form of R.1004 in this case, its prior amendment and the inclusion of sub-rule (4) with R.138 (6) of the Greyhound Association's Rules as it was interpreted and applied in the McInerney case to reinforce his submission that the proper interpretation of R. 1004 did not permit a reasonable precautions or absence of fault defence and that it should properly be regarded as akin to an offence of absolute liability.

3.13 Ms Thomas on the other hand, submitted that a breach of R.1004 should be treated as the equivalent of an offence of strict liability, that is an offence which admits of what is commonly called a no fault defence. Ms Thomas developed the submission by pointing to the provisions of R.1008 which provides:

"1008 In the absence of any express provision to the contrary in any proceeding for a breach of these Rules: -

(a) it shall not be necessary for the Informant to prove that the Defendant or any person intended to commit that or any breach of the Rule; and

(b) any breach of a Rule shall be considered as an offence of strict liability"

The Rules do not define what is meant by an offence of strict liability but we have no reason to suppose it is intended to mean anything other than what it is now commonly understood within this country to mean in a legal setting, that is an offence where liability is established on proof of the proscribed act or omission subject to the person charged being exonerated on proof the proscribed act or omission occurred or arose without fault on his/her part. In such cases the obligation to establish absence of fault lies with the party seeking to invoke the defence which is to be proved on the balance of probabilities. While acknowledging R.1004 (4) was a pointer to a breach of R.1004 (2) being regarded as one of absolute liability Ms Thomas submitted it was not "…an express provision to the contrary…" within R.1008 and that R.1008 (b) applied to require the breach to be treated as the equivalent of an offence of strict liability.

3.14 Ms Thomas drew further support for her submission by referring to the following additional matters; firstly the rule of interpretation which requires the interpretation most favourable to a defendant to be preferred where a provision is reasonably capable of two interpretations. In this regard Ms Thomas submitted R.1004 was open to two interpretations because sub-rule (4) did not expressly and unequivocally state the offence was one of absolute liability. Had that been intended, she submitted, those responsible for the drafting of the Rule could easily have said so. Therefore she submitted R.1008 should prevail.

3.15 Next, as an extension of the previous submission, Ms Thomas submitted by reference to two leading authorities in this country on the classification of offences, that the categorisation of offences as absolute liability offences should be considered as the exception rather than the rule and that should apply equally to HRNZ's Rules where the issue of categorisation of a breach arose. She then referred to a decision of the New South Wales Racing Appeals Tribunal delivered on 9 February 2011 in the case of a trainer named Peter Russo who had appealed against a finding that he had breached R.190 (1), (2) and (4) of the Harness Racing Rules. R.190 provided as follows:

"(1) a horse shall be presented for a race free of a prohibited substance
(2) if a horse is presented for a race otherwise than in accordance with sub-rule (1) the trainer of the horse is guilty of an offence
(4) an offence under sub-rule (2)…is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse"

As can be seen, with some minor variations in language, R.190 (1), (2) and (4) is effectively the same as R.1004 (1), (2) and (4) of the New Zealand Rules. Ms Thomas drew attention to the fact that in the course of its decision in the Russo case the New South Wales Racing Appeals Tribunal referred to the fact that R.190 was drawn in terms that created a strict liability offence. Ms Thomas also drew support for her submission from the fact a breach of R.1004 carried serious consequences in terms of the maximum penalties provided and what she called the "secondary consequences of impairment of reputation and interference with livelihood" which followed from a breach of the Rules. Drawing on an observation made in one of the authorities referred to previously, she said such consequences, one of which she characterised as "mandatory", further told against R.1004 being regarded as the equivalent of an offence of absolute liability.

3.16 Finally by reference to what she called the "contingent nature" of liability under R.1004 and the object and purpose of the Rules which she said were to ensure the integrity of the harness racing industry, Ms Thomas submitted R.1004 should be treated as the equivalent of an offence of strict liability. She submitted that the objective of ensuring integrity in the industry was not advanced by interpreting R.1004 in such a way "that a blameless trainer who has taken all reasonable steps faces suspension and disqualification". She illustrated the point by noting that if R.1004 was treated as the equivalent of an offence of absolute liability it would mean "conviction" for the trainer and disqualification of the horse even if it was conclusively proved a competitor had "drugged" the animal. Her submission was that in such circumstances a breach would be proved against the trainer

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