Non Raceday Inquiry RIU v M Hamilton and S Robinson – Reserved Decision dated 19 December 2017 – Chair, Prof G Hall
ID: JCA14196
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MURRAY HAMILTON
Unlicensed
Respondent
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND SHAE ROBINSON
Licensed Trackwork Rider
Respondent
INFORMATION NOS: A6645 and A6646
COMMITTEE: Prof G Hall (Chairman)
Mr V Munro (Member)
APPEARING: Mr C Lange, for the Informant
The Respondents in person
HEARING DATE: 9 November 2017
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr C Allison, Racecourse Investigator, on behalf of his employer, the RIU, has charged Mr Murray Hamilton with a breach of r 1104(1)(b) of the NZ Thoroughbred Rules of Racing.
[2] The charge is that “[o]n the 27th and 28th of September 2017 at Glassford Road Omakau, Murray William Hamilton whilst disqualified did assist in the training, care and control of thoroughbred horses.”
[3] Rule 1104(1) provides
A person who is disqualified in accordance with this Part XI, or whose name appears in the list of disqualifications of Another Racing Authority shall not during the period of disqualification:
(b) train any horse or ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses.
[4] The relevant penalty provision is r 1104(3), which states:
A person who contravenes this Rule shall, in addition to any other penalty which may be imposed under any of these Rules, be disqualified for an additional period of not less than six months to commence at the end of the period of the current disqualification. For every second or subsequent breach he shall, in addition to any other such penalty, be disqualified for a period of not less than 12 months to commence at the expiry of the immediately previous period of disqualification.
[5] We refer to Mr Hamilton throughout this decision as the first respondent.
[6] There is a further charge related to the same incident. The second respondent is Ms Shae Robinson. She is charged with a breach of r 801(1)(z) of the NZ Thoroughbred Rules of Racing.
[7] The charge is that “[o]n the 27th and 28th of September 2017 Shae Marie Robinson being a licensed person namely a Class B Trackwork Rider, did assist and associate with a disqualified person namely Murray William Hamilton for the purposes of the care and training of a registered horse.”
[8] Rule 801(1) provides
A person who commits a Serious Racing Offence within the meaning of these Rules who:
(z) being a Licensed Person or Owner or lessee (as the case may be), his Agent or Racing Manager aids or assists or associates with a prohibited person or disqualified person for the purposes of the sale, purchase, care, breeding, training or racing of a horse registered under these Rules.
[9] The relevant penalty provision is r 801(2), which states:
A person who commits a Serious Racing Offence shall be liable to:
be disqualified for any specific period or for life; and/or be suspended from holding or obtaining a Licence for a period not exceeding 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
a fine not exceeding $50,000.
[10] In letters dated 9 October, Mr Godber, the General Manager of the RIU, authorised the lodging of non-race-day informations against the two respondents.
[11] These matters were heard together with the consent of the parties at Forbury Park racecourse on 9 November 2017.
Informant’s case
[12] Mr Lange opened his submissions by stating that Mr Hamilton was disqualified from holding or obtaining a Trainer’s Licence from 30 June 2017 up to and including 5 October 2017.
[13] After the disqualification commenced the RIU had received information that Mr Hamilton had continued to be involved in the training of horses at a property situated at 881 Glassford Rd in the Omakau district. As a consequence, on 27 and 28 September 2017 RIU Investigators kept observations on Mr Hamilton and that property.
[14] The first witness for the informant was Mr Simon Irving, a Racing Investigator for the RIU. He stated that on 27 September 2017 as a result of information received, he assisted an investigation regarding Mr Hamilton.
[15] At 6.30 am he took up what he described as “a forward observation point on the roadside near 881 Glassford Rd Omakau”. He marked his position on a Google map of the area that had been printed and was produced as an exhibit.
[16] Mr Irving said he had use of his binoculars and his cell phone voice recorder. He recorded the following information:
7.19am A white ute arrives with a rear right hand side tail light out and drives up the driveway and into the front paddock.
The driver gets out and erects a fence break along the southern end of the front paddock. [The witness identified this person as the first respondent.]
7.31am The white ute drives to the stable area.
7.35am The subject leads four horses from the front yard to the tie-up area. The subject was wearing a white baseball cap, dark coloured top/jersey and dark trousers.
7.44am Grey / dark SUV type vehicle leaves address south on Glassford Rd.
7.49am Subject saddles horse in tie-up area visible between implement shed and concrete stables.
7.53am Subject applies a blue hood to the horse.
7.55am Silver station wagon drives into driveway from the northern end of Glassford Road.
7.59am A rider on top of horse emerges from tie-ups and horse walks onto track. Subject drives quad bike toward track halfway before returning to stables area. Horse ridden around track 4-5 laps jogging, cantering clockwise. Rider wearing black skull cap, brown sleeveless vest, blue pants, riding boots, brown long hair.
8.12am Horse walked off track, back to stable area. Subject unsaddles horse in same location as was saddled.
8.17am Second horse goes out, red saddle cloth, blue hood. Subject continues to unsaddle first horse and puts cover on it.
8.22am Second horse worked on track similar to first.
8.27am Second horse returns to stables and out of view behind tie-up /stables.
8.31am Third horse emerges and walked onto track green / khaki saddle cloth and worked similar to others.
8.44am Third horse walked back to stables.
8.47am Fourth horse emerges from stables walked to track, red saddle cloth, blue hood and worked similar to others.
8.58am Fourth horse returns to stables out of view.
9.05am White ute driven onto track through gates followed by two horses being led by track-rider, purple canvas covers on both, put into paddock area inside where break had been erected earlier. Subject driving ute. Track rider wearing blue hooded sweatshirt with white emblem on front.
9.12am Ute driven back to stables by subject.
9.30am Both subject and track-rider tending / grooming / checking feet of two horses – one with green cover, one with grey cover.
9.53am Silver station wagon leaves property, heading north out of driveway.
10.10am Subject feeds out four horses in front yard.
10.35am White ute towing large white horse float leaves address, heading south.
10.50am Extraction completed.
[17] Mr Irving stated that on 28 September at 8.45 am he went to the property at 881 Glassford Rd together with Mr Cruickshank to speak to Mr Hamilton and the track work rider, Ms Robinson.
[18] Mr Irving told the first respondent that he wished to talk about the horses on the property and Mr Hamilton’s disqualification and he wanted to record the conversation on his dictaphone, which Mr Hamilton stated he was happy for Mr Irving to do.
[19] Mr Irving conducted a 10-minute interview, which was played to the hearing. The key elements of this conversation were that the first respondent confirmed that his disqualification ended on 5 October. When asked about his role with the horses, Mr Hamilton replied, “I do nothing at all. I come out and look after this child, I do the farm work, I’m on the farm here, my son goes shoeing….”
[20] Mr Hamilton identified the horses as MURRAY, BET YA WOOD, and two others, which did not have names, and had just come into work. He described them all as “babies”, but acknowledged they were 3-year-olds. He stated they were owned by Gordon Lambert, Windsor Park, Westbury Stud, and Andrew Campbell, respectively.
[21] When asked were they racehorses, Mr Hamilton replied, “They’re gonna to be eventually I s’pose.” He stated the one owned by Andrew Campbell, BET YA WOOD, had raced previously but had had a year out in the paddock. Two of the four horses had been leased by syndicates.
[22] Mr Hamilton denied working any of the horses and said Ms Robinson worked the four. He emphasised his son was normally present to look after her children and he just did the farm work. He said he did not go anywhere near the horses. She trotted them around the paddock and came every afternoon and fed them.
[23] Mr Hamilton confirmed the property was owned by his son, who also worked as a farrier. The first respondent again said he did nothing with respect to the four horses. When told the RIU had been watching the property that morning and had seen him saddle up the horses, he replied, “Oh yeah. It’s only one morning, I mean only cos my son’s not here, that was all, It’s just one morning. This is the only morning, honestly that’s all I’ve got to do, I’ve got another job to go to, that’s all.”
[24] When told the RIU had also watched the property the previous morning, he said he had moved two young horses out to a paddock. When confronted with the comment that he had been “saddling these horses up in the morning for her [Ms Robinson] to ride”, he responded, “Yeah, oh, well, okay, Do your…”
[25] When asked what was the intention with the horses, Mr Hamilton said they would probably be going to Mr Terry Kennedy. When asked if he was bringing them back into preparation to get them ready to go to Terry Kennedy’s to get back into racing, he said, “Whatever, we get back into it, wherever they’re gonna go.”
[26] He agreed it was a bit of pre-training, and emphasised it was not possible to do anything here in the paddock.
[27] When asked if the owners knew he was disqualified, he said some did but he emphasised he was not disqualified when the horses were turned out, as they had all been on the property for over a year.
[28] Mr Hamilton said Ms Robinson knew he was disqualified and was trying to help him out and survive herself.
[29] Towards the end of the conversation Mr Hamilton stated he normally was not at the property. He added, “The son went to Glenorchy yesterday morning and that’s why I put the saddles on this morning and looked after the kid. He’ll be back this afternoon….”
[30] Mr Irving also produced photographs taken of the stables area and track.
[31] Mr Irving stated he spoke to Mr Andrew Campbell, a Licensed Trainer, on 4 October 2017. Mr Campbell was one of the registered owners of a racehorse named BET YA WOOD. Mr Campbell advised that he had trained the horse and it had two starts and both times it was pulling and hanging, so he sacked it. It had last raced for him on Boxing Day 2016 at Otaki.
[32] A guy from down south (Mr Hamilton) had rung a few months prior to this and asked if he had any horses he could take. He did not at the time but he had kept Mr Hamilton’s number in his cellphone. He had never met Mr Hamilton and that was the first time he had spoken to him. He rang Mr Hamilton a week or so after BET YA WOOD’s Boxing Day run and told him he could have him and said to him he would win a race or two.
[33] Mr Hamilton arranged transport. Mr Campbell thought he had filled out his side of the paperwork for change of ownership and sent it to Mr Hamilton. He did not want any money for the horse and the only thing he had said to Mr Hamilton was that if he managed to get it going and sell it, he would want a cut but they did not talk about how much that would be. From the conversation that they had had, he believed Mr Hamilton was going to train the horse.
[34] Mr Irving also spoke on 4 October with Mr Gordon Lambert, an Owner /Trainer, who is the owner of the racehorse MURRAY. Mr Lambert said he had sent the horse down to Mr Hamilton to train about 18 months ago. He was a 4-year-old now. The horse was now at Terry Kennedy’s and he had won a jumpout that day.
[35] When questioned, Mr Irving said he could see Mr Hamilton saddling a horse between structures. It was in the gap between the shed and the saddling area. He said he had a good view of this through his binoculars from where he was positioned at the corner of the property propped against a drainage ditch on the south side of the road. He had a clear line of sight. He was on the verge and believed this was public land. He was in between the fences on either side of the road. He was near the southern corner of the property where the jogging track was, and close to the fence break.
[36] Mr Irving said there were two further horses on the property that were not photographed and were not related to the charges that had been laid. He said these were young horses and were at the south end of the property.
[37] There was a young child, aged he thought about two. Mr Hamilton had taken her inside the house. It was the same trackwork rider each day. He identified her as Ms Robinson, the second respondent.
[38] Mr Irving confirmed he saw Mr Hamilton saddle one horse only. He could not identify which horse Mr Hamilton had saddled, just that it was one of four. He did not see Mr Hamilton saddle the other horses.
[39] Mr Irving agreed with Mr Hamilton that Mr Hamilton had co-operated with him but emphasised Mr Hamilton had first denied any involvement in saddling. And it was only when he was told that he had been seen saddling one, that he replied it was just the one, as his son Marcus was not there. When told he had been seen saddling the previous day as well, he said, “Yeah, oh, well, okay”.
[40] When the second respondent questioned whether Mr Irving could see all he claimed from where he was positioned, he reiterated that he did.
[41] Mr Chris Allison, a Racing Investigator for the RIU also gave evidence. He stated that as a result of information received he and Racing Investigators, Mr Irving and Mr Cruickshank, went to Omakau.
[42] On 27 September 2017 at about 6.30 am he dropped off Mr Irving near 881 Glassford Rd. At around 10.50 am he uplifted Mr Irving from his location.
[43] On 28 of September 2017 at about 6.55 am Mr Allison was dropped off at an observation point in a public place across the road from 881 Glassford Rd. He said he had had a good view of the property and had use of his binoculars. He observed six horses on the property. Two of the horses were behind an electric fence in the front paddock and four horses were situated near the stable area. The front paddock was worn. This was consistent with horses being worked on it. He voice recorded his observations:
7.27am Mr Hamilton’s utility drives past me towing a trailer with large bales of hay. The vehicle enters into 881 Glassford Road.
7.31am I observe Mr Hamilton lead two horses towards the stable/tie up area.
7.33am Mr Hamilton goes out and retrieves another horse with a lead. The remaining horse follows Mr Hamilton through the gate.
7.57am A Grey/Silver station wagon arrives at the address.
Prior to the vehicle arriving Mr Hamilton has saddled up a horse with a red saddlecloth. The horse also has a light blue hood on. This was completed prior to the track work rider arriving at the address.
Mr Hamilton leads the horse away with the rider on. The horse walks down the lane and onto the training track. While the horse was heading towards the track there was a conversation between Mr Hamilton and the track work rider however I was unable to decipher what was being said.
8.02am The first horse commences work on the track in the front paddock with the track work rider. The horse is worked in a left-hand direction (anti clockwise).
8.11am The first horse completes work and is walked back down the lane towards the stable area.
8.13am Mr Hamilton assists with the horses by taking the worked horse away. It is tied up by the tie up area and is cooling down.
The track work rider immediately climbs on the second horse and heads down the lane. The track work rider did not have any opportunity to gear this horse up.
8.14am Mr Hamilton is on his cell phone as the second horse is being walked down the lane towards the training paddock.
8.16am The second horse commences work on the training track. It also has a light blue hood on and is worked anti clockwise.
The rider is regularly yelling at the horse to “get up”. At one stage the rider refers to the horse by “good girl” indicating it was a filly or mare she was riding.
8.23am The second horse is being walked up the lane back towards the stabling area.
8.26am The third horse is just leaving the tie up area. It is wearing a red saddlecloth with a light blue hood on. Once again, the track work rider did not have the opportunity or time to gear the horse up.
8.29am The third horse has commenced work on the track. It is being worked anti clockwise.
8.36am The third horse is just walking up the lane after the completion of its work.
8.38am The horse arrives back in the stable tie-up area.
8.39am The track work rider climbs onto the fourth horse to be worked. It is wearing a light blue hood. The track work rider had no opportunity to gear the horse up.
8.42am The fourth horse enters onto the training track.
8.44am Racing Investigators Andy Cruickshank and Simon Irving enter onto the property at 881 Glassford Rd.
8.46am I leave my observation point.
[44] Throughout his observations, Mr Allison said there were no other people present in the stabling/ tie up area. All horses were worked approximately 4 to 5 laps at slow pace/canter.
[45] Mr Allison stated that on 29 September he conducted enquiries with Ms Kirstie Lang from NZTR regarding the identity and ownership of four of the horses which had been worked at Glassford Rd. He was advised the following information:
JS 26 over 3 – MURRAY 2013 horse by Nom de Jeu x Our Jubilee —Current registered owner Gordon James Lambert
S 124 over 4 – unnamed 2014 Bay Mare Thewayyouare x Victoria Falls – Current registered owner Windsor Park Stud Ltd
<W> 9 over 4 – unnamed 2014 Bay colt Gorky Park x Between You And Me – Current registered owner Marriott Thoroughbreds Ltd
JK Conjoined over wave 5 over 3 – BET YA WOOD 2013 gelding by Redwood x Betchacan – Current registered owner Andrew Robert Campbell and Danielle Ellissa Campbell
[46] Ms Lang rang later and confirmed that none of the four horses had been notified as being retired or shown as hacks.
[47] Mr Allison said he spoke to Mr Russell Warwick from Marriott Thoroughbreds Ltd on 4 October. Mr Warwick advised that he sent the Gorky Park colt down to a Murray Hamilton on 11 May 2016. It was a colt when he sent it down. He was not sure if it is still was or not. Mr Hamilton had contacted him to see if he had a horse to lease for racing. He stated it was not going to be an early horse so he did not mind sending it down. Mr Hamilton rung him back again around two months ago. He said it had been broken in and he wanted to sort a lease out to race it. He was not aware Mr Hamilton was a disqualified person. He stated, “That’s news to me”. He also did not know Mr Hamilton had been warned off racecourses.
[48] On 4 October Stipendiary Steward Mr Davidson had contacted Mr Allison to advise him that the horse MURRAY was at the Wingatui jumpouts that day. The horse gained its barrier certificate and won an 800 metre jumpout. Mr Davidson advised the horse raced under the stable of Mr Terry Kennedy and was transported to the course by Ms Bridget Emerson. (Ms Emerson, in an undated statement that was presented during the course of Mr Hamilton’s defence to the charge, has refuted the allegation that she transported the horse to the course.)
[49] On 15 October, while at the Winton Jockey Club, trainer Mr Terry Kennedy advised Mr Allison that another one of the horses from Mr Hamilton had arrived at his stable. He confirmed it was BET YA WOOD.
[50] When questioned, Mr Allison said one of the horses had been saddled up prior to Ms Robinson arriving. There were no other persons present.
[51] Mr Allison accepted what he and the previous witness described as a hood was better described as a pacifier. It was used to assist a horse to concentrate when in training. He would not have expected a hack to have worn one. When questioned as to this, he agreed hacks could wear pacifiers but added he would be surprised if they did.
[52] Mr Allison confirmed he had assumed the first respondent had saddled up all the horses due to the small gap in time between one horse being worked and then the next. He believed it was impossible to saddle a horse in this time. Ms Robinson informed him that that had been her job when in Europe and she was very proficient at it. Mr Allison did not dispute her statement.
[53] When asked to be precise as to where he was positioned, he said he was in the south-east corner in front of the young horses and by an electric fence. He marked his position on the google map that had previously been produced as an exhibit.
[54] The last witness for the prosecution was Mr Andy Cruickshank, who is also a Racing Investigator with the RIU. He stated on 27 September 2017 he assisted in an investigation into the first respondent. He observed a white utility with a horse float attached leave the home address of Mr Hamilton in Cobham Cres Omakau at 7.03 am. At 10.37 am the utility left 881 Glassford Rd with the horse float still attached.
[55] On 28 September Mr Cruickshank returned to Omakau. He went with Mr Irving to 881 Glassford Rd. He observed three horses tied up with covers on and recorded the brands. These were:
S 124 over 4
JS 26 over 3
<W> 9 over 4
[56] A track work rider, Ms Robinson, was riding a fourth horse. When Ms Robinson returned to the tie up area he asked her to show him the brands on the fourth horse, which she advised had raced before. It was JC or JK conjoined over lazy W 5 over 3.
[57] Mr Cruickshank took photos of the horses’ brands and also some photos of the stable area. He produced these photos as exhibits. Mr Hamilton told the hearing he took no issue with the identification of the four horses.
[58] Mr Cruickshank conducted an interview with Ms Robinson, which was recorded. He produced a transcript of that interview.
[59] Ms Robinson confirmed she was a licensed track work rider. She said she got the horses in in the mornings, geared them up, rode them, turned them out, and fed them in the mornings and afternoons. She stated she was aware that the first respondent was disqualified and did not know who owned the horses.
[60] She denied that the first respondent got the horses ready, stating he was only there to mind her daughter, as he was doing that day. When told the RIU Investigators had witnessed Mr Hamilton gear up the horses, Ms Robinson replied, “Well, I don’t know what he was doing today cos generally I do everything. Every day I do everything cos he knows he’s not allowed to be doing it.”
[61] Ms Robinson said none of the horses were racing and that she was just exercising them. She agreed she had encouraged one that morning. That horse was fairly new and she wanted the filly to focus. She had been asked to ride the horses, not directly by Mr Hamilton but “through other people”. The horses needed stable work and she was available. She was not able to name the horses but she rattled off the names she had given them.
[62] Ms Robinson stated she had geared up three of the horses that morning and that one was geared up when she arrived. She said she came six days a week for an hour in the morning and then back in the afternoon to feed up.
[63] When asked were the horses being trained, galloped or looked after, Ms Robinson replied, “Not trained, not galloped. I’m just looking after them pretty much. I’m just working them, that’s it. They’re not being trained and they’re not being galloped. I can’t gallop in that paddock.”
[64] When questioned as to who pays her, she said it just came into her bank account. When Mr Cruickshank stated, “Murray pays you,” she replied, “Yeah, but I don’t know who that comes from but it’s through him still but doesn’t mean he has anything to do with the horses.”
[65] On 4 October 2017 Mr Cruickshank conducted enquiries with Mr Rodney Schick, the General Manager of Windsor Park Stud, the registered owner of the horse branded S 124 over 4. Mr Schick advised him the horse had subsequently been sold to Mr Hamilton. (We understand that this horse is now used by Mr Nevill as a hack.)
[66] When questioned as to his right to go on the property, Mr Cruickshank said he believed he was empowered to do so by r 208. He further emphasised he had not been asked to leave by either of the respondents. He said he had explained the purpose of the visit. He agreed he had not knocked on the door of the house or checked who owned the property.
First respondent’s case
[67] The first respondent, Mr Hamilton, conducted his defence first. He stated he had had horses on his son Marcus’ property since he had been “kicked off” the Omakau racetrack and had lost his licence. He acknowledged that he knew he was a disqualified person and did not dispute that the witnesses were Racing Investigators with the RIU.
[68] Mr Hamilton said he presently carted horses for a living. These were both standardbreds and thoroughbreds. He also helped out on his son’s farm, and with minding the baby of the person who came to the property and exercised the horses.
[69] Mr Hamilton called his son Marcus to give evidence. He said his father helped him on the farm. He said he (Marcus) would occasionally go out and throw a saddle on the horses but that was all he had to do with them. They were hacks not racehorses. His property was just a place for the horses to go to when they could not remain at the track.
[70] Mr Marcus Hamilton said on 27 September he had put a saddle on a horse and had then “parked up inside”. He was not in Glenorchy, and thought he was at home. He said he had not heard a thing. He questioned why the RIU had not come to the door of the house. We note the 27th was the day of the first surveillance operation and the RIU had not announced their presence that day. The next day was the day they came to the property and conducted interviews.
[71] Mr Marcus Hamilton said he had always had horses at the property. He was aware his father had been training h
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 19/12/2017
Publish Date: 19/12/2017
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.
hearingid: a67220f172237f64aa8ea84c63fb735d
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 19/12/2017
hearing_title: Non Raceday Inquiry RIU v M Hamilton and S Robinson - Reserved Decision dated 19 December 2017 - Chair, Prof G Hall
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 Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MURRAY HAMILTON
Unlicensed
Respondent
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND SHAE ROBINSON
Licensed Trackwork Rider
Respondent
INFORMATION NOS: A6645 and A6646
COMMITTEE: Prof G Hall (Chairman)
Mr V Munro (Member)
APPEARING: Mr C Lange, for the Informant
The Respondents in person
HEARING DATE: 9 November 2017
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr C Allison, Racecourse Investigator, on behalf of his employer, the RIU, has charged Mr Murray Hamilton with a breach of r 1104(1)(b) of the NZ Thoroughbred Rules of Racing.
[2] The charge is that “[o]n the 27th and 28th of September 2017 at Glassford Road Omakau, Murray William Hamilton whilst disqualified did assist in the training, care and control of thoroughbred horses.”
[3] Rule 1104(1) provides
A person who is disqualified in accordance with this Part XI, or whose name appears in the list of disqualifications of Another Racing Authority shall not during the period of disqualification:
(b) train any horse or ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses.
[4] The relevant penalty provision is r 1104(3), which states:
A person who contravenes this Rule shall, in addition to any other penalty which may be imposed under any of these Rules, be disqualified for an additional period of not less than six months to commence at the end of the period of the current disqualification. For every second or subsequent breach he shall, in addition to any other such penalty, be disqualified for a period of not less than 12 months to commence at the expiry of the immediately previous period of disqualification.
[5] We refer to Mr Hamilton throughout this decision as the first respondent.
[6] There is a further charge related to the same incident. The second respondent is Ms Shae Robinson. She is charged with a breach of r 801(1)(z) of the NZ Thoroughbred Rules of Racing.
[7] The charge is that “[o]n the 27th and 28th of September 2017 Shae Marie Robinson being a licensed person namely a Class B Trackwork Rider, did assist and associate with a disqualified person namely Murray William Hamilton for the purposes of the care and training of a registered horse.”
[8] Rule 801(1) provides
A person who commits a Serious Racing Offence within the meaning of these Rules who:
(z) being a Licensed Person or Owner or lessee (as the case may be), his Agent or Racing Manager aids or assists or associates with a prohibited person or disqualified person for the purposes of the sale, purchase, care, breeding, training or racing of a horse registered under these Rules.
[9] The relevant penalty provision is r 801(2), which states:
A person who commits a Serious Racing Offence shall be liable to:
be disqualified for any specific period or for life; and/or be suspended from holding or obtaining a Licence for a period not exceeding 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
a fine not exceeding $50,000.
[10] In letters dated 9 October, Mr Godber, the General Manager of the RIU, authorised the lodging of non-race-day informations against the two respondents.
[11] These matters were heard together with the consent of the parties at Forbury Park racecourse on 9 November 2017.
Informant’s case
[12] Mr Lange opened his submissions by stating that Mr Hamilton was disqualified from holding or obtaining a Trainer’s Licence from 30 June 2017 up to and including 5 October 2017.
[13] After the disqualification commenced the RIU had received information that Mr Hamilton had continued to be involved in the training of horses at a property situated at 881 Glassford Rd in the Omakau district. As a consequence, on 27 and 28 September 2017 RIU Investigators kept observations on Mr Hamilton and that property.
[14] The first witness for the informant was Mr Simon Irving, a Racing Investigator for the RIU. He stated that on 27 September 2017 as a result of information received, he assisted an investigation regarding Mr Hamilton.
[15] At 6.30 am he took up what he described as “a forward observation point on the roadside near 881 Glassford Rd Omakau”. He marked his position on a Google map of the area that had been printed and was produced as an exhibit.
[16] Mr Irving said he had use of his binoculars and his cell phone voice recorder. He recorded the following information:
7.19am A white ute arrives with a rear right hand side tail light out and drives up the driveway and into the front paddock.
The driver gets out and erects a fence break along the southern end of the front paddock. [The witness identified this person as the first respondent.]
7.31am The white ute drives to the stable area.
7.35am The subject leads four horses from the front yard to the tie-up area. The subject was wearing a white baseball cap, dark coloured top/jersey and dark trousers.
7.44am Grey / dark SUV type vehicle leaves address south on Glassford Rd.
7.49am Subject saddles horse in tie-up area visible between implement shed and concrete stables.
7.53am Subject applies a blue hood to the horse.
7.55am Silver station wagon drives into driveway from the northern end of Glassford Road.
7.59am A rider on top of horse emerges from tie-ups and horse walks onto track. Subject drives quad bike toward track halfway before returning to stables area. Horse ridden around track 4-5 laps jogging, cantering clockwise. Rider wearing black skull cap, brown sleeveless vest, blue pants, riding boots, brown long hair.
8.12am Horse walked off track, back to stable area. Subject unsaddles horse in same location as was saddled.
8.17am Second horse goes out, red saddle cloth, blue hood. Subject continues to unsaddle first horse and puts cover on it.
8.22am Second horse worked on track similar to first.
8.27am Second horse returns to stables and out of view behind tie-up /stables.
8.31am Third horse emerges and walked onto track green / khaki saddle cloth and worked similar to others.
8.44am Third horse walked back to stables.
8.47am Fourth horse emerges from stables walked to track, red saddle cloth, blue hood and worked similar to others.
8.58am Fourth horse returns to stables out of view.
9.05am White ute driven onto track through gates followed by two horses being led by track-rider, purple canvas covers on both, put into paddock area inside where break had been erected earlier. Subject driving ute. Track rider wearing blue hooded sweatshirt with white emblem on front.
9.12am Ute driven back to stables by subject.
9.30am Both subject and track-rider tending / grooming / checking feet of two horses – one with green cover, one with grey cover.
9.53am Silver station wagon leaves property, heading north out of driveway.
10.10am Subject feeds out four horses in front yard.
10.35am White ute towing large white horse float leaves address, heading south.
10.50am Extraction completed.
[17] Mr Irving stated that on 28 September at 8.45 am he went to the property at 881 Glassford Rd together with Mr Cruickshank to speak to Mr Hamilton and the track work rider, Ms Robinson.
[18] Mr Irving told the first respondent that he wished to talk about the horses on the property and Mr Hamilton’s disqualification and he wanted to record the conversation on his dictaphone, which Mr Hamilton stated he was happy for Mr Irving to do.
[19] Mr Irving conducted a 10-minute interview, which was played to the hearing. The key elements of this conversation were that the first respondent confirmed that his disqualification ended on 5 October. When asked about his role with the horses, Mr Hamilton replied, “I do nothing at all. I come out and look after this child, I do the farm work, I’m on the farm here, my son goes shoeing….”
[20] Mr Hamilton identified the horses as MURRAY, BET YA WOOD, and two others, which did not have names, and had just come into work. He described them all as “babies”, but acknowledged they were 3-year-olds. He stated they were owned by Gordon Lambert, Windsor Park, Westbury Stud, and Andrew Campbell, respectively.
[21] When asked were they racehorses, Mr Hamilton replied, “They’re gonna to be eventually I s’pose.” He stated the one owned by Andrew Campbell, BET YA WOOD, had raced previously but had had a year out in the paddock. Two of the four horses had been leased by syndicates.
[22] Mr Hamilton denied working any of the horses and said Ms Robinson worked the four. He emphasised his son was normally present to look after her children and he just did the farm work. He said he did not go anywhere near the horses. She trotted them around the paddock and came every afternoon and fed them.
[23] Mr Hamilton confirmed the property was owned by his son, who also worked as a farrier. The first respondent again said he did nothing with respect to the four horses. When told the RIU had been watching the property that morning and had seen him saddle up the horses, he replied, “Oh yeah. It’s only one morning, I mean only cos my son’s not here, that was all, It’s just one morning. This is the only morning, honestly that’s all I’ve got to do, I’ve got another job to go to, that’s all.”
[24] When told the RIU had also watched the property the previous morning, he said he had moved two young horses out to a paddock. When confronted with the comment that he had been “saddling these horses up in the morning for her [Ms Robinson] to ride”, he responded, “Yeah, oh, well, okay, Do your…”
[25] When asked what was the intention with the horses, Mr Hamilton said they would probably be going to Mr Terry Kennedy. When asked if he was bringing them back into preparation to get them ready to go to Terry Kennedy’s to get back into racing, he said, “Whatever, we get back into it, wherever they’re gonna go.”
[26] He agreed it was a bit of pre-training, and emphasised it was not possible to do anything here in the paddock.
[27] When asked if the owners knew he was disqualified, he said some did but he emphasised he was not disqualified when the horses were turned out, as they had all been on the property for over a year.
[28] Mr Hamilton said Ms Robinson knew he was disqualified and was trying to help him out and survive herself.
[29] Towards the end of the conversation Mr Hamilton stated he normally was not at the property. He added, “The son went to Glenorchy yesterday morning and that’s why I put the saddles on this morning and looked after the kid. He’ll be back this afternoon….”
[30] Mr Irving also produced photographs taken of the stables area and track.
[31] Mr Irving stated he spoke to Mr Andrew Campbell, a Licensed Trainer, on 4 October 2017. Mr Campbell was one of the registered owners of a racehorse named BET YA WOOD. Mr Campbell advised that he had trained the horse and it had two starts and both times it was pulling and hanging, so he sacked it. It had last raced for him on Boxing Day 2016 at Otaki.
[32] A guy from down south (Mr Hamilton) had rung a few months prior to this and asked if he had any horses he could take. He did not at the time but he had kept Mr Hamilton’s number in his cellphone. He had never met Mr Hamilton and that was the first time he had spoken to him. He rang Mr Hamilton a week or so after BET YA WOOD’s Boxing Day run and told him he could have him and said to him he would win a race or two.
[33] Mr Hamilton arranged transport. Mr Campbell thought he had filled out his side of the paperwork for change of ownership and sent it to Mr Hamilton. He did not want any money for the horse and the only thing he had said to Mr Hamilton was that if he managed to get it going and sell it, he would want a cut but they did not talk about how much that would be. From the conversation that they had had, he believed Mr Hamilton was going to train the horse.
[34] Mr Irving also spoke on 4 October with Mr Gordon Lambert, an Owner /Trainer, who is the owner of the racehorse MURRAY. Mr Lambert said he had sent the horse down to Mr Hamilton to train about 18 months ago. He was a 4-year-old now. The horse was now at Terry Kennedy’s and he had won a jumpout that day.
[35] When questioned, Mr Irving said he could see Mr Hamilton saddling a horse between structures. It was in the gap between the shed and the saddling area. He said he had a good view of this through his binoculars from where he was positioned at the corner of the property propped against a drainage ditch on the south side of the road. He had a clear line of sight. He was on the verge and believed this was public land. He was in between the fences on either side of the road. He was near the southern corner of the property where the jogging track was, and close to the fence break.
[36] Mr Irving said there were two further horses on the property that were not photographed and were not related to the charges that had been laid. He said these were young horses and were at the south end of the property.
[37] There was a young child, aged he thought about two. Mr Hamilton had taken her inside the house. It was the same trackwork rider each day. He identified her as Ms Robinson, the second respondent.
[38] Mr Irving confirmed he saw Mr Hamilton saddle one horse only. He could not identify which horse Mr Hamilton had saddled, just that it was one of four. He did not see Mr Hamilton saddle the other horses.
[39] Mr Irving agreed with Mr Hamilton that Mr Hamilton had co-operated with him but emphasised Mr Hamilton had first denied any involvement in saddling. And it was only when he was told that he had been seen saddling one, that he replied it was just the one, as his son Marcus was not there. When told he had been seen saddling the previous day as well, he said, “Yeah, oh, well, okay”.
[40] When the second respondent questioned whether Mr Irving could see all he claimed from where he was positioned, he reiterated that he did.
[41] Mr Chris Allison, a Racing Investigator for the RIU also gave evidence. He stated that as a result of information received he and Racing Investigators, Mr Irving and Mr Cruickshank, went to Omakau.
[42] On 27 September 2017 at about 6.30 am he dropped off Mr Irving near 881 Glassford Rd. At around 10.50 am he uplifted Mr Irving from his location.
[43] On 28 of September 2017 at about 6.55 am Mr Allison was dropped off at an observation point in a public place across the road from 881 Glassford Rd. He said he had had a good view of the property and had use of his binoculars. He observed six horses on the property. Two of the horses were behind an electric fence in the front paddock and four horses were situated near the stable area. The front paddock was worn. This was consistent with horses being worked on it. He voice recorded his observations:
7.27am Mr Hamilton’s utility drives past me towing a trailer with large bales of hay. The vehicle enters into 881 Glassford Road.
7.31am I observe Mr Hamilton lead two horses towards the stable/tie up area.
7.33am Mr Hamilton goes out and retrieves another horse with a lead. The remaining horse follows Mr Hamilton through the gate.
7.57am A Grey/Silver station wagon arrives at the address.
Prior to the vehicle arriving Mr Hamilton has saddled up a horse with a red saddlecloth. The horse also has a light blue hood on. This was completed prior to the track work rider arriving at the address.
Mr Hamilton leads the horse away with the rider on. The horse walks down the lane and onto the training track. While the horse was heading towards the track there was a conversation between Mr Hamilton and the track work rider however I was unable to decipher what was being said.
8.02am The first horse commences work on the track in the front paddock with the track work rider. The horse is worked in a left-hand direction (anti clockwise).
8.11am The first horse completes work and is walked back down the lane towards the stable area.
8.13am Mr Hamilton assists with the horses by taking the worked horse away. It is tied up by the tie up area and is cooling down.
The track work rider immediately climbs on the second horse and heads down the lane. The track work rider did not have any opportunity to gear this horse up.
8.14am Mr Hamilton is on his cell phone as the second horse is being walked down the lane towards the training paddock.
8.16am The second horse commences work on the training track. It also has a light blue hood on and is worked anti clockwise.
The rider is regularly yelling at the horse to “get up”. At one stage the rider refers to the horse by “good girl” indicating it was a filly or mare she was riding.
8.23am The second horse is being walked up the lane back towards the stabling area.
8.26am The third horse is just leaving the tie up area. It is wearing a red saddlecloth with a light blue hood on. Once again, the track work rider did not have the opportunity or time to gear the horse up.
8.29am The third horse has commenced work on the track. It is being worked anti clockwise.
8.36am The third horse is just walking up the lane after the completion of its work.
8.38am The horse arrives back in the stable tie-up area.
8.39am The track work rider climbs onto the fourth horse to be worked. It is wearing a light blue hood. The track work rider had no opportunity to gear the horse up.
8.42am The fourth horse enters onto the training track.
8.44am Racing Investigators Andy Cruickshank and Simon Irving enter onto the property at 881 Glassford Rd.
8.46am I leave my observation point.
[44] Throughout his observations, Mr Allison said there were no other people present in the stabling/ tie up area. All horses were worked approximately 4 to 5 laps at slow pace/canter.
[45] Mr Allison stated that on 29 September he conducted enquiries with Ms Kirstie Lang from NZTR regarding the identity and ownership of four of the horses which had been worked at Glassford Rd. He was advised the following information:
JS 26 over 3 – MURRAY 2013 horse by Nom de Jeu x Our Jubilee —Current registered owner Gordon James Lambert
S 124 over 4 – unnamed 2014 Bay Mare Thewayyouare x Victoria Falls – Current registered owner Windsor Park Stud Ltd
<W> 9 over 4 – unnamed 2014 Bay colt Gorky Park x Between You And Me – Current registered owner Marriott Thoroughbreds Ltd
JK Conjoined over wave 5 over 3 – BET YA WOOD 2013 gelding by Redwood x Betchacan – Current registered owner Andrew Robert Campbell and Danielle Ellissa Campbell
[46] Ms Lang rang later and confirmed that none of the four horses had been notified as being retired or shown as hacks.
[47] Mr Allison said he spoke to Mr Russell Warwick from Marriott Thoroughbreds Ltd on 4 October. Mr Warwick advised that he sent the Gorky Park colt down to a Murray Hamilton on 11 May 2016. It was a colt when he sent it down. He was not sure if it is still was or not. Mr Hamilton had contacted him to see if he had a horse to lease for racing. He stated it was not going to be an early horse so he did not mind sending it down. Mr Hamilton rung him back again around two months ago. He said it had been broken in and he wanted to sort a lease out to race it. He was not aware Mr Hamilton was a disqualified person. He stated, “That’s news to me”. He also did not know Mr Hamilton had been warned off racecourses.
[48] On 4 October Stipendiary Steward Mr Davidson had contacted Mr Allison to advise him that the horse MURRAY was at the Wingatui jumpouts that day. The horse gained its barrier certificate and won an 800 metre jumpout. Mr Davidson advised the horse raced under the stable of Mr Terry Kennedy and was transported to the course by Ms Bridget Emerson. (Ms Emerson, in an undated statement that was presented during the course of Mr Hamilton’s defence to the charge, has refuted the allegation that she transported the horse to the course.)
[49] On 15 October, while at the Winton Jockey Club, trainer Mr Terry Kennedy advised Mr Allison that another one of the horses from Mr Hamilton had arrived at his stable. He confirmed it was BET YA WOOD.
[50] When questioned, Mr Allison said one of the horses had been saddled up prior to Ms Robinson arriving. There were no other persons present.
[51] Mr Allison accepted what he and the previous witness described as a hood was better described as a pacifier. It was used to assist a horse to concentrate when in training. He would not have expected a hack to have worn one. When questioned as to this, he agreed hacks could wear pacifiers but added he would be surprised if they did.
[52] Mr Allison confirmed he had assumed the first respondent had saddled up all the horses due to the small gap in time between one horse being worked and then the next. He believed it was impossible to saddle a horse in this time. Ms Robinson informed him that that had been her job when in Europe and she was very proficient at it. Mr Allison did not dispute her statement.
[53] When asked to be precise as to where he was positioned, he said he was in the south-east corner in front of the young horses and by an electric fence. He marked his position on the google map that had previously been produced as an exhibit.
[54] The last witness for the prosecution was Mr Andy Cruickshank, who is also a Racing Investigator with the RIU. He stated on 27 September 2017 he assisted in an investigation into the first respondent. He observed a white utility with a horse float attached leave the home address of Mr Hamilton in Cobham Cres Omakau at 7.03 am. At 10.37 am the utility left 881 Glassford Rd with the horse float still attached.
[55] On 28 September Mr Cruickshank returned to Omakau. He went with Mr Irving to 881 Glassford Rd. He observed three horses tied up with covers on and recorded the brands. These were:
S 124 over 4
JS 26 over 3
<W> 9 over 4
[56] A track work rider, Ms Robinson, was riding a fourth horse. When Ms Robinson returned to the tie up area he asked her to show him the brands on the fourth horse, which she advised had raced before. It was JC or JK conjoined over lazy W 5 over 3.
[57] Mr Cruickshank took photos of the horses’ brands and also some photos of the stable area. He produced these photos as exhibits. Mr Hamilton told the hearing he took no issue with the identification of the four horses.
[58] Mr Cruickshank conducted an interview with Ms Robinson, which was recorded. He produced a transcript of that interview.
[59] Ms Robinson confirmed she was a licensed track work rider. She said she got the horses in in the mornings, geared them up, rode them, turned them out, and fed them in the mornings and afternoons. She stated she was aware that the first respondent was disqualified and did not know who owned the horses.
[60] She denied that the first respondent got the horses ready, stating he was only there to mind her daughter, as he was doing that day. When told the RIU Investigators had witnessed Mr Hamilton gear up the horses, Ms Robinson replied, “Well, I don’t know what he was doing today cos generally I do everything. Every day I do everything cos he knows he’s not allowed to be doing it.”
[61] Ms Robinson said none of the horses were racing and that she was just exercising them. She agreed she had encouraged one that morning. That horse was fairly new and she wanted the filly to focus. She had been asked to ride the horses, not directly by Mr Hamilton but “through other people”. The horses needed stable work and she was available. She was not able to name the horses but she rattled off the names she had given them.
[62] Ms Robinson stated she had geared up three of the horses that morning and that one was geared up when she arrived. She said she came six days a week for an hour in the morning and then back in the afternoon to feed up.
[63] When asked were the horses being trained, galloped or looked after, Ms Robinson replied, “Not trained, not galloped. I’m just looking after them pretty much. I’m just working them, that’s it. They’re not being trained and they’re not being galloped. I can’t gallop in that paddock.”
[64] When questioned as to who pays her, she said it just came into her bank account. When Mr Cruickshank stated, “Murray pays you,” she replied, “Yeah, but I don’t know who that comes from but it’s through him still but doesn’t mean he has anything to do with the horses.”
[65] On 4 October 2017 Mr Cruickshank conducted enquiries with Mr Rodney Schick, the General Manager of Windsor Park Stud, the registered owner of the horse branded S 124 over 4. Mr Schick advised him the horse had subsequently been sold to Mr Hamilton. (We understand that this horse is now used by Mr Nevill as a hack.)
[66] When questioned as to his right to go on the property, Mr Cruickshank said he believed he was empowered to do so by r 208. He further emphasised he had not been asked to leave by either of the respondents. He said he had explained the purpose of the visit. He agreed he had not knocked on the door of the house or checked who owned the property.
First respondent’s case
[67] The first respondent, Mr Hamilton, conducted his defence first. He stated he had had horses on his son Marcus’ property since he had been “kicked off” the Omakau racetrack and had lost his licence. He acknowledged that he knew he was a disqualified person and did not dispute that the witnesses were Racing Investigators with the RIU.
[68] Mr Hamilton said he presently carted horses for a living. These were both standardbreds and thoroughbreds. He also helped out on his son’s farm, and with minding the baby of the person who came to the property and exercised the horses.
[69] Mr Hamilton called his son Marcus to give evidence. He said his father helped him on the farm. He said he (Marcus) would occasionally go out and throw a saddle on the horses but that was all he had to do with them. They were hacks not racehorses. His property was just a place for the horses to go to when they could not remain at the track.
[70] Mr Marcus Hamilton said on 27 September he had put a saddle on a horse and had then “parked up inside”. He was not in Glenorchy, and thought he was at home. He said he had not heard a thing. He questioned why the RIU had not come to the door of the house. We note the 27th was the day of the first surveillance operation and the RIU had not announced their presence that day. The next day was the day they came to the property and conducted interviews.
[71] Mr Marcus Hamilton said he had always had horses at the property. He was aware his father had been training h
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