Non Raceday Inquiry RIU v M Hamilton – Reserved Decision dated 15 June 2017 – Chair, Prof G Hall
ID: JCA14819
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the NZ Rules of Racing and the NZ Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MURRAY HAMILTON
Owner
Respondent
INFORMATION NOS. A6639 & A6640
COMMITTEE: Prof G Hall (Chairman)
Mr S Ching (Committee Member)
DATE OF ORAL HEARING: 1 June 2017
DATE OF WRITTEN DECISION: 15 June 2017
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr Hamilton is an owner of thoroughbred horses pursuant to the Rules of (Thoroughbred) Racing.
[2] At a telephone conference held on 1 June the respondent confirmed that he admitted two breaches of the Rules of Racing.
[3] The first information, A6639, states that “between the 19th of October 2016 and the 17th of January 2017 at Omakau Murray William Hamilton whilst suspended from holding or obtaining a thoroughbred trainers licence did assist in the training, care and control of thoroughbred horses.” This is a breach of r 1106(1)(a) of NZTR Rules of Racing.
[4] Rule 1106(1) provides:
During the term of any suspension and irrespective of whether such suspension has been duly notified in accordance with any of the preceding Rules in this Part XI the person who is suspended shall not:
(a) if the person holds a Trainer’s Licence, train a horse or, without the prior written consent of NZTR, be employed or work or assist in any capacity in connection with the care, control, training or riding of a horse….
[5] The second information, A6640, states that “between the 19th of October 2016 and the 17th of January 2017 at Omakau, Murray William Hamilton whilst suspended from [by] a recognised racing authority, namely NZTR, from holding or obtaining a thoroughbred trainers licence did train standardbred horses.” This is a breach of r 1311(2) of the Rules of Harness Racing.
[6] Rule 1311(2) provides:
… [A] person who has been suspended from holding or obtaining a trainer’s licence shall not during the period of suspension train any horse, assist or be involved in any capacity in the training of any horse, assist or be involved in any capacity in the breaking or gaiting of any horse, or without the written consent of the Board assist or be involved in any capacity with the preparation or presentation of a horse to race at a race meeting, picnic meeting, trial, workout or gymkhana.
[7] Rule 1312(4) provides that r 1311 applies to any person whose licence is suspended by a recognised racing authority. NZTR is such an authority: r 1312(1).
[8] Under the NZTR Rules, r 803(1), Mr Hamilton is liable to:
a. disqualification for a period not exceeding 12 months; and/or
b. suspension from holding or obtaining a licence for a period not exceeding 12 months …; and
c. a fine not exceeding $20,000.
[9] Under the HRNZ Rules, r 1003(1), Mr Hamilton is liable to:
a. disqualification for a period not exceeding 12 months;
b. suspension from holding or obtaining a licence for a period not exceeding 12 months; and
c. a fine not exceeding $10,000.
[10] Authorisation for the lodging of the informations was produced by way of letters from Mr Godber, General Manager of the RIU, dated 13 February 2017.
Summary of facts
[11] The informations were laid as representative breaches of the respective rules.
[12] Mr Hamilton is aged 68 and resides in the rural town of Omakau in Central Otago. He has been licensed with NZTR since 2003 as a Trainer. Prior to being issued a licence with NZTR, Mr Hamilton had been licensed in the Harness Racing industry since 1972.
[13] As a consequence of a decision of the JCA dated 18 October 2016, Mr Hamilton was suspended from holding or obtaining a trainer’s licence from 18 October 2016 up to and including 17 January 2017. Mr Hamilton is currently unlicensed.
[14] Mr Hamilton was suspended as a consequence of his admitting a breach of r 340 of the Rules of Racing in that he used abusive and offensive language to the Secretary of the Central Otago Equestrian Club (COEC) in a telephone conversation.
[15] After the suspension commenced the RIU was informed that Mr Hamilton had continued to be involved in the training and care of horses at the Omakau Racecourse.
[16] The RIU were advised Mr Hamilton was assisting with the training of horses for Ms Bridget Emerson who had applied for a thoroughbred trainer’s licence. A licence was subsequently issued to her on 2 February 2017.
[17] Mr Hamilton had also been observed jogging a standardbred horse on the all-weather harness racing track on a jogging machine attached to his vehicle, and to be leading thoroughbred and standardbred horses to and from paddocks, feeding horses and shoeing horses.
[18] On 23 November 2016 Mr Hamilton was spoken to by RIU staff at Omakau and reminded of the conditions of his suspension. He was advised he was not to have any contact with racehorses as he was a suspended trainer.
[19] On 1 December 2016 a RIU staff member rung Ms Emerson’s cell phone which was answered by Mr Hamilton. During the conversation, Mr Hamilton was again advised to ensure he did not assist in the training of the horses.
[20] On 6 December 2016 a RIU staff member attended the Omakau Racecourse due to the information they had received that Mr Hamilton had continued to work and be involved with racehorses despite his suspension. At 6.50 am Mr Hamilton drove into the racecourse. After driving through the road side gate Mr Hamilton left it open despite a sign stating “this gate must be kept closed at all times”.
[21] Mr Hamilton then went and retrieved a standardbred horse from a paddock. Mr Hamilton put the horse onto a jogging machine behind his vehicle and jogged the horse on the all-weather harness track for some 30 minutes. Once he finished working the standardbred horse Mr Hamilton went back out to the race course paddocks and returned to the stabling area leading two thoroughbred horses.
[22] Mr Hamilton was confronted by a RIU Investigator. Mr Hamilton advised he was bringing in the horses to assist with the shoeing of them as the regular farrier had suffered an injury and was unable to assist. Mr Hamilton was again advised he was not to have any contact with the horses due to his suspension.
[23] The following day (7 December 2016) the RIU were advised that Mr Hamilton had returned to the track the next morning and had continued to be involved with the horses.
[24] Later that day Mr Hamilton attended the Otago Racing Club meeting at Wingatui. At the end of the race meeting Mr Hamilton approached a Racing Investigator. Mr Hamilton was shown a copy of the relevant suspension rule, r 1106 (1)(a), and again advised he was not to have anything to do with the race horses.
[25] Despite the previous warnings given to Mr Hamilton, the RIU continued to receive information that Mr Hamilton was involved in the training and care of the racehorses despite his suspension. This included him working two standardbreds on a jogging machine on the back of his vehicle in a grass area near the back straight of the main course proper.
[26] Mr Hamilton was interviewed by Racing Investigators on 2 February 2017. Mr Hamilton was co-operative when questioned. Mr Hamilton admitted on an almost daily basis he had either led horses to and from the paddocks, had been feeding the horses or was assisting in their shoeing. Mr Hamilton also acknowledged he assisted with placing the bridle on one of the thoroughbred horses. In explanation, he advised he was only trying to help Ms Emerson as she was not able to place the bridle on the horse due to its wayward tendencies.
[27] Mr Hamilton had also been receiving the training fees from some of the owners of the thoroughbred horses and had been paying wages to Ms Emmerson and a track work rider. Mr Hamilton gave money to Ms Emmerson who would then pay for the track fees. Mr Hamilton was also responsible for purchasing the feed for the horses.
[28] Mr Hamilton admitted he had been working the standardbreds but thought he was permitted to do so, as they were being pre-trained and he was only suspended from the training of thoroughbreds. He advised the Investigator that he was not aware the suspension of his thoroughbred licence was reciprocal with harness racing. Mr Hamilton also believed he was able to shoe the horses without breaching his suspension.
Informant’s submissions as to penalty
[29] The informant commenced their written submissions by stating that the current proceedings were a sporting code’s disciplinary proceedings, which were akin to professional disciplinary proceedings.
[30] The Supreme Court in Z v Complaints Assessment Committee [2009] 1 NZLR 1 held that punishment was not a purpose of disciplinary proceedings. The Supreme Court developed the principles at several points in its judgment. Elias CJ remarked that punishment was the responsibility of the criminal justice process at [70]:
The professional standards are properly the focus of the disciplinary inquiry. Where a distinct finding that a conviction reflects adversely on fitness is made, the Tribunal cannot exercise its usual powers to fine the dentist. Again, this seems to me to be recognition that punishment is the responsibility of the criminal justice process. What remains are the professional sanctions for public protection: removal from the register, suspension of registration, the requirement to practise only under supervision, and censure. The overlay of professional discipline in this way meets the purpose explained by Lord Devlin in Ziderman v General Dental Council:
The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession. … [I]t would be the duty of the committee, before deciding to inflict the only and draconian penalty which lies within their power, to satisfy themselves that the offence of which the dentist had been convicted was if so grave a character to show that he was unfitted to continue to practice his profession.
[31] McGrath J for the majority (Blanchard, Tipping and McGrath JJ) acknowledged that while statutory disciplinary proceedings did not have the purpose of punishing a practitioner, they might have that effect. His Honour remarked at [97]:
… the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure appropriate standards of conduct are maintained in the occupation concerned.
[32] Anderson J compared the purpose of disciplinary proceedings with that of a criminal trial and considered that the essential functional purpose of professional disciplinary bodies was different:
[128] The purpose of disciplinary proceedings is materially different to that of a criminal trial. It is to ascertain whether a practitioner has met the appropriate standards of conduct in the occupation concerned and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus.
[149] The function of the criminal law is to ascertain if the defendant has committed a crime and if so, to impose criminal consequences. The essential functional purpose of the professional disciplinary bodies is different. As Gresson P pointed out in Re A, Medical Practitioner:
[T]he exercise by the Medical Council of its powers is not by way of punishment, but rather to enforce a high standard of propriety and professional conduct.
[33] In the same case Cleary J, writing for himself and North J, stated:
[150] [W]hen [the Medical Council] becomes concerned with conduct which constitutes an offence, it is not for the purpose of punishing that conduct as an offence against the public, which is the purpose of the criminal law, but because it is conduct which may show that the practitioner concerned is no longer fit to continue to practise the profession.
[151] Lord Diplock pointed out in Ziderman v General Dental Council that the purpose of disciplinary proceedings is to protect the public who may come to a practitioner and to maintain the high standards and good reputation of an honourable profession.
[34] The informant submitted that the purposes of protection of the public and the maintenance of high professional standards percolated the remarks of the Supreme Court Justices. More specifically, the purpose of disciplinary proceedings could be summarised as:
a. To enforce a high standard of propriety to maintain the high standards and good reputation of a profession; and
b. To protect the public from a specific practitioner or others who might be likeminded to offend.
[35] It was submitted that when the principles of professional disciplinary proceedings were applied to a disciplinary proceeding in a sport the purposes are to:
a. enforce a high standard of propriety to maintain the high standards and good reputation of a those involved in the sport; and
b. protect the betting public and others involved in the sport from future breaches by the individual or others who might be likeminded to breach the Rules.
[36] These principles were said to be now reflected in cl 5.1 of the Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal which states:
The purpose of proceedings before a Judicial Committee or Appeals Tribunal include:
(a) to ensure that racing is conducted in accordance with the code rules;
(b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry;
(c) to uphold and maintain the integrity of the sport of racing and the racing industry; and
(d) to protect the participants in the sport of racing, the racing industry, and the public.
[37] A previous case which the informant believed was of assistance to the Judicial Committee was RIU v Lynch 14 March 2016. Mr Lynch was disqualified for four years in relation to an administration rule breach. He was located on a licensed trainer’s premises. Mr Lynch was disqualified for a further twelve months on two charges (six months each) plus $1,000 costs to the RIU and a further $1,000 costs to the JCA.
[38] The RIU listed Mr Hamilton’s four previous breaches of the Rules of Racing relating to misconduct since December 2014.
a. 3 March 2015 — r 801(1)(s)(ii), which was laid as a serious racing offence, where Mr Hamilton received a $350 fine for language he used to a NZTR official on the telephone. (The decision notes that Mr Hamilton, in response to being read a clause from the NZTR Racing Policy by an official in the handicapping department, which he thought was preposterous, expressed his thoughts in reply by personally abusing the official.)
b. 11 July 2016 — Mr Hamilton was fined $500 when he made an abusive and offensive phone call to another industry participant (the Secretary of the COEC).
c. 11 July 2016 — Mr Hamilton received a suspended $500 fine for writing offensive language on a racecourse sign in relation to another racing participant.
d. 18 October 2016 — Mr Hamilton was suspended from holding or obtaining a trainer’s licence for a three-month period from 18 October 2016 up to and including 17 January 2017 in relation to an offensive phone call he made to an industry participant. Mr Hamilton was also fined $750 which included the $500 suspended fine from his previous misconduct charge.
[39] The last misconduct charge was sufficiently serious that the victim also made a complaint to the Police. As a result, Mr Hamilton was fined $450 plus $130 court costs after appearing in the Alexandra District Court on 20 September 2016.
[40] The RIU emphasised that Mr Hamilton had been given plenty of warning to desist from his involvement with horses but continued on regardless. The day following the visit from the RIU Mr Hamilton had still turned up in the morning and continued with his actions. Mr Hamilton thus blatantly breached his suspension without any consideration for the consequences. These breaches were on an almost daily basis.
[41] The RIU had sought a suspended penalty with respect to the 11 July misconduct matter in an attempt to assist Mr Hamilton abide by the Rules through the early stages of events which had ultimately led to his suspension. The JCA subsequently suspended one of the $500 fines as an incentive for Mr Hamilton to abide by the rules.
[42] Despite previous penalties being imposed including a suspended fine on Mr Hamilton by the JCA, Mr Hamilton had continued to offend.
[43] Mr Hamilton was said to have shown a blatant disregard for the Rules of Racing. His actions were deliberate and he had continued to be involved with horses on an almost daily basis despite the suspension that had been imposed.
[44] Mr Hamilton was an experienced industry participant and knew the expectations and requirements in relation to his behaviour and the Rules of Racing. Mr Hamilton’s actions had also put Ms Emerson’s licence at risk with NZTR. (The informant stated at the teleconference that her licence had been revoked on 26 May.)
[45] When spoken to by RIU Investigators, Mr Hamilton was co-operative and openly admitted his actions.
[46] The purpose of the penalty in this case was said to be to support the racing community’s endeavours to ensure all their participants acted within their respective code’s rules. Mr Lange added at the teleconference that suspension had proved to be an ineffective penalty and while disqualification was often regarded as a penalty of “last resort”, only this penalty in this instance would prevent Mr Hamilton from continuing to be involved in racing activities.
[47] In relation to the two informations, the RIU submitted a concurrent disqualification for a minimum period of six months for the breach of information A6639 (thoroughbred) and information A6640 (harness) was the appropriate penalty.
[48] The RIU made no application for costs.
Respondent’s submissions as to penalty
[49] The respondent’s submissions commenced by outlining Mr Hamilton’s personal circumstances. At 68 years of age he has spent his entire adult life in the racing industry. He had been licensed in the Harness Racing industry since 1972, and involved formally with NZTR industry for more than a decade (licensed as a trainer since 2003).
[50] Until his suspension, Mr Hamilton was a professional trainer. He has no other form of income save National Superannuation. He owns 6 horses and has shares in 5 others.
[51] The genesis of the problems that have arisen were that Mr Hamilton was trespassed from the Omakau Race Course. A character reference from Mr Murray Kirk, a Committee member of the Central Otago Racing Club and a delegate on the COEC canvassed this. This was confirmed in an email from Mr Alistair Eckhoff.
[52] The respondent’s submissions made reference to the possibility of his being warned off. We understand from counsel’s oral submissions that this has not occurred and its only relevance is, should it have transpired, that it might serve to reduce any penalty we impose.
[53] The respondent submitted that the appropriate sanction was not disqualification but a further period of suspension. Disqualification is the most severe penalty available to the Judicial Committee and the respondent said it was not necessary in this case to administer this sanction as it was disproportionate to the offence.
[54] The respondent concurred with the submissions from the RIU that the purpose of these proceedings was not punishment. The focus was not so much on the individual, as it was in instances where punishment was a fundamental purpose of a sanction, but rather on the industry as a whole.
[55] Unlike the criminal process, the purpose of imposing a sanction in the present matter was to:
Ensure a high standard of propriety in the industry; and
Protect the betting public and those involved in the sport.
[56] The respondent submitted that ensuring a high standard was best achieved through a proportionate response to a breach of the Rules. The protection of those in the industry, and the betting public, was likewise not achieved through the imposition of an excessive penalty. A measured response was needed.
[57] The respondent accepted that a period of suspension was inevitable. Disqualification, however, would be both out of line with the case law and unduly onerous and unnecessary in all the circumstances. Ms Thomas described the reality of the situation was that it was “a schoolboy argument over a trespass notice”.
[58] It was submitted that unlike other cases (and in particular RIU v Lynch, which was relied upon by the informant) this was a case where this Committee could achieve the purpose of this disciplinary proceeding without imposing disqualification.
[59] Lynch was viewed to differ significantly from the present case. In that case, the respondent was serving a period of four years’ disqualification for the administration of a prohibited substance to a horse which he was training. So far as the purposes of proceedings before a Judicial Committee, that offending went to the very heart of the sport. The offending affected both the integrity of the sport, the confidence of bettors and the breeding industry. Mr Lynch's very presence at a stable (for which he received the further 12 months’ disqualification) had the potential and indeed was a matter that raised again all the serious concerns arising out of the initial disqualification.
[60] In contrast, in the present matter there was no suggestion Mr Hamilton had involved himself in the type of behaviour that led to his suspension. The sanction here was purely one where the sporting body was saying, "If you are suspended we expect you to abide by that suspension".
[61] Ms Thomas also referred this Committee to RIU v Couchman 14 March 2016, which too involved drug cheating and where a rider who tested positive for methamphetamine on race day was disqualified for 12 months. Also cited was RIU v McDonald and Donaldson 13 April 2015 where a trainer who caused to be administered to four horses the prohibited substance Phenylbutazone for the purposes of affecting the speed, stamina, courage or conduct of the horse, was disqualified for two years six months.
[62] The respondent submitted that the sole purpose of this proceeding was to ensure that a message was sent to participants that breaching a suspension would attract a response. In this case that response was said to be properly a further term of suspension.
[63] Mr Hamilton’s record was emphasised. He had been involved in both the thoroughbred and harness codes and licensed since 1972. Until 3 March 2015 he had an unblemished record (in respect of misconduct offending) in the racing industry for over 40 years. Throughout the RIU’s investigation of Mr Hamilton he had been co-operative and openly admitted his actions. This, the respondent submitted, suggested that the breaches were inadvertent rather than deliberate. The two breaches of the rules were said in effect to be a single breach relating to the two different industries in which Mr Hamilton operated.
[64] That the breaches were inadvertent rather than deliberate was submitted to be a significant matter in mitigation. Mr Hamilton’s failure to understand the extent of the prohibition was not a defence (hence the guilty plea) but the respondent submitted in mitigation that he genuinely believed that he could shoe and feed thoroughbred horses under the suspension as long as it did not amount to training the horses. The respondent did not understand that the suspension extended to his standardbred licence.
[65] Ms Thomas concluded her submission by stating the reality was that the initial suspension period was of an elderly man who clearly became involved in a pattern of offending in regard to an ongoing dispute in July and October 2016 which had got out of hand. Counsel recognised that Mr Hamilton might be assisted by an anger management course and before sentencing she stated she would provide proof of enrolment in such a course. Anger management in conjunction with a further period of suspension, she believed, were the appropriate sanctions.
Decision
[66] We are faced with imposing a penalty upon a man with an unblemished record (save perhaps, we are told, for the odd minor matter) for some 40 years in the two racing codes. It is almost unfathomable that he would face the series of charges that he has, and yet remain steadfast in his determination both that he is in the right with respect to matters relating to the COEC (and we make no comment on this as it not relevant to our decision in this case) and that the Rules of Racing do not apply to him.
[67] The only explanation we can find is that it is understandable that tensions may run high in a small rural town where only a small number of people are involved with the two racing codes. It is to be expected there will be fallouts amongst industry participants from time to time. Not everyone views a particular issue in the same light as another. This is evidently the case at Omakau. Tensions have been high. But this is an explanation for Mr Hamilton’s behaviour not an excuse for it. He is required to abide by the Rules of Racing, as is every industry participant.
[68] We do not accept the respondent’s submission that the breaches were inadvertent rather than deliberate. The RIU Investigator informed him on a number of occasions what conduct was and was not acceptable pursuant to the Rules.
[69] Mr Hamilton referred in the teleconference to the need for him to be at the track to assist with the child care of the children of a local track work rider. His stated intention to continue in this role, which we take as being unpaid, is commendable. But we note his presence on the track is not essential to his fulfilling this role. It can be undertaken at premises away from the track.
[70] We have had regard to the decisions identified by both parties in their submissions. The facts of these cases are sufficiently different from those at hand to be of little assistance to this Committee.
[71] Rule 1106(1)(a) covers the requirement of suspended trainers to ensure they adhere to the suspension. The rule is clear in its intent to avoid any trainer continuing to be involved with the training, care or control of horses.
[72] We are faced with a stark choice between disqualification and suspension. Counsel’s competing submissions are evidence of this fact. We hesitate to disqualify a person such as Mr Hamilton who has given lengthy years of dedicated service to the two codes.
[73] We view the breaches of the rules of the two codes as being, in effect, a single breach, with each being related to the two different industries in which Mr Hamilton operated.
[74] The respondent’s conduct was ongoing. The charges are thus representative. We are not satisfied that Mr Hamilton was ignorant as to his obligations under the Rules. Were he unsure as to what his suspension prohibited him from doing, Mr Allison was at hand, by telephone and we are told in person on a number of days at Omakau. There was also communication at southern race meetings.
[75] We are led to the conclusion that Mr Hamilton decided the Rules of Racing did not apply to him and he would continue with his day to day involvement with the horses, as if no suspension had been imposed. Thus, we believe a further suspension is inappropriate and there is a distinct possibility it too would simply result in a further breach.
[76] We acknowledge that disqualification will cause inconvenience for Mr Hamilton. This is part and parcel
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 16/06/2017
Publish Date: 16/06/2017
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: 7f66a015e5a574df96208dc666a88262
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 16/06/2017
hearing_title: Non Raceday Inquiry RIU v M Hamilton - Reserved Decision dated 15 June 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 NZ Rules of Racing and the NZ Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MURRAY HAMILTON
Owner
Respondent
INFORMATION NOS. A6639 & A6640
COMMITTEE: Prof G Hall (Chairman)
Mr S Ching (Committee Member)
DATE OF ORAL HEARING: 1 June 2017
DATE OF WRITTEN DECISION: 15 June 2017
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr Hamilton is an owner of thoroughbred horses pursuant to the Rules of (Thoroughbred) Racing.
[2] At a telephone conference held on 1 June the respondent confirmed that he admitted two breaches of the Rules of Racing.
[3] The first information, A6639, states that “between the 19th of October 2016 and the 17th of January 2017 at Omakau Murray William Hamilton whilst suspended from holding or obtaining a thoroughbred trainers licence did assist in the training, care and control of thoroughbred horses.” This is a breach of r 1106(1)(a) of NZTR Rules of Racing.
[4] Rule 1106(1) provides:
During the term of any suspension and irrespective of whether such suspension has been duly notified in accordance with any of the preceding Rules in this Part XI the person who is suspended shall not:
(a) if the person holds a Trainer’s Licence, train a horse or, without the prior written consent of NZTR, be employed or work or assist in any capacity in connection with the care, control, training or riding of a horse….
[5] The second information, A6640, states that “between the 19th of October 2016 and the 17th of January 2017 at Omakau, Murray William Hamilton whilst suspended from [by] a recognised racing authority, namely NZTR, from holding or obtaining a thoroughbred trainers licence did train standardbred horses.” This is a breach of r 1311(2) of the Rules of Harness Racing.
[6] Rule 1311(2) provides:
… [A] person who has been suspended from holding or obtaining a trainer’s licence shall not during the period of suspension train any horse, assist or be involved in any capacity in the training of any horse, assist or be involved in any capacity in the breaking or gaiting of any horse, or without the written consent of the Board assist or be involved in any capacity with the preparation or presentation of a horse to race at a race meeting, picnic meeting, trial, workout or gymkhana.
[7] Rule 1312(4) provides that r 1311 applies to any person whose licence is suspended by a recognised racing authority. NZTR is such an authority: r 1312(1).
[8] Under the NZTR Rules, r 803(1), Mr Hamilton is liable to:
a. disqualification for a period not exceeding 12 months; and/or
b. suspension from holding or obtaining a licence for a period not exceeding 12 months …; and
c. a fine not exceeding $20,000.
[9] Under the HRNZ Rules, r 1003(1), Mr Hamilton is liable to:
a. disqualification for a period not exceeding 12 months;
b. suspension from holding or obtaining a licence for a period not exceeding 12 months; and
c. a fine not exceeding $10,000.
[10] Authorisation for the lodging of the informations was produced by way of letters from Mr Godber, General Manager of the RIU, dated 13 February 2017.
Summary of facts
[11] The informations were laid as representative breaches of the respective rules.
[12] Mr Hamilton is aged 68 and resides in the rural town of Omakau in Central Otago. He has been licensed with NZTR since 2003 as a Trainer. Prior to being issued a licence with NZTR, Mr Hamilton had been licensed in the Harness Racing industry since 1972.
[13] As a consequence of a decision of the JCA dated 18 October 2016, Mr Hamilton was suspended from holding or obtaining a trainer’s licence from 18 October 2016 up to and including 17 January 2017. Mr Hamilton is currently unlicensed.
[14] Mr Hamilton was suspended as a consequence of his admitting a breach of r 340 of the Rules of Racing in that he used abusive and offensive language to the Secretary of the Central Otago Equestrian Club (COEC) in a telephone conversation.
[15] After the suspension commenced the RIU was informed that Mr Hamilton had continued to be involved in the training and care of horses at the Omakau Racecourse.
[16] The RIU were advised Mr Hamilton was assisting with the training of horses for Ms Bridget Emerson who had applied for a thoroughbred trainer’s licence. A licence was subsequently issued to her on 2 February 2017.
[17] Mr Hamilton had also been observed jogging a standardbred horse on the all-weather harness racing track on a jogging machine attached to his vehicle, and to be leading thoroughbred and standardbred horses to and from paddocks, feeding horses and shoeing horses.
[18] On 23 November 2016 Mr Hamilton was spoken to by RIU staff at Omakau and reminded of the conditions of his suspension. He was advised he was not to have any contact with racehorses as he was a suspended trainer.
[19] On 1 December 2016 a RIU staff member rung Ms Emerson’s cell phone which was answered by Mr Hamilton. During the conversation, Mr Hamilton was again advised to ensure he did not assist in the training of the horses.
[20] On 6 December 2016 a RIU staff member attended the Omakau Racecourse due to the information they had received that Mr Hamilton had continued to work and be involved with racehorses despite his suspension. At 6.50 am Mr Hamilton drove into the racecourse. After driving through the road side gate Mr Hamilton left it open despite a sign stating “this gate must be kept closed at all times”.
[21] Mr Hamilton then went and retrieved a standardbred horse from a paddock. Mr Hamilton put the horse onto a jogging machine behind his vehicle and jogged the horse on the all-weather harness track for some 30 minutes. Once he finished working the standardbred horse Mr Hamilton went back out to the race course paddocks and returned to the stabling area leading two thoroughbred horses.
[22] Mr Hamilton was confronted by a RIU Investigator. Mr Hamilton advised he was bringing in the horses to assist with the shoeing of them as the regular farrier had suffered an injury and was unable to assist. Mr Hamilton was again advised he was not to have any contact with the horses due to his suspension.
[23] The following day (7 December 2016) the RIU were advised that Mr Hamilton had returned to the track the next morning and had continued to be involved with the horses.
[24] Later that day Mr Hamilton attended the Otago Racing Club meeting at Wingatui. At the end of the race meeting Mr Hamilton approached a Racing Investigator. Mr Hamilton was shown a copy of the relevant suspension rule, r 1106 (1)(a), and again advised he was not to have anything to do with the race horses.
[25] Despite the previous warnings given to Mr Hamilton, the RIU continued to receive information that Mr Hamilton was involved in the training and care of the racehorses despite his suspension. This included him working two standardbreds on a jogging machine on the back of his vehicle in a grass area near the back straight of the main course proper.
[26] Mr Hamilton was interviewed by Racing Investigators on 2 February 2017. Mr Hamilton was co-operative when questioned. Mr Hamilton admitted on an almost daily basis he had either led horses to and from the paddocks, had been feeding the horses or was assisting in their shoeing. Mr Hamilton also acknowledged he assisted with placing the bridle on one of the thoroughbred horses. In explanation, he advised he was only trying to help Ms Emerson as she was not able to place the bridle on the horse due to its wayward tendencies.
[27] Mr Hamilton had also been receiving the training fees from some of the owners of the thoroughbred horses and had been paying wages to Ms Emmerson and a track work rider. Mr Hamilton gave money to Ms Emmerson who would then pay for the track fees. Mr Hamilton was also responsible for purchasing the feed for the horses.
[28] Mr Hamilton admitted he had been working the standardbreds but thought he was permitted to do so, as they were being pre-trained and he was only suspended from the training of thoroughbreds. He advised the Investigator that he was not aware the suspension of his thoroughbred licence was reciprocal with harness racing. Mr Hamilton also believed he was able to shoe the horses without breaching his suspension.
Informant’s submissions as to penalty
[29] The informant commenced their written submissions by stating that the current proceedings were a sporting code’s disciplinary proceedings, which were akin to professional disciplinary proceedings.
[30] The Supreme Court in Z v Complaints Assessment Committee [2009] 1 NZLR 1 held that punishment was not a purpose of disciplinary proceedings. The Supreme Court developed the principles at several points in its judgment. Elias CJ remarked that punishment was the responsibility of the criminal justice process at [70]:
The professional standards are properly the focus of the disciplinary inquiry. Where a distinct finding that a conviction reflects adversely on fitness is made, the Tribunal cannot exercise its usual powers to fine the dentist. Again, this seems to me to be recognition that punishment is the responsibility of the criminal justice process. What remains are the professional sanctions for public protection: removal from the register, suspension of registration, the requirement to practise only under supervision, and censure. The overlay of professional discipline in this way meets the purpose explained by Lord Devlin in Ziderman v General Dental Council:
The purpose of disciplinary proceedings against a dentist who has been convicted of a criminal offence by a court of law is not to punish him a second time for the same offence but to protect the public who may come to him as patients and to maintain the high standards and good reputation of an honourable profession. … [I]t would be the duty of the committee, before deciding to inflict the only and draconian penalty which lies within their power, to satisfy themselves that the offence of which the dentist had been convicted was if so grave a character to show that he was unfitted to continue to practice his profession.
[31] McGrath J for the majority (Blanchard, Tipping and McGrath JJ) acknowledged that while statutory disciplinary proceedings did not have the purpose of punishing a practitioner, they might have that effect. His Honour remarked at [97]:
… the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure appropriate standards of conduct are maintained in the occupation concerned.
[32] Anderson J compared the purpose of disciplinary proceedings with that of a criminal trial and considered that the essential functional purpose of professional disciplinary bodies was different:
[128] The purpose of disciplinary proceedings is materially different to that of a criminal trial. It is to ascertain whether a practitioner has met the appropriate standards of conduct in the occupation concerned and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus.
[149] The function of the criminal law is to ascertain if the defendant has committed a crime and if so, to impose criminal consequences. The essential functional purpose of the professional disciplinary bodies is different. As Gresson P pointed out in Re A, Medical Practitioner:
[T]he exercise by the Medical Council of its powers is not by way of punishment, but rather to enforce a high standard of propriety and professional conduct.
[33] In the same case Cleary J, writing for himself and North J, stated:
[150] [W]hen [the Medical Council] becomes concerned with conduct which constitutes an offence, it is not for the purpose of punishing that conduct as an offence against the public, which is the purpose of the criminal law, but because it is conduct which may show that the practitioner concerned is no longer fit to continue to practise the profession.
[151] Lord Diplock pointed out in Ziderman v General Dental Council that the purpose of disciplinary proceedings is to protect the public who may come to a practitioner and to maintain the high standards and good reputation of an honourable profession.
[34] The informant submitted that the purposes of protection of the public and the maintenance of high professional standards percolated the remarks of the Supreme Court Justices. More specifically, the purpose of disciplinary proceedings could be summarised as:
a. To enforce a high standard of propriety to maintain the high standards and good reputation of a profession; and
b. To protect the public from a specific practitioner or others who might be likeminded to offend.
[35] It was submitted that when the principles of professional disciplinary proceedings were applied to a disciplinary proceeding in a sport the purposes are to:
a. enforce a high standard of propriety to maintain the high standards and good reputation of a those involved in the sport; and
b. protect the betting public and others involved in the sport from future breaches by the individual or others who might be likeminded to breach the Rules.
[36] These principles were said to be now reflected in cl 5.1 of the Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal which states:
The purpose of proceedings before a Judicial Committee or Appeals Tribunal include:
(a) to ensure that racing is conducted in accordance with the code rules;
(b) to uphold and maintain the high standards expected of those participating in the sport of racing and the racing industry;
(c) to uphold and maintain the integrity of the sport of racing and the racing industry; and
(d) to protect the participants in the sport of racing, the racing industry, and the public.
[37] A previous case which the informant believed was of assistance to the Judicial Committee was RIU v Lynch 14 March 2016. Mr Lynch was disqualified for four years in relation to an administration rule breach. He was located on a licensed trainer’s premises. Mr Lynch was disqualified for a further twelve months on two charges (six months each) plus $1,000 costs to the RIU and a further $1,000 costs to the JCA.
[38] The RIU listed Mr Hamilton’s four previous breaches of the Rules of Racing relating to misconduct since December 2014.
a. 3 March 2015 — r 801(1)(s)(ii), which was laid as a serious racing offence, where Mr Hamilton received a $350 fine for language he used to a NZTR official on the telephone. (The decision notes that Mr Hamilton, in response to being read a clause from the NZTR Racing Policy by an official in the handicapping department, which he thought was preposterous, expressed his thoughts in reply by personally abusing the official.)
b. 11 July 2016 — Mr Hamilton was fined $500 when he made an abusive and offensive phone call to another industry participant (the Secretary of the COEC).
c. 11 July 2016 — Mr Hamilton received a suspended $500 fine for writing offensive language on a racecourse sign in relation to another racing participant.
d. 18 October 2016 — Mr Hamilton was suspended from holding or obtaining a trainer’s licence for a three-month period from 18 October 2016 up to and including 17 January 2017 in relation to an offensive phone call he made to an industry participant. Mr Hamilton was also fined $750 which included the $500 suspended fine from his previous misconduct charge.
[39] The last misconduct charge was sufficiently serious that the victim also made a complaint to the Police. As a result, Mr Hamilton was fined $450 plus $130 court costs after appearing in the Alexandra District Court on 20 September 2016.
[40] The RIU emphasised that Mr Hamilton had been given plenty of warning to desist from his involvement with horses but continued on regardless. The day following the visit from the RIU Mr Hamilton had still turned up in the morning and continued with his actions. Mr Hamilton thus blatantly breached his suspension without any consideration for the consequences. These breaches were on an almost daily basis.
[41] The RIU had sought a suspended penalty with respect to the 11 July misconduct matter in an attempt to assist Mr Hamilton abide by the Rules through the early stages of events which had ultimately led to his suspension. The JCA subsequently suspended one of the $500 fines as an incentive for Mr Hamilton to abide by the rules.
[42] Despite previous penalties being imposed including a suspended fine on Mr Hamilton by the JCA, Mr Hamilton had continued to offend.
[43] Mr Hamilton was said to have shown a blatant disregard for the Rules of Racing. His actions were deliberate and he had continued to be involved with horses on an almost daily basis despite the suspension that had been imposed.
[44] Mr Hamilton was an experienced industry participant and knew the expectations and requirements in relation to his behaviour and the Rules of Racing. Mr Hamilton’s actions had also put Ms Emerson’s licence at risk with NZTR. (The informant stated at the teleconference that her licence had been revoked on 26 May.)
[45] When spoken to by RIU Investigators, Mr Hamilton was co-operative and openly admitted his actions.
[46] The purpose of the penalty in this case was said to be to support the racing community’s endeavours to ensure all their participants acted within their respective code’s rules. Mr Lange added at the teleconference that suspension had proved to be an ineffective penalty and while disqualification was often regarded as a penalty of “last resort”, only this penalty in this instance would prevent Mr Hamilton from continuing to be involved in racing activities.
[47] In relation to the two informations, the RIU submitted a concurrent disqualification for a minimum period of six months for the breach of information A6639 (thoroughbred) and information A6640 (harness) was the appropriate penalty.
[48] The RIU made no application for costs.
Respondent’s submissions as to penalty
[49] The respondent’s submissions commenced by outlining Mr Hamilton’s personal circumstances. At 68 years of age he has spent his entire adult life in the racing industry. He had been licensed in the Harness Racing industry since 1972, and involved formally with NZTR industry for more than a decade (licensed as a trainer since 2003).
[50] Until his suspension, Mr Hamilton was a professional trainer. He has no other form of income save National Superannuation. He owns 6 horses and has shares in 5 others.
[51] The genesis of the problems that have arisen were that Mr Hamilton was trespassed from the Omakau Race Course. A character reference from Mr Murray Kirk, a Committee member of the Central Otago Racing Club and a delegate on the COEC canvassed this. This was confirmed in an email from Mr Alistair Eckhoff.
[52] The respondent’s submissions made reference to the possibility of his being warned off. We understand from counsel’s oral submissions that this has not occurred and its only relevance is, should it have transpired, that it might serve to reduce any penalty we impose.
[53] The respondent submitted that the appropriate sanction was not disqualification but a further period of suspension. Disqualification is the most severe penalty available to the Judicial Committee and the respondent said it was not necessary in this case to administer this sanction as it was disproportionate to the offence.
[54] The respondent concurred with the submissions from the RIU that the purpose of these proceedings was not punishment. The focus was not so much on the individual, as it was in instances where punishment was a fundamental purpose of a sanction, but rather on the industry as a whole.
[55] Unlike the criminal process, the purpose of imposing a sanction in the present matter was to:
Ensure a high standard of propriety in the industry; and
Protect the betting public and those involved in the sport.
[56] The respondent submitted that ensuring a high standard was best achieved through a proportionate response to a breach of the Rules. The protection of those in the industry, and the betting public, was likewise not achieved through the imposition of an excessive penalty. A measured response was needed.
[57] The respondent accepted that a period of suspension was inevitable. Disqualification, however, would be both out of line with the case law and unduly onerous and unnecessary in all the circumstances. Ms Thomas described the reality of the situation was that it was “a schoolboy argument over a trespass notice”.
[58] It was submitted that unlike other cases (and in particular RIU v Lynch, which was relied upon by the informant) this was a case where this Committee could achieve the purpose of this disciplinary proceeding without imposing disqualification.
[59] Lynch was viewed to differ significantly from the present case. In that case, the respondent was serving a period of four years’ disqualification for the administration of a prohibited substance to a horse which he was training. So far as the purposes of proceedings before a Judicial Committee, that offending went to the very heart of the sport. The offending affected both the integrity of the sport, the confidence of bettors and the breeding industry. Mr Lynch's very presence at a stable (for which he received the further 12 months’ disqualification) had the potential and indeed was a matter that raised again all the serious concerns arising out of the initial disqualification.
[60] In contrast, in the present matter there was no suggestion Mr Hamilton had involved himself in the type of behaviour that led to his suspension. The sanction here was purely one where the sporting body was saying, "If you are suspended we expect you to abide by that suspension".
[61] Ms Thomas also referred this Committee to RIU v Couchman 14 March 2016, which too involved drug cheating and where a rider who tested positive for methamphetamine on race day was disqualified for 12 months. Also cited was RIU v McDonald and Donaldson 13 April 2015 where a trainer who caused to be administered to four horses the prohibited substance Phenylbutazone for the purposes of affecting the speed, stamina, courage or conduct of the horse, was disqualified for two years six months.
[62] The respondent submitted that the sole purpose of this proceeding was to ensure that a message was sent to participants that breaching a suspension would attract a response. In this case that response was said to be properly a further term of suspension.
[63] Mr Hamilton’s record was emphasised. He had been involved in both the thoroughbred and harness codes and licensed since 1972. Until 3 March 2015 he had an unblemished record (in respect of misconduct offending) in the racing industry for over 40 years. Throughout the RIU’s investigation of Mr Hamilton he had been co-operative and openly admitted his actions. This, the respondent submitted, suggested that the breaches were inadvertent rather than deliberate. The two breaches of the rules were said in effect to be a single breach relating to the two different industries in which Mr Hamilton operated.
[64] That the breaches were inadvertent rather than deliberate was submitted to be a significant matter in mitigation. Mr Hamilton’s failure to understand the extent of the prohibition was not a defence (hence the guilty plea) but the respondent submitted in mitigation that he genuinely believed that he could shoe and feed thoroughbred horses under the suspension as long as it did not amount to training the horses. The respondent did not understand that the suspension extended to his standardbred licence.
[65] Ms Thomas concluded her submission by stating the reality was that the initial suspension period was of an elderly man who clearly became involved in a pattern of offending in regard to an ongoing dispute in July and October 2016 which had got out of hand. Counsel recognised that Mr Hamilton might be assisted by an anger management course and before sentencing she stated she would provide proof of enrolment in such a course. Anger management in conjunction with a further period of suspension, she believed, were the appropriate sanctions.
Decision
[66] We are faced with imposing a penalty upon a man with an unblemished record (save perhaps, we are told, for the odd minor matter) for some 40 years in the two racing codes. It is almost unfathomable that he would face the series of charges that he has, and yet remain steadfast in his determination both that he is in the right with respect to matters relating to the COEC (and we make no comment on this as it not relevant to our decision in this case) and that the Rules of Racing do not apply to him.
[67] The only explanation we can find is that it is understandable that tensions may run high in a small rural town where only a small number of people are involved with the two racing codes. It is to be expected there will be fallouts amongst industry participants from time to time. Not everyone views a particular issue in the same light as another. This is evidently the case at Omakau. Tensions have been high. But this is an explanation for Mr Hamilton’s behaviour not an excuse for it. He is required to abide by the Rules of Racing, as is every industry participant.
[68] We do not accept the respondent’s submission that the breaches were inadvertent rather than deliberate. The RIU Investigator informed him on a number of occasions what conduct was and was not acceptable pursuant to the Rules.
[69] Mr Hamilton referred in the teleconference to the need for him to be at the track to assist with the child care of the children of a local track work rider. His stated intention to continue in this role, which we take as being unpaid, is commendable. But we note his presence on the track is not essential to his fulfilling this role. It can be undertaken at premises away from the track.
[70] We have had regard to the decisions identified by both parties in their submissions. The facts of these cases are sufficiently different from those at hand to be of little assistance to this Committee.
[71] Rule 1106(1)(a) covers the requirement of suspended trainers to ensure they adhere to the suspension. The rule is clear in its intent to avoid any trainer continuing to be involved with the training, care or control of horses.
[72] We are faced with a stark choice between disqualification and suspension. Counsel’s competing submissions are evidence of this fact. We hesitate to disqualify a person such as Mr Hamilton who has given lengthy years of dedicated service to the two codes.
[73] We view the breaches of the rules of the two codes as being, in effect, a single breach, with each being related to the two different industries in which Mr Hamilton operated.
[74] The respondent’s conduct was ongoing. The charges are thus representative. We are not satisfied that Mr Hamilton was ignorant as to his obligations under the Rules. Were he unsure as to what his suspension prohibited him from doing, Mr Allison was at hand, by telephone and we are told in person on a number of days at Omakau. There was also communication at southern race meetings.
[75] We are led to the conclusion that Mr Hamilton decided the Rules of Racing did not apply to him and he would continue with his day to day involvement with the horses, as if no suspension had been imposed. Thus, we believe a further suspension is inappropriate and there is a distinct possibility it too would simply result in a further breach.
[76] We acknowledge that disqualification will cause inconvenience for Mr Hamilton. This is part and parcel
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: