Non Raceday Inquiry RIU v M J Anderson – Decision dated 14 July 2020 – Chair, Mr M McKechnie

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decisiondate: 14/07/2020

hearing_title: Non Raceday Inquiry RIU v M J Anderson - Decision dated 14 July 2020 - Chair, Mr M McKechnie

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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 Harness Racing

BETWEEN-RACING INTEGRITY UNIT (RIU)

Informant

AND-MATTHEW JASON ANDERSON

Licensed Public Trainer

Respondent

Informations: ----A7521/A7522

Present:

Judicial Committee: ---Murray McKechnie, Chairman

Prof Geoff Hall, Committee Member

Counsel for RIU:---Mr Brian Dickey

Counsel for Respondent:--Mr Allister Davis

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

14 JULY 2020

1.-MR ANDERSON’S CIRCUMSTANCES & THE CHARGES HE FACES

1.1-The Respondent, Matthew Jason Anderson, is an open driver/public trainer aged 27 years. His licence was issued under the rules of Harness Racing New Zealand.

1.2-In April of 2017 the national organised crime group of the New Zealand Police commenced an investigation into deception and race-fixing within the New Zealand Harness Racing industry. Throughout this investigation they were assisted by the Racing Integrity Unit. This was known as Operation Inca.

1.3-In September of 2018, Operation Inca was terminated by the New Zealand Police and the Respondent, Mr Anderson, was interviewed and arrested on a number of charges. He appeared in the Christchurch District Court. Sentencing took place on 17 December 2019.

Mr Anderson pleaded guilty to three charges involving the Class B drug MDMA, commonly known as Ecstasy. Other charges that had been laid were withdrawn.

1.4-The sentencing Judge in the Christchurch District Court, Judge Neave, determined that Mr Anderson be discharged without conviction pursuant to s106 of the Sentencing Act 2002. More will be said about the Court proceedings later in this decision. Name suppression was not granted and Mr Anderson’s appearance received considerable media coverage.

1.5-The Racing Integrity Unit was supplied with the Summary of Facts presented to the District Court and the probation report that had been prepared by the Department of Corrections for the sentencing of Mr Anderson.

1.6-As a result of the matters spoken of above, the Racing Integrity Unit undertook an investigation. This established that Mr Anderson’s offending in the weekend of 24 and 25 March 2018 involved the supply of Ecstasy to Messrs Z and W. Both are prominent harness reinsmen. In the District Court proceedings against Mr Anderson, the names of Messrs Z and W were the subject of a Suppression Order. More will be said of that later in this decision. On the Saturday of that weekend Mr Anderson had, along with Messrs Z and W, attended a harness racing meeting at Winton in Southland. Following the meeting the three men travelled together to Dunedin where they stayed the night. While in Dunedin Mr Anderson had supplied Messrs Z and W with an unknown amount of the Class B controlled drug MDMA. The following day Mr Anderson and Messrs Z and W travelled to Waimate where all three took part in another harness racing meeting.

1.7-On 27 January 2020 in Christchurch, Mr Anderson was interviewed by Racing Integrity Unit inspectors. His legal counsel, Mr Davis, was present. He was questioned about his involvement in the supply of MDMA to Messrs Z and W and his own drug use.

1.8-On 3 February 2020 two informations were laid against Mr Anderson by the Racing Integrity Unit. These are now set out together with the relevant rules and penalty provisions.

INFORMATION-A7521

CHARGE 1-Between March and September 2018 did supply Class B controlled drugs to two HRNZ licensed drivers, Z and W, and was found in possession of Class B controlled drugs for supply, for which he was charged by the NZ Police and pleaded guilty to in the Christchurch District Court, acts which a Judicial Committee deem detrimental to the interests of harness racing.

INFORMATION-A7522

CHARGE 2-On 27 January 2020 in Christchurch, when interviewed by Racing Integrity Unit Inspectors, refused to supply information relating to the supply of Class B controlled drugs to other HRNZ licensed persons and his possession of Class B controlled drugs for supply.

RULES-1001(1)

Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:

(v) either by himself or in conjunction with any person:

(i) does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of harness racing;

1001(1)

Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:

(i) refuses to supply any information or make a written Declaration (Statutory or otherwise) or statement respecting any matter connected with harness racing or any horse registered with HRNZ or the ownership thereof which the Judicial Committee, Appeals Tribunal, the Board, a Stipendiary Steward or· a Racecourse Inspector require him to supply or make;

PENALTY-1001(2)

Every person who commits a serious racing offence shall be liable to the following penalties:

(a)-a fine not exceeding $30,000; and/or

(b)-suspension from holding or obtaining a licence, for any specific period or for life; and/or

(c)-disqualification for a specific period or for life.

1.9-Mr Anderson has denied both charges.

2.0-THE COURSE OF THESE PROCEEDINGS

2.1-The hearing of the charges against Mr Anderson has been significantly delayed as a result of the Corona virus pandemic lockdown.

2.2-There was a teleconference on 19 March 2020, after which a Minute issued setting out directions for hearing. Thereafter with the lockdown in place no progress could be made until May of this year. On the 22nd of that month there was a further teleconference; a date was set for hearing and the objection to proposed evidence was noted. That objection made by Mr Davis was to the proposed evidence of Mr Kirk Hardy.

Submissions were sought from counsel on the question of what penalties might be imposed in the event that Mr Anderson were found guilty of either or both of the charges. Those submissions were received by the Committee in advance of the hearing.

2.3-The hearing took place at Addington Raceway on 12 June this year. At the conclusion of that hearing the Committee issued directions for the filing of further submissions and for Mr Davis to make available advice from the Department of Justice in relation to the name suppression Orders made by Judge Neave in the Christchurch District Court with reference to Messrs Z and W. Those submissions have now been received and likewise advice in relation to the name suppression Order. For completeness a copy of those directions is attached (one page).

3.0-THE CASE FOR THE RACING INTEGRITY UNIT

3.1-Mr Neil Grimstone gave evidence, having submitted a signed written brief.

3.2-Mr Grimstone is the Manager of Integrity Assurance for the Racing Integrity Unit. He is a former senior police officer with some 28 years service. Under the Harness Racing New Zealand rules he is a designated racing inspector. He told the Committee that he was the person in charge of Operation Inca from the position of the Racing Integrity Unit.

3.3-Following the termination of Operation Inca in September 2018, Mr Grimstone explained that application was made to the Christchurch District Court to obtain copies of relevant charging documents that pertained to persons licenced under the Harness Racing New Zealand rules. The charging documents in relation to Mr Anderson were subsequently made available. Some time later Mr Grimstone received documents from the Christchurch Crown solicitor in relation to Mr Anderson. Those documents included a redacted Summary of Facts and the pre-sentence report. Those documents were put before the Committee and likewise the charging document earlier referred to.

3.4-Mr Grimstone explained that he searched the Harness Racing New Zealand website to obtain the results of the race meeting held at Waimate on 25 March 2018. A printout of those results was put before the Committee and Mr Grimstone explained the extensive involvement of Messrs Z and W on that day.

3.5-On 27 January this year Mr Grimstone, in the company of the racing inspector, Mr Simon Irving, interviewed Mr Anderson at Addington Raceway. This interview took place in the company of Mr Anderson’s legal counsel, Mr Allister Davis. Mr Irving provided a signed evidential statement. He was not required for cross-examination. A transcript of that interview was produced by Mr Irving. There was some discussion between the Committee and counsel as to whether the recording of the interview should be played. It was agreed that this need not be done however the recording was produced in evidence as an exhibit. Mr Davis has subsequently requested that this be made available but as the Committee understands the position, that request has not been pursued. Mr Grimstone told the Committee that whenever questions were asked of Mr Anderson about his drug dealing or to whom he had supplied drugs, the answer was “no comment”. The transcript makes clear that when Mr Irving pointed to Rule 1001(1)(i) which has to do with the refusal to supply information or make a statement respecting any matter in connection with harness racing, Mr Anderson was acting upon advice. Mr Davis is recorded as having said – page 4 of the transcript:

“He’s not obliged to self-incriminate either. He’s under advice. We are well aware that this was gonna happen so carry on with your questions and we’ll address those issues”.

Further down page 4 of the transcript of interview Mr Davis is recorded as having said:

“If he answers them he’s in breach of the Suppression Order”.

3.6-On page 5 of the transcript of evidence it is recorded that Mr Grimstone asked Mr Anderson about his own use of Ecstasy. The relevant passage is as follows:

Mr Grimstone. “In your probation report it talks about you using Ecstasy whilst trying to obtain the junior apprentice of the year on a number of occasions. Is that correct?”

Mr Anderson. “No comment.”

Mr Grimstone. “And that you’d obtained your MDMA through an associate and that it was the only way you would be able to function at the time and create some form of normality, is that correct?”

Mr Anderson. “No comment.”

Further down page 5 of the transcript Mr Irving asks questions. The relevant passage is as follows:

Mr Irving. “If I was to direct you to submit to a drug test, how would you go?”

Mr Anderson. “Pass.”

Mr Irving. “If I was to direct you to submit a hair sample that could date back to a year, how would you go?”

Mr Anderson. “Pass.”

3.7-On 31 January 2020 Mr Grimstone received authority to charge Mr Anderson with two serious racing offences, the particulars of which are set out above in paragraph 1.8. The relevant documents were served on Mr Anderson on 3 February 2020.

3.8-In answer to questions in cross-examination Mr Grimstone advised that Messrs Z and W had not been drug tested. Further, he acknowledged that he did not know whether Messrs Z and W had actually taken MDMA over the weekend of 24 and 25 March 2018.

3.9-Mr Grimstone accepted in answer to further questions in cross-examination that there was nothing to indicate that Messrs Z or W had been in any way compromised at the Waimate harness race meeting.

3.10-When asked about the interview with Mr Anderson, Mr Grimstone said that this was terminated because it was “getting nowhere”. He said that he and Mr Irving were “stonewalled”.

3.11-When re-examined Mr Grimstone explained that he and his colleague Mr Irving wanted to know where and when the prohibited drug MDMA had been supplied to Messrs Z and W. He further explained that those persons had not been interviewed because of the ongoing Police charges pending in the criminal Courts. He said that any attempt to interview those persons by the Racing Integrity Unit might compromise the ongoing criminal proceedings.

3.12-The Racing Integrity Unit then called Mr Kirk Hardy to give evidence. Mr Hardy who is domiciled in Auckland appeared by AVL. That had earlier been agreed between the Committee and counsel. Mr Davis had raised objection to Mr Hardy’s proposed evidence, having been furnished with a written brief. It was agreed that the concluding passage in the written brief was not admissible and was removed.

3.13-Mr Hardy was called as a witness for the RIU to give evidence of the harmful effects of MDMA. His qualifications to give such evidence were challenged by counsel for Mr Anderson.

Mr Hardy served in the NZ Police for many years. Since leaving the Police he has been involved in drug testing in a number of industries. He told the Committee that he was involved in something around 200,000 drug tests per annum. He has worked with international drug detection agencies.

It was said for Mr Anderson that Mr Hardy was not acquainted with the code of conduct for expert witnesses under the High Court Rules. The Committee is of the view that that code of conduct has application only to persons who are giving evidence in Court proceedings. It does not have application to professional disciplinary tribunals. That is essentially the nature of a hearing before a Non-Raceday Judicial Committee.

Refer 5th Schedule to the NZ Rules of Harness Racing. Rule 17.1 is as follows:

The Judicial Committee may receive as evidence any statement, document, information or material that would be inadmissible in a Court of law if it satisfied the evidence would assist to deal justly, speedily and in expeditiously with the matters before it.

The Committee has had regard to s23 to 26 of the Evidence Act 2006. S25(1) provides that an opinion by an expert is admissible if the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceedings or in ascertaining any fact that is of consequence to the determination of the proceeding.

3.14-Case law determines that the enquiry into what is or might be substantially helpful “necessitates consideration of an amalgam of relevance, reliability and probative value in assessing the admissibility of expert evidence”. See judgment of Court of Appeal in Mahomed v R [2010] NZCA 419 at 35.

3.15-It is important to look closely at the nature of the evidence offered by Mr Hardy. It is of a general character. It does not seek to establish the precise consequences of consumption of MDMA which may have taken place. It is acknowledged as part of the RIU case that there is no direct evidence that MDMA supplied to Messrs Z and W was actually ingested by them. Further, the evidence of Mr Hardy properly acknowledges that the consequences of taking MDMA are dependent on a number of considerations. Principally these are as follows:

A.-The amount of the drug consumed

B.-The purity of the substance. Mr Hardy acknowledged that this can vary very significantly

C.-The metabolism of the drug taker

D.-Whether or not other drugs or alcohol may have been ingested around the time MDMA was taken

The Committee is not persuaded that formal medical qualifications are necessary before the witness is qualified to speak of the adverse consequences that can follow from the ingestion of MDMA. The very fact that MDMA is a prohibited Class B drug demonstrates that the lawmakers recognise that the drug can be harmful.

3.16-Evidence was put before the Committee which demonstrated that Messrs Z and W had extensive driving commitments at the harness racing meeting at Waimate on 25 March 2018. The MDMA had been supplied by Mr Anderson to Messrs Z and W on 24 March in Dunedin. The three persons were travelling from a race meeting at Winton to the race meeting to take place at Waimate on the 25th. The evidence before the Committee in relation to the drives of Messrs Z and W at Waimate indicates that there was nothing which was observed by the Race-day Stewards to indicate that either driver was in any way impaired or compromised.

3.17-The Committee rules that the evidence of Mr Hardy is admissible and it is accepted. That evidence does no more than make clear that in certain circumstances the ingestion of MDMA may impair the judgment of the person who has taken the substance.

4.0-MR ANDERSON’S POSITION

4.1-Mr Anderson did not give evidence or call evidence.

4.2-The defence advanced for Mr Anderson on the first charge was based upon the interpretation of the New Zealand Rules of Harness Racing. On the second charge the defence was based upon the existence of the name suppression Order made in the Christchurch District Court in respect of Messrs Z and W.

4.3-We take the first charge. Mr Anderson’s counsel pointed to the wording of Rule 102(1). It was contended that the wording is restrictive and critically important to determining whether the Judicial Committee has jurisdiction. The Rule 102(1) is as follows:

These rules shall apply to all races and race meetings and shall apply to and be binding on…

Mr Davis places particular emphasis upon the words “races or race meetings”. He submits that the Committee does not have jurisdiction under the rules to deal with conduct which occurs outside of races or race meetings. He further points out that criminal prosecutions and the outcome of criminal offending is dealt with under the Racing Act 2003. It is said that the rules do not extend to actions undertaken by individuals away from races, race meetings, stables or any type of connection to racing and that for the Committee to have jurisdiction the conduct in question must relate to the conduct of races, race meetings or the conduct of stables.

4.4-Mr Davis pointed to the following:

A.-Neither of the persons supplied with MDMA by Mr Anderson have been spoken to.

B.-Neither of the persons supplied with the drug has been charged with a breach of the rules.

C.-There is no evidence that the persons supplied with the drug ingested the prohibited substance.

D.-That the supply of the drug had no connection with racing. It is said that it was in a “private setting”.

4.5-The Judicial Committee drew to the attention of both counsel the judgment in Carter v JCA & Ors. This is a judgment of the High Court 7 December 2006 Harrison J. That was a judgment concerned with the interpretation of the New Zealand Thoroughbred Rules of Racing.

The relevant rule was R304. That directly addresses misconduct. Rule 304 provides:

Every holder of any licence or permit or certificate or registration…and every owner, owner/trainer, stable-hand, unlicensed apprentice, racing manager or official or employee of any club who misconducts himself in any way commits a breach of these rules.

There is no rule framed in the same language under the New Zealand Rules of Harness Racing. Mr Davis points to paragraph 16 of the judgment where it is said “Rule 304 was plainly limited to misconduct connected with racing. It has no greater reach and cannot sensibly be read in any other way”. Further Mr Davis quotes from paragraph 17 as follows:

“That the rules could never confer jurisdiction on a disciplinary body to determine a complaint that did not relate to matters connected with racing”.

And further in the same paragraph:

“What is absolutely determinative is the clear framework of limitation on the application of the rules to all matters connected with racing”. The offence of “misconduct in any way” can only relate back to this qualification.

It is acknowledged that the wording of Rule 304 NZTR, now Rule 101(1) and Rule 102(1) NZHR do not adopt the same wording.

4.6-By reference to the quotations above, it is the submission for Mr Anderson that the supply of MDMA on 24 March 2018 was not “connected with racing”. It is said that Mr Anderson’s conduct took place away from any racecourse or race meeting, away from stables or anything that created a connection with racing.

4.7-In the submissions for the RIU to which reference will be made in due course, there is reliance upon the decision of RIU v Breslin, decision of Non-Raceday Judicial Committee 3 July 2017. Mr Davis, for Mr Anderson submits that the Breslin decision is clearly distinguishable for the following reasons:

A.-It was decided under the thoroughbred rules and those make reference in Rule 304 to “any matter relating to the conduct of races or racing”. It is said that the harness racing rules are much more restrictive.

B.-The events in the Breslin case occurred immediately after a race meeting. It is said that in this case some three hours at least would have elapsed between the conclusion of the Winton race meeting and the arrival in Dunedin.

C.-That there is no causal connection between the racing at Winton and the events which are the subject of the charge nor is there any causal connection between the supply in Dunedin and the race meeting at Waimate the next day.

D.-The Judicial Committee in Breslin concluded that the conduct complained of was an extension of the events which had occurred on the race track some time earlier that day.

E.-It is said that at the time of supply Mr Anderson was “a civilian” and not involved or connected with racing. The submissions use the expression “it was his down time”.

F.-In response to the RIU submission that the conduct of Mr Anderson put health and safety at risk or may have enhanced drivers performance, it is submitted that there is no direct or indirect evidence to support either proposition.

4.8-In relation to the second charge it is the position for Mr Anderson that answering the questions asked of him at the interview with Messrs Grimstone and Irving would have involved a breach of the Suppression Order made in the District Court by Judge Neave.

4.9-In accordance with the directions made at the conclusion of the hearing on 12 June, Mr Davis has obtained advice from the Deputy Registrar at the Christchurch District Court as to the interim name suppression Order for Messrs Z and W. It is said that there is to be no publication of identifying particulars. Further, on 19 December 2019 Judge Neave made a final name suppression order for any identifying particulars of those persons to whom Matthew Anderson had supplied MDMA.

5.0-THE RESPONSE OF THE RIU

5.1-With reference to the first charge. It is said for the RIU that pursuant to s29 of the Racing Act 2003 individual rules are to relate to racing as the racing code sees fit. It is said that the appropriate enquiry is to determine whether Rules 1001(1)(i) and 1001(1)(v)(i) are rules that relate to racing and whether Mr Anderson’s conduct satisfies the Committee that there has been a breach of those rules.

5.2-The submissions for the RIU draw attention to various relevant parts of Rule 102(1). These are now set out:

Rule 102(1) reads:

These Rules shall apply to all races and race meetings and shall apply and be binding on:

(a) HRNZ, the Board and every member thereof and every Committee, and all Officers, Officials and servants thereof;

(c) all licensed persons and all persons working in or about any harness racing stable or associated with the management, care, control or superintendence of harness racing horses and their training or riding or driving;

(m) every person who in any manner directly or indirectly by himself or by any other person, on his own behalf or on behalf of any other person, does or attempts to do any act or thing for the purpose of securing any right benefit or privilege which he or any such other person is not entitled to receive under these Rules, or to evade any disability or penalty of any kind which has been imposed on him or on any such other person or which they may respectively become liable by or under these Rules;

(o) every person who so acts to bring himself within the purview

of these Rules.

5.3-It is said that the use of the words “and shall apply and be binding on” and the list that follows means that all of the persons listed are covered by the rules. Thus it said that the wording and structure of Rule 102 is wide-ranging and has application as follows:

(a)-It starts by including all races, and there are a multitude of rules that relate to a race, for example rules 601–604.

(b)-It then expands to “race meetings” by use of the “and”, again there are a multitude of rules that relate to the to race meetings, for example rules 701–714.

(c) The rule then further casts the net again by usage of “and shall apply to those persons listed/described by designation or category at the following (a)–(o) inclusive.” The repeated use of the word “and” signifies all these matters are covered by the Rules and there is no basis to differentiate the meaning and effect of the use of the word “and” in the rule.

5.4-The RIU submission points out that there are rules that do not relate to races or race meetings. There are for example rules which relate to the stud book.

5.5-Emphasis is placed on s29 of the Racing Act 2003. It is said by reference to subclause(2)(i) that rules may be made for “any other matters relating to the conduct of races and racing that the racing code thinks fit.”

5.6-It is submitted that Rule 101(1)(v)(i) relates to harness racing by use of the words “detrimental to racing”. As to Rule 1001(1)(i) it is said that this rule relates to harness racing by use of the words “any matter connected with harness racing”.

5.7-The RIU takes a different view of the judgment of Harrison J in Carter v JCA. It is submitted for the RIU that the correct interpretation of the judgment is that so long as the subject rules are within the terms of s29 of the Racing Act 2003 and are breached by persons covered by Rule 102(1)(a)-(o) then it is not, contends the RIU, a question of whether the rule is within jurisdiction, but rather whether the subject matter of the complaint falls within the rules. That it is contended is not a jurisdictional enquiry but rather a matter of whether there are adequate facts to provide proof of the allegation.

5.8-As to whether there is adequate proof of a breach, the RIU submissions point to the following:

A.-Mr Anderson was on a circuit of race meetings and the supply took place the night between two of those meetings.

B.-He supplied the drug he believed to be MDMA.

C.-He had used that drug to maintain his own driving performance. That is clear from what he told the author of the pre-sentence report in the Christchurch District Court.

D.-The two persons supplied were well known to him and he well knew that they had extensive driving commitments the next day at Waimate.

The RIU submits that this conduct by Mr Anderson, at the very least, gave rise to a risk of an illicit drug being consumed the night before a race meeting and therefore possibly affecting the abilities of those persons who ingested the drug the following day. The RIU further says that it was highly

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