Non Raceday Inquiry RIU v M Mann – Decision dated 14 December 2015 – Chair, Prof G Hall
ID: JCA14853
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT PALMERSTON NORTH
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND Mrs Michelle MANN
Licensed Greyhound Trainer
Respondent
Information No. A4171
Judicial Committee: Prof G Hall, Chairman - Mr T Utikere, Member of Committee
Appearing: Mr A Irving for the Informant
Mr S Mann for the Respondent
Date of hearing: 1 December 2015
DECISION OF JUDICIAL COMMITTEE
[1] The respondent, Mrs Michelle Mann, faces a charge under r 87.1(p) of the New Zealand Greyhound Racing Association Rules in that on 23 October 2015 at a race meeting conducted by the Wanganui Greyhound Racing Club at Wanganui, she failed to comply with a lawful order made by Stipendiary Steward, Mr Michael Austin.
[2] Rule 87.1(p) states:
Any person (including an Official) commits an offence if he/she disobeys or fails to comply with the lawful order of a Steward or other Person having Official duties in relation to Greyhound racing.
[3] Rule 38.3 provides relevantly:
“Subject to these Rules, and in particular Rule 38.1 [which states unless otherwise provided in these Rules: a Meeting shall be deemed to commence at 7:30 a.m. on the morning of the day on which the first Race is appointed to be run and conclude at 12:00 midnight on the day of the last Race of the Meeting; and b. the powers of the Stewards to investigate any matter or thing relating to or arising out of the conduct at a Meeting shall continue for four (4) months after the Meeting or for such further time as the Board may allow], the Stewards shall have the power to control and regulate the Meeting and without prejudice to the generality of that power shall have further powers to: a. inquire into any matter or thing in connection with a Meeting under their control….”
[4] Rule 88.1 provides:
Any Person found guilty of an Offence under these Rules shall be liable to:
a. a fine not exceeding $10,000.00 for any one (1) Offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.
[5] The respondent is a licensed trainer under the Rules of the New Zealand Greyhound Association and has denied the charge.
Background to the charge
[6] The respondent had kennelled her dog BOSS APPEAL for Race 6 at the Wanganui Greyhound Racing Club’s meeting at Hatrick Raceway on 23 October 2015.
[7] At approximately 6.20 pm the handlers went into the kennel block to get their dogs out. The respondent found BOSS APPEAL in its kennel in a very distressed state. The Club veterinarian, Mr Jansen, attended to the dog but could not save it.
[8] Upon examination, BOSS APPEAL was found to have traumatic bruising and swelling to the back of its throat. Mr Jansen, satisfied the cause of death was asphyxiation, probably as the result of a physical obstruction, released the dog to the respondent without the approval of the Chairman of Stewards, Mr Austin.
The informant’s case
[9] Mr Irving opened the RIU’s case stating that the informant would establish that the respondent had failed to comply with a lawful order made by Stipendiary Steward, Mr Austin, given on 23 October 2015.
[10] With reference to the elements of the charge, he stated he believed it was common ground that the respondent was a licensed greyhound trainer and that Mr Austin was a Stipendiary Steward. Mr Mann agreed.
[11] Mr Irving stated that pursuant r 38.3(a) it was a function of the Stipendiary Stewards to inquire into any matter arising on the day. They may take possession of a greyhound and the direction was a lawful order with which the respondent had failed to comply.
[12] Mr Irving then gave evidence. He said he interviewed Mrs Mann on 6 November in the Stewards’ room at the Wanganui racecourse during the course of the meeting of the Wanganui Greyhound Racing Club. She had only one dog racing at this meeting and he spoke to her after she had kennelled it. He said he told her at the end of the interview that she would be charged and handed her a copy of the information. Mrs Mann refused to sign this.
[13] Mr Irving played a recording of this interview with Mrs Mann. In this interview she stated there had not been any previous health issues with BOSS APPEAL. During the interview Mr Irving stated he accepted that the veterinarian, Mr Jansen, had released the dog to the respondent and had assisted in putting the dog into her van.
[14] Mrs Mann stated in the interview that she could not remember what Mr Austin had said to her on the phone. However, she said the conversation with Mr Austin was after she had given the dog to Mr Mann and was when she was sitting out the back of the racecourse. She said she had tried to ring Mr Mann but could not get hold of him. She could not recall if she had sent him a text and could not check this as she deletes all her messages.
[15] When asked what she did when she got home. She replied, “We just buried my baby.” When asked why she did not follow “the instructions of Mike Austin to bring BOSS APPEAL ….”, she said, “Because I wanted to take my baby home.” She could not recall whether she had talked to Mr Mann about bringing the dog back to the track.
[16] Mr Mann questioned Mr Irving as to whether he had bullied Mrs Mann and whether he had text communication with her prior to the interview on 6 November. He said he had had communication and the contents of these texts, with the concurrence of Mrs Mann, were read to the hearing. Mrs Mann indicated that she wanted a support person, and asked that this be Mr Mann. Mr Irving replied he wished to talk to her at the track and consequently Mr Mann could not be there. (We observe that Mr Mann had been trespassed.) Mrs Mann asked if she could have another person, perhaps a person from the SPCA. Mr Irving said this was fine. Mrs Mann reiterated she did not want to be questioned at the track.
[17] Mr Irving disputed Mr Mann’s allegation that he had intimidated the respondent. He said he did not want the interview at the house and did not want Mr Mann present. He said he wanted to question her as a trainer in her own right. He added that it was her decision only not to bring the dog back to the track. He wanted to question her at the track, as this was where the incident happened; it was the scene. He reiterated he had told her she was entitled to a support person.
[18] Mr Mann questioned Mr Irving concerning the surveillance footage from the night of the race meeting on 23 October. Mr Irving said he had never seen it. He had arranged to obtain it from the Club but the Club had replied that they had been unable to download it. There had been technical difficulties. When asked whether or not this would have shown the area where BOSS APPEAL had been kennelled, Mr Irving said he did not know, but probably not, as there was no camera facing that area.
[19] Mr Irving agreed with Mr Mann that it was only when Mrs Mann went to get BOSS APPEAL that anyone was aware there was anything wrong with the dog. He was not surprised the manager of the kennels or the security guards had not realised there was anything amiss with BOSS APPEAL. There would have been a lot of noise with a number of dogs barking. He agreed that BOSS APPEAL was found lying in a pool of blood but no one had reported seeing this blood prior to Mrs Mann going to attend to BOSS APPEAL.
[20] Mrs Trass gave evidence that she had been the Secretary of the Wanganui Greyhound Racing Club since 2004. She was working in this capacity at the meeting on 23 October. She was told there was a late scratching as a dog had died in the kennel block. She rang and asked Stipendiary Steward, Mr Austin, to come to the office, as she had been told that the respondent had taken the dog from the track. She conveyed this fact to Mr Austin and also that she had heard that Mr Mann was going to come to the track and cause trouble.
[21] Mrs Trass said that when Mr Austin said he wanted to speak to Mrs Mann but did not have his phone with him, she gave him her cellphone. She said Mr Austin had spoken to Mrs Mann and asked her if she had the deceased dog with her and had said she was to bring the dog back to the track for an autopsy. She could not recall the exact words Mr Austin had used.
[22] Mrs Trass was not sure who was in the office at the time Mr Austin spoke on the phone. She thought it was only two other people, her husband and Erin Woods, the Club Manager. She said her phone was not on speakerphone and neither she nor anyone else in the office could hear what Mrs Mann was saying.
[23] Mrs Trass said her phone had an automatic recording function. She had not realised this until Mr Irving spoke to her about a week later. She had volunteered this information to him and had forwarded the conversation in question to him at his request. Mr Austin’s conversation with Mrs Mann was timed as having commenced at 7.13 pm.
[24] Mr Austin was the final witness for the informant. He stated that he had nine years’ experience as a greyhound Stipendiary Steward. He was Chairman of the Stewards on 23 October. He was working with Mr Bateup who contacted him during the meeting stating he would need to late scratch a dog due to its being injured in the kennels. He said he then late scratched the dog concerned, BOSS APPEAL.
[25] Mr Austin was later made aware by Mr Bateup that the dog had died. Mr Bateup told him that BOSS APPEAL had asphyxiated due to there being something in the dog’s throat. He was told the dog’s body had been put in a bag in the recovery room. He said as he was walking towards the kennelling block to deal with the matter, there was an issue with the track lighting. He had had to deal with this first and, as a consequence of the outage, the meeting had been put back a race.
[26] Mr Austin said at around 7.15 pm he was in the Secretary’s Office when he was advised by Mrs Trass that the respondent had taken BOSS APPEAL off the course.
[27] Mr Austin said he decided BOSS APPEAL should be returned to the track and that he needed to speak to Mrs Mann. He did not have his cellphone with him as when he was officiating on track it was connected to the Internet. The Secretary of the Club offered him her cell-phone. She gave it to him, having dialled Mrs Mann whose number was listed, along with those of other trainers, in her cellphone contacts. He said he identified himself to Mrs Mann and said he understood the dog had been taken off the course.
[28] Mr Austin said he told Mrs Mann to bring BOSS APPEAL back for an autopsy. She replied that she could not bring the dog back. He asked where the dog was and she replied, “You know where.” She later stated that Mr Mann had BOSS APPEAL. He said he repeated his order for the dog to be brought back to the track. He was not aware who else was in the office at the time he spoke on the phone. He thought perhaps there were two other people, Mrs Trass’ husband and a licence holder. He was not concerned about lack of privacy, as he often had to interact with licence-holders when other licence-holders or members of the public were present.
[29] Mr Austin explained he spoke to the veterinarian after he was told BOSS APPEAL had been taken from the track and it was then that he realised Mr Jansen had authorised the dog’s release. Mr Austin said he wanted BOSS APPEAL brought back to the course as, with the long weekend ahead, he thought it would be best if the autopsy was carried out as soon as possible after the meeting. He asked the vet if he was available to perform the autopsy, and he replied that he was. They spoke about it being a long weekend and that there may be “storage issues” for the dog at the track, but Mr Austin said he agreed he would return to the veterinarian’s clinic after the meeting to attend the autopsy.
[30] Mr Austin said he remained on the course to well after the last race, after 11 o’clock, he thought. Mrs Mann had not returned the dog by this time. He had no further communication with her after he left the track.
[31] When questioned why he wanted an autopsy carried out, Mr Austin stated this was the process he followed when a dog died at the track through misadventure or illness. He understood there was a GRNZ direction or protocol to this effect.
[32] When questioned about his conversation with Mrs Mann, he said he was sure she understood that he had instructed her to bring the dog back to the track. He said he asked her to contact Mr Mann and to ensure that the dog was returned for an autopsy. He said Mrs Mann was compliant and that he understood she was going to ring her husband.
[33] Mr Austin stated he had spoken to Mrs Mann at the track after race 10. She was very distressed. She told him she had been trying to get hold of Mr Mann, but could not, as he was not answering his phone. Mr Austin said he told her to go away and to try again. He explained he never got back to Mrs Mann about the matter, as he was very busy due to the fact there was “a lot going on” that night. He expected her to follow his instructions. When she did not, Mr Austin said he rang Mr Irving and informed him the following day.
[34] Mr Austin said he spoke to the respondent at Wanganui on 26 October and asked her about the dog and what had happened. She told him the barking muzzle was too big and that BOSS APPEAL had chewed on it and it must have slipped down the dog’s throat. He told her to keep the muzzle in case it was needed in any subsequent investigation. He could not recall if he asked her why she had not brought the dog back to the track.
[35] Mr Austin stated he had never questioned the veterinarian, Mr Jansen, as to what he believed was the cause of the asphyxiation. Mr Jansen had apologised to him for allowing Mrs Mann to uplift the dog and remove it from the track. Mr Jansen had said he had let the dog go because he was satisfied that BOSS APPEAL had choked and that there were no other injuries.
[36] Mr Mann questioned Mr Austin as to whether he had been told by Mr Bateup that it was alleged that Mr Mann was going to come to the track and do damage to people. He replied he had. He agreed with Mr Mann that this was merely hearsay. This had not been his principal concern at the time. Rather, it was the death of the dog, and its cause. When asked why the RSPCA had not been called to the course, he stated he could see no reason for their being called, as there was an experienced veterinarian officiating on raceday. He believed he had spoken to Mr Jansen on two occasions on the night concerning the death of the dog. Mr Jansen had told him he had used muscle relaxant medication but still had not been able to find the obstruction.
[37] Mr Austin could not recall when he first mentioned an autopsy to Mr Jansen. He emphasised he had had no inkling that the dog would be released so soon and he would have prevented its release had he known. He was unsure just when BOSS APPEAL was released. It was normal practice for an autopsy to be carried out. He agreed Mr Jansen was the officiating veterinarian at the meeting and that he had released the dog to Mrs Mann. When asked whether Mr Jansen had the authority to release the dog, he said he had, although he believed the normal practice would have been to seek confirmation from the Chairman of Stewards first, which Mr Jansen had not done on this occasion. He emphasised Mr Jansen had apologised to him for releasing the dog without seeking his confirmation and that the veterinarian had indicated he was comfortable with his diagnosis on the night. Neither he nor Mr Jansen had entertained any thoughts of foul play. He agreed he could override any decision of the veterinarian and that Mr Jansen had made an error of judgment on the night. This surprised him, as Mr Jansen was very experienced.
[38] As to his conversation with the respondent being recorded, Mr Austin said he had not asked for this to be done and was unaware it had been recorded until Mr Irving told him that Mrs Trass had said all calls on her phone were automatically recorded.
[39] He agreed with Mr Mann that he had checked to see whether Mr Mann was on the road outside the course. He had not left the track to do this and had only looked from a distance. He did not know where Mrs Mann was at this time and had not asked.
[40] In response to questions from this Committee, Mr Austin stated Mrs Mann was very distressed when he spoke to her before race 10. He was not aware why. He thought it was the pressures on the night. He reiterated he had taken the first opportunity he could to get the dog returned to the track. He emphasised it was very rare for a trainer to take a dead dog away from the track.
[41] Mr Austin expressed to this Committee that there was no doubt in his mind that he had made it very clear to Mrs Mann that BOSS APPEAL was to be brought back to the track for an autopsy. He agreed that Mrs Mann had given a positive response to his direction and was not evasive. She had openly said the dog had left the course.
[42] Mr Austin said Mrs Mann was “fine” when he was talking to her on the phone from the Secretary’s office but when he spoke to her in person prior to race 10 she was tearful. She was in a very distressed state at that time and said she had been trying to get hold of Mr Mann, but could not. He said he doubted the authenticity of her statement. This was the first time he had doubted her actions on the night.
[43] Mr Austin agreed there was a CCTV camera facing the kennelling area. He did not believe it would have shown BOSS APPEAL though, as it would have only filmed the area where people walked. He was satisfied the security on the night was very good.
[44] Mr Austin confirmed he had made no effort to contact Mrs Mann after the night in question but he emphasised that neither had she tried to contact him. There was no text or message from her on his phone.
[45] Mr Mann opened the respondent’s case by emphasising that Mrs Mann was “very very upset” by the death of BOSS APPEAL. The dog was the family favourite and his father was especially attached to it. Mrs Mann was so upset that he could not understand her when she spoke on the phone to him and he had to tell her to give the phone to another trainer so he could understand what was up.
[46] Mr Mann said the respondent was on the track by herself that night and had three dogs racing. She had handed BOSS APPEAL to him and his father outside McDonalds, which was about a block away from the track. They had done this so as not to cause any trouble on the track. The dog was taken out of the van used to take the dogs to the track and placed in the back of his father’s car. BOSS APPEAL was then taken home and buried. The dog was taken off the track wrapped in plastic and was buried while still in that state. Mr Mann said he had turned his cellphone off on his way to the track, as he did not want to talk to anyone, as he too was upset, and it was ringing constantly as people became aware that the dog had died.
[47] Mr Mann said that Mrs Mann was still upset when she came home after the race meeting. He said it was not until the next morning that she mentioned to him that she had been asked to bring the dog back to the track for an autopsy. He thought it was too late to do anything then and he thought the RIU would contact Mrs Mann.
[48] Mr Mann questioned the actions of the kennel staff on the night, saying it was their responsibility to look after the dogs. He raised the issue of whether there had been inattentiveness or negligence by the kennel staff or the RIU. Perhaps, he said, there were animal welfare issues to be addressed.
[49] Mr Mann emphasised that the official veterinarian, Mr Jansen, had released the dog to Mrs Mann and over the weekend she had not contacted the RIU or brought the dog back because anything could have been done to it in the interim and an autopsy would not have achieved anything. However, Mr Mann said that some three weeks after the death they had said they would like an autopsy done but they were told it was too late. It was not clear to whom they had been speaking at this time.
[50] Looking back at the death, Mr Mann said they now believed it was a freak thing that had happened. However, they were not sure the muzzle was the cause of death. They believed the actions of a third party were a possibility. In response to a questioning, he said Mrs Mann agreed with the Committee that an autopsy would have assisted to dispel these doubts.
[51] With respect to the barking muzzle, BOSS APPEAL had worn that on 43 occasions without incident. He questioned why no one from the RIU had looked at it.
[52] Mrs Mann gave evidence. She stated that when she saw BOSS APPEAL in the kennel the dog was in a bad way and had later died in her arms. She rang Mr Mann to tell him what had happened but was so upset she could not talk and just cried. She said she was in a state of shock.
[53] Mrs Mann said she had asked the veterinarian, Mr Jansen, if she could take the dog home and he had said that she could. She recalled receiving a call from Mr Austin but was so upset she was not thinking clearly. She was devastated by the death of BOSS APPEAL and just wanted to go home but she could not as she had a dog in race 10. She was aware Mr Austin had asked her to bring the dog back to the track but she was back on the course when she had this conversation. She said she had rung her husband straight away to tell him to bring the dog back but his phone was turned off. She estimated this was about half an hour after she had given the dog to him.
[54] Mrs Mann said she got home at midnight and immediately put the two dogs that had raced on the night away. She then just cried and cried and could not sleep. She was aware at that time that BOSS APPEAL had been buried before she had returned home.
55] Mrs Mann said she told her husband first thing in the morning that she had tried to call him to tell him to bring the dog back to the course. When questioned why she did not ring a Stipendiary Steward at that time, she said she did not think to call and was not thinking clearly as she was still upset. The death of BOSS APPEAL was still sinking in at that time. She did not ring later as she thought it would be too late to contact the RIU.
[56] She was adamant when questioned by Mr Irving, that she had not witnessed BOSS APPEAL being buried. When she had said to him when questioned on 6 November that “We buried the dog”, this was a figure of speech.
Decision
[57] At the commencement of the hearing Mr Mann objected to the transcript and audio file of the telephone call between Mr Austin and Mrs Mann at 7.13 on the night of 23 October being produced in evidence. He alleged there had been a breach of the Privacy Act 1993. Mr Austin has given evidence as to what was said in the call and Mrs Trass has given evidence as to what she heard Mr Austin say to Mrs Mann. In addition, Mrs Mann has not disputed that she understood after speaking to Mr Austin that she was to return BOSS APPEAL to the track for the purpose of an autopsy. We see no need to rule on whether or not there has been a breach of the Privacy Act. Neither the transcript nor the audio file will be admitted in evidence.
[58] We also deal with a further preliminary matter. Mr Mann alleged that Mr Irving when investigating this matter had bullied Mrs Mann. The content of the text messages between the informant and the respondent, as read to this Committee in evidence, do not support this allegation. To the contrary, Mr Irving was courteous in his communications, although we do question the need for the interview with the respondent to be at the scene of the incident, especially as it is clear that the respondent was still very upset by the sudden death of BOSS APPEAL. We believe the request by Mrs Mann that the interview not be held during the course of a race meeting could have been afforded further consideration by Mr Irving.
[59] We find that just before 7.15 pm at the meeting of the Wanganui Greyhound Racing Club at Wanganui on 23 October 2015 Mr Austin was called to the Club Secretary’s office where he was advised by the Club Secretary, Mrs Trass, that BOSS APPEAL, whom he was aware had died whilst kennelled, had been uplifted by the respondent, removed from the track and given to the respondent’s husband, Mr Stephen Mann.
[60] Mr Austin, who did not have a cellphone at hand, accepted the offer from Mrs Trass to use her cellphone and immediately rang the respondent. We are satisfied that during the course of this conversation Mr Austin directed Mrs Mann to return the dog to the track for the purpose of an autopsy.
[61] When speaking to Mr Austin later that evening the respondent told him that she had been trying to contact her husband but he was not answering his phone and she was unable to get a message to him. Mr Austin’s response to Mrs Mann was for her to keep trying to contact Mr Mann, as he wanted the dog brought back to the track. BOSS APPEAL was not returned to the track that night and Mr Austin did not receive any further communication from the respondent.
[62] The respondent has not disputed that she understood that she was to return BOSS APPEAL to the track. The evidence before us supports this conclusion. When Mr Irving interviewed her at Hatrick Raceway on 6 November, she acknowledged receiving the phone call from Mr Austin requesting she bring the dog back. She stated that she tried unsuccessfully to contact her husband and when she got home they “buried my baby.” In the conversation with Mr Austin before race 10 on 23 October she stated she had been attempting to contact her husband to tell him that the dog had to be brought back to the course. And in her evidence before us, she has said that although she was traumatised by the death of BOSS APPEAL, she had rung Mr Mann to get him to return the dog but he had not answered his phone.
[63] In explanation for not complying with the direction of Mr Austin after the conclusion of the meeting she stated that she had not arrived home till late (midnight) and was so upset she did not give thought to the matter. The next morning when she raised the issue with Mr Mann, she decided it was too late for an autopsy. She stated in evidence the dog had been buried, still wrapped in plastic, the night before. She could not be shaken on this point when cross-examined by Mr Irving.
[64] The RIU did not contact Mrs Mann further about the matter, either by phone or in person, it being the long weekend, and Mrs Mann made no approach to the Stewards.
[65] Despite the absence of an equivalent provision to r 1008(b) of the Rules of Harness Racing which provides “[i]n the absence of any express provision to the contrary in any proceeding for a breach of these Rules any breach of a rule shall be considered as an offence of strict liability”, and the absence of any submissions on this issue, we believe r 87.1(p) creates an offence of strict liability.
[66] Where a breach is one of strict liability, the person charged has a defence if they prove to the civil standard they took all reasonable steps. This is a limited defence and the onus is upon the person charged to prove on the balance of probabilities that he or she took all reasonable steps to avoid the commission of a breach of the Rules. The test is not whether they took some reasonable steps, but whether they took all reasonable steps that were open to them. The question of reasonableness is to be determined objectively. Thus the perception of the person charged does not necessarily govern this situation.
[67] We accept that the respondent was in an unenviable and difficult position on the night. She was severely traumatised by the loss of an animal that was clearly dear to her, but she still had professional obligations to meet, both with respect to the dog racing in race 10 and the order given to her by Mr Austin. In this regard, we were not informed as to what support she received from fellow trainers.
[68] It is her actions after race 10 that are of concern to this Committee and which have led us to conclude that she is in breach of the Rules.
[69] Mrs Mann was aware she had failed to comply with the lawful order of the Stipendiary Steward, Mr Austin (given under r 38.3(a)). This notwithstanding, Mrs Mann made no effort to speak to Mr Austin after race 10 in order to obtain instructions as to what to do in light of the fact she had not been able to contact Mr Mann and had thus not followed the order given to her on the night. She could have inquired, for example, whether the autopsy could have been conducted over the long weekend, and would later compliance with Mr Austin’s direction be acceptable and could his order be reworded to permit this.
[70] Mrs Mann stated in evidence that she made attempts while at the track to ring her husband in order that she would be able to comply with Mr Austin’s direction. When interviewed by Mr Irving, sh
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 15/12/2015
Publish Date: 15/12/2015
JCA Decision Fields (raw)
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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.
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decisiondate: 15/12/2015
hearing_title: Non Raceday Inquiry RIU v M Mann - Decision dated 14 December 2015 - Chair, Prof G Hall
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT PALMERSTON NORTH
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND Mrs Michelle MANN
Licensed Greyhound Trainer
Respondent
Information No. A4171
Judicial Committee: Prof G Hall, Chairman - Mr T Utikere, Member of Committee
Appearing: Mr A Irving for the Informant
Mr S Mann for the Respondent
Date of hearing: 1 December 2015
DECISION OF JUDICIAL COMMITTEE
[1] The respondent, Mrs Michelle Mann, faces a charge under r 87.1(p) of the New Zealand Greyhound Racing Association Rules in that on 23 October 2015 at a race meeting conducted by the Wanganui Greyhound Racing Club at Wanganui, she failed to comply with a lawful order made by Stipendiary Steward, Mr Michael Austin.
[2] Rule 87.1(p) states:
Any person (including an Official) commits an offence if he/she disobeys or fails to comply with the lawful order of a Steward or other Person having Official duties in relation to Greyhound racing.
[3] Rule 38.3 provides relevantly:
“Subject to these Rules, and in particular Rule 38.1 [which states unless otherwise provided in these Rules: a Meeting shall be deemed to commence at 7:30 a.m. on the morning of the day on which the first Race is appointed to be run and conclude at 12:00 midnight on the day of the last Race of the Meeting; and b. the powers of the Stewards to investigate any matter or thing relating to or arising out of the conduct at a Meeting shall continue for four (4) months after the Meeting or for such further time as the Board may allow], the Stewards shall have the power to control and regulate the Meeting and without prejudice to the generality of that power shall have further powers to: a. inquire into any matter or thing in connection with a Meeting under their control….”
[4] Rule 88.1 provides:
Any Person found guilty of an Offence under these Rules shall be liable to:
a. a fine not exceeding $10,000.00 for any one (1) Offence; and/or
b. Suspension; and/or
c. Disqualification; and/or
d. Warning Off.
[5] The respondent is a licensed trainer under the Rules of the New Zealand Greyhound Association and has denied the charge.
Background to the charge
[6] The respondent had kennelled her dog BOSS APPEAL for Race 6 at the Wanganui Greyhound Racing Club’s meeting at Hatrick Raceway on 23 October 2015.
[7] At approximately 6.20 pm the handlers went into the kennel block to get their dogs out. The respondent found BOSS APPEAL in its kennel in a very distressed state. The Club veterinarian, Mr Jansen, attended to the dog but could not save it.
[8] Upon examination, BOSS APPEAL was found to have traumatic bruising and swelling to the back of its throat. Mr Jansen, satisfied the cause of death was asphyxiation, probably as the result of a physical obstruction, released the dog to the respondent without the approval of the Chairman of Stewards, Mr Austin.
The informant’s case
[9] Mr Irving opened the RIU’s case stating that the informant would establish that the respondent had failed to comply with a lawful order made by Stipendiary Steward, Mr Austin, given on 23 October 2015.
[10] With reference to the elements of the charge, he stated he believed it was common ground that the respondent was a licensed greyhound trainer and that Mr Austin was a Stipendiary Steward. Mr Mann agreed.
[11] Mr Irving stated that pursuant r 38.3(a) it was a function of the Stipendiary Stewards to inquire into any matter arising on the day. They may take possession of a greyhound and the direction was a lawful order with which the respondent had failed to comply.
[12] Mr Irving then gave evidence. He said he interviewed Mrs Mann on 6 November in the Stewards’ room at the Wanganui racecourse during the course of the meeting of the Wanganui Greyhound Racing Club. She had only one dog racing at this meeting and he spoke to her after she had kennelled it. He said he told her at the end of the interview that she would be charged and handed her a copy of the information. Mrs Mann refused to sign this.
[13] Mr Irving played a recording of this interview with Mrs Mann. In this interview she stated there had not been any previous health issues with BOSS APPEAL. During the interview Mr Irving stated he accepted that the veterinarian, Mr Jansen, had released the dog to the respondent and had assisted in putting the dog into her van.
[14] Mrs Mann stated in the interview that she could not remember what Mr Austin had said to her on the phone. However, she said the conversation with Mr Austin was after she had given the dog to Mr Mann and was when she was sitting out the back of the racecourse. She said she had tried to ring Mr Mann but could not get hold of him. She could not recall if she had sent him a text and could not check this as she deletes all her messages.
[15] When asked what she did when she got home. She replied, “We just buried my baby.” When asked why she did not follow “the instructions of Mike Austin to bring BOSS APPEAL ….”, she said, “Because I wanted to take my baby home.” She could not recall whether she had talked to Mr Mann about bringing the dog back to the track.
[16] Mr Mann questioned Mr Irving as to whether he had bullied Mrs Mann and whether he had text communication with her prior to the interview on 6 November. He said he had had communication and the contents of these texts, with the concurrence of Mrs Mann, were read to the hearing. Mrs Mann indicated that she wanted a support person, and asked that this be Mr Mann. Mr Irving replied he wished to talk to her at the track and consequently Mr Mann could not be there. (We observe that Mr Mann had been trespassed.) Mrs Mann asked if she could have another person, perhaps a person from the SPCA. Mr Irving said this was fine. Mrs Mann reiterated she did not want to be questioned at the track.
[17] Mr Irving disputed Mr Mann’s allegation that he had intimidated the respondent. He said he did not want the interview at the house and did not want Mr Mann present. He said he wanted to question her as a trainer in her own right. He added that it was her decision only not to bring the dog back to the track. He wanted to question her at the track, as this was where the incident happened; it was the scene. He reiterated he had told her she was entitled to a support person.
[18] Mr Mann questioned Mr Irving concerning the surveillance footage from the night of the race meeting on 23 October. Mr Irving said he had never seen it. He had arranged to obtain it from the Club but the Club had replied that they had been unable to download it. There had been technical difficulties. When asked whether or not this would have shown the area where BOSS APPEAL had been kennelled, Mr Irving said he did not know, but probably not, as there was no camera facing that area.
[19] Mr Irving agreed with Mr Mann that it was only when Mrs Mann went to get BOSS APPEAL that anyone was aware there was anything wrong with the dog. He was not surprised the manager of the kennels or the security guards had not realised there was anything amiss with BOSS APPEAL. There would have been a lot of noise with a number of dogs barking. He agreed that BOSS APPEAL was found lying in a pool of blood but no one had reported seeing this blood prior to Mrs Mann going to attend to BOSS APPEAL.
[20] Mrs Trass gave evidence that she had been the Secretary of the Wanganui Greyhound Racing Club since 2004. She was working in this capacity at the meeting on 23 October. She was told there was a late scratching as a dog had died in the kennel block. She rang and asked Stipendiary Steward, Mr Austin, to come to the office, as she had been told that the respondent had taken the dog from the track. She conveyed this fact to Mr Austin and also that she had heard that Mr Mann was going to come to the track and cause trouble.
[21] Mrs Trass said that when Mr Austin said he wanted to speak to Mrs Mann but did not have his phone with him, she gave him her cellphone. She said Mr Austin had spoken to Mrs Mann and asked her if she had the deceased dog with her and had said she was to bring the dog back to the track for an autopsy. She could not recall the exact words Mr Austin had used.
[22] Mrs Trass was not sure who was in the office at the time Mr Austin spoke on the phone. She thought it was only two other people, her husband and Erin Woods, the Club Manager. She said her phone was not on speakerphone and neither she nor anyone else in the office could hear what Mrs Mann was saying.
[23] Mrs Trass said her phone had an automatic recording function. She had not realised this until Mr Irving spoke to her about a week later. She had volunteered this information to him and had forwarded the conversation in question to him at his request. Mr Austin’s conversation with Mrs Mann was timed as having commenced at 7.13 pm.
[24] Mr Austin was the final witness for the informant. He stated that he had nine years’ experience as a greyhound Stipendiary Steward. He was Chairman of the Stewards on 23 October. He was working with Mr Bateup who contacted him during the meeting stating he would need to late scratch a dog due to its being injured in the kennels. He said he then late scratched the dog concerned, BOSS APPEAL.
[25] Mr Austin was later made aware by Mr Bateup that the dog had died. Mr Bateup told him that BOSS APPEAL had asphyxiated due to there being something in the dog’s throat. He was told the dog’s body had been put in a bag in the recovery room. He said as he was walking towards the kennelling block to deal with the matter, there was an issue with the track lighting. He had had to deal with this first and, as a consequence of the outage, the meeting had been put back a race.
[26] Mr Austin said at around 7.15 pm he was in the Secretary’s Office when he was advised by Mrs Trass that the respondent had taken BOSS APPEAL off the course.
[27] Mr Austin said he decided BOSS APPEAL should be returned to the track and that he needed to speak to Mrs Mann. He did not have his cellphone with him as when he was officiating on track it was connected to the Internet. The Secretary of the Club offered him her cell-phone. She gave it to him, having dialled Mrs Mann whose number was listed, along with those of other trainers, in her cellphone contacts. He said he identified himself to Mrs Mann and said he understood the dog had been taken off the course.
[28] Mr Austin said he told Mrs Mann to bring BOSS APPEAL back for an autopsy. She replied that she could not bring the dog back. He asked where the dog was and she replied, “You know where.” She later stated that Mr Mann had BOSS APPEAL. He said he repeated his order for the dog to be brought back to the track. He was not aware who else was in the office at the time he spoke on the phone. He thought perhaps there were two other people, Mrs Trass’ husband and a licence holder. He was not concerned about lack of privacy, as he often had to interact with licence-holders when other licence-holders or members of the public were present.
[29] Mr Austin explained he spoke to the veterinarian after he was told BOSS APPEAL had been taken from the track and it was then that he realised Mr Jansen had authorised the dog’s release. Mr Austin said he wanted BOSS APPEAL brought back to the course as, with the long weekend ahead, he thought it would be best if the autopsy was carried out as soon as possible after the meeting. He asked the vet if he was available to perform the autopsy, and he replied that he was. They spoke about it being a long weekend and that there may be “storage issues” for the dog at the track, but Mr Austin said he agreed he would return to the veterinarian’s clinic after the meeting to attend the autopsy.
[30] Mr Austin said he remained on the course to well after the last race, after 11 o’clock, he thought. Mrs Mann had not returned the dog by this time. He had no further communication with her after he left the track.
[31] When questioned why he wanted an autopsy carried out, Mr Austin stated this was the process he followed when a dog died at the track through misadventure or illness. He understood there was a GRNZ direction or protocol to this effect.
[32] When questioned about his conversation with Mrs Mann, he said he was sure she understood that he had instructed her to bring the dog back to the track. He said he asked her to contact Mr Mann and to ensure that the dog was returned for an autopsy. He said Mrs Mann was compliant and that he understood she was going to ring her husband.
[33] Mr Austin stated he had spoken to Mrs Mann at the track after race 10. She was very distressed. She told him she had been trying to get hold of Mr Mann, but could not, as he was not answering his phone. Mr Austin said he told her to go away and to try again. He explained he never got back to Mrs Mann about the matter, as he was very busy due to the fact there was “a lot going on” that night. He expected her to follow his instructions. When she did not, Mr Austin said he rang Mr Irving and informed him the following day.
[34] Mr Austin said he spoke to the respondent at Wanganui on 26 October and asked her about the dog and what had happened. She told him the barking muzzle was too big and that BOSS APPEAL had chewed on it and it must have slipped down the dog’s throat. He told her to keep the muzzle in case it was needed in any subsequent investigation. He could not recall if he asked her why she had not brought the dog back to the track.
[35] Mr Austin stated he had never questioned the veterinarian, Mr Jansen, as to what he believed was the cause of the asphyxiation. Mr Jansen had apologised to him for allowing Mrs Mann to uplift the dog and remove it from the track. Mr Jansen had said he had let the dog go because he was satisfied that BOSS APPEAL had choked and that there were no other injuries.
[36] Mr Mann questioned Mr Austin as to whether he had been told by Mr Bateup that it was alleged that Mr Mann was going to come to the track and do damage to people. He replied he had. He agreed with Mr Mann that this was merely hearsay. This had not been his principal concern at the time. Rather, it was the death of the dog, and its cause. When asked why the RSPCA had not been called to the course, he stated he could see no reason for their being called, as there was an experienced veterinarian officiating on raceday. He believed he had spoken to Mr Jansen on two occasions on the night concerning the death of the dog. Mr Jansen had told him he had used muscle relaxant medication but still had not been able to find the obstruction.
[37] Mr Austin could not recall when he first mentioned an autopsy to Mr Jansen. He emphasised he had had no inkling that the dog would be released so soon and he would have prevented its release had he known. He was unsure just when BOSS APPEAL was released. It was normal practice for an autopsy to be carried out. He agreed Mr Jansen was the officiating veterinarian at the meeting and that he had released the dog to Mrs Mann. When asked whether Mr Jansen had the authority to release the dog, he said he had, although he believed the normal practice would have been to seek confirmation from the Chairman of Stewards first, which Mr Jansen had not done on this occasion. He emphasised Mr Jansen had apologised to him for releasing the dog without seeking his confirmation and that the veterinarian had indicated he was comfortable with his diagnosis on the night. Neither he nor Mr Jansen had entertained any thoughts of foul play. He agreed he could override any decision of the veterinarian and that Mr Jansen had made an error of judgment on the night. This surprised him, as Mr Jansen was very experienced.
[38] As to his conversation with the respondent being recorded, Mr Austin said he had not asked for this to be done and was unaware it had been recorded until Mr Irving told him that Mrs Trass had said all calls on her phone were automatically recorded.
[39] He agreed with Mr Mann that he had checked to see whether Mr Mann was on the road outside the course. He had not left the track to do this and had only looked from a distance. He did not know where Mrs Mann was at this time and had not asked.
[40] In response to questions from this Committee, Mr Austin stated Mrs Mann was very distressed when he spoke to her before race 10. He was not aware why. He thought it was the pressures on the night. He reiterated he had taken the first opportunity he could to get the dog returned to the track. He emphasised it was very rare for a trainer to take a dead dog away from the track.
[41] Mr Austin expressed to this Committee that there was no doubt in his mind that he had made it very clear to Mrs Mann that BOSS APPEAL was to be brought back to the track for an autopsy. He agreed that Mrs Mann had given a positive response to his direction and was not evasive. She had openly said the dog had left the course.
[42] Mr Austin said Mrs Mann was “fine” when he was talking to her on the phone from the Secretary’s office but when he spoke to her in person prior to race 10 she was tearful. She was in a very distressed state at that time and said she had been trying to get hold of Mr Mann, but could not. He said he doubted the authenticity of her statement. This was the first time he had doubted her actions on the night.
[43] Mr Austin agreed there was a CCTV camera facing the kennelling area. He did not believe it would have shown BOSS APPEAL though, as it would have only filmed the area where people walked. He was satisfied the security on the night was very good.
[44] Mr Austin confirmed he had made no effort to contact Mrs Mann after the night in question but he emphasised that neither had she tried to contact him. There was no text or message from her on his phone.
[45] Mr Mann opened the respondent’s case by emphasising that Mrs Mann was “very very upset” by the death of BOSS APPEAL. The dog was the family favourite and his father was especially attached to it. Mrs Mann was so upset that he could not understand her when she spoke on the phone to him and he had to tell her to give the phone to another trainer so he could understand what was up.
[46] Mr Mann said the respondent was on the track by herself that night and had three dogs racing. She had handed BOSS APPEAL to him and his father outside McDonalds, which was about a block away from the track. They had done this so as not to cause any trouble on the track. The dog was taken out of the van used to take the dogs to the track and placed in the back of his father’s car. BOSS APPEAL was then taken home and buried. The dog was taken off the track wrapped in plastic and was buried while still in that state. Mr Mann said he had turned his cellphone off on his way to the track, as he did not want to talk to anyone, as he too was upset, and it was ringing constantly as people became aware that the dog had died.
[47] Mr Mann said that Mrs Mann was still upset when she came home after the race meeting. He said it was not until the next morning that she mentioned to him that she had been asked to bring the dog back to the track for an autopsy. He thought it was too late to do anything then and he thought the RIU would contact Mrs Mann.
[48] Mr Mann questioned the actions of the kennel staff on the night, saying it was their responsibility to look after the dogs. He raised the issue of whether there had been inattentiveness or negligence by the kennel staff or the RIU. Perhaps, he said, there were animal welfare issues to be addressed.
[49] Mr Mann emphasised that the official veterinarian, Mr Jansen, had released the dog to Mrs Mann and over the weekend she had not contacted the RIU or brought the dog back because anything could have been done to it in the interim and an autopsy would not have achieved anything. However, Mr Mann said that some three weeks after the death they had said they would like an autopsy done but they were told it was too late. It was not clear to whom they had been speaking at this time.
[50] Looking back at the death, Mr Mann said they now believed it was a freak thing that had happened. However, they were not sure the muzzle was the cause of death. They believed the actions of a third party were a possibility. In response to a questioning, he said Mrs Mann agreed with the Committee that an autopsy would have assisted to dispel these doubts.
[51] With respect to the barking muzzle, BOSS APPEAL had worn that on 43 occasions without incident. He questioned why no one from the RIU had looked at it.
[52] Mrs Mann gave evidence. She stated that when she saw BOSS APPEAL in the kennel the dog was in a bad way and had later died in her arms. She rang Mr Mann to tell him what had happened but was so upset she could not talk and just cried. She said she was in a state of shock.
[53] Mrs Mann said she had asked the veterinarian, Mr Jansen, if she could take the dog home and he had said that she could. She recalled receiving a call from Mr Austin but was so upset she was not thinking clearly. She was devastated by the death of BOSS APPEAL and just wanted to go home but she could not as she had a dog in race 10. She was aware Mr Austin had asked her to bring the dog back to the track but she was back on the course when she had this conversation. She said she had rung her husband straight away to tell him to bring the dog back but his phone was turned off. She estimated this was about half an hour after she had given the dog to him.
[54] Mrs Mann said she got home at midnight and immediately put the two dogs that had raced on the night away. She then just cried and cried and could not sleep. She was aware at that time that BOSS APPEAL had been buried before she had returned home.
55] Mrs Mann said she told her husband first thing in the morning that she had tried to call him to tell him to bring the dog back to the course. When questioned why she did not ring a Stipendiary Steward at that time, she said she did not think to call and was not thinking clearly as she was still upset. The death of BOSS APPEAL was still sinking in at that time. She did not ring later as she thought it would be too late to contact the RIU.
[56] She was adamant when questioned by Mr Irving, that she had not witnessed BOSS APPEAL being buried. When she had said to him when questioned on 6 November that “We buried the dog”, this was a figure of speech.
Decision
[57] At the commencement of the hearing Mr Mann objected to the transcript and audio file of the telephone call between Mr Austin and Mrs Mann at 7.13 on the night of 23 October being produced in evidence. He alleged there had been a breach of the Privacy Act 1993. Mr Austin has given evidence as to what was said in the call and Mrs Trass has given evidence as to what she heard Mr Austin say to Mrs Mann. In addition, Mrs Mann has not disputed that she understood after speaking to Mr Austin that she was to return BOSS APPEAL to the track for the purpose of an autopsy. We see no need to rule on whether or not there has been a breach of the Privacy Act. Neither the transcript nor the audio file will be admitted in evidence.
[58] We also deal with a further preliminary matter. Mr Mann alleged that Mr Irving when investigating this matter had bullied Mrs Mann. The content of the text messages between the informant and the respondent, as read to this Committee in evidence, do not support this allegation. To the contrary, Mr Irving was courteous in his communications, although we do question the need for the interview with the respondent to be at the scene of the incident, especially as it is clear that the respondent was still very upset by the sudden death of BOSS APPEAL. We believe the request by Mrs Mann that the interview not be held during the course of a race meeting could have been afforded further consideration by Mr Irving.
[59] We find that just before 7.15 pm at the meeting of the Wanganui Greyhound Racing Club at Wanganui on 23 October 2015 Mr Austin was called to the Club Secretary’s office where he was advised by the Club Secretary, Mrs Trass, that BOSS APPEAL, whom he was aware had died whilst kennelled, had been uplifted by the respondent, removed from the track and given to the respondent’s husband, Mr Stephen Mann.
[60] Mr Austin, who did not have a cellphone at hand, accepted the offer from Mrs Trass to use her cellphone and immediately rang the respondent. We are satisfied that during the course of this conversation Mr Austin directed Mrs Mann to return the dog to the track for the purpose of an autopsy.
[61] When speaking to Mr Austin later that evening the respondent told him that she had been trying to contact her husband but he was not answering his phone and she was unable to get a message to him. Mr Austin’s response to Mrs Mann was for her to keep trying to contact Mr Mann, as he wanted the dog brought back to the track. BOSS APPEAL was not returned to the track that night and Mr Austin did not receive any further communication from the respondent.
[62] The respondent has not disputed that she understood that she was to return BOSS APPEAL to the track. The evidence before us supports this conclusion. When Mr Irving interviewed her at Hatrick Raceway on 6 November, she acknowledged receiving the phone call from Mr Austin requesting she bring the dog back. She stated that she tried unsuccessfully to contact her husband and when she got home they “buried my baby.” In the conversation with Mr Austin before race 10 on 23 October she stated she had been attempting to contact her husband to tell him that the dog had to be brought back to the course. And in her evidence before us, she has said that although she was traumatised by the death of BOSS APPEAL, she had rung Mr Mann to get him to return the dog but he had not answered his phone.
[63] In explanation for not complying with the direction of Mr Austin after the conclusion of the meeting she stated that she had not arrived home till late (midnight) and was so upset she did not give thought to the matter. The next morning when she raised the issue with Mr Mann, she decided it was too late for an autopsy. She stated in evidence the dog had been buried, still wrapped in plastic, the night before. She could not be shaken on this point when cross-examined by Mr Irving.
[64] The RIU did not contact Mrs Mann further about the matter, either by phone or in person, it being the long weekend, and Mrs Mann made no approach to the Stewards.
[65] Despite the absence of an equivalent provision to r 1008(b) of the Rules of Harness Racing which provides “[i]n the absence of any express provision to the contrary in any proceeding for a breach of these Rules any breach of a rule shall be considered as an offence of strict liability”, and the absence of any submissions on this issue, we believe r 87.1(p) creates an offence of strict liability.
[66] Where a breach is one of strict liability, the person charged has a defence if they prove to the civil standard they took all reasonable steps. This is a limited defence and the onus is upon the person charged to prove on the balance of probabilities that he or she took all reasonable steps to avoid the commission of a breach of the Rules. The test is not whether they took some reasonable steps, but whether they took all reasonable steps that were open to them. The question of reasonableness is to be determined objectively. Thus the perception of the person charged does not necessarily govern this situation.
[67] We accept that the respondent was in an unenviable and difficult position on the night. She was severely traumatised by the loss of an animal that was clearly dear to her, but she still had professional obligations to meet, both with respect to the dog racing in race 10 and the order given to her by Mr Austin. In this regard, we were not informed as to what support she received from fellow trainers.
[68] It is her actions after race 10 that are of concern to this Committee and which have led us to conclude that she is in breach of the Rules.
[69] Mrs Mann was aware she had failed to comply with the lawful order of the Stipendiary Steward, Mr Austin (given under r 38.3(a)). This notwithstanding, Mrs Mann made no effort to speak to Mr Austin after race 10 in order to obtain instructions as to what to do in light of the fact she had not been able to contact Mr Mann and had thus not followed the order given to her on the night. She could have inquired, for example, whether the autopsy could have been conducted over the long weekend, and would later compliance with Mr Austin’s direction be acceptable and could his order be reworded to permit this.
[70] Mrs Mann stated in evidence that she made attempts while at the track to ring her husband in order that she would be able to comply with Mr Austin’s direction. When interviewed by Mr Irving, sh
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