Non Raceday Inquiry RIU v MJ Flipp – Reserved Penalty Decision and Reasons dated 2 September 2014

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decisiondate: 28/08/2014

hearing_title: Non Raceday Inquiry RIU v MJ Flipp - Reserved Penalty Decision and Reasons dated 2 September 2014

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appealdecision: NO LINKED APPEAL DECISION

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)

IN THE MATTER of Information No. A6317

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND MARCELLE JEAN FLIPP of Rakaia, Licensed Public Trainer

Respondent

Judicial Committee: Mr R G McKenzie, Chair - Mr K G Hales, Panelist

Present: Mrs K R Williams, the Informant

Ms M J Flipp, the Respondent

Mr D F Emerson, assisting the Respondent

Mr R A Quirk, Stipendiary Steward, Registrar

Date of Hearing: 22 August 2014

Date of Decision: 2 September 2014

RESERVED PENALTY DECISION AND REASONS

The Charge

[1] Information No.A6317 alleges that:

Ms Flipp acted improperly when taking action to reprimand the unregistered greyhound TAHI at the Christchurch GRC trials meeting on the 28 July 2014.

[2] Mrs Williams produced a letter dated 7th August 2014 and signed by Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the lodging of the information.

The Rules

[3] Rule 88 of the Rules of New Zealand Greyhound Racing Association provides as follows:

1. Any person (including an Official) commits an offence if he/she:

o. has, in relation to a Greyhound or Greyhound Racing, done a thing, or omitted to do a thing which is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct.

The Plea

[4] The above charge and Rule were read to Ms Flipp and she indicated that she admitted the charge. The charge was found proved accordingly.

[5] Ms Flipp confirmed to the Committee that the dog concerned does not have a registered name but the name “Tahi” is its kennel name.

Informant’s Submissions

[6] In written submissions presented to the Committee, Mrs Williams set out the facts as follows:

“1. I received a phone call from Stipendiary Steward Mr Rick Quirk on 31st July 2014 advising that Mr Tony Music, Secretary/Manager Christchurch GRC, had received a written complaint regarding the conduct of Ms Flipp at the Christchurch Greyhound Racing Club trials meeting on 28 July 2014. The complaint was from the Starter at the trials, Mr Jim Smith. This complaint was also later forwarded to Mr Greg Kerr, Welfare Officer, Greyhound Racing New Zealand.

2. On the 1st day of August 2014 I was forwarded an email by Mr Neil Grimstone, Racecourse Investigator – RIU, with another complaint lodged with Mr Greg Kerr. This complaint was from Ms Debbie Devine, who was assisting a trainer at the trials and witnessed the incident.

3. On the 1st of August, I interviewed Ms Flipp in the presence of Mr Dave Emerson. [Mrs Williams read an extract from the interview and submitted that Ms Flipp quite clearly confirmed that she kicked the dog or attempted to kick the dog to reprimand it for its bad behaviour.]:

MF Basically I’ve been having trouble with the dog, putting him in the boxes, for several weeks. And I’ve done I’ve been doing a lot of work with him at home as well. And at home he’d be fine. And then we seem to bring him to the track and, he plays up. And this particular day he went in and he was kicking and bucking and just about kicking my head off, and turning his head around, and I was sort of pulling him in, pulling him out, and he wouldn’t settle, and this would have carried on for two minutes. And he was just going absolutely berserk. So I pulled him out and I looked around behind me and I just, I went to give him a good one but it didn’t really, it was not, I think I came off worse than what he did, and it was just one, I never . . .

KW A kick, you mean a kick. You went to kick him?

MF Yeah. Yeah. But it was, I’ve had people say to me that, ‘cause everyone was laughing at, because of how, like how pathetic the actual kick was, because, and I only did it once, and yeah. So that was, and for, yeah. And like we’re at trials, trials is a [sic] education, that’s where they get their education, the dog has been very troublesome for weeks and I can, there is [sic] plenty of witnesses, ‘cause they said they don’t know how I’m putting up with him. And, yeah. In the end, okay well maybe I shouldn’t have but it was only one and it’s not as if I actually slapped him around the head or pulled his ears off or, which is what I was gunna do.

4. On the 5th of August 2014, I re-interviewed Ms Flipp and took a statement from her. [Mrs Williams read the following extract from that statement]:

At this point I was very frustrated and unfortunately was unable to contain my annoyance and reprimanded the dog by lifting my leg and contact was made.

I appreciate that this behaviour is unacceptable and I offer my sincerest apology for any offence that I have caused. In future I will attempt to control my frustration and use other strategies for education of young or difficult dogs at trials.

5. In this second interview Ms Flipp started to contest the definition of “kick”. In the original interview Ms Flipp clearly accepted that she kicked the dog or attempted to kick the dog to reprimand the dog for its poor behaviour as stated above”.

6. Mrs Williams then read to the hearing two extracts from the interview on the 5th of August during which Ms Flipp confirmed that her actions were unacceptable:

KW If you didn’t kick the dog, or attempt to kick the dog, what did you do?

MF I, yes I lifted my leg.

KW to reprimand him

MF to reprimand him but my leg, my foot did connect and when I, when I say, well I’ve actually, I’ve even got, I’ve got a bruise on my leg, on my shin, so therefore that’s where I connected.

KW It doesn’t matter how you connected you have gone to reprimand your dog with your foot. Whether it has made contact the action was that you wanted to reprimand your dog.

MF No it was my leg, it was, what, it was my leg that has gone out.

KW OK that is fine.

MF I have used my leg to reprimand him. So most people, yes 99.9 people when you go to put your leg out you are obviously, well you could be going to kick it. But there is a difference between a kick with a connection with the foot and a backstop with your leg.

KW No that is not the way you were originally describing it as I have already said.

7. Mrs Williams then read a further extract from later in the same interview:

KW Today you are arguing the definition of the term “kick”?

MF Yes I am

KW OK, we are saying, ok you have attempted to kick the dog, you have already stated that but you are now disputing the definition of a kick but you don’t deny that you used your leg to reprimand the dog.

MF No I don’t deny that at all

KW That’s right you don’t deny that you reprimanded the dog with your leg?

MF Correct

KW and that contact was made?

MF Correct

8. Mrs Williams submitted that, from the complaints lodged and also the interviews with Ms Flipp and the statement taken, it is clear that her action in reprimanding her dog was “improper” under the Rules. This Ms Flipp has duly admitted, she said.

[7] Letter from J D Smith

In a letter dated 30th July 2014 to Mr Tony Music, Secretary/ Manager of Christchurch Greyhound Racing Club, the Starter Mr J D Smith wrote the following:

“I wish to register a complaint about a trainer’s actions during trials on Monday, 28th July 2014.
Marcie Flipp was attempting to box a dog and was having extreme trouble, the dog would not settle and stand in the box, the dog was attempting to constantly turn in the box. After approximately 30 seconds of struggling, Marcie lost her temper and dragged the dog out of the box then laid into the dog with her boot, one good solid kick. In my opinion this behaviour is not acceptable, it was witnessed by several people, I would not be surprised if there is a complaint coming in from the dozens of office workers that this action would have been in plain view of.”

[8] Letter from Debbie Devine

In a letter dated 29th July 2014 to Mr G Kerr, Animal Welfare Officer of Greyhound Racing New Zealand, Debbie Devine wrote the following which has been edited:

“I am a greyhound owner and was assisting a trainer at the Addington trials yesterday, Monday the 24th [sic] July, when I witnessed some very disturbing behaviour by a trainer – namely Marcie Flipp. We were making our way to the 295 starting boxes across the grassed area on the side of the track, when we heard a lot of commotion from a person attempting to get her dog to stay in the starting boxes. As we drew closer this continued, with the dog not at all happy about staying in the boxes. The dog managed to back its way out of the boxes again when we were standing waiting, and at this point the trainer – M Flipp gave the dog a very hard kick in the hindquarter region.

I consider this disgusting behaviour by any person, as not only were we (4 people including the starter) witness to this display, but possibly many of the public working in the buildings nearby may also have seen this. This is surely not acceptable behaviour by a trainer, or anyone associated with the industry in such a public domain . . .

With the greyhound industry seeming to be receiving very negative publicity in the media in recent times, this is certainly not a good look, not to mention the animal receiving this very unpleasant treatment.”

Informant’s Penalty Submissions

[9] Actions of this nature cannot be condoned at Official Trials or Race Meetings as the track is in such an open and public area with many businesses now overlooking the track.

[10] A penalty has to be imposed that shows other trainers and the general public that the welfare of greyhounds and the image of racing are protected to the highest degree.

[11] Mrs Williams referred the Committee to the penalty provision – Rule 89.1 (see paragraph [22] below).

[12] Ms Flipp has not previously been charged with a breach of this Rule. Ms Flipp is licensed as a Public Trainer and has trained 251 winners since 2010/2011.

[13] Mrs Williams produced a schedule of previous penalties imposed for breaches of Rule 88.1.o.

[14] Mrs Williams submitted that a fine in the vicinity of $200-300 was an appropriate penalty.

Statement and Submissions of Respondent

[15] Ms Flipp read to the hearing the written statement that she made to Mrs Williams on 5th August 2014:

“I make the following statement in relation to an incident at the Christchurch GRC trials meeting on 28th July 2014.

I have been advised by Racecourse Investigator, Mrs Kylie Williams, from the Racing Integrity Unit, that there have been two written complaints in regard to the incident.

The greyhound involved is unnamed but has the kennel name “Tahi”.

“Tahi” has been a difficult dog and I have been having trouble with him for several weeks. I have been doing a lot of work with the dog at home but he is still proving difficult. On this particular day he went into the box but commenced to kick and buck and turn his head around. This continued on for some time as he refused to stay in the boxes correctly and failed to settle backing out of the boxes a number of times quite forcefully. “Tahi” on this day had reverted to his previous poor behaviour after several weeks of trying to educate him in the boxes. I thought I had corrected his poor behaviour after many times to the track at Addington and Chertsey. At this point I was very frustrated and unfortunately was unable to contain my annoyance and reprimanded the dog by lifting my leg and contact was made.

I appreciate that this behaviour is unacceptable and I offer my sincerest apology for any offence that I have caused. In future I will attempt to control my frustration and use other strategies for education of young or difficult dogs at trials.”

[16] Mr Emerson, on behalf of Ms Flipp, sought leave to call two witnesses to clarify some matters in Mrs Williams’ Summary of Facts that were in dispute. Leave was granted by the Committee.

[17] Mr Jonathon McInerney, Licensed Person, said that he was walking two greyhounds out to the boxes. Ms Flipp was at the boxes attempting to get her dog into the boxes. He could see that she was having difficulty. He did not have a clear view but he saw the dog coming out and Ms Flipp “swung her leg round”. He was not in a position to say whether any contact had been made. In response to a question from the Committee, Mr McInerney said that while the dog needed to be reprimanded, it was never appropriate for a handler to kick a dog.

[18] Mr Bruce Dann, Licensed Trainer, said that the dog started playing up. Ms Flipp had put it in the boxes. The dog then got out of the box, he said, and Ms Flipp was able to grab a hold of it. She then “used her leg to try to get its attention”. He said it was “just an action” with no malice. He was unable to say whether Ms Flipp’s foot had come into contact with the dog. It all happened very quickly, he said.

[19] Ms Flipp then submitted a further statement which she read to the hearing. It was as follows:

“I have been training greyhounds for 18 years and before that I worked as a stablehand in the thoroughbred industry including a stint with leading Australian trainers Bart Cummings and Graeme Rogerson. I have been with animals all my life.

Over the years top trainers have given me several greyhounds to re-educate them. My strategies in training greyhounds are my patience and kindness which have achieved the desired results on the race track.

I believe I was taking appropriate action to control my greyhound but I considered it very minor in nature. I was trying to get Tahi’s attention focussed back to me before I started to put him back in the boxes again. I looked behind me to see if I was holding up anybody in the queue as it was taking me far longer than usual to complete my trial as Tahi had backed out of the box several times previously on the day.

I am surprised at being accused of a kick as it is completely false. Did anyone see my foot make contact because the definition of a kick is “to strike or hit with the foot”? This did not occur. I may have indicated in my first interview with Mrs Williams that I kicked him, which I thought I may have, until I was advised what a kick was. Once I found this out I wanted to correct the situation in my statement and state quite clearly I didn’t kick my greyhound.”

The Respondent’s Penalty Submissions

[20] In the statement referred to in paragraph [19], Ms Flipp submitted that this is the first time in all her years of greyhound racing that she has been on a charge of this sort and that she believed that this charge would not have arisen as what happened was of a minor nature and a warning would have been sufficient and more appropriate in this case.

[21] Mr Emerson submitted that Ms Flipp is and always has been kind to her greyhounds. She was only trying to get the dog under control. The dog was a strong dog that has had problems on several occasions. He submitted that it was a very minor incident. It was an unofficial trial with no public in attendance. The incident had been blown out of all proportion, he submitted, and a warning was all that was warranted. It was Ms Flipp’s first breach of the Rule, he said.

The Penalty Rule

[22] Rule 89.1 provides as follows:

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.

Reasons for Penalty

[23] Ms Flipp has been charged with committing an improper act in relation to a greyhound. The details of the improper act were not specified in the information but the Informant produced evidence to the effect that Ms Flipp had kicked the unregistered greyhound known as “Tahi” when it proved difficult to box and alleged that this was an “improper” act. She has admitted the charge.

[24] That evidence comprised a letter from the officiating starter, Mr J D Smith, who stated that he witnessed that Ms Flipp had “laid into the dog with her boot, one good solid kick” and a letter from Ms Debbie Devine who said that Ms Flipp “gave the dog a very hard kick in the hindquarter region”. The Committee is satisfied that the statements of those two witnesses can be relied on. In addition, there is the admission of Ms Flipp in her statements and interviews. Neither of the two witnesses called on Ms Flipp’s behalf to dispute the facts was of any assistance to her, neither being able to say with any degree of certainty what had happened.

[25] When initially interviewed by Mrs Williams about the incident, Ms Flipp admitted that she had kicked the dog and, in a subsequent interview, that contact with the dog had been made. She further admitted that she had sustained a bruise to her shin as a result.

[26] For some reason, during the course of the hearing, Ms Flipp resiled from her earlier admission and asserted that she had not kicked the dog.

[27] The Committee is satisfied, on all of the evidence, that Ms Flipp did kick the greyhound and, thereby, committed an improper act. The Committee accepts the definition of improper used by the Judicial Committee in the recent case of RIU v M – “something that a reasonable and sensible person would not do” or “something that does not conform to accepted behaviour or customs”.

[28] When we came to determine an appropriate penalty, we were of the view that the lack of remorse shown by Ms Flipp and the refusal on her part to accept responsibility for her actions, notwithstanding her admission of the charge, did Ms Flipp no credit. It was an aggravating factor.

[29] Welfare of greyhounds is a priority for the Greyhound Racing code, so much so that in January of this year its Governing Body issued a 49-page Code of Welfare issued under the Animal Welfare Act 1999. The Code is expressed to apply to all persons licensed by New Zealand Greyhound Racing Association and applies to all greyhounds kept by such persons including puppies and young greyhounds not yet registered as racing greyhounds. The purpose of the Code is expressed in these words:

Owners and persons in charge of racing industry greyhounds have a responsibility to understand and meet the welfare needs of their greyhounds. The purpose of this code is to encourage all those responsible for racing industry greyhounds to adopt the highest standards of husbandry, care and handling.

[30] Any physical mistreatment of a greyhound is clearly in breach of that welfare code and, in the present case, is also a breach of the Rules of Greyhound Racing New Zealand. Ms Flipp has admitted the charge of committing an improper act in relation to a greyhound.

[31] In addition to the animal welfare aspect of this case, the Committee needs to have regard, as always, to the integrity of greyhound racing and the need to protect it. Any form of physical abuse of a greyhound in any degree is likely to damage the integrity of greyhound racing. We need to have regard to this in arriving at an appropriate penalty.

[32] The Committee must also impose a penalty that will serve to deter Ms Flipp from similar behaviour in the future as well as to deter other persons from using physical abuse towards their animals.

[33] Mitigating factors in this case, for which Ms Flipp is entitled to credit, are her previous good record and her admission of the breach, although any credit for the latter factor must be tempered by her “about-face” and apparent lack of contrition for her actions as expressed at the hearing.

[34] Mr Emerson submitted that it was a mitigating factor that the incident took place at an unofficial trial with no members of the public present. The Committee disagrees and regards it as being the absence of an aggravating factor rather than a mitigating factor.

[35] Mrs Williams produced a schedule of previous penalties for breaches of Rule 88.1.o but these were of no assistance to the Committee as none involved an improper act similar to that in the present case.

[36] The Informant’s submission is that an appropriate penalty is a fine of between $200 and $300. Weighing up all of the matters referred to above, the Committee is of the view that a fine at the top of that submitted range is appropriate.

Penalty

[37] Ms Flipp is fined the sum of $300.

Costs

[38] There will be no order for costs.

R G McKENZIE             K G HALES

Chair                           Panelist

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