Non Raceday Inquiry – RIU v PL McKenzie – Decision on Penalty and Costs dated 30 July 2013

hearingid: 834c7b5936c5ad9e9ca85bf8c8298b62

informantnumber: A4913

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decisiondate: 09/08/2013

hearing_title: Non Raceday Inquiry - RIU v PL McKenzie - Decision on Penalty and Costs dated 30 July 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

RACING INTEGRITY UNIT v PETER MCKENZIE

Hearing before Non-Raceday Judicial Committee

Judicial Committee: Mr Bruce Squire QC,Chairman - Mr Richard Seabrook, Committee Member

Counsel:  Mr Michael Colson, Counsel for RIU - Mr Tony Ryan, Counsel for Mr McKenzie

DECISION ON PENALTY AND COSTS

1. Introduction:

1.1. In a Decision delivered on 7 May 2013 we found Mr McKenzie guilty of a charge of Misconduct brought against him by the Racing Integrity Unit under R. 340 of the Rules of Racing. The charge alleged that on Thursday 3 January 2013 whilst travelling to Greymouth and on Saturday 5 January 2013 at the Omoto Racecourse at Greymouth Mr McKenzie used offensive and insulting language to a Stipendiary Steward Mr Michael Zarb and was accordingly guilty of misconduct under the Rule referred to. The offensive and insulting language allegedly used by Mr McKenzie and which we found proved in terms of the findings recorded in paragraph 2.18 of our Decision of 7 May 2013 are set out in paragraphs 1.2 and 1.3 of the Decision and need not be repeated again here.

1.2 Following the release of our Decision, by Memorandum dated 16 May 2013, Mr Ryan, Counsel for Mr McKenzie, applied to have us recall our Decision. The reasons for recall advanced by Mr Ryan and those by which we dismissed the Application are set out in a Ruling we delivered on 3 July 2013. Again the details need not be repeated here.

1.3 At the conclusion of our Decision of 7 May 2013 we put in place a timetable for submissions on penalty and costs to be made by the RIU and Mr McKenzie. Because of the need to deal with the Application for Recall filed by Mr Ryan the timetable needed to be adjusted, but submissions have now been received from both parties, the last from Mr Ryan on 21 July 2013, and we are in a position to deliver our Decision on those remaining issues.

2. Counsel’s Submissions:

2.1 The penalties provided for in R. 803 for a breach of R. 340 are:

(a) disqualification for a period not exceeding 12 months; and/or

(b) suspension from holding or obtaining a License for a period not exceeding 12 months; and/or

(c) a fine not exceeding $20,000.

2.2 In his submissions on penalty on behalf of the RIU Mr Colson has sought the imposition of a fine only in the sum of $750.00. In support of his submission he has referred to a series of cases of misconduct involving the use of offensive and insulting language in which fines were imposed ranging from $250.00 to $1,000.00. Mr Colson submitted this case involved a number of aggravating features which he said put it at the “upper end” of the scale of culpability. The aggravating features included:

(i) the insulting and offensive language in this case was directed at a Stipendiary Steward.

(ii) the charge encompassed two occasions in which insulting and offensive language was used by Mr McKenzie; on the second occasion the language was used in the presence of others in the Stewards’ room and involved stronger language than on the first occasion.

(iii) the language used by Mr McKenzie demonstrated a high handed and arrogant attitude by him to an official who was simply doing his job.

(iv) Mr McKenzie had never at any stage sought to apologise for his conduct.

On the other hand Mr Colson accepted that Mr McKenzie was under some pressure when the events of 3 January 2013 occurred and that he had what Mr Colson described as a “very good record” in relation to disciplinary matters.

2.3 For his part Mr Ryan submitted the penalty to be imposed should not be anything of the order submitted by the RIU. In that connection and by way of comparison Mr Ryan referred to two cases not mentioned by Counsel for the RIU in which, in the first, fines of $350.00 were imposed on three charges involving what Mr Ryan described as “a substantial, belligerent and premeditated series of abuse” and, in the second, fines of $850.00 and $450.00 on two charges involving the use of rather different insulting and offensive language from that involved in this case. In addition Mr Ryan made the following points:

(a) the language used by Mr McKenzie was not obscene or a sustained attack on the character of the Stipendiary Steward to whom the language was directed.

(b) the language used on the first occasion on 3 January 2013 would not have been overheard by anyone other than the participants in the discussion. On the second occasion the offending language would not have been heard by anyone outside those present in the Stewards’ room.

(c) at the relevant times and in the circumstances Mr McKenzie felt justified in using the language that he did.

(d) that had the Stipendiary Steward not invoked the policy requiring an Apprentice Rider to be replaced by another Apprentice Rider, which Mr Ryan contended did not exist “… nothing untoward would have occurred”.

(e) the language used by Mr McKenzie to the Stipendiary Steward in the Stewards’ room at Omoto Racecourse on 5 January 2013 was brought about by the peremptory nature of the request made for Mr McKenzie to go to the Stewards’ room when he was in the process of preparing one of his horses to race and the Stipendiary Steward’s attitude towards him when he arrived.

Mr Ryan concluded his submissions by pointing to what he called Mr McKenzie’s “exemplary record” and submitted that any penalty imposed on Mr McKenzie should be “nominal in the extreme”.

3. Discussion:

3.1 Having considered the submissions of Counsel, while we are satisfied the offending in this case falls towards the lower end of the scale of culpability for Misconduct of this kind we do not agree that the penalty imposed should be nominal only as urged on us by Mr Ryan. We accept the language used was, except arguably in one respect, not obscene. And as recorded in our Decision of 7 May 2013 we accept the events of 3 January 2013 were contributed to by the stress Mr McKenzie was under when advised by Mr Doherty that he was unable to ride Mr McKenzie’s horses the following Saturday and what he perceived to be subsequently the unhelpful attitude on the part of the Stipendiary Steward in relation to a replacement rider. Nonetheless Mr McKenzie could have communicated his position and concerns to the Stipendiary Steward on that occasion without resorting to the insulting and offensive language he used whatever view he may have formed about the attitude of the Stipendiary Steward. The language used by Mr McKenzie in the Stewards’ room at the Omoto Racecourse the following Saturday was, in our view, a product of the bad feeling that had been generated between Mr McKenzie and the Stipendiary Steward as a result of the events of the preceding Thursday and while matters could perhaps have been better handled by the Stipendiary Steward on that occasion there was no excuse for the insulting and offensive comments made by Mr McKenzie.

3.2 We have taken account of the submissions of Counsel and the penalties imposed in the cases to which we have been referred for comparative purposes along with Mr McKenzie’s previous unblemished disciplinary record. Having regard to those matters and the fact that the charge brought against Mr McKenzie encompasses two separate incidents of insulting and offensive language on discrete occasions we think that in the circumstances a fine of $400.00 should be imposed.

4. Costs:

4.1 On behalf of the Racing Integrity Unit Mr Colson has sought costs of $2,956.00 made up of legal costs of $2,500.00 and airfares of $456.00 incurred in having the Stipendiary Steward attend the hearing of the charges against Mr McKenzie held in Wellington on 26 April 2013. In addition costs are sought by the Judicial Control Authority in the sum of $5,700.00 made up of Judicial fees and airfares for a member of the committee in attending the hearing on 26 April 2013.

4.2 Mr Ryan has submitted that no costs should be awarded in favour of the Racing Integrity Unit. The basis for that submission is that no costs were awarded in the recent cases of M and P  to which he referred in his submissions, and that for what he described as reasons of consistency no costs should be awarded to the RIU in this case. Mr Ryan also submitted that what he called the “… part played by the principal witness for the prosecution …” was a material consideration in not awarding costs to the RIU. His final point in relation to the issue of costs was that this case was no different to what he called “… a run-of-the-mill Police prosecution where costs are virtually never awarded to the Prosecutor”.

4.3 Mr Colson on the other hand submitted that costs should be awarded to the RIU in this case. He submitted the cases to which he referred in his submissions demonstrated that the costs of the regulator (here the Racing Integrity Unit) in disciplinary cases, particularly in those involving non-raceday hearings in which charges are found to have been proved, the costs should be borne partly by the regulator and partly by the person charged, with the relative proportions to be assessed according to the facts and circumstances of the case. Mr Colson referred to a number of cases including High Court authorities relating to disciplinary proceedings in other fields, to support his submission. Specifically in relation to this case he submitted any award of costs to the Racing Integrity Unit should take account of the following:

(i) the matter was straightforward and could have been dealt with on raceday.

(ii) additional costs had been incurred in dealing with disclosure, research and having the Stipendiary Steward travel to the hearing.

(iii) there was essentially no dispute that Mr McKenzie had used the language alleged to be insulting and offensive on the occasions the subject of the charge and that he had failed to take advantage of an offer by the Racing Integrity Unit to have the charge dealt with in a way which would have reduced the costs to all parties.

4.4 Neither Counsel took issue with the making of an order for costs in favour of the Judicial Control Authority or the amount of costs claimed.

5. Discussion:

5.1 The Judicial Committee is given the power to make orders for costs by R. 920(3). On the face of the Rule the discretion to make such orders is unqualified with no presumption either way, but is obviously required to be exercised on a principled basis. In exercising our discretion in this case we think we should be guided by the observations of the Appeal Tribunal in B v RIU (21 December 2011) and the Judicial Committee in NZTR v McA (17 March 2011). In the first of those cases the observation was made that the funds utilised to meet expenses incurred in taking disciplinary proceedings come from allocations from the New Zealand Racing Board and partly from fees and levies, and that unless effective steps are taken to recover those expenses the utilisation of funds for disciplinary purposes is inevitably at the expense of the Judicial Control Authority and the Code’s other activities in relation to racing. Picking up the same theme in the case of McA the Judicial Committee said:

“on the face of it there seems no compelling reason in principle why those whose conduct has led to the institution of disciplinary procedures should not, within limits, bear the expense of those procedures if they are ultimately found to have breached the Rules as charged. Obviously given the nature and intended width of the discretion conferred by R. 920(3) that factor will not necessarily be the only consideration to be brought to account in deciding to award costs or in fixing the quantum in any case, but there seems no reason why that should not be the starting point for the exercise of the discretion in any given instance”.

5.2 Approaching the exercise of our discretion in that way we think there should be orders for costs in favour of both the Racing Integrity Unit and the Judicial Control Authority. We have not found any assistance in the cases of M and P to which we were referred by Mr Ryan. In P no orders for costs were made but the Judicial Committee gave no reasons for adopting that course. In M costs were awarded to the Judicial Control Authority but not the Racing Integrity Unit. Although the Judicial Committee in that case did not say so expressly it appears the reasons for refusing the Racing Integrity Unit costs may have been due to the way in which it prosecuted the case as outlined in paragraphs 4.2 and 4.3 of the Judicial Committee’s Decision. Similar concerns are not present in this case. In fixing the amount of the costs to be awarded we consider the following matters to be relevant:

(a) the charge was a subject of a full hearing in which it was necessary for the Racing Integrity Unit to incur airfares to bring the principal witness to the hearing.

(b) proof of the charge itself was factually relatively straightforward with there being little in dispute and the legal issues were equally uncomplicated.

(c) due allowance should be made for prehearing issues such as disclosure.

(d) it was necessary for the Judicial Committee to deal with the additional issue in this case of the Application for Recall of our Decision of 7 May 2013 made by Mr Ryan which also involved Counsel in the preparation of submissions.

For those reasons we are of the view there should be orders for costs in favour of the Racing Integrity Unit in the sum of $2,150.00 which includes the sum of $456.00 for airfares claimed and in favour of the Judicial Control Authority in the sum of $3,800.00.

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6. Result:

6.1 In the result for the reasons outlined:

(a) Mr McKenzie is to pay a fine of $400.00

(b) Mr McKenzie is ordered to pay costs to the Racing Integrity Unit in the sum of $2,150.00.

(c) Mr McKenzie is ordered to pay costs to the Judicial Control Authority in the sum of $3,800.00.

DATED at Wellington this 30th day of July 2013

___________________________
Bruce Squire QC (Chairman)
Signed: pursuant to R

hearing_type: Non-race day

Rules: 340

Informant: Mr M Zarb - Stipendiary Steward

JockeysandTrainer:

Otherperson:

PersonPresent: Mr M Colson - Counsel for Racing Integrity Unit, Mr T Ryan - Counsel for Mr McKenzie

Respondent: Mr PL McKenzie - Licensed Trainer

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