Non Raceday Inquiry RIU v WD O’Connell – decision dated 2 September 2015 – Chair, Prof G Hall

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decisiondate: 03/09/2015

hearing_title: Non Raceday Inquiry RIU v WD O'Connell - decision dated 2 September 2015 - Chair, Prof G Hall

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Decision:

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND WILLIAM DENIS O’CONNELL

Open Horseman

Respondent

Information: A4814

Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Committee Member

Appearing: Mr B Kitto, for the Informant

The Respondent, with the assistance of Mr B Negus
Date of hearing: 27 August 2015

DECISION OF JUDICIAL COMMITTEE

[1] The respondent, Mr Denis O’Connell is the holder of a Licence to Train and a Graduation Horseman’s licence under the New Zealand Rules of Harness Racing.

[2] Mr O’Connell is charged that on 1 June 2015 he placed a bet on a horse, namely MIRI, which he drove and won in Race no 1 THE BLUFF ENGINEERING AND WELDING TROT at the Invercargill HRC meeting by placing fixed odds bets on MIRI of $102 to win, paying $51, and $102 for a place, paying $10, collecting $6,222, in breach of r 505(1) and (2). He is therefore liable to the penalty or penalties which may be imposed in accordance with r 1001(2)(a), (b) and (c) and the horse MIRI is liable to the penalty or penalties which may be imposed in accordance with r 1001(3) of the New Zealand Rules of Harness Racing.

[3] The relevant rules are:

505(1) A horseman may not bet on any horse or combination of horses in a race, in which he or she is driving;

(2) A breach of this sub-rule (1) is declared to be a serious racing offence;

1001(2) Every person who commits a serious racing offence shall be liable to the following penalties:

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

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

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

(3) The Judicial Committee may in addition to or substitution of any penalty imposed under sub-rule (2) hereof disqualify from any race and/or for any specific period or for life any horse connected with the serious racing offence.

[4] Mr Kitto produced written authority from the General Manager of the RIU, Mr M Godber, in a letter dated 28 July 2015, to file an information in accordance with r 1103(4)(c) of the Rules of Harness Racing.

[5] Mr O’Connell confirmed to this Committee that he admitted the breach of r 505(1).

The facts

[6] Mr O’Connell is the owner and trainer of the registered standardbred horse, MIRI, which is an 8 yr old mare.

[7] Mr O’Connell correctly entered and started and drove MIRI in Race 1 THE BLUFF ENGINEERING AND WELDING TROT at the Invercargill HRC meeting held at Ascot Park Racecourse on 1 June 2015.

[8] MIRI won the race earning a winning stake of $3750 and was 7/8 in the betting.

[9] Mr O’Connell placed two fixed odds bets at the NZ TAB on MIRI. This was done at the racecourse on his mobile telephone. The bets were: 11.00.55 hrs option 1701 #1 MIRI $102 @ $10.00; 11.00.59 hrs option 701 #1 MIRI $102.00 @ $51.00. As a result of these bets Mr O’Connell received winnings of $6,222.

[10] Mr O’Connell was interviewed at the Forbury Park racecourse on 11 June 2015. He readily admitted placing the bets but was of the belief that as long as he bet on his own horse there was no problem.

[11] Mr Kitto explained to the respondent that prior to the introduction of the new rule on 1 April 2014 the Rules of Harness Racing allowed a horseman to bet on the horse he was driving in a race. He told Mr O’Connell the change to the Rules was notified in the NZ Harness Racing Weekly of 26 March 2014, taking effect on 1 April 2014. Mr O’Connell said to Mr Kitto that he did receive the Harness Racing Weekly and would have received this one, however he did not recall reading the official notice. He said to Mr Kitto he thought he may have been “too casual” in not knowing the rule change.

[12] The Betting Analyst employed by the RIU made a search of Mr O’Connell’s betting telephone account and established that between 27/6/14 and 24/5/15 he drove his own horses on forty occasions. On 26 occasions bets were placed via his telephone account on these drives. The bets were usually fixed odds and win and place bets for equal amounts. These were usually $100 to $200 bets. In his opinion Mr O’Connell’s betting was consistent with his explanation that he was unaware of the change to the drivers’ betting rule.

[13] Mr O’Connell stated he agreed with the summary of facts and emphasised that he was unaware of this change to the Rules of Harness Racing. He agreed he would have received the relevant copy of the NZ Harness Racing Weekly but he had not noticed the notification of the change to the betting rule.

Submissions

[14] Mr Kitto stated that the RIU accepted that Mr O’Connell did not “willingly breach the Rules”. However, he emphasised that Mr O’Connell should have been aware of this rule change, as it had been advised in the NZ Racing Weekly, a copy of which Mr O’Connell had received.

[15] Mr Kitto submitted that the rules in relation to betting by horsemen and jockeys had undergone changes to meet “the changing of the times”. It was essential for the integrity of Harness Racing that horsemen complied with the Rules.

[16] An aggravating feature was the fact that Mr O’Connell had received winnings of $6222.

[17] Mr Kitto referred this Committee to four cases:

HRNZ v Donald 15.10.2009 (four breaches; $1500 fine)

RIU v Jones 03.03.2013 ($500 fine)

RIU v Bull 04.11.13 (one year’s disqualification — the facts bear no resemblance to those before us)

RIU v Kerr 11.01.2015 ($650 fine)

[18] Mr Kitto identified mitigating features. Mr O’Connell had admitted the breach at the earliest opportunity. It was accepted that he had operated under the old rule, which permitted betting of the type he had made. The RIU betting analyst confirmed this. Mr O’Connell had co-operated throughout the investigation.

[19] The respondent had been a licensed trainer since 1983 and a licensed horseman since 1985 and had enjoyed a lifetime in the Harness Racing industry. He had no previous history of offending.

[20] Mr Kitto stated the informant believed Mr O’Connell’s offending to be at the lower end of the scale and sought a fine of $500. This was the same penalty as in Jones, who had placed a bet on himself in the drivers’ challenge.

[21] The RIU submitted that a deterrent sentence was not necessary, as they believed Mr O’Connell would not re-offend.

[22] The RIU did not seek costs.

[23] Mr B Negus spoke on behalf of Mr O’Connell. He questioned the ability of the RIU to access the respondent’s TAB account, emphasising that r 505D did not authorise this, and thus he believed the RIU had acted unlawfully. Mr Kitto responded that the right was to be found in the “General Terms and Conditions for Accounts”, which apply to all TAB accounts. As the respondent has admitted the breach, we have not determined this matter.

[24] Mr O’Connell expressed his remorse to this Committee. He said he was unaware of the rule change but accepted this was no defence, as he should have known about it. He said he had three horses in work and one being jogged. Harness Racing was his hobby; it was in his blood, as his grandfather had bred horses. The horses he trained over the years were almost exclusively ones that he owned.

[25] Mr N Scott addressed this Committee with respect to Mr O’Connell’s character. Mr Scott said he had known Mr O’Connell from his early days as a Racecourse Inspector, back in the 1980s; Mr O’Connell was an adult cadet at the time. He said he had never had any reason to doubt the respondent’s integrity and itemised the voluntary work Mr O’Connell had done over the years, with reference to the Harness industry generally, and more particularly with the Waikouaiti Trotting Club. Mr Scott said Mr O’Connell had admitted he was in error in not being aware of the rule change, and Mr Scott was strongly of the view it was an “innocent” mistake. He said this Committee should take into account Mr O’Connell’s unblemished record when considering penalty, and emphasised that in his opinion the respondent was extremely truthful, honest, hard-working and well-respected in the trotting community.

[26] Mr Negus also made reference to Mr O’Connell’s character. He immediately acknowledged that the respondent was related to him by marriage and that this might naturally be thought to colour his views. He said Mr O’Connell had had a lifetime of involvement in Harness Racing and was the most honest person he knew. He was a generous person who was a “doer not a reader”.

[27] Mr O’Connell asked that this Committee consider imposing a suspension rather than a fine. The Chairman pointed out that he had been able to place regular sizeable bets on the horses that he drove and had on the occasion in question received a substantial collect. Mr O’Connell responded that he had also placed a number of losing bets and the collect was to be considered in that light. He also commented that the recent downturn in the dairy industry had had a substantial impact on his livelihood, which was primarily dairying dependent. He emphasised there would be no re-offending.

[28] After an adjournment, Mr Kitto stated that the RIU accepted that a suspension would be appropriate and that, if that was the penalty imposed, it should be in the order of three months.

Decision

[29] Mr O’Connell has admitted the breach of r 505(1). We thus find the breach proved in accordance with r 1111(d). The JCA Penalty Guide does not indicate a starting point for a breach of this rule.

[30] We are satisfied that Mr O’Connell has acted in ignorance of the recent amendment to the Rules. He did not deliberately breach r 505(1) by betting on the horse he was driving. Ignorance of the law is of course no excuse, hence his admission of the breach. However, this is the context in which we come to determine penalty. There is no suggestion that the respondent had “set” MIRI for this race or that his driving of the horse on any occasion has drawn the suspicion of the RIU. It is accepted that Mr O’Connell placed bets of a similar magnitude on MIRI on almost all of the occasions that the horse raced.

[31] The integrity of Harness Racing is at issue in this case, but only in the context that we have described, which we accept is a breach at the lower end of the scale. Significantly, Mr O’Connell did not bet against his own horse and this winning bet was one of a number of bets, which (with the exception of one place bet) were losing bets.

[32] Mr Scott and Mr Negus have spoken in the most glowing terms of Mr O’Connell’s contribution to Harness Racing. We have no doubt as to Mr O’Connell’s good character and we also have regard to his unblemished record in respect of any matter that might pertain to the current charge. We also note his co-operation with the RIU investigation and his open and frank admission of the breach.

[33] We have to hold Mr O’Connell accountable for his omission to keep abreast of the Rules of Harness Racing, which has led him to be in breach of the Rules. While we are aware that fines of $500 and $650 were imposed on drivers Jones and Kerr where the circumstances of the breach were similar to those before us (although we note the amendment to the Rules had been in force for a shorter period of time in Kerr), we believe a suspension is appropriate in the circumstances of this case, which requires us to address the need for general, if not specific, deterrence. In so determining, we have had regard to the fact that r 505(2) declares a breach of r 505(1) to be a serious racing offence.

[34] Mr O’Connell only drives infrequently, which has made the determination of the appropriate period of suspension more difficult than had he been a regular driver. Mr O’Connell’s record indicates that he had 46 drives in the 2014 calendar year and has had 25 drives up to 14 June of this year. We understand he has not driven since that time. On that basis we calculate that Mr O’Connell has on average four drives a month.

[35] We believe a suspension that is the equivalent to 15 drives (a touch under four months) is appropriate, which we observe is a little longer than the period identified in the informant’s submissions, but is in our view required by the need for the penalty to place emphasis on the integrity of Harness Racing.

[36] Mr O’Connell is suspended from driving after the end of racing on 6 September up to and including 31 December 2015. This will have the effect of allowing Mr O’Connell the opportunity to drive on the New Year’s Central Otago circuit.

[37] It is not appropriate in the circumstances of this case to disqualify MIRI pursuant to r 1001(3).

[38] The RIU does not seek costs. Clause 29.1 of Schedule 5 to the Rules of Harness Racing, which empowers a Committee to make an award of costs in favour of the JCA, was not in force at the time of the respondent’s breach of the Rules. We make no order as to costs.

Dated at Dunedin this 2nd day of September 2015.

G Hall
Chairman

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