Non-Raceday Inquiry – T Carter

hearingid: 73afd897d7fe3a9d6553cb0edd922988

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - T Carter

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Decision:

This is an information by Racecourse Inspector B F McKenzie alleging that Mr T J Carter, a Licensed Person within the meaning of Rule 303 of the New Zealand Rules of Racing misconducted himself within the meaning of Rule 304 of the said Rules

This is an information by Racecourse Inspector B F McKenzie alleging that Mr T J Carter, a Licensed Person within the meaning of Rule 303 of the New Zealand Rules of Racing misconducted himself within the meaning of Rule 304 of the said Rules in that he was the author of a document sent to Robbie Hewetson by electronic mail containing words that were obscene, insulting and offensive and in consequence he was liable to the penalty or penalties which may be imposed pursuant to Rule 1003 of the New Zealand Rules of Racing.

Rule 304 provides:

" Every holder of any licence or permit or certificate or registration mentioned in the last preceding rule and every owner, owner-trainer, stable hand, unlicensed apprentice, racing manager or official or officer or employee of any Club who misconducts himself in any way commits a breach of these Rules."

And Rule 1003 (1) provides:

" Every person who commits or is deemed to have committed a breach of these Rules or any of them or any sub-rule of any of them for which no penalty is provided elsewhere in these Rules shall be liable to:

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1. be disqualified for a period not exceeding twelve months; or
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2. suspended from holding or obtaining a licence, permit, certificate or registration for a period not exceeding 12 months. If a licence, permit, certificate or registration is renewed during a term of suspension, then the suspension shall continue to apply to the renewed licence, permit, certificate registration; and/or
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3. a fine not exceeding $10,000."
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Mr Carter, who was represented by Mr A J Ryan, did not admit the alleged breach. Mr J W McKenzie, Chief Racecourse Inspector, represented the informant.

At the outset Mr Ryan submitted that New Zealand Thoroughbred Racing Incorporated (NZTR) had no jurisdiction to lay an information of the type set out. The allegation of "misconduct" related to a private communication made to a person who had no standing as a licence holder or in any other way insofar as NZTR was concerned. As such it had nothing whatsoever to do with the conduct of racing or the conduct of races and racing. The Racing Act 2003, he argued, was the sole source of authority for NZTR and in particular Section 29 which reads:

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1. Every racing code must make, and maintain in force, rules regulating the conduct of racing by that code.
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2. Without limiting subsection (1), any racing rules of a racing code may provide for ?
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1. The appointment, functions, and duties of stipendiary stewards and racecourse inspectors and;
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2. the licensing of trainers, jockeys, drivers and apprentices, and related matters; and
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3. ---..
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4. the conduct and control of race meetings, including safety requirements; and
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5. ---.
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6. Punishments for breaches of the rules; and
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7. ---.
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8. ---.
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9. Any other matters relating to the conduct of races and racing that the racing code thinks fit."
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It was crystal clear from Section 29, Mr Ryan said, that the Rules of Racing could only relate to rules regulating the conduct of racing or any matters relating to the conduct of races and racing and no other matter. It was not the function of NZTR to act as the "alter ego" of the Police. If an offence were committed against the Summary Offences Act or the Telecommunications Act then it should be tested before the Courts and not by this forum.

The Judicial Committee was, he said, similarly circumscribed under the provisions of Rule 1102 (2) (b) of the Rules of Racing, which stated:

"? that the functions of the Judicial Committee shall be to consider and determine the following matters in connection with racing? "

and further:

"? To consider and determine all matters submitted to it for judicial determination or for a ruling under these Rules."

If the rules were being abused (in a technical sense) or used irrationally (i.e. unreasonably) then the Judicial Committee had no power to consider the matter. The Rules of Racing must not conflict with any Act or general law (see Section 31 of the Racing Act 2003).

Mr Ryan also made reference to Section 14 of the Bill of Rights Act 1990 which, he suggested, was that everyone had the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and any form. Naturally enough, he said, there were remedies where the abuse of that right could lead to civil remedies, for example in defamation cases. But there was still the right to express the views. He did not think that NZTR in prosecuting Mr Carter would ask the Committee to rule on the rights or wrongs of what was contained in the email. NZTR, as he understood it, was taking the view that the email was offensive to a particular family because one member of the family had made a complaint to it. That family had the right to seek its remedy in the Law Courts, by way of defamation proceedings. This was not the appropriate forum.

Freedom of expression had been in the news lately and Mr Ryan referred to the Moslem cartoons. No one had suggested that newspapers did not have the right to publish the cartoons. It was simply a matter of judgment as to whether they published. The upshot of his interpretation of Section 14 of the Bill of Rights was, he submitted, that anyone, including a licence holder, was perfectly free to make any comments that he wished as long as those comments did not involve the breaking of a Rule of Racing. The email here, he said, had no impact on racing.

The Privacy Act 1993 also impacted on the position here with an invalid dissemination of the email and was therefore, he submitted, inadmissible before the Judicial Committee.

Therefore, he submitted, NZTR's powers as deliberated upon by the Judicial Control Authority were limited to "conduct of races and racing" and not to disciplining the people, whether or not they were licence holders, who happen to utter commonly used euphemisms in their written, private communications, even if the words used might insult the recipient or those who the recipient chooses to show the written communication to. As such NZTR in charging Mr Carter was acting beyond its statutory based powers because it simply did not have any jurisdiction over such a matter and "ipso facto" no right to lay a charge before the JCA. It was therefore null and void and should be dismissed.

Finally, he submitted, if NZTR considered that the JCA had jurisdiction pursuant to Rule 1102 of the Rules of Racing then the making of that rule by the Racing Board was "ultra vires". The purpose of the Racing Act 2003 was as set out in Section 3 (inter alia);

"To provide effective governance arrangements for the racing industry. And to promote the long term viability of New Zealand racing;"

How this matter being heard by the JCA would provide this was beyond him and it seemed the money and time spent on such an insignificant matter would only create further inefficiencies in the industry and could only be considered as an abuse of power.

Mr McKenzie submitted that jurisdiction was not an issue. He agreed that the Racing Act 2003 was the source of authority for the Rules, as they existed at the time the Act came into force and that subsequent amendments were duly adopted in accordance with the requirements of the Act. In this case the Rules had been in place for many years with only minor amendment from time to time. They were not limited to the conduct of races only but were for any other matters relating to racing that the racing code thought fit. This was, he submitted, wide enough to include situations such as the rule described; namely misconduct in any way by, as in this case, a licence holder whether it involved another person with or without any licence. In this case it referred to persons in racing and the content of it referred to them and their racing involvement.

Licensed persons were to be of good character and had obligations to maintain this. In sending this email it could hardly be said to be in keeping with this obligation by the sender.

It was simply not true to suggest, he submitted, that there was no jurisdiction to lay the information. There was no dispute that the email had been sent; it had been sent by a person involved in racing and its content related to racing and persons involved with racing; whether it amounted to misconduct was for this Judicial Committee to determine on evidence yet to be presented and there was no doubt that the Committee was authorised by Rule 1102 to deal with it as a matter in connection with racing.

The complaint had come from Mr Hewetson and it was not correct to say that anyone else had lodged it. In that respect he agreed with Mr Ryan that it was for any third party to take action elsewhere and that was not a matter for NZTR. However, in respect of the rules of racing there was jurisdiction to determine whether the provisions of Rule 304 had been breached and for the reasons above, he submitted, this was a matter for the Committee to deal with.

Mr Ryan in reply stated that his submissions were not an attack on the Rules. He accepted they were valid. It was for the Committee to find under those Rules whether in fact there was jurisdiction to lay an information and whether this was an appropriate matter for the Judicial Committee. In his submission it was not.

After considering the above the Committee made the following findings.

The Committee noted Mr Ryan's acknowledgement that his submissions were not an attack on the Rules and he accepted they were valid. This Committee agrees that it has jurisdiction under Rule 1102 to determine this jurisdiction issue and to hear matters in connection with racing submitted to it under the Rules.

The information before the Committee alleges a breach of Rule 304 and there is no doubt that NZTR has authority to commence this action under its Rules as it has done.

It is appropriate for Mr Carter as a licensed person to answer the information and whether there is a breach or not will be for this Committee to determine in accordance with the Rules based on evidence to be put, which it is yet to hear. Likewise issues relating to the Bill of Rights and the Privacy Act all relate to matters in respect of which the Committee has no evidence before it at this stage and are all affected by what it has yet to hear.

The application brought by Mr Ryan was therefore dismissed.

Mr McKenzie then commenced the hearing of the matter by calling evidence from Robert Andrew Hewetson who described himself as a Bloodstock Consultant. He had known Mr Carter for about 20 years and had known him at Ruakaka. He had ridden horses for him and knew him in a casual way. Prior to receiving the email he had seen him in Hong Kong at the races there. He had not solicited any communication from Mr Carter and had not sent anything to him. He produced a copy of the email and said he had wondered at the time why it had been sent to him. He had not replied to it. He said he was disgusted when he read it and showed it to Lance O?Sullivan. He had approached Mr J McKenzie and showed it to him and subsequently was contacted by Mr B McKenzie. He had no idea why Mr Carter would have written it or sent it to him. Mr Carter had been friendly at Hong Kong; they had shook hands before entering a lift. After speaking to Mr B McKenzie he had received a second document from Mr Carter a copy of which he also produced. He did not respond to it either. He thought the words used in the first email were obscene insulting and offensive and that is why he complained to Mr J McKenzie.

In cross-examination he denied that it was Lance O?Sullivan who had complained. He had just been there when he did it. He had known Mr Carter close to 20 years and had himself been dealing in bloodstock from 1998. He had not acted as a jockeys' agent although from time to time he had got rides for a few riders. He confirmed that he had made purchases at the sales for Lance and Paul O?Sullivan and that he was very close to them in his blood stock dealings. He denied that the O?Sullivans were using him and he did not see it that way. The commission claim referred to in the email was not true. He agreed that Mr Carter had played a role with him in getting Paul established in Hong Kong and he knew Paul was very grateful. He was aware that Paul and Mr Carter had got something from the sale of a horse but he denied that he had asked for part of the commission. He had not tried to steal an owner of Mr Carter's. He admitted there was a horse provided by Mr Carter to Paul that he didn?t think was much good but as it was successful later he agreed he was wrong about it.

Regarding the email contents he conceded the individual words were common language that might be used at places like the training track but it was not correct to say that they offend no one. It was not correct to say it was just colourful language. He had found it disgusting, especially when used to refer to himself and others. It was, he said, offensive in the way it was set out to him. While he had known Mr Carter and had dealt with him in business it would not be correct to describe them as good friends. He accepted that it was common knowledge he was a close friend of the O?Sullivans.

Mr B McKenzie confirmed that he knew Mr Carter who is a Licensed Trainer. He had spoken to him and handed him a copy of the email. He acknowledged sending it. He said what he had written was true and launched into a verbal attack on the character of Hewetson and Paul O?Sullivan. He denied that he had been drinking before he sent it. Mr McKenzie told Mr Carter that he considered the email to be grossly offensive and that he would be reporting it to NZTR and he could be charged with misconduct unless he received a request from the complainant not to proceed. Mr McKenzie informed the Committee that it was his opinion the content of the email with regard to the words used by Mr Carter was obscene, insulting and offensive. He believed the relative words speak for themselves and if they had been spoken in public would have been grounds for a prosecution by the Police. It was therefore his opinion, based on nearly thirty years experience as a racecourse inspector, that such language conveyed by a person licensed under the New Zealand Rules of Racing was misconduct. He referred to the Concise Oxford Dictionary New Edition for the Nineties for a definition of the word "misconduct".

The Judicial Committee then heard evidence from Mr Carter and this is summarised as follows. He confirmed that he was a Licensed Trainer. However, the bulk of his business in racing involved pre-training of horses and sourcing horses for sale to Macau and Hong Kong and he had, for example, sold approximately fifty horses including a Derby winner to Macau. The total value of his purchases in New Zealand would be approaching $3,000,000. He had sold horses to leading Hong Kong trainers, been active at the new Zealand Bloodstock Sales at Karaka and managed over forty New Zealand based Hong Kong owned horses on his property and on other properties in the Cambridge area. He had urged his Hong Kong clients to support Paul O?Sullivan when it was suggested he may get a licence to train there and there had been communications both from Robbie Hewetson and Paul O?Sullivan the result of which had been a number of his owners transferred to the Paul O?Sullivan stable.

Paul O?Sullivan's first season in Hong Kong was below expectations but he had continually defended Paul to his Hong Kong owners. The comments in the email to Hewetson were in regard to that. While the results were well below what he showed in New Zealand Mr Carter said that he resented being made use of in the manner that he felt had taken place. Both Robbie Hewetson and Paul knew what lengths he had gone to, to help Paul and the financial implications for them both were huge. Mr Carter felt as though he had been used and discarded by them and he noted that Robbie had bought at least four horses at the recent Karaka Sales under the name of Mr Robbie Hewetson, Hong Kong. When he sent the email it was to warn him that Paul was using him like he had used Mr Carter. He regretted sending the email because instead of getting in touch with him Mr Hewetson was offended to the point of relaying it to the O?Sullivans.

Mr Carter confirmed he had been a Licence Holder for some 22 years and had strived to set an example for other Maori to follow. He had forged strong links with Hong Kong and Macau markets that had been of huge financial benefit to many in our depressed industry. The money that he had obtained for New Zealand owners had been directly invested back in plant, stock, property and horses. A recent issue of New Zealand Thoroughbred Race Horse Owner was produced containing an article dealing with not only Mr Carter's Racing career but his Rugby career as well. He pointed out that he had mixed with men in the rough and tumble of both sports. The sort of language used on a daily basis was the sort of language used in the email and in his opinion it was not only commonplace but also inoffensive.

In summing up Mr J McKenzie put to the Committee that all the ingredients for a breach of Rule 304 had been established. The evidence clearly showed that Mr Carter had misconducted himself by using the words complained of which Mr Hewetson had said were obscene, insulting and offensive to him. The word "misconduct" was not defined in the rules but the dictionary definition provided by Mr B McKenzie defined it as "improper or unprofessional behaviour or bad management." It went on to define "improper" as "unseemly; indecent, not in accordance with accepted rules of behaviour" and "unprofessional" as "contrary to professional standards of behaviour etc, not belonging to a profession." Those definitions were appropriate for this matter, which became more serious by making reference to third parties.

The fact that it was a private communication in the form of an email did not entitle Mr Carter to use such language. Had it been a private telephone conversation the Misuse of Telephones Act provided for an offence for the use of profane or indecent language with an intention to offend a recipient and in such a case on conviction there was a penalty provided of up to three months imprisonment or a fine of up to $2,000. It was not suggested that NZTR was seeking to follow this example it was an analogy and showed the matter was not so trivial as had been urged on the Committee by Mr Ryan.

While it may be said that there are rights in respect of privacy and freedom of speech they are accompanied by obligations. The same thing applied in the racing industry and all participants had to be mindful that they had obligations under the Rules of Racing, which could not be ignored.

In considering the evidence in this matter it was self-explanatory. The communication was unsolicited, it was by any definition within the meaning of misconduct in a matter clearly involving racing and the breach was obvious and serious.

Mr Ryan submitted that misconduct was a nebulous word at best and like beauty "really in the eye of the beholder". He produced a dictionary definition found in Collins English Dictionary, Third Edition as:

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1. "Behaviour, such as adultery or professional negligence, that is regarded as immoral or unethical.
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2. To conduct (oneself) in such a way.
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3. To manage (something) badly."
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Black's Law Dictionary stated that it was:

"A dereliction of duty; unlawful or improper behaviour."

He suggested that under any of the above definitions the sending of the particular email could not possibly amount to misconduct. He asked the Committee to note that two earlier Judicial Committees had recently dealt with misconduct and while neither had needed to consider the meaning of the word misconduct there was in each case a clear connection between the actions complained of and the race meeting, which was taking place on the particular day.

The essence of NZTR's complaint here was, he imagined, the "blue" language contained in the email. It was necessary, in his view, for the Committee to appreciate that the sort of language used at the training track or in a Public Bar or in the changing rooms at a rugby club was not what would be used at a Sunday School picnic. The language used was descriptive and commonplace and in the circumstances mentioned above certainly not offensive nor could it be said to amount to misconduct. If every licence holder were charged by NZTR with the use of such language in their everyday work and social recreation then the JCA would be working full-time in dealing with such charges.

Looking at the actual words used individually it could not be said that they were obscene, insulting or offensive. They were, it was submitted, in common use and NZTR itself found little harm in allowing for the use of names such as "Rhymes with Banker" and "Sharp Prick". Use of the language might demonstrate a lack of education or paucity of language skills, but he suggested, little more. It was a long time now since such words were used as the basis of informations in the Courts in relation to obscene language.

Mr Carter, he submitted, was not acting in a professional capacity when he sent the email; it was simply a personal note and not intended to be shown to anyone else. Therefore there certainly had been no professional negligence under the meaning of the word misconduct and in his submission the charge of misconduct against Mr Carter had no substance whatsoever.

In making these submissions in relation to misconduct he did not resile in any way from his earlier submissions as to jurisdiction.

The Committee having heard all the evidence and submissions and having now had an opportunity to view for itself a copy of the email in question as well as a copy of the second email referred to by Mr Hewetson is able to deal with the earlier issues raised by Mr Ryan.

In respect of the Bill of Rights there is no doubt, as Mr Ryan stated, that everyone has the right to freedom of expression under the provisions of Section 14 of that Act. On the other hand, as he conceded, there were remedies for the abuse of that right such as civil remedies in defamation cases. The Committee also agrees, again as Mr Ryan conceded, that anyone including a licence holder was perfectly free to make any comments so long as they did not involve breaking a Rule of Racing. The Committee therefore accepts that it has jurisdiction, and only has jurisdiction, to deal with this matter on the basis that it is or may be a breach of the rules of racing.

Mr Ryan went further and submitted that the email in question was inadmissible before a Judicial Committee because of the provisions of the Privacy Act. However, the Act does authorise disclosure where on reasonable grounds such disclosure is necessary for the conduct of proceedings before any court or Tribunal and Rule 1115 (1) (b) of the Rules of Racing provides that "the Judicial Committee may, in its discretion admit any evidence it deems relevant whether admissible in a Court of Law or not." On that basis there would seem to be ample authority for the email to be used in evidence before the Committee in this matter. Even if that were not so the evidence of Mr Hewetson and Mr McKenzie is clear regarding the contents and of course Mr Carter confirmed he was aware that Mr Hewetson had been offended by it.

The Committee is also satisfied, based on the evidence it has heard, that this complaint is a matter in connection with racing as specified by Section 29 of The Racing Act 2003. It accepts the submission by Mr McKenzie that it involved the actions of a licence holder dealing with another person involved with racing and referred to persons involved in racing and their racing involvement. The reference to racing means matters not just confined to race meetings or the conduct of races. The question of JCA jurisdiction pursuant to Rule 1102 has been dealt with earlier but the Committee affirms, now that it has heard the evidence and submissions, that it has no doubt in these circumstances this rule is not "ultra vires" and is within the provisions of Section 3 of the Racing Act 2003 for the provision of "effective governance arrangements for the racing industry".

The next question for determination is whether the evidence before the Committee amounted to misconduct as set out in Rule 304. The dictionary definitions supplied by the parties have been helpful and it is noted that the definition provided by Mr McKenzie referred to "improper or unprofessional behaviour" including "unseemly; indecent, not in accordance with accepted rules of behaviour" and Mr Ryan's was similar in stating that it included "unlawful or improper behaviour."

Mr Ryan argued that the essence of the complaint was, he imagined, the "blue" language contained in the email. While the Committee accepts that the actual words used individually might not be obscene, insulting or offensive and might be in common use this did not mean that they could be viewed in that way in all circumstances. There is no doubt that they were offensive to Mr Hewetson to such an extent as to cause him to complain to Mr McKenzie. Mr B McKenzie was also in no doubt, as he said when giving his evidence, that it was his opinion the content of the email, with regard to the words used by Mr Carter, was obscene, insulting and offensive. The reference to third parties namely the O?Sullivan family was certainly offensive and hurtful and it would appear from Mr Carter's evidence and his second email he intended it to be received that way. In affirming his earlier statements in his second email to Mr Hewetson it is noted that he did so without using the so-called "blue" language on this occasion.

All of the above leads the Committee to conclude that the use of this language in this way could only be considered in these circumstances as improper and contrary to professional standards of behaviour, using Mr McKenzie's definition and improper behaviour in terms of Mr Ryan's definition. In any event that meant this was clearly misconduct within the meaning of Rule 304. By any definition the use of such language was inappropriate and in making use of it in this way had to be regarded as something which could not be condoned or allowed to be used without sanction by any organisation with responsibility to its participants. That was clearly so, as here, in respect of the racing industry. The Committee therefore finds that there has been a breach of Rule 304 as alleged and will deal with the penalty aspect following receipt of further submissions from the parties.

In the first instance the parties are invited to exchange written submissions on penalty and costs with the right in each case to submit submissions in reply. Those submissions should first be submitted by 8^th March 2006 with a further five days to 13^th March 2006 for replies. If the parties agree to this there would then not be any need for a further hearing.

Chairman

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hearing_type: Old Hearing

Rules: 1003.1, 1102.2.b, 1115.1.b

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