NRI HRNZ v Mr B J Lee 24 April 09

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hearing_title: NRI HRNZ v Mr B J Lee 24 April 09

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HARNESS RACING NZ v BARRY LEE
Hearing before Non-Raceday Judicial Committee
At Te Rapa Racecourse 24 April 2009

DECISION OF JUDICIAL COMMITTEE

1. NATURE OF CHARGES
1.1 Mr Lee who was an open horseman has been charged with a failure to provide a sample in accordance with Rules 226(2)(d) and Rule 313(6) of the Rules of Harness Racing. It is alleged that on the 20th March 2009 at Alexandra Park Mr Lee was requested by racecourse inspector Mr Rod Carmichael to provide such a sample. Mr Lee did not provide the sample.

HARNESS RACING NZ v BARRY LEE
Hearing before Non-Raceday Judicial Committee
At Te Rapa Race Course 24 April 2009

JUDICIAL COMMITTEE  Mr M S McKechnie, Chairman and Mr B J Rowe

PRESENT Mr T R Carmichael for Harness Racing NZ
 Mr B J Lee

DECISION OF JUDICIAL COMMITTEE

1. NATURE OF CHARGES
1.1 Mr Lee who was an open horseman has been charged with a failure to provide a sample in accordance with Rules 226(2)(d) and Rule 313(6) of the Rules of Harness Racing. It is alleged that on the 20th March 2009 at Alexandra Park Mr Lee was requested by racecourse inspector Mr Rod Carmichael to provide such a sample. Mr Lee did not provide the sample. In consequence Mr Carmichael filed an information alleging a breach of the rules just quoted. The information came for hearing on the 3rd April 2009 before a Judicial Committee comprising Mr Rowe as Chairman and Mr Dooley. At that time Mr Lee indicated that he pleaded not guilty to the charge and that his defence related to what he said was a defect in the notice served upon him by Mr Carmichael. The hearing was adjourned and Mr Lee was advised by the Chairman to seek legal advice. Mr Carmichael was requested to supply Mr Lee with copies of the relevant rules. Mr Lee has told us today that he has not sought legal advice. Mr Carmichael did supply Mr Lee with a copy of the relevant rules.

2. THE RULES AND THE EVIDENCE FOR HARNESS RACING NZ
2.1 Rule 313(6) is in the following terms:
 Every horseman shall permit a sample of his blood, breath, urine, saliva or sweat (or more than one thereof) to be obtained from him by or under the supervision of a registered medical practitioner or by an authorised person at the time or place nominated by a stipendiary steward or racecourse inspector.

2.2 On the 20th March at about 6.00p.m. in the evening Mr Carmichael handed to Mr Lee a document with the intitulment of Harness Racing NZ and with a heading “Drug Testing Notification Form.”  The evidence satisfies us that the document was written out by Mr Carmichael in his own handwriting. It is addressed to Barry John Lee. Mr Lee acknowledges having received the original of this document. At the foot of the document there is a place for the name or signature of a racecourse inspector/stipendiary steward. Printed in that position are the initials and name of “T R Carmichael”. The significance of this will be apparent later in the decision.

2.3 Mr Carmichael’s evidence is that Mr Lee did not present himself at the place designated for the test. Mr Carmichael went looking for Mr Lee but could not locate him. We are satisfied that there was a place designated on that evening for the taking of samples. We are also satisfied (Mr Lee does not dispute it) that the form was handed to him. Mr Lee still has the original of the form and this was shown to the Committee.

2.4 On the reverse side of the form there is printed something which is described as Official Notice. Below that appears the words Official committee directive to each licensed horseman, junior horseman, or holder of a horseman’s licence. There follows then a heading Drug testing of horsemen. The form goes on to talk of the policy of Harness Racing NZ in relation to drug testing and sets out the procedures that will be followed for the drug testing of horsemen. There are eleven paragraphs. The document is under the signature of Mr Rennell, the General Manager of Harness Racing NZ. This notice was published in the NZ Harness Racing Weekly on the 6th May 1998. It is not necessary to set out the notice in full. Mr Lee’s defence centres around paragraph 3. That is in the following terms:
Upon being selected, the horseman shall be handed the HRNZ Drug Testing Notification Form which shall contain the name and status of the horseman and shall be signed by the official making the request with the day, date and place of request indicated.

2.5 As earlier explained the authority to take samples or the requirement of horsemen to give samples is mandated by Rule 313(6). The notice to which reference has been made does not have the status of a Rule of Racing. It is advice to licence holders of how the process of taking body samples is to be followed.

2.6 It is Mr Lee’s case that he was not obliged to give a sample because the form handed to him did not comply with the notice on the reverse side in two respects. These were:
(a) That the status of the horseman – that is to say Mr Lee’s status – was not set out in full, and
(b) That the form was not signed [our emphasis] by Mr Carmichael.

2.7 On the front page of the Drug Testing Notification Form there is no reference to Mr Lee’s status – by that we mean that there is no reference to whether he held one form of licence or some other form of licence. We take the word status to be a reference to the form of licence that the horseman in question may have held at the relevant time.

2.8 With reference to the second of Mr Lee’s grounds he says that Mr Carmichael’s printed initials and name are not a signing by the official. In the course of his submissions Mr Lee made it clear that he considered that the form had to contain the signature as that expression is understood when a person signs, for example, a cheque or a credit card slip. Mr Lee pointed to Mr Carmichael’s signature appearing on the information which is the foundation for the charge. Interestingly on that document Mr Carmichael has printed his name underneath where he has signed in what Mr Lee says is the required form of signature.

3. RESPONSE FROM HARNESS RACING NZ
3.1 Mr Carmichael in response to Mr Lee’s submission points to the notice as being in essence a protocol. Mr Carmichael several times used that expression. In answer to questions from the Committee it is clear that the notice does not have the standing of a rule of Racing but clearly has been issued pursuant to the Rules of Racing. There is a direct reference to Rules 212(1)(g) and 226(2)(d) in paragraph 11 of the notice.

3.2 Mr Carmichael points to Rule 1117. That is to this effect:
No information, penalty decision or order or other document and no process or proceeding shall be quashed, set aside or held invalid by a Judicial Committee or Appeals Tribunal by reason only of any defect, irregularity, omission or want of form unless the Judicial Committee or Appeals Tribunal is satisfied there has been a miscarriage of justice.

3.3 Further Mr Carmichael draws attention to Section 204 of the Summary Proceedings Act. It is not necessary to set that out verbatim but it is to the same general effect as Rule 1117 of the Harness Racing Rules and permits a Court to correct any defect, irregularity or omission unless that would result in a miscarriage of justice.

4. DECISION OF THE JUDICIAL COMMITTEE
4.1 The authority to take samples is in Rule 313(5) and (6). Licence holders when granted licences or renewals expressly agree to abide by that rule. The notice issued on the 6th May 1998 sets out the process by which that rule will be given effect. The notice is not part of the rule. Strict compliance with the notice is not required. In our view it is quite sufficient if the process that is followed is generally in terms of the notice of May 6th 1998.

4.2 On the evidence we have heard today it is quite clear that Mr Lee knew what the notice required of him. He read the notice. There is no ambiguity about the notice. The fact that his status is not expressly referred to is inconsequential. It makes no difference to the validity of the request.

4.3 On the question of signature Mr Carmichael made available to the Committee the legal publication Words and Phrases published by Butterworths in 1990. There are a number of relevant legal authorities in the United Kingdom, the most recent being a decision in the Court of Appeal in Goodman v Ebam (J)Limited 1954 1 ALL ER 763 at 766. This is a judgment of the Court of Appeal in England and the publication contains a quotation from Lord Evershed (the Master of the Rolls). The most pertinent part of the judgment is that which says:
I think that the essential requirement of signing is the affixing either by writing with pen or pencil by otherwise impressing on the document one’s name or signature “so as personally to authenticate the document”.
 The notice handed to Mr Lee was in Mr Carmichael’s handwriting. He was and is a Racecourse Inspector. His name is easily readable. The fact that he did not sign it as he might have done a cheque or a letter is not fatal. In the first place the requirement of paragraph 3 of the official notice is not mandatory and in the second place for the reasons just explained the manner in which the form was filled out does technically comply with the definition of signature.

4.4. It follows that we do not accept that either of Mr Lee’s technical grounds for non-compliance has any validity. The drug testing form makes perfectly clear what is required of the person to whom it is handed. There could not be any question that the matters raised by Mr Lee even if they were otherwise of substance might have resulted in any misunderstanding or any consequential prospect that there could have been a miscarriage of justice.

4.5 The evidence is that the drug testing request was not complied with. In the circumstances outlined the charge is proved and we so find.

5. PENALTY
5.1 There has been extensive discussion with Mr Lee about his circumstances with particular reference to his employment and his general financial situation. We have heard submissions from Mr Carmichael. He has placed before us the decision of the Judicial Committee in the case of Mr Robb. That is a decision dated 3rd April this year and Mr Rowe was the Chairman on that occasion. We have also been given decisions of Judicial Committees under the Rules of Thoroughbred Racing in New Zealand. This Committee takes the same view as the Committee in the Robb case –namely that the decisions from thoroughbred racing are of limited assistance.

5.2 Mr Carmichael points to the difficulty that has arisen because Mr Lee surrendered his licence soon after the events which gave rise to this charge. For his part Mr Lee has told us that he doesn’t have any immediate plans to seek to renew the licence. He does however work fulltime at a training establishment near Auckland and that is his only source of income. He has been in that employment for some four years.

5.3 Mr Carmichael drew attention to the ineffectiveness of a suspension. It is, as it were, impossible to suspend something that is not in existence namely any current licence. Essentially for that reason Mr Carmichael seeks a period of disqualification. Disqualification under the Rules of Harness Racing NZ would prevent Mr Lee from being associated with any training establishment. We take the view that a penalty of that kind would be too harsh. It seems clear that a loss of employment would result.  Rule 1003(1)(b) provides for suspension of a licence. It also provides that the Committee may order that a person may not obtain a licence for a period not exceeding twelve (12) months.

5.4 Mr Robb furnished a clear sample three days after the date upon which he had failed to provide the sample required of him. He pleaded guilty. Those circumstances significantly distinguish that case from the present.

5.5 Given Mr Lee’s unique circumstances which we have outlined it is considered that the appropriate penalty is to order pursuant to Rule 1003(1)(b) that Mr Lee is suspended from obtaining a horseman’s licence for a period of six (6)months. Consistent with the decision of the Committee in Robb there will be a fine in addition. That will be in the sum of $750.00. Mr Lee will be ordered to pay Harness Racing NZ the sum of $250.00 and towards the costs of the JCA the sum of $250.00. We are conscious that Mr Lee’s financial position is not strong and that he will require time to pay. It has to be said however Mr Lee that your defence was based on purely technical grounds which had little realistic prospect of succeeding.

5.6 We draw to the attention of all parties Rule 314(2). We shall not set the rule out verbatim but it is to the effect that if a person applies for a horseman’s licence the Executive of Harness Racing NZ may require a medical certificate satisfactory to the Executive of the person’s fitness to drive. Mr Carmichael in this or other cases where Harness Racing NZ may have a concern about persons’ drug use or suspected drug use that section seems to us to be ideally suited to ensure that the applicant for the licence can be required to produce such medical evidence as the Executive thinks is appropriate.

5.7 For the avoidance of doubt the six (6) month period referred to in para 5.5 above will expire at midnight on the 24th October 2009.

Dated at Rotorua this  29th  day of April 2009

________________________________
Murray McKechnie
Chairman

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