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Appeal B Goldsack v RIU - Reserved Decision of Appeals Tribunal dated 29 November 2019 - Chair, Mr M McKechnie

Created on 03 December 2019

BEFORE AN APPEALS TRIBUNAL OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BRIAN GOLDSACK, Licenced Trainer

APPELLANT

RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Mrs Nicki Moffatt

Present : Mr Brian Goldsack

Mr Ashoka Pandey, lay Advocate for Mr Goldsack

Janice Anne Goldsack

Sue Blackburn, Licensed Trainer

Mr Simon Irving representing the RIU

RESERVED DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY

DATED THIS 29th DAY OF NOVEMBER 2019

1. INTRODUCTION

1.1 Mr Goldsack appeals a decision of a Non-Raceday Judicial Committee dated 23 July 2019. The appeal is against both the finding that there was a breach of rules 84, 87.5 and 62.1 of the Greyhound Racing Rules and the Health and Safety Standards (GRNZ Code of Welfare 2018) and the penalty. Mr Goldsack was fined $1,800.00 and ordered to pay $100.00 costs to the RIU and make a contribution towards the costs of the JCA of $350.00.

1.2 A hearing took place before the Appeals Tribunal at the Manawatu Raceway on Tuesday 19 November 2019. The Tribunal reserved its decision and that is now set out.

2. THE CASE FOR MR GOLDSACK

2.1 Mr Pandey was asked if he wished to add to his written submissions. He indicated he did. He almost immediately said that his client had been set up. He said that Mr Goldsack had spoken to Mr Godber, the CEO of the RIU, seeking to persuade him that there ought not to be a charge laid. The dog concerned is named Watch my Back.

2.2 Mr Pandey disputed the submission for the RIU that there had been no contact from Mr Goldsack with Mr Godber. Mr Pandey said this advice challenged the veracity of the RIU officials.

2.3 Mr Pandey introduced Mrs Goldsack, the mother of Brian Goldsack and produced a declaration which she had made. He said that she gave evidence before the Non-Raceday Judicial Committee and that this was not referred to in the decision of the Committee. That is plainly wrong. Paragraphs 24 to 26 of the Non-Raceday Judicial decision make detailed reference to Mrs Goldsack’s evidence. That evidence was principally concerned with the behaviour of the dog Watch my Back.

2.4 Mr Pandey disputed the evidence of the RIU witnesses as to the muzzle that the dog was wearing on the day in question, 13 February 2019. The exact description of the muzzle was not determinative of the decision of the Non-Raceday Judicial Committee.

2.5 In answer to questions from the Tribunal, Mr Pandey acknowledged that the welfare of Watch my Back had been compromised. He nonetheless submitted that Mr Goldsack should not have been charged. It was implicit in the submission that the position taken was that Mr Goldsack should have been issued with a warning. Mr Pandey spoke of “false evidence” and said that the charge against his client “should be abandoned”.

2.6 Mr Pandey spoke about photographs taken at the Goldsack kennels on 12 February 2019. This the day before the events which led to the charge. The RIU personnel were at the Goldsack kennels on an unrelated matter. The RIU position is that the photographs of the van were taken in relation to that unrelated matter. Mr Pandey submitted that those photographs were taken as part of the set up to charge Mr Goldsack in relation to the race meeting that was to take place the next day. In response to that submission Mr Irving explained that the photographs were taken in relation to a charge that was laid against Mr Goldsack in relation to a dog named Barbarossa Boy.

2.7 Mr Pandey placed a great deal of emphasis upon the fact that on the day in question – 13 February 2019, two dogs from Mr Goldsack’s kennels, each of which had finished second in races before the race in which Watch my Back was to take part, and had been urine tested. He claimed that it was part of the set up and the testing of dogs that had run second was designed to somehow make it difficult for there to be adequate care for Watch my Back. The evidence before the Non-Raceday Judicial Committee had established that Mr Brian Goldsack’s brother, Mr Ray Goldsack, had been with him at the raceway on 13 February 2019 and that he was to look after the dogs while Mr Brian Goldsack attended a pre-arranged hospital appointment. It was, according to Mr Pandey, part of a pre-arranged RIU plan to swab the two dogs that had finished second in their races in order to somehow compromise the care of Watch my Back.

2.8 There was reference on behalf of Mr Goldsack to his being refused to have the use of a kennel to house Watch my Back. This was responded to by the RIU with an evidential statement from Linda Fowlie, the Raceday Kennel Steward. She was not present at the hearing of the Appeal but a declaration was put forward by Mr Irving. That declaration said she has no recollection of Mr Brian Goldsack requesting that he be given a kennel in which to place the dog. Linda Fowlie said she would not have refused to accommodate the dog in the holding kennels and that she would not have made any decision regarding a difficult dog or a trainer or handler with problems without consulting the Stewards. Her statement is emphatic that she was not spoken to and therefore required to speak with the Stewards. In any event, the Tribunal is clearly of the view that if Watch my Back was not placed in a kennel Mr Goldsack and his brother Ray had the responsibility to ensure that the dog’s health was not compromised.

2.9 Mr Pandey submitted that the whole investigation called into question the integrity of the Stipendiary Stewards, including Mr Godber. It was also claimed that there was unfair treatment for some trainers and favouritism for those trainers who presented a larger number of dogs at race meetings.

2.10 Mr Pandey made no submissions in relation to penalty other than to repeat the proposition that the prosecution “should be abandoned”.

3. EVIDENCE OF SUE BLACKBURN

3.1 Sue Blackburn is a licensed greyhound trainer based in Woodville. Reference was made to evidence that might be called in support of Mr Goldsack’s appeal in the Minute issued by the Tribunal on 24 October 2019 following a telephone conference. Mr Goldsack was present during that telephone conference. Mr Pandey was not. In paragraphs 2.3 and 2.4 reference is made to the calling of a witness and the requirement that there be a signed witness statement made available. No such witness statement from the proposed witness was received. Mr Pandey said he had not seen the Minute of 24 October 2019.

3.2 The Tribunal agreed to hear the evidence from Sue Blackburn and then rule upon its inadmissibility and if admissible the weight that should attach to it. Ms Blackburn told the Tribunal that on 13 February 2019 her vehicle was parked within some 10 metres of Mr Goldsack’s van. She was able to park in the shade. Mr Goldsack’s van was not in shade. It was a very hot day. She went past Mr Goldsack’s van on a number of occasions and did not hear any barking or anything to indicate distress. She said that Brian Goldsack’s brother Ray was “very busy” on the day. Ms Blackburn spoke of an earlier occasion when she had asked Linda Fowlie, the kennel manager, if she could put dogs in the back kennels. She said she had chosen not to do so.

3.3 The Tribunal agreed to accept Ms Blackburn’s evidence but as will be later explained it has little or no bearing upon the Tribunal’s decision.

4. SUBMISSIONS FOR RIU

4.1 Mr Irving pointed to Rule 59(1) of the Greyhound Rules of Racing. Shortly stated, Rule 59 provides that the Stewards or the RIU may carry out such tests as shall be deemed necessary. There is nothing in the Rule to indicate that the swabbing of dogs other than a winning dog is not appropriate.

4.2 Mr Irving explained that the photographs of Mr Goldsack’s van taken on 12 February 2019 had to do with the unrelated enquiry in respect of the dog Barbarossa Boy and completely rejected the proposition that those photographs were taken as part of a set up to charge Mr Goldsack.

4.3 Mr Irving was unsure if Mr Goldsack had spoken with Mr Godber.

4.4 With reference to the surveillance tapes at the track, Mr Irving explained that these would have not assisted and that in any event they were retained for only six meetings and then over-written.

4.5 Mr Irving completely rejected the proposition that there was some “conspiracy” – a word used by Mr Pandey - by the RIU to set up Mr Goldsack.

5. ROLE OF RIU & JCA

5.1 The case for Mr Goldsack as presented by Mr Pandey proceeded on the basis that somehow the JCA has supervision or control of the conduct of the RIU. It is important to emphasise that these are quite separate independent bodies. A decision whether or not a charge should be laid is not a matter for the JCA. In any event, as remarked above, it was acknowledged by Mr Pandey that the welfare of Watch my Back had in fact been compromised. The true position is that this came about because of inadequate supervision. When Mr Brian Goldsack went to the hospital, Mr Ray Goldsack had care of the dogs and that care or supervision was inadequate.

6. DISCUSSION OF TRIBUNAL

6.1 The evidence that the welfare of Watch my Back had been compromised was compelling. The Tribunal can find no factual error in the determination of the Non-Raceday Judicial Committee. Further, and importantly, there was the express acknowledgement by Mr Pandey that the welfare of Watch my Back had been compromised. In those circumstances the only basis upon which the appeal was advanced had reference to the set up by the RIU.

6.2 The evidence of Sue Blackburn did nothing to advance the case for Mr Goldsack or support the allegation of a set up.

6.3 As explained in paragraph 5 above the JCA does not have supervision of the RIU. Each body is independent. It is for the RIU to determine when and in what circumstances charges should be laid. No evidence was put before the Non-Raceday Judicial Committee or this Tribunal upon hearing the appeal which establishes any credible evidential foundation for the set up allegation.

7. DECISION OF TRIBUNAL

7.1 The Tribunal can find no fault with the reasoning of the Non-Raceday Judicial Committee. The submissions advanced for Mr Goldsack at the appeal hearing were not directed to the welfare of Watch my Back but rather to the unsubstantiated allegation that there had been some sort of set up. There was no basis for that. Moreover, as already recorded in paragraphs 5.1 and 6.1, there was the express acknowledgement by Mr Pandey, the advocate for Mr Goldsack, that the welfare of Watch my Back had in fact been compromised. The appeal against the guilty finding by the Non-Raceday Judicial Committee is dismissed.

7.2 As noted above there were no submissions on behalf of Mr Goldsack in relation to penalty other than the proposal by Mr Pandey that the whole prosecution “should be abandoned”. The Tribunal can find no fault with the penalty and costs awards imposed by the Non-Raceday Judicial Committee and the appeal against penalty is also dismissed.

8. COSTS

8.1 The case advanced for Mr Goldsack lacked objectivity. It was based entirely upon the proposition that there had been misconduct by the RIU. No credible evidence was advanced before the Non-Raceday Judicial Committee or this Tribunal to support that position. The attitude adopted by Mr Pandey, the advocate for Mr Goldsack, was tendentious.

8.2 The JCA and the RIU have been put to considerable expense. It is not the usual practice to award costs upon an indemnity basis. The quantum of such costs should however reflect the merits or, as in this case, the lack of merit in the appeal(s).

8.3 In the circumstances outlined Mr Goldsack will be required to pay the sum of $150.00 costs to the RIU and make a contribution towards the costs of the JCA in the sum of $600.00.

DATED this 29th day of November 2019

Murray McKechnie

Chairman

Signed pursuant to Rule 73

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