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Appeal D Schofield v RIU - Reserved Decision of Appeals Tribunal dated 16 May 2018 - Chair, Mr M McKechnie

Created on 16 May 2018

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

DENIS SCHOFIELD, Licenced Trainer

APPELLANT

RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Mr Tangi Utikere

Present : Mr Denis Schofield

Mr Ashley Sharp counsel for Mr Schofield

Mr Andy Cruickshank representing the RIU

RESERVED DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY

DATED THIS 16TH DAY OF MAY 2018

1. INTRODUCTION

1.1 The hearing of Mr Schofield’s appeal took place in Auckland on the 8th day of May this year. At the conclusion of the hearing the Tribunal issued an interim decision. Time constraints and travel arrangements did not permit the issuing of a detailed decision at that time.

1.2 The Tribunal dismissed Mr Schofield’s appeal and upheld the period of two (2) years disqualification. The interim decision ruled that the disqualification was to commence on the 8th day of June 2018.

1.3 This decision and the interim decision of the 8th day of May 2018 should be read together.

2. THE DECISION OF THE NON-RACEDAY JUDICIAL COMMITTEE

2.1 The decision is comprehensive: some eleven (11) pages. It accurately sets out in paragraphs 21 and 22 that Mr Denis Schofield has very limited day to day involvement or physical contact with the greyhounds and that his son Mr David Schofield is the person who actually trains.

2.2 At paragraphs 23 to 26 the Committee set out the response of Mr David Schofield, his partner Ms Archer and her son Mr Hodgson. Mr David Schofield when spoken to gave his occupation as a professional greyhound trainer. That is not correct. The Committee recorded that Mr David Schofield had his licence revoked on the 15th day of December 2016. Mr David Schofield, Ms Archer and Mr Hodgson were each asked to provide a hair follicle sample for drug testing. All three declined. Mr Denis Schofield is recorded as having several times asked investigators whether his son David was on methamphetamine and is recorded as having said “I thought he was past all that. It was years ago when he used to be on all that with that bloody … “.

2.3 The Committee set out the RIU penalty submissions. These emphasised Mr Denis Schofield’s limited involvement with the care and training of the greyhounds. The RIU pointed out that the penalty guidelines had been well published within the greyhound racing community. Attention was drawn to the case of RIU v Newton where a thoroughbred horse had tested positive for methamphetamine and two decisions in Australia where dogs had tested positive for methamphetamine and amphetamine. In one case the penalty was 2 years disqualification and in the other a disqualification of 18 months.

2.4 Mr Schofield told the Committee of his circumstances and that his honesty and integrity had never been questioned. Further he had sat as a member of a Judicial Committee on behalf of NZGRA. He told the Committee he was shocked and devastated to receive the news of the positive swab. Mr Schofield’s submissions to the Committee did not address the fact that the greyhounds were in reality trained by his son David and were in the care of David, his partner and Mr Hodgson. Mr Schofield told the Committee that his comment in relation to his son David’s involvement with “P” had been taken out of context and went on to relate that he and his wife had had meetings with their son David, Ms Archer and Mr Hodgson and that these persons had denied any knowledge of methamphetamine having been on the property. Further Mr & Mrs Schofield had been told that their son David, Ms Archer and Mr Hodgson had not been prescribed any medication that might contain the prohibited substance nor had they used that substance themselves. This account, if correct, is difficult to reconcile with the refusal by Mr David Schofield, Ms Archer and Mr Hodgson to provide a hair follicle test to determine if any of them had used “P”.

2.5 The Committee’s decision makes detailed reference to the GRNZ policy document entitled “Categories of Prohibited Substances”. This was a Category 2 breach and the starting point for such a breach is a period of five (5) years disqualification. The Committee rightly records that all codes have viewed more seriously breaches which have involved administration. The Committee adopted the accepted practice when fixing periods of disqualification by identifying what it considered was an appropriate starting point. That was determined to be four (4) years. After further analysis of the cases involving methamphetamine earlier referred to and acknowledging significant mitigating circumstances, principally Mr Denis Schofield’s exemplary record and also his cooperation a 50% reduction was made from the starting point. In the result the Committee came to a term of disqualification of two (2) years.

3. THE CASE FOR MR DENIS SCHOFIELD ON APPEAL

3.1 Mr Sharp, counsel for Mr Schofield, filed detailed submissions and both he and Mr Schofield addressed the Tribunal. We now set out in summary the position taken for Mr Schofield:

a) No issue was taken with the fact that presenting a dog with a prohibited substance impacts upon the integrity of racing and is a matter of concern with reference to animal welfare;

b) The Committee was correct in determining that the source of the prohibited drug had not been established;

c) The Committee having acknowledged the limited contact which Mr Schofield had with the dog;

d) The previous breach by Mr David Schofield was correctly regarded by the Committee as irrelevant;

e) The Committee had identified significant mitigating considerations;

f) The cooperation of Mr Denis Schofield was acknowledged so too the financial consequences and Mr Schofield’s advanced age.

3.2 Mr Sharp contended that there were three (3) situations which might arise in relation to the prohibited substance rules. These were:

a) Where culpability on the part of the trainer was clearly established;

b) Where it is not possible to determine the source of the prohibited substance;

c) Where the trainer has little or no culpability.

Mr Sharp went on to submit that there is a need to distinguish between presentation of a dog with a prohibited substance which arises out of negligence or negligent conduct as compared with intentional conduct. He further submitted that there might be circumstances where if it were not for the strict wording of the Prohibited Substance Regulations there would be no contravention at all. It was said that this position was supported by the reasoning in Australia in the much publicised case of Kavanah v Racing Victoria (No 2) [2018] VCAT 291. As noted in the interim decision of the 8th day of May the Kavanah case had to do with the prohibited substance Cobalt in thoroughbred racing. The unique circumstances around the Cobalt findings against Kavanah and other thoroughbred trainers in Australia make that case readily distinguishable from the present circumstances.

3.3 It was emphasised that Mr Schofield did not know or have any idea that the dog which he was presenting to race had been contaminated with a prohibited substance. Proof of knowledge is not necessary. Knowledge of the prohibited substance being in the dog would, if proved, lift the level of culpability. Mr Sharp contended that Mr Schofield’s lack of knowledge put his culpability at a very low level.

3.4 Turning to matters in mitigation of penalty Mr Sharp acknowledged that the appropriate circumstances had been identified by the Committee. He went on to submit that “hard cases make bad law” and that it might be appropriate by reference to Rule 4.2 of the 7th Schedule to impose a period of suspension and make that subject to Mr Schofield being recalled in the event that there were any further breaches during the period of suspension. The Tribunal does not believe that Rule 4.2 contemplates a penalty of that kind. The rule is expressed in very general terms. A period of suspension upon terms such as those contended for here would, in the view of the Tribunal, require some express and detailed provision in the 7th Schedule. Further, Rule 4.2 expressly refers to Rule 3.1. That rule has to do with the conduct of proceedings before Judicial Committees or an Appeals Tribunal. Neither Rule 4.2 nor Rule 3.1 has reference to the fixing of penalties. Both the rules are procedural in character.

3.5 In the event that the proposed suspended penalty was not adopted Mr Sharp contended for a financial penalty or a reduced disqualification. In support of the latter position he submitted that a starting point should have been adopted of no more than two (2) years and that a 50% discount should have been applied. That would of course have led to a disqualification of one (1) year.

4. DISCUSSION

4.1 In the Tribunal’s view the Committee followed the appropriate sentencing practice when establishing what is often referred to as “the starting point”. The period identified was four (4) years disqualification. This clearly recognised that there was no evidence to suggest any administration by Mr Denis Schofield. The Tribunal believes that it also recognised that Mr Schofield had little responsibility for the day to day training and care of the greyhounds. That was left to his son David, his partner Ms Archer and her son Mr Hodgson. Mr Denis Schofield by placing his greyhounds with other persons and having little day to day contact must accept responsibility if the supervision and care of the greyhounds falls short of accepted standards. Moreover it is plain that Mr Denis Schofield knew that his son David had previously had issues with drugs. That ought to have increased the level of concern even if, as the Committee was told, Mr David Schofield had disavowed any recent involvement with prohibited substances.

4.2 The mitigating circumstances were carefully assessed by the Committee. As earlier remarked they were considerable. The reduction from the starting point of four (4) years by 50% to two (2) years was a generous recognition of Mr Schofield’s circumstances and his contribution to greyhound racing.

4.3 The Tribunal is not persuaded that the culpability of Mr Denis Schofield is at the very low end of the scale as contended by Mr Sharp. Placing the greyhounds in the day to day care of others and having little contact with them meant that there was inadequate supervision by the registered trainer. Whether increased supervision by Mr Denis Schofield would have prevented ZIPPING ANDRE racing with a prohibited substance on the 29th day December 2017 necessarily cannot be affirmatively determined. What is clear however is that Mr Denis Schofield delegated or transferred responsibility for his greyhounds to others. If something in the conduct of those persons led to ZIPPING ANDRE being presented with the prohibited substance methamphetamine then Mr Schofield must accept responsibility.

5. COSTS

5.1 The decision of the 8th day of May 2018 made brief reference to costs in paragraph 5.2. Mr Schofield’s appeal was not without merit. The RIU contended that a three (3) year disqualification was appropriate but filed no cross-appeal. The Judicial Control Authority has incurred significant expense in assembling the Appeals Tribunal and in setting up the venue. Mr Denis Schofield is ordered to pay the sum of $1,000 towards the costs of the JCA. There will be no costs award in favour of the RIU.

DATED this 16TH day of May 2018

Murray McKechnie

Chairman

__________________________________________________________________________________________


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

DENIS SCHOFIELD, Licenced Trainer

APPELLANT

RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Mr Tangi Utikere

Present : Mr Denis Schofield

Mr Ashley Sharp counsel for Mr Schofield

Mr Andy Cruickshank representing the RIU

INTERIM DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY

DATED THIS 8TH DAY OF MAY 2018

1. NATURE OF APPEAL

1.1 Mr Scofield has appealed from a reserved decision of a Non-Raceday Judicial Committee dated the 29th day of April 2018. Mr Schofield was disqualified for a period of two (2) years and that disqualification was to commence on the 14th day of May this year.

1.2 Mr Schofield had pleaded guilty to a charge laid under Rule 61.1 of the Rules of Greyhound Racing. As set out in the minute of the Tribunal dated the 3rd day of May 2018 that rule provides:

The owner, trainer or person in charge of a greyhound nominated to compete in a race, shall produce the greyhound for the race free of any prohibited substance.

1.3 Mr Schofield was the licenced trainer of the greyhound ZIPPER ANDRE when that dog raced on the 29th day of December 2017 at the Waikato Greyhound Racing Club meeting at Cambridge. The dog won the race and subsequently tested positive for an amphetamine. The precise spelling of that amphetamine is not entirely clear from the decision of the Non-Raceday Judicial Committee. We are satisfied from what we have heard today that the correct spelling is methamphetamine.

2. THE POSITION FOR MR SCHOFIELD

2.1 Mr Sharp, counsel for Mr Schofield, filed detailed submissions in support of the appeal and addressed those submissions before the Tribunal today. Mr Sharp made available to the Tribunal a decision from Australia before the Victorian Civil and Administrative Tribunal involving the licenced trainers Mark Kavanagh and Danny O’Brien. That decision was culmination of the very extended inquiry into horses that had been presented for racing by Messrs Kavanagh and O’Brien and which horses had subsequently tested positive for the prohibited substance cobalt. Further Mr Sharp made available the decision of Pankhurst J in McInerney & NZ Greyhound Racing High Court Christchurch, 10 November 1999. That case involved the prominent greyhound trainer Mr John McInerney.

2.2 Mr Sharp emphasised what he said was the low level of culpability on the part of Mr Schofield. He emphasised Mr Schofield’s hitherto unblemished record. The phrase that Mr Sharp adopted several times in his submissions was “at the very low end of the scale”. He also drew attention to Mr Schofield’s age. Mr Schofield is seventy eight (78) years of age.

2.3 From a reading of the decision of the Non-Raceday Judicial Committee and from a consideration of the submissions made and the oral presentation today from both Mr Sharp and Mr Cruickshank and further as a consequence of answers Mr Schofield gave to the Tribunal the rather unusual circumstances of the Schofield training operation became clear. Mr Schofield and his wife live at Devonport on the North Shore of Auckland. The kennels are at Rangiriri in the Waikato some 110kms from Devonport. At Rangiriri Mr Schofield’s son David lives with his partner Ms Archer and her son Mr Hodgson. Mr David Schofield has had a number of differences with the Greyhound Racing Authorities. In the result he surrendered his trainer’s licence some three (3) years ago. In November 2016 his handler’s licence was revoked. Ms Archer and Mr Hodgson are both licenced handlers. It can be seen from what is briefly outlined here that Mr Denis Schofield is a trainer who is not domiciled where the kennels are situated and thus cannot be responsible for the daily care and welfare of the dogs. The Tribunal was told that Mr Schofield visits the kennels about three times per week. He takes the dogs to race meetings and returns them to the kennels. The Tribunal was told that Mr David Schofield does not go to race meetings. He is currently not licenced under the Rules of Greyhound Racing but could attend race meetings as a member of the public.

3. THE POSITION FOR THE RIU

3.1 Mr Cruickshank filed written submissions and today spoke in support of those. It was the position of the RIU that the disqualification of two (2) years was perhaps generous and that a period of three (3) years disqualification might have been appropriate. The Tribunal pointed out that there was no cross-appeal from the RIU with reference to the level of the penalty. Mr Cruickshank’s submissions pointed to a number of aggravating considerations. These included but were not necessarily limited to the fact that Mr Denis Schofield is not involved in the day to day care, control and training of the greyhounds. He was described in the RIU submissions as an “absentee” or “de facto” trainer. Further it was said that Mr Denis Schofield had knowledge of his son’s past difficulties with the authorities and knew that his handler’s licence had been revoked.

4. RECENT DEVELOPMENT

4.1 The RIU has drawn to the Tribunal’s attention the fact that on the 30th day of April Mrs Pam Schofield, the wife of Mr Denis Schofield filed an application with Greyhound Racing New Zealand for a public trainer’s licence. The Tribunal inquired of Mr Cruickshank as to when Mrs Schofield’s application might be heard. Mr Cruickshank advised that the next Greyhound New Zealand Board Meeting is to take place on the 18th day May this year. Further that Mrs Schofield’s application was unlikely to be able to be considered at that time. Mr Cruickshank went on to advise that Mrs Schofield has previously held a handler’s licence but not any form of trainer’s licence and that it was therefore perhaps unlikely that her application for a public trainer’s licence would be granted. It is not for this Tribunal to become involved in the merits or otherwise of the application lodged for Mrs Schofield. The Tribunal has raised this matter because it would be unfortunate if there were a hiatus created while the application for Mrs Schofield’s licence were considered.

5. INTERIM DECISION OF TRIBUNAL

5.1 The Tribunal can detect no mistake in the decision of the Non-Raceday Judicial Committee sufficient to gives grounds for a successful appeal. The nominated starting point under the rules for a breach of the relevant rule is five (5) years. In the circumstances of this case the Non-Raceday Judicial Committee by paragraph 64 of its decision adopted a starting point of four (4) years. This is a recognition that a five (5) year starting point would be appropriate in cases where there was evidence of administration and in those circumstances the disqualification could be expected to lift above the five (5) year nominated starting point. The Non-Raceday Judicial Committee made reference to a number of cases involving methamphetamine or other banned substances. We were told today that this is the first case involving methamphetamine in greyhound racing in New Zealand. There is a previous decision in thoroughbred racing Newton. In that case there was a penalty imposed of disqualification for three (3) years.

5.2 For the reasons briefly set out here we dismiss the appeal and uphold the disqualification of two (2) years. Given the limitations of time today a more detailed decision will issue from the Tribunal setting out the detailed reasons for the conclusion that has been expressed above. At the same time the Tribunal will deal with the issue of costs. Presently the Tribunal is not inclined to award costs in favour of the RIU but Mr Schofield will be expected to make some contribution towards the costs incurred by the JCA.

5.3 For completeness it should be recorded that Mr Cruickshank told the Tribunal that the situation that has developed in the Schofield family has led to what he described as “a loophole”. By that he meant a situation where the licenced trainer was not involved with the day by day care and welfare of the animals. He indicated to the Tribunal that a rule change was contemplated to address this situation. For its part the Tribunal would consider that is appropriate. The present situation that has been made clear today is essentially artificial and does not recognise the fact that the person primarily responsible for the training and care of the Schofield dogs is Mr David Schofield. Mr David Schofield, Ms Archer and Mr Hodgson are responsible to Mr Denis Schofield and he in turn must be responsible for their conduct. Mr Cruickshank advised that the new rule to address the “loophole” issue is to come into effect on the 1st day of August 2018.

5.4 Under the decision of the Non-Raceday Judicial Committee the period of disqualification was to commence on the 14th day of May 2018. Given the time that has elapsed since the decision of the Non-Raceday Judicial Committee on the 29th day of April 2018 and in part by reference to the events outlined above in relation to Mrs Schofield’s application to be licenced the period of disqualification will commence one (1) month from today namely the 8th day of June 2018.

Dated this 8th day of May 2018

Murray McKechnie

Chairman

 

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