You are here: Home / Non race day hearings / Appeal J T McInerney v RIU - Decision of Appeals Tribunal dated 19 November 2019 - Chair, Mr R G McKenzie

Appeal J T McInerney v RIU - Decision of Appeals Tribunal dated 19 November 2019 - Chair, Mr R G McKenzie

Created on 22 November 2019

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association Incorporated

BETWEEN JOHN THOMAS McINERNEY of Darfield, Public Trainer

Appellant

AND RACING INTEGRITY UNIT

Respondent

Tribunal: R G McKenzie (Chairman)

S C Ching

Date of Decision: 19 November 2019

DECISION OF APPEALS TRIBUNAL

Background

[1] The Appellant has appealed against the penalty of a $550 fine imposed by a non-raceday Judicial Committee following a hearing at Wanganui on 9 October 2019 at which the Appellant admitted a breach of rule 45.11 for presenting the greyhound, JETLAG JAG, to race in Race 10 at the meeting of Wanganui Greyhound Racing Club at Hatrick Raceway on 25 September 2019, 1.7 kilograms above the weight recorded in the race in which it last performed.

[2] The grounds for the appeal, as set out in the Notice of Appeal, are “We [sic] didn’t attend the hearing to defend the charges or submit penalty. We [sic] believe the fine to be excessive”.

[3] The Notice of Appeal states that the appeal is against penalty only.

[4] It is stated in the decision of the Judicial Committee that:

The Information was signed by Ms Sandy Stone the Kennel’s representative, with the breach of Rule 45.11 being admitted. The Committee was satisfied that there was proof of service for the Respondent Mr John McInerney and that he had been advised of the hearing. Whilst he has elected not to appear, we proceeded in his absence as is provided for under the provisions of Rule 66.6 of the NZ Greyhound Rules of Racing.

[5] By consent of the parties, the Tribunal deemed it appropriate that the Appeal be determined solely on the basis of documents and submissions to be filed by the parties (“on the papers”) pursuant to para 47.1 of the Common Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal contained in the Seventh Schedule of the Rules of New Zealand Greyhound Racing Association Inc.

The Rule

[6] Rule 45.11 provides:

Where the weight of a Greyhound recorded at a Meeting varies by more that one and a half (1.5) kilograms from the weight recorded in a Race in which it last performed that Greyhound shall be permitted to compete in the current Race but the Trainer of the Greyhound shall be guilty of an Offence unless permission has been granted under Rule 45.12.

Submissions of the Appellant

[7] The Appellant has filed written submissions in support of his appeal which are summarised in the following paragraphs.

[8] The Appellant asserts that he was not given notice of the hearing before the Judicial Committee. (The Judicial Committee records in its decision that it was satisfied that the Appellant had been advised of the hearing).

[9] He does not dispute that JETLAG JAG was up 1.70 kilograms when presented on 24 September. He explained that the dog had not “emptied out” prior to being kenneled. Had it done so, its weight could have dropped by at least half a kilogram – 0.2 kilogram would have avoided the charge.

[10] This was the fourth breach within 120 days. The kennel has two bases – one in the North Island and one in the South Island. The Respondent accepted that he has breached the rule “on a number of occasions” but pointed out that he has raced more dogs this season “by a long way” than any other kennel – 169 individual dogs in 1,675 races.

[11] The Appellant then raised the matter of the accuracy of some scales and the recording of weights by Club staff. He referred to an occasion on which the Association had required a Club to get a new set of scales to replace scales which were not “adequate”. However, he stated, he was still charged. He produced a Greyhound Search showing the record of the greyhound, REIGN OF FIRE, trained by him, showing the weight of the greyhound being clearly misrecorded, at a meeting on 15 October 2019, as 28.0 instead of 38.0 kilograms.

[12] The Appellant referred to the penalty submissions made by Stipendiary Steward, Mr Austin, at the hearing before the Judicial Committee, in which he stated that there are other large kennels in New Zealand and none of those have the same number of breaches of rule 45.11 as the Respondent. The Respondent submitted that the second-largest kennel, numbers-wise, is on its second offence, with 100 dogs and 1279 starters. The next largest has 59 dogs and 417 starters.

[13] The Appellant submitted that the betting public would not have been affected by the breach, as the TAB was informed as soon as the dog was placed in the kennel block.

[14] The greyhound, JETLAG JAG, was racing in a low-grade C1 race carrying a stake of $1,387.00 to the winner, $579.00 for 2nd and $351.00 for 3rd. JETLAG JAG was paying $45.00, suggesting that punters gave it next to no chance of running in the first three placings. In the event, it finished in last placing, winning no money.

[15] The Appellant stated that, on the occasion of each breach of the rule, a different dog has been involved. This should be taken into account, together with the number of dogs started by the kennel, in fixing penalty.

[16] The Appellant submitted that the breach is a “minor infringement” under the rules. The Minor Infringement Table provides for penalties of a $100 fine and a $150 fine for the first and second offences respectively. For a third breach, the matter is to be referred to the JCA. On the last occasion that a breach by the Appellant was referred to the JCA was on 31 March 2019, six months ago, and he was fined $300. Since that time, he has taken steps to ensure that it does not happen again.

[17] There are many reasons why a greyhound either puts on or loses weight – some the result of human error, some due to the animal’s health. On occasions, the Weighing Steward records the wrong weight on the dog’s race record. He was not aware that this was the case on this occasion. It has happened to his kennel three times recently and he was not aware of the error until the next day or until the dog next raced.

Submissions of the Respondent

[18] Mr R A Quirk, Stipendiary Steward, filed the following submissions on behalf of the Respondent:

“Mr McInerney has appealed the penalty decision of 14 October in regards to the 4th weight offence in 120 days. The penalty imposed was $550.

The offence was admitted so this appeal is strictly related to the penalty imposed.

The Racing Integrity Unit does not wish to comment on any points raised by Mr McInerney regarding issues other than those relevant to this appeal and to which we have been required to address.

In the original hearing, the Racing Integrity Unit submitted a fine of $250-$300 was appropriate. However, this appears to have been “lost in translation” and subsequently written in the decision [of the Judicial Committee] that the Racing Integrity Unit had asked for no less than $300.

In coming to this figure, the Racing Integrity Unit took into account a number of factors including that this is a $100 - $150 minor infringement breach, the number of Greyhounds per month raced by the kennel and previous penalties imposed under this Rule which had been referred to the JCA.

Including, for the Tribunal’s reference:

• RIU vs J McInerney – dated 25 May 2019
• RIU vs J McInerney – dated 2 April 2019

As the Racing Integrity Unit has been instructed to provide penalty submissions for the purpose of this Appeal, we have no reason to defer from our original submissions with that being a fine in the range of $250 - $300”.

Reasons for Decision of Tribunal

[19] The charge was admitted on behalf of the Appellant before the Judicial Committee and the finding of the Judicial Committee that the charge was proved has not been appealed. The Appellant has appealed against the fine of $550 imposed by the Judicial Committee. Accordingly, the only matter to be determined by this Tribunal is whether that fine was excessive.

[20] We do not propose to comment on the Appellant’s submission that he was not given notice of the hearing before the Judicial Committee. The Committee records in its written decision that it was satisfied that the Appellant had been given notice of the hearing. In any event, as we have, essentially, received fresh penalty submissions from both parties, nothing turns on that issue.

[21] The charge under rule 45.11 is classified as a “Minor Infringement Offence” in rule 62.3. The Minor Offence Table in the Sixth Schedule to the Rules provides that a third breach of the rule in the period 120 days immediately preceding shall be referred to the JCA. The fines for the first and second breaches are set at $100 and $150 respectively.

[22] The Information in this case alleges a “4th offence within the preceding 120 days”. The first such offence was on 17 July 2019 (fined $100), the second on 28 August 2019 (fined $150) and the third on the same date (fined $150, according to the Stewards’ Report, the Stewards exercising their discretion under the minor infringement rule). It was, therefore, quite appropriate for the Stewards to refer the matter to the JCA in respect of the breach in question.

[23] It is significant that the Stewards decided to penalise the second of the two breaches on 28 August 2019 under the Minor Infringement System rather than to treat it as a third breach to be referred to the JCA.

[24] The breach on 9 October 2019, the penalty for which is the subject of this appeal, should, in the Tribunal’s view have been viewed as a third breach in determining penalty and we are treating it on that basis for the purposes of this appeal.

[25] The Respondent, in its submissions referred us to two previous charges against the Appellant that had been referred to the JCA as being third or subsequent offences. In the earlier (dated 2 April 2019) the Appellant was fined the sum of $300 for a third offence and in the latter (25 May 2019) he was fined $200 for a fourth offence. In that latter case, the Judicial Committee took as a starting point a $300 fine as submitted by the Stewards but applied a discount of $100 for a doubt that was raised concerning the accuracy of the scales on that occasion.

[26] The Judicial Committee in its decision on 25 May 2019 stated that a penalty consistent with penalties for a third or subsequent breach of a $300 fine was appropriate. We agree.

[27] A point raised by each party in submissions was that the breach was categorised as a “minor offence” under the rules. This fact should not be lost sight of and, in the present case, it is significant that the greyhound was only 0.2 kg over the permitted weight threshold and, we were told, the overweight was notified at an early stage, thereby minimising any effect on the betting public. In any event the dog was not a favoured runner. It was, in fact, a minor offence.

[28] The Tribunal notes that the Racing Integrity Unit Stewards submitted for a fine of $250 -$300 before the Judicial Committee and, further, Mr Quirk in his submissions on the appeal submitted for a fine “in the range of” $250-$300”. The Tribunal is satisfied that the penalty imposed by the Judicial Committee of a fine of $550 is manifestly excessive.

[29] A fine consistent with other penalties for third and subsequent breaches of rule 45.11 is appropriate.

[30] The Tribunal has not addressed the matters raised by the Appellant in his submissions concerning inaccurate scales equipment or misrecording of weights as he makes no allegation that either of those issues had application in this case.

Decision

[31] The appeal is upheld. The penalty of a fine of $550 imposed by the Judicial Committee is quashed and a penalty of a fine of $300 is substituted in its place.

Costs

[32] There will be no order as to costs.

[33] No fee was paid by the Appellant upon the filing of the appeal and the requirement to pay such fee is waived.

R G McKenzie

Chair                                                                                                            

Document Actions