You are here: Home / Non race day hearings / Appeal R J Dunn and J R Dunn v RIU - Decision of Appeals Tribunal dated 1 June 2018 - Chair, Mr M McKechnie

Appeal R J Dunn and J R Dunn v RIU - Decision of Appeals Tribunal dated 1 June 2018 - Chair, Mr M McKechnie

Created on 06 June 2018

BEFORE AN APPEALS TRIBUNAL OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

ROBERT JOHN DUNN, Public Trainer & JOHN ROBERT DUNN, Open Horseman

APPELLANTS

RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Professor Geoff Hall

Present : Mr Paul Dale, Counsel for Messrs Dunn

Mr Robert Dunn

Mr Chris Lange, Counsel for RIU

Mr Neil Grimstone, Manager Integrity RIU

Dr Leo Molloy

DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY

DATED THIS 1ST DAY OF JUNE 2018

1. INTRODUCTION

1.1 The Tribunal has heard an appeal from a decision of a Non-raceday Judicial Committee dated 28 March 2018.

1.2 Mr Robert John Dunn is a licensed public trainer and Mr John Robert Dunn is a licensed open horseman. Each faced four informations alleging breaches of the Prohibited Substance Rule 1004(1), (1A), (3), (3A) and (4) of the New Zealand Harness Rules of Racing. Those Rules are as follows:

“Rule 1004(1) For the purpose of this rule a horse is presented for a race during the period commencing at 8.00 am on the day of the race for which the horse is nominated and ending at the time it leaves the racecourse after the running of that race.

(1A) A horse shall be presented for a race free of prohibited substances.

(3) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.

(3A) When a horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse commits a breach of these Rules.

(3A) When a person is left in charge of a horse and the horse is presented to race in contravention of sub-rule (1A) or (2) the trainer of the horse and the person left in charge both commit a breach of these Rules.

(4) A breach of sub-rule (1A), (2) or (3A) is committed regardless of the circumstances in which the .. prohibited substance came to be present in or on the horse.

1.3 The relevant Penalty Rule provides as follows:

“Rule 1004(7) Every person who commits a breach of sub-rule (2) or (3) shall be liable to:

(a) a fine not exceeding $20,000; and/or

(b) be disqualified or suspended from holding or obtaining a licence for any specific period not exceeding five years.”

1.4 The informations faced by Messrs Dunn result from the Nelson Harness Racing Club’s meeting on 9 and 11 June 2017. On 9 June a horse trained by Mr Robert Dunn and in the charge of Mr John Dunn (Mr Robert Dunn not being present on course) named Rishi tested positive for caffeine following Race 2. The horse Hayden’s Meddle tested positive for caffeine following Race 7. The horse Billy Badger took part in Race 10 and following testing also tested positive for caffeine. Caffeine is a nominated prohibited substance. Each of the three horses, Rishi, Hayden’s Meddle and Billy Badger, had won their races and were subject to a mandatory disqualification under Rule 1004D or Rule 1004(8). On the second day of the meeting at Nelson, on 11 June, Billy Badger took part in Race 8 and won that race. He again tested positive for the prohibited substance caffeine.

2. HEARING BEFORE NON-RACEDAY JUDICIAL COMMITTEE

2.1 The RIU submitted an agreed Summary of Facts. That is set out in paragraph 7 of the decision under appeal.

2.2 The Non-raceday Judicial Committee (the Committee) recorded the submissions made for the RIU by Mr Grimstone and for Messrs Dunn by their lay advocate, Dr Leo Molloy.

3. THE APPROACH ON APPEAL

3.1 This appeal is by way of rehearing.

3.2 The Tribunal is guided by what was said in the Supreme Court judgment Kacen v Bashir (2010) NZSC112 at paragraphs 31 and 32 which are to the following effect:

[31] The Court of Appeal discussed the application of the decision of this Court in Austin Nichols & Co Inc v Stichting Lodestar to the present kind of appeal. The Court correctly observed that on a general appeal of the present kind the appellate court has the responsibility of considering the merits of the case afresh. The weight it gives to the reasoning of the court or courts below is a matter for the appellate court’s assessment. We should add here that if the appellate court admits further evidence, that evidence will necessarily require de novo assessment and consideration of how it affects the correctness of the decision under appeal. The Court of Appeal was right to say that Courtney J had rather overstated the effect of Austin, Nichols when she indicated she should approach the appeal to the High Court “uninfluenced” by the reasoning of the Family Court. The High Court was required to reach its own conclusion, but this did not imply that it should disregard the Family Court’s decision. What, if any, influence the Family Court’s reasoning should have was for the High Court’s assessment.

[32] But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of relevant consideration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary.

4. THE CASE FOR THE APPELLANTS

4.1 Mr Dale submitted that there were three key facts which required consideration and which were not adequately addressed by the Committee. These facts are said to be:

i There was evidence that the Appellants may not have been responsible for the administration of the prohibited substance caffeine and that this may have been done by some person bearing ill-will towards the Dunn stable or towards owners with horses in the stable.

ii That the RIU acknowledged that neither of the Appellants had intentionally administered caffeine to the horses in order to gain any advantage.

iii That the RIU had proposed that the offences be treated as a single breach when assessing penalty.

4.2 It was submitted that the factual background was very important and somewhat unique. There was evidence of a telephone discussion between two persons, one a former employee of the Dunn stable, which conversation was said to have involved discussion of the horses being drugged and that this discussion took place before any laboratory tests had become known. As a result of this telephone conversation it was argued that the Dunns may have been “framed”. Mr Dale, in correspondence with the RIU, proposed that charges not be laid or alternatively that there be no penalty other than disqualification of the horses. That course was followed in McInerney v Templeton 10 November 1999 Pankhurst J. The letter from Mr Dale to the RIU was followed up with a letter to the New Zealand Police and Mr Dale subsequently had discussions with a Christchurch based detective. Thereafter advice was given to Vodafone that Messrs Dunn would seek the telephone records in relation to the conversation said to have occurred in relation to the horses being drugged. An application was prepared for filing in the High Court seeking discovery against Vodafone. The Tribunal was advised that the Vodafone response to the request for information was that it no longer had the records as these were not kept beyond six months. Mr Dale emphasised that the commitment of resources and necessarily the expenditure of significant funds in an attempt to obtain non-party discovery was consistent with the Appellants’ belief that evidence favourable to their position might be available.

4.3 The legal submissions for the Appellants are discussed in paragraph 6 below.

5. THE HEARING BEFORE THE COMMITTEE

5.1 At the hearing before the Committee the Appellants were represented by the lay advocate, Dr Leo Molloy. Before the matter came before the Committee there had been extended discussions between Dr Molloy and Mr Grimstone, representing the RIU. The parties had essentially reached an agreed position. That position was as follows:

i The RIU had endeavoured to identify any third party who may have been involved but could not do so.

ii There was no evidence that either Mr Robert Dunn or Mr John Dunn had been responsible for administering the prohibited substance.

iii The RIU would treat the multiple positive tests as a single event and would seek one penalty. It was the RIU submission that that penalty should start at around $4,000.

iv The RIU would acknowledge the Appellants’ good records. The Tribunal observes that the RIU did not draw to the attention of the Committee the decision in the case of the RIU v Robert Dunn, John Dunn and Craig Smith dated 16 January 2017. That decision of a Non-raceday Judicial Committee arose out of events which occurred at Forbury Park Raceway in Dunedin on 23 June 2016.

In response to the position taken by the RIU the stance taken by the Appellants before the Committee was as follows:

i They would accept the presenting charges.

ii They would deny any responsibility for the presence of the prohibited substance in the four horses.

iii That the decision of the Non-raceday Judicial Committee in the case of RIU v Larsen 16 January 2017 should be the benchmark for setting the level of penalty. In that case the fine imposed was $200. Further reference will be made to the decision of the Non-raceday Judicial Committee and RIU v Larsen later in this decision.

5.2 The Committee delivered a comprehensive decision. The conclusion reached by the Committee was that there should be a total fine of $14,000, and it was appropriate that Mr Robert Dunn and Mr John Dunn each be fined $7,000. In summary, the most significant findings of the Committee are now set out:

i That there was no evidence to confirm that there had been conduct by third parties involved in framing the Appellants or as it is sometimes known nobbling of the horses.

ii The decisions in Burrows and McGrath which were put forward by Dr Molloy were not accepted as valid comparisons.

iii Dr Molloy invited the Committee to dismiss the charges against Mr John Dunn. This the Committee rejected and pointed out that Mr Dunn had accepted his responsibility by way of his guilty pleas. The Committee drew attention to the fact that Mr John Dunn was the person “left in charge of a horse” and further that the horses were “presented to race in contravention of Rule 1(A)”.

iv The Committee accepted that the offences were what is known as presentation offences rather than the more serious administration offences. The Committee did not accept the RIU submission that the nature of the prohibited substance and the surrounding circumstances should lead to a conclusion that there had been one breach for the purposes of setting penalty.

v The Committee was not prepared to accept that the loss of stake money as a result of the horses’ disqualification, said to be at considerable cost to Messrs Dunn, was a significant matter in mitigation.

vi The Committee accepted that culpability for breach of the prohibited substance rule can vary greatly but the Committee’s assessment (paragraph 47) was that there were multiple failings and that this put the level of offending at above mid-range.

vii The Committee rejected the submission by Dr Molloy that the Dunn brand had been damaged beyond repair. The Committee recognised that the Dunns are longstanding industry participants but pointed out that the circumstances of how these horses came to be presented with a prohibited substance would not lead to damage of the licence holder’s reputation to the extent submitted by Dr Molloy.

viii In paragraph 54 the Committee made reference to the RIU submission seeking a total fine of $4,000. The Committee made clear that this was considered far too lenient when the specific circumstances of the offending were taken into consideration. The Committee expressed the view that a fine at that level for eight breaches of the Prohibited Substance Rule would fail to have regard to the well-recognised sentencing principles and which principles were put forward by the RIU.

ix The Committee gave consideration to the recent decisions in RIU v KD Townley, RIU v BR Negus, RIU v Edmonds and RIU v Brosnan.

x The position of the Committee is succinctly set out in paragraph 59 of the decision which is as follows:

We maintain the view that the position of the RIU still fails to have regard to the multiple nature of these breaches. While the RIU indicate that they could not rule out third party involvement, we make the observation that that is often a consideration in presentation breaches where the source of the prohibited substance is not known. In this particular case, while a possibility, we are not prepared to make such a definitive finding.

xi The Committee took the view that it was appropriate to apply the $8,000 JCA Penalty Guideline figure in respect of each of the breaches on 9 June 2017. In relation to the second breach for Billy Badger on 11 June 2017 the Committee applied a figure of $4,000. This led to a starting point of $28,000. The Committee then applied what it described as “an appropriate adjustment to reflect the circumstances surrounding the breaches in accordance with the totality principle” and reduced the figure from $28,000 by just over one third to $18,600.

xii In considering mitigation the Committee applied a discount of approximately 25 per cent. This was referenced to the previous record of the Appellants. As earlier noted the decision of the Non-Raceday Judicial Committee in RIU v Robert John Dunn and Craig Smith of 16 January 2017 was not drawn to the attention of the Committee.

xiii The decision of the Non-Raceday Judicial Committee in RIU v Larsen 16 January 2017, which decision figured prominently in Mr Dale’s submissions, was not drawn to the attention of the Committee.

6. LEGAL SUBMISSIONS FOR APPELLANTS

6.1 It was said for the Appellants that it was difficult to follow the reasoning of the Committee in rejecting the RIU position that the charges should be viewed as one breach for the purposes of fixing penalty.

6.2 It was submitted that there was inadequate recognition by the Committee of the curious circumstances which suggested that other persons may have been involved. In the Tribunal’s view the Committee was right to emphasise that no conclusive evidence had been obtained to support the involvement of other parties. It was submitted that the circumstances around the possible involvement of other parties should have led to a comparison with the decision in RIU v Larsen. In the first place the Larsen decision was not drawn to the attention of the Committee. Secondly, the factual position in Larsen was significantly different. In that case the Non-Raceday Judicial Committee had before it evidence from which it was able to draw a compelling inferential conclusion that Mr Larsen had nothing whatever to do with the administration of the prohibited substance Ketoprofen.

6.3 Particular emphasis was placed upon the cooperation from the Appellants and the attempts made on their behalf to establish whether there was involvement of others. That cooperation was expressly acknowledged in the RIU submissions and it was contended for the Appellants that there was not adequate recognition of this in the decision under appeal.

6.4 The early pleas by the Appellants were emphasised by Mr Dale.

6.5 Attention was drawn to the fact that the penalty sought by the RIU was a fine of $4,000 whereas the penalty ultimately imposed was more than three times the sum sought by the prosecuting authority. This Tribunal recognises that a judicial or quasi judicial body is not bound to accept the penalty proposed by the prosecuting authority, however it is unusual but not unique for the penalty that is imposed to be significantly greater than that sought by the prosecutor.

6.6 In answer to a question from the Tribunal, Mr Dale advised that if the level of fine imposed had been as submitted by the RIU no appeal would have been lodged.

6.7 Mr Dale was reluctant to put forward an appropriate figure but made it plain to the Tribunal that a figure close to that put forward by the RIU was appropriate and that necessarily that would involve a significant reduction from the figure arrived at by the Committee.

7. THE POSITION OF THE RIU

7.1 The submissions filed by Mr Lange drew attention to a number of decisions which emphasised the significant obligation of licensed persons to ensure that racing was drug free. The most recent New Zealand authority is Justice 2012 a decision of the Appeals Tribunal. This was a high profile case following a positive test for a prohibited substance by the horse Smokin Up, the winner of the Interdominion Grand Final at Alexandra Park.

7.2 The RIU submissions correctly pointed out that the Prohibited Substance Rule does not require the investigation to establish how the substance came to be in the horse’s system. That is expressly recognised by Rule 1004(4) and by a number of judicial decisions. Further, the Rule requires licensed persons to take steps to ensure, so far as they are able, that there is no inadvertent administration or that the horses are not nobbled by some third party.

7.3 The RIU submissions acknowledge that the Committee imposed a penalty significantly higher than that submitted by the RIU. The submissions go on to point out that the Committee was not bound by the RIU submission and that it was for the Committee to make its own determination of the appropriate level of fine.

7.4 In relation to the appropriate approach that is to be taken in setting a penalty under the Rules of Harness Racing, the submissions make extensive reference to the judgment of the Supreme Court in Z v Complaints Assessment Committee [2009] 1NZLR1. In essence, that judgment emphasises that punishment is not the primary purpose of disciplinary proceedings, rather those proceedings are to protect the public who may have contact with the profession or industry where the breach of standards is said to have occurred. The RIU submissions drew attention to the fact that the principles that are set out in the Supreme Court judgment in Z v Complaints Assessment Committee are now expressly included in the Rules of Procedure for Judicial Committees and Appeals Tribunals under the New Zealand Rules of Harness Racing by reference to clause 5 which came into effect on 27 August 2015.

7.5 The RIU submissions referred to a number of decisions which bear some comparison. These included RIU v Edmonds 31 March 2016, RIU v Negus 20 March 2018, RIU v Brosnan 13 February 2018 and RIU v Larsen 16 January 2017. The submissions rightly point out that the facts of Larsen were unique and bear little or no meaningful comparison with the events under consideration here.

7.6 Reference is made in the RIU submissions to the decision in RIU v Robert Dunn, John Dunn and Craig Smith of 16 January 2017, which decision, as earlier observed, had not been drawn to the attention of the Committee. On that occasion Mr Robert Dunn was fined $4,000 and Mr John Dunn $2,000. It was said for the RIU that it would be open to the Tribunal to infer that those fines had not brought home to the Appellants the high standards expected of them in harness racing.

7.7 The RIU submissions conclude by observing that the Rules place the obligation on the trainer and the person in charge to ensure that a horse is free of prohibited substances and that given the number of breaches that occurred and by reference to relevant authorities, the penalty which the Committee set was within the range available to it.

7.8 The RIU submissions do not meaningfully address the reasoning behind the submission which the RIU put to the Committee that an appropriate fine – being a single fine in respect of both Appellants – was the figure of $4,000.

8. DISCUSSION

8.1 The Tribunal has concern that with reference to the three horses, Rishi, Hayden’s Meddle and Billy Badger, that tested positive following racing on 9 June 2017, the Committee adopted the $8,000 JCA Penalty Guidelines figure in each case thus reaching a figure of $24,000. The Tribunal considers that the breaches were at the lower end of mid-range. In those circumstances the Tribunal believes that it would have been more appropriate given that all the breaches took place on the same day at the same racecourse to have adopted a figure of $6,000 in respect of the three horses, Rishi, Hayden’s Meddle and Billy Badger. The figure for Billy Badger on 11 June might appropriately been $2,000. These figures just spoken of would lead to an initial starting point of $20,000. In paragraph 60 of the Committee’s decision there is an adjustment. There is reference to what is described as “an appropriate adjustment to reflect the circumstances surrounding these breaches in accordance with the totality principle…” The figure which the Committee adopted was just over one third. The Tribunal considers that the adjustment was appropriate. Adopting the same approach here, a discount of just a little over one third of, say, $7,000 would reduce the figure earlier spoken of being $20,000 to $13,000.

8.2 With reference to mitigation, the Committee applied a discount of approximately 25 per cent. In paragraph 61 of its decision the Committee expressly recognised the early admission of the offending by the Appellants, their cooperation and their previous records, albeit through no fault of the Committee there was no reference to the decision of 16 January 2017 spoken of earlier involving both Appellants and a member of their staff, Craig Smith.

8.3 In considering an appropriate allowance for mitigation the Tribunal considers that there might properly have been greater recognition of the position arrived at by the RIU and the Dunns’ advisors, Dr Molloy and Mr Dale. The extent to which the Appellants cooperated with RIU and the extent to which the RIU endeavoured to follow up the Appellants’ concerns is a situation for which both parties should receive recognition. That level of cooperation is seen all too infrequently within harness racing and the other two codes over which the JCA has authority. An appropriate figure to measure mitigation in the circumstances outlined would have been 40 per cent. That results in the figure of $13,000 arrived at in paragraph 8.1 above being reduced to $7,800. As did the Committee, the Tribunal considers that the fines should be shared equally between Messrs Robert Dunn and John Dunn. Each will be fined the sum of $3,900.

9. COSTS

9.1 At the conclusion of the hearing of the appeal in Auckland on Monday, 28 May 2018 the Tribunal indicated that it would invite submissions from both parties on the question of costs. That the Tribunal now does. An entirely preliminary view is that given the circumstances of this case and the outcome each of the parties might reasonably be required to meet their own costs and each make an equal contribution towards some costs in favour of the JCA. As both experienced counsel will know, the figure that is set for JCA costs is not commonly an indemnity figure but simply a contribution towards the costs of setting up and conducting the hearing.

9.2 Submissions on the issue of costs are sought from both parties within seven (7) working days of receipt of this decision: such submissions not to exceed three pages.

DATED this 1st day of June 2018

Murray McKechnie

Chairman

(signed pursuant to the Fifth Schedule to the
New Zealand Rules of Harness Racing)

Document Actions