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Non Raceday Inquiry RIU v B N Orange - Decision dated 30 April 2020 - Chair, J H Lovell-Smith

Created on 01 May 2020

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND BLAIR NATHAN ORANGE

Licensed Open Horseman

Respondent

Information No: A7197

Judicial Committee: JH Lovell-Smith, Chair

Mr T Utikere, Member

Informant: Mr S Irving

Respondent: Mr BN Orange

DECISION OF JUDICIAL COMMITTEE DATED 30 APRIL 2020

1. Mr Blair Orange is a Licensed Open Driver under the New Zealand Harness Racing Rules and is charged that “on the 14th March 2020 at Christchurch being a Licensed Open Driver did misconduct himself by repeatedly telling RIU staff to “f... off” when lawfully investigating a racing matter, in breach of the New Zealand Harness Racing Rule 303(2) and subject to the penalties pursuant to Rule 1003(1)”.

Rule 303(2) provides: No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.

The penalty provisions in Rule 1003(1) are: A person who commits a breach of any Rule shall be liable to the following penalties:

(a) a fine not exceeding $10,000.00; and/or

(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c) disqualification for a period not exceeding 12 months

2. Mr Orange admitted the charge and does not dispute the Summary of Facts as follows:

1. The respondent Blair Nathan Orange is a licenced Public Trainer under the Rules of New Zealand Harness Racing (HRNZ). He is 41 years old and first held a HRNZ licence in 1995.

2. At 2.54pm on Saturday 14 March 2020 Racing Integrity Unit Racecourse Investigator Kylie Williams and Steward Scott Wallis attended the property of Licensed Public Trainer, Nigel McGrath.

3. The purpose of their visit was to serve McGrath with a document and request items related to a Harness Racing matter the previous day.

4. The matter under investigation had no relevance to Mr Orange whatsoever.

5. McGrath was present in the stable’s courtyard with Mr Orange and former licensed person Jamie Keast, drinking alcohol.

6. Mr Wallis said “hello” to the group and in reply Mr Orange said, “What the f... do you want?”

7. Mr Wallis replied, “We are here to see Nigel”.

8. Mr Orange continued to look at Mr Wallis and said, “you should just f... off” and then looked at Mr McGrath and said, “tell them to f... off”.

9. Mrs Williams and Mr Wallis engaged in conversation with Mr McGrath.

10. Mr Wallis had his cell phone in his hand and Mr Orange said, “Put your f...... phone away Scott”.

11. The conversation between Mr McGrath and RIU staff continued for a short time and at 3.02pm the staff went to leave the property.

12. As they walked past Mr Orange on their way out Mr Wallis said, “Goodbye Blair”.

13. Mr Orange replied, “just f... off”.

14. Mr Wallis kept walking and said, “I don’t know why you are like this with me, I have done nothing wrong to you”.

15. Mr Orange replied, “well you haven’t f...... tried to help us”.

16. The pair continued walking towards their car with Mr Orange continuing to tell them to “f... off”.

17. Mr Orange has no previous breaches of the Misconduct Rule.

3. We have received written submissions on penalty from Mr Irving on behalf of the RIU and from Mr Orange. It is agreed that this matter may be dealt with on the papers.

4. RIU Submissions as to Penalty:

The RIU submits that the appropriate penalty is a fine only and does not seek disqualification or suspension of Mr Orange’s licence.

The starting point of $1,500 is appropriate for this level of prolonged misconduct in respect of the serious offence of using offensive language to an officer and such cases are "fact dependent".

There appears to be no similar fact case in the three Codes where there has been such a sustained level of abuse towards officials acting in accordance with their duties and powers. Mr Irving referred to three HRNZ Non Raceday Inquiry charges of Misconduct in which fines were imposed ranging from $650 to $850:

S DICKSON (11.02.2017) – Licensed Trainer/Open Horseman, abusive language to Stewards and failing to remain in the Stewards room. $850 fine.

A PYERS (12.03.2013) – Licensed Trainer/Open Horseman, offensive and abusive text messages and phone calls to Racecourse Inspector. $850 fine.

S LETHABY (12.10.2010) – Open Horseman swearing in the Stewards room and failed to remain when ordered to do so. $650 fine (guideline starting point $500).

Mr Irving submitted that the following aggravating features should be taken into account in fixing the level of the fine:

i. Mr Orange has been involved in the racing industry for many years and should know the importance of conducting himself in a professional manner and maintaining integrity in racing.

ii. Mr Orange is the leading driver in the country and has one of the highest profiles in the sport, giving him the added responsibility of being a role model for the industry.

iii. RIU staff were lawfully attending the property to speak to Nigel McGrath on a racing matter which had nothing to do with Mr Orange.

iv. It was obvious that Mr Orange’s behaviour negatively influenced Mr McGrath’s decision making from an initial level of cooperation to a level that resulted in Mr McGrath being charged by the RIU with ‘failing to follow lawful directive’.

v. It was also apparent by his actions that Mr Orange was under the influence of alcohol with RIU staff observing him and an associate drinking beer.

vi. Mr Orange’s behaviour was not a ‘one-off’ outburst, as was the case in RIU v D, but prolonged and repeated abuse over a 10-minute period toward two RIU employees.

With regard to mitigating factors, Mr Irving acknowledged that Mr Orange admitted the breach at the first opportunity and has had no previous misconduct charges before the JCA.

In conclusion the aggravating and mitigating factors cancelled each other out and therefore a fine of $1,500 is appropriate. No costs are sought by the RIU.

5. Respondent’s Submissions as to Penalty:

Mr Orange acknowledges his offending and expresses his regret that he let his emotions get the better of him that day and that he crossed the line between a personal and a professional relationship that day.

He has apologised in writing to Mr Wallis and Mrs Williams.

He accepts he should pay a fine and that a fine of $500 "is sufficient and just" for the following reasons:

Mr Orange expresses his "confusion" as to the relevance of the number of races and stake money he has won this season when no such reference was made by the RIU in the cases of S Dickson and P Pyers or in their statements. He queries whether the level of the fine should be determined by the level of his income.

Further due to Covid-19, his main source of income, driving, has ceased and at the time of making his submissions he had no income for 4 weeks and the earliest expected return to racing 29 May/1 June with one regional meeting per week.

Mr Orange refers to the cases of S Dickson and P Pyers, as examples of cases where the abuse of officials were for lengthier periods than in this case. Mr Dickson's abusive language began in the Stewards room and he continued the abuse when he left the room and refused to return. In Mr Pyers’ case, the abusive telephone calls and texts continued for 2 days.

The Summary of Facts in this case records that Mrs Williams and Mr Wallis arrived at Mr McGrath's property at 2.54 pm and left at 3.02pm.

Mr Orange submits that the fact he was under the influence of alcohol is irrelevant and there is no evidence that his behaviour influenced Mr McGrath.

His abusive behaviour was not directed at Mrs Williams and that if his abuse was regarded as prolonged and repeated then Mr Wallis contributed to this by addressing him as he was leaving when the situation had become volatile and the matter involving Mr McGrath had nothing to do with him in any way.

Mr Orange acknowledged that he had been in racing for many years and knows the importance of conducting himself in a professional manner and maintaining integrity in racing which is why he has never before had a charge of this nature. It was an error of judgement which he has admitted was wrong and apologised for.

6. Conclusion

The principal aggravating feature of this offending was that it occurred in the context of the attendance by Mrs Williams, a Racing Investigator and Mr Wallis, a Steward, at the property of a Licensed Public Trainer, Mr Nigel McGrath for the purpose of serving Mr McGrath with a document and to request items relating to an investigation into a Harness Racing matter the previous day.

The matter under investigation had no relevance whatsoever to Mr Orange.

Mr Orange knew that both Mrs Williams and Mr Wallis were at the property in their official capacity and that the purpose of their visit was to speak to Mr McGrath.

Despite being told that by Mr Wallis, Mr Orange persisted with his abuse which was directed at both of them, to the extent of telling Mr McGrath that he should tell them to “f... off”.

Mr Orange may not have thought he was directing his abuse at Mrs Williams, but she was attending the property with Mr Wallis in their official capacity not only to serve Mr McGrath with a document but to request certain items relating to a Harness Racing investigation.

The volatile situation was brought about by Mr Orange’s abusive and disruptive conduct and we do not accept that Mr Wallis aggravated the situation in any way.

We accept Mr Orange’s submission that on this occasion his emotions got the better of him and he crossed the line between a personal and a professional relationship.

In mitigation, Mr Orange admitted the charge, at the earliest opportunity, although the evidence was clearly overwhelming. He has apologised in writing to Mrs Williams and Mr Wallis. He has not appeared before the JCA before on a charge of this nature in his long and successful career. We accept his income would have been adversely affected by Covid-19 in recent weeks. Since the charge was laid, Mr Orange has fully cooperated throughout

7. Decision

Having regard to the submissions of Mr Irving and Mr Orange we adopt a starting point of $1400. We agree with the RIU that suspension of Mr Orange's licence or disqualification is not appropriate in this case.

Taking into account the mitigating factors we have referred to above, we impose a fine of $1,000.

The RIU does not seek costs.

Given Mr Orange's cooperation in these very difficult and extraordinary times, which enabled this matter to be determined promptly and by agreement on the papers, there is no order for JCA costs.

JH Lovell-Smith

Chair

30 April 2020

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