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Non Raceday Inquiry RIU v B R D Cole - Decision dated 14 August 2019 - Chair, Hon J W Gendall QC

Created on 16 August 2019

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

IN THE MATTER of a charge under the NZ Rules of Greyhound Racing

BETWEEN

RACING INTEGRITY UNIT (RIU)

Simon Andrew Irving, Investigator

Informant

And

BRENDON ROSS DOUGLAS COLE

Licenced handler

Respondent

JUDICIAL COMMITTEE

Hon J W Gendall QC - Chair

Mr T Utikere - Member

Appearances: Mr S A Irving RIU Investigator

Mr P Brosnahan for Mr B R D Cole

Present:

Mr B R D Cole

HEARING HELD AT WHANGANUI ON 8 AUGUST 2019

DECISION as to reasons for liability and reserved penalty decision

[1] Mr B R D Cole is a licensed handler under the Rules of Greyhound Racing. His partner Ms. L Cole is a licensed trainer under those rules.

[2] Mr Cole faced a charge that on 7 June 2019, he acted in contravention of a “Warning Off“ notice issued to him by Greyhound Racing NZ pursuant to Rule 5.1 (b) on 20 April 2019 in that he entered onto Hatrick Raceway, Whanganui, while a race meeting was in progress in contravention of his “Warning Off“ notice. This was an offence under Rule 62.1 and punishable under Rule 63.1.

[3] We have found the charge to have been proven and established on the balance of probabilities, and in fact to a higher standard, beyond reasonable doubt. After deliberation, we delivered our decision as to liability to Mr Cole. We heard submissions as to penalty and costs made on behalf of the RIU and on his behalf. We now record our reasons and the penalty and costs decisions.

[4] Mr Brosnahan said it was not necessary for us to find the charge proven on the required standard of proof as it had been admitted – he said there was “technically” a breach. But it was more than that. The real contest involved the degree of culpability and Mr Cole’s claim made to the Investigator that he was on land not owned by the Greyhound Club and had done nothing wrong. The hearing in fact proceeded in the same way as a “disputed facts” hearing. We considered that it was necessary to deal with Mr Cole’s claim so that he, and all involved in the Code, understand clearly what the Rules require.

[5] Rule 62.1 provides that a person commits an offence if he or she contravenes any of the Rules of Greyhound Racing. Disobedience of the warning off given under Rule 5.1 (b) is such a transgression of the Rules. A warning off is defined to mean not being “permitted to enter or remain on any part of the ground or premises where a Greyhound Meeting or trial is being held …” The offence is punishable under the general Rule 63.1 which provides a range of sanctions, being a fine up to $10,000, suspension, disqualification, warning off.

[6] BACKGROUND
On 27 March 2019, the SPCA brought a charge against Mr Cole in the District Court at Palmerston North which alleged animal cruelty – in the sense of “live baiting.” The court charge is denied by Mr Cole and a defended hearing date is some months away. But as a consequence of the SPCA charge, Mr Cole was warned off on 20 April 2019 under the Greyhound Racing Rule 5.1 (b) which empowers the Board of Greyhound Racing NZ to “ warn off if it deems necessary in the best interests of Greyhound Racing or its related activity in New Zealand”. The warning off was deemed necessary within that provision, because of the serious nature of the court charge which allegedly related to greyhound dogs and the potential detriment and impact to the interests of the Greyhound Industry and Code. Mr Cole and his counsel do not agree. To warn off is defined as we have set out above at para [5].

[7] Mr Cole was given, orally and in writing, the warning off notice on 20 April 2019. Later, on 9 May 2019, there was an extension of the warning off notice by letter sent to Mr Cole and his counsel.

[8] After Mr Cole received the warning off notice, Mr Irving received information from others that Mr Cole was disobeying the warning off. The information was to the effect that he had been observed on several occasions on 7 June 2019 to lead greyhounds onto Hatrick Raceway premises when a meeting was in progress, and deliver dogs to others. The Chairman of Stewards reported that he had learnt this from other licence holders, and that he had personally later observed Mr Cole enter the raceway. The evidential statements of the Chairman and second steward are that Mr Cole was observed through binoculars to lead dogs through the main gateway of the racecourse from a trailer on the road and deliver them on several occasions, to another trailer (red) and vehicle parked on the grass verge beside and on the northern side of the pathway. The dogs were then led by another handler further into the raceway to the kennels. We received a coloured photograph taken from a course video at 3.47 pm on that day which shows a number of vehicles including another with a dog trailer (apart from Mr Cole’s) parked on that northern grass verge. We were also shown the video surveillance, albeit taken from a distance, but sufficiently clear to show Mr Cole go in and out of the gate delivering dogs to others at his red trailer on four occasions as well as proceed, on one occasion, to a grass area on the southern side of the walkway, where vehicles were parked inside the outer perimeter fence and then hand something to a woman (his daughter). We were given a still photo of the enlarged image of that activity.

[9] The RIU contend that he blatantly defied and endeavoured to subvert the notice and requirement that he not enter the raceway while a meeting was being held. After Mr Cole was served with the information on 12 June 2019 he was interviewed by Mr Irving. He denied that he had acted in breach of the notice requirements. He was adamant that his red trailer was not on raceway land as he was warned, and he had checked at the Whanganui District Council. A transcript of that interview was presented to the Committee.

[10] When first interviewed and upon being told of the charge which alleged he entered onto Hatrick Raceway, his initial responses were to pose questions to the Investigator. Namely “Whereabouts did I enter?” and when told “Through the main entrance” he framed another question “To where?” He was told “Onto the racecourse proper. “ Mr Cole then said, and repeatedly asserted, that he parked his vehicle (that is the red dog trailer) on “Marist land” as he had been to the city council and established that where he parked was on land that belonged to the Marist Rugby Club and it “does not belong to Wanganui Greyhounds, so therefore it’s exempt”. He also asserted “it’s a public area. Everybody parks there. “When asked later in the interview about his walking onto the land he said “I’m not saying I walked on to there …. I walked to the gate and the staff take the dogs from there.”

But he added that the warning off requirement did not apply to the grass verge land, “same as Manawatu Greyhounds. I can come all the way up, the Greyhound Club has no jurisdiction around any of the harness area or any area around there.” Mr Cole denied leading his dogs from his trailer “other than to the gate and the staff take the dogs from there.”

[11] Apart from the evidence of Mr Irving and the record of the interview with Mr Cole, the committee received photographs of the locality, a copy of the lease schedule between the Whanganui District Council (WDC) and the Wanganui Greyhound Racing Club, and Mr Brosnahan presented a copy of the Rugby Club certificate of title, and a large overhead photo of Spriggens Park, the raceway and its surrounds.

THE EVIDENCE OF MR COLE AND SUBMISSIONS MADE BY COUNSEL

[12] Mr Brosnahan accepted that there had been a warning off although he contended that it was unreasonable and steps were being taken to get the Greyhound Racing Board to review its decision. He submitted that it was accepted that Mr Cole “was inside the gate at the roadway by 2- 3 metres” (that is on the southern side), although this could hardly be disputed given the clear still photograph. But he contended that Mr Cole genuinely believed the area in which his red trailer was parked was Marist land and he had no deliberate intent to defy the notice.

[13] Mr Cole’s evidence can be distilled to the following:

• he accepted that he had received the warning off notice and said he understood it. He said he “understood I could not go onto a racetrack on land owned by the (or a) Club on a raceday”

• after being warned off he had obtained google maps of the raceway (and others) and had gone to the WDC to check on ownership of the raceway. He said he believed the grass verge was land not owned or leased by the Club

• he had usually driven his van and red trailer through the gate onto the raceway and parked on the grass verge, as many do

• he made changes to this practice, and had others engaged by him to park on the verge and he stayed “outside on the roadway outside the gate but delivered dogs to them at the red trailer site which he believed was on “Marist land”. He said he had been “coming and going in that area all the time” and had done so at 14 race meetings since the warning off

OUR FINDINGS

[14] The issue turned solely on whether it was established on the balance of probabilities that Mr Cole entered Hatrick Raceway while a greyhound meeting was in progress. That came down to a question of fact and we found not just on the balance of probabilities, but beyond reasonable doubt, that the charge was established beyond the limited way Mr Cole said. We concluded that:

(a) Mr Cole led dogs onto the raceway on several occasions to one of his vehicles and trailer parked on the grass verge, and onto premises where a greyhound race meeting was being held. He further walked onto the further grass space where vehicles were also parked (the southern side)

(b) the claim by Mr Cole to the Investigator that he only was ever “on Marist land” is rejected. First, because faced with the clear photographic evidence his counsel accepts there was a breach, although he describes it as technical/minor. But further, we find that “the ground and premises, within which a meeting is being held,” is not dependant on those conducting the meeting having any ownership or legal tenure of land or part of it. The “Marist land” claim fails for the reasons we set out below

[15] We did not find Mr Cole to be a reliable or credible witness. He was evasive at times, when it suited his purpose, and inconsistent in his explanations of certain facts and beliefs. For example, despite his adamant stance or belief made to the Investigator that the Palmerston North raceway which is jointly shared with the Harness Code likewise had “no jurisdiction” because of the land ownership argument, he told us he does not go onto or near that racecourse and employs (at some expense) another to take “his” dogs there. He was evasive in telling us of his knowledge of the Rules, or rather his reading of them when warned. They are clear and can hardly be honestly mistaken.

[16] We need to address a submission advanced by counsel as to the lawfulness of the “warning off” – made during the pre-hearing teleconference

[17] Counsel contended that

• the warning off was unreasonable, unfair and ought not have been made

• Mr Cole has not been dealt with in the Court proceedings and has the presumption of innocence and a strong defence

• it was legally invalid and could be challenged in Judicial Review proceedings in the High Court but the cost would be prohibitive

[18] As A Judicial Committee acting under the Rules of Greyhound Racing it is beyond our function to make any ruling as to the lawfulness of the decision to warn off in the Judicial Review sense and counsel does not ask us to do so. We are bound to proceed on the basis that the warning of notice was lawful and permitted under the Rules.

[19] It might be helpful for Mr Cole to understand that judicial review arises only if a decision is unlawful in a limited sense. Mr Brosnahan will know of this. The “unreasonableness“ test is that derived from the English decision of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation[1948]1 K B 223, which made it clear that for a decision to be “unreasonable” so as to make it unlawful and liable to Judicial Review, it has to be established that the decision is so unreasonable that no reasonable person, acting reasonably, could have made it.

[20] Mr Cole went to pains to evade, or get around, the notice by going to the Council and developing his “Marist land” strategy. But he is wrong. As a licence holder he ought to know the Rules and he told us he does. That the rugby club has legal title to a small part of the land within the premises used for the raceway is immaterial in determining whether Mr Cole entered on any part of the premises where the meeting was being held.

[21] Whilst the charge refers to “Hatrick Raceway” we are satisfied that this is synonymous with “Hatrick Racecourse. The warning off definition under Rule refers to;

“…any part of the ground or premises where a Greyhound Meeting or trial is being held.

[22] There is nothing in that Rule, or any of the Constitution or other rules, which refers to, or requires, “Ownership or lessee or licensee” of premises. This is reinforced by the Constitution of New Zealand Greyhound Racing which defines a “Racecourse” to mean:

“land used for the purposes of Greyhound meetings including the land inside a 100 metre boundary extending outwards from the perimeter of the racetrack”

We accept that this has to be sensibly interpreted or applied because, for example, if there were to be measured a distance of 100 metres from a portion of the back straight, the boundary would end up on the roadway used by all vehicular traffic and well out the outside the high fence, which is the obvious delineated boundary. So the 100 metre rule has to be applied purposely. But the area with which we are concerned, and as is seen in the coloured photograph, is squarely within 30-40 metres of the track perimeter without any intervening obstacle and the “Marist” strip is in fact outside the chain and wooden posts designed, it would appear, to signify the boundary.

[23] And in the 4th Schedule to the Rules, para 1(a) provides:

“ racecourse, racing rules, racing betting, each has the same meaning ascribed to it under Section 5 of the Racing Act 2003”

And Section 5 describes a racecourse as being land and premises used for race meetings.

[24] “Premises” has the usual meaning of a “house or building together with its land and outbuildings occupied by a business or considered in an official context.” An essential element is “occupation” of a site or land. So for example, to be “escorted off the premises” is to be taken away from them or the composite locality. Various entities can “share” premises or sites, eg day care centres and facilities for the elderly. Indeed the overhead photo/map illustrates that other entities share the Spriggens Park premises – the infield is owned by the council but is clearly part of the premises.

[25] The sole issue is whether a person who is warned off can enter onto any part of the land or premises where a meeting or trial is being held. It does not avail Mr Cole to argue that some other entity such as the Marist Rugby Club might have title to part of the site used for racing. The test is not who might or might not have some legal interest in the land or premises but whether there was entry into any part of the land or premises that is being used, in the context of this charge, for the holding of a race meeting. It is quite common for there to be joint occupiers of sites or land used for race meetings, or be subject to joint (or no) interests with sports clubs or others – for example playing fields club and changing rooms. The occupation of the site can vary depending on other factors – as Mr Cole himself seemed to think that when he said to the investigator that the Palmerston North Greyhound track and facilities, with the racetrack used by the harness racing track of Manawatu Harness Racing, would have no application to a warning off notice (although it seems he resiles from that now). The same example can be seen with Christchurch Greyhounds where racing is on the track inside the NZ Metropolitan Harness track at the raceway known as Addington raceway for both Codes, and Forbury Park Raceway in Dunedin where both harness and greyhound race meetings are held, and the only three code facility in New Zealand is at Ascot Park In Invercargill where Thoroughbred, Harness, and Greyhound Clubs share the same site and grounds. The situation where there are joint harness and greyhound codes sharing and using the same racecourse facilities on the same day /meeting (obviously not the same racing surfaces), along with the other examples, highlights what is the clear intent of the Rules, namely the status of, or who owns or has a legal interest in, the facility is not relevant if it is it is proven that there was entry onto those premises during a meeting conducted by a Code to which its particular Rule applied.

[26] Crucially, the secure Kennel Block at Hatrick, identified to us by Mr Cole, is NOT within any land leased or owned by the Greyhound Club, but it is adjacent and unquestionably premises used for the purpose of racing and must form part of the premises under the Rules. Otherwise, Mr Cole’s statement to us that “I believe that only if you own it you can warn off”, cannot make sense.

[27] We find that Mr Cole, upon being warned off, immediately sought to find a way to subvert and ignore the requirement of the notice. He should have read and understood the clear rule. His attempt to introduce an intricate and technical justification is sophisticated, but futile. We do not accept his claim that he was genuine in his stated belief. He was either deliberately blind to the Rule or, knowing of it, chose to find a way to flout it.

PENALTY

[28] Mr Irving submitted that Mr Cole is in charge (although his wife holds the trainer’s licence), of a very substantial Greyhound training and racing operation. There appears to be no case in recent memory of breaching a warning off notice in any of the three racing codes. He submitted that the event on 7 June 2019 shows Mr Cole entering the raceway on four occasions over a 20-minute period and it was not an isolated “one off” incident. He emphasised sentencing principles and referred to matters of aggravation, surrounding the offence, and mitigation (no previous charges and a very late acceptance of liability – although only to a very limited extent). He submitted that a fine, even if substantial, would have little or no effect on Mr Cole given the size and nature of his operation. He submitted that a short period (six weeks) of disqualification was necessary to deter him and others in the industry that failure to comply with serious official directives will not be tolerated.

[29] On Mr Cole’s behalf it was contended that anything more severe than a fine was not proportionate to his breach – to disqualify, even for a short period would be draconian. He contended that there was only “a very minor breach, 2-3 metres inside the boundary fence.” As we have said we do not accept that as factually correct. He contended that the breach arose only through “his misplaced perception” of the law and had no consequences to anyone. We do not accept a claim to “mistake” as mitigation. Mr Cole set out to find what he thought was a way around the warning off, and as a senior, experienced person in the Code must have known what the Rules say, and if he did not then this reflects adversely on his performance of his obligations.

[30] Mr Cole has exhibited no remorse or genuine appreciation of his actions. Very late acceptance of the charge – but minimising the total facts – does not signify genuine remorse. Indeed, in many of his responses to us and the RIU he sought to blame the authorities. We do not accept that any genuine mistake was made on his part so as to be a mitigating factor. As we have said, he deliberately sought to find a way to subvert or get around the notice. He, and others, need to be deterred from flouting the Rules of Greyhound Racing if the Code is to maintain its standing, reputation, and retain the confidence of its participants and the public. In this case we have concluded that a disqualification sanction would be too severe, A significant fine will suffice. But Mr Cole should understand that a more severe sanction might be likely to follow if there should be further activity by his flouting a warning off notice in breach of the Rules (wherever Greyhound meetings or trials are held).

[31] We regard a starting point of $3000 as necessary. The only mitigating factor is Mr Cole’s previous good record. We all allow a 20% deduction for that. Mr Cole will understand the process regarding any order for costs. He must contribute to some, but not all of the costs incurred by the RIU and the JCA. We fix those at $1750 to be paid to the RIU and $750 to be paid to the JCA.

[32] As a consequence Mr Cole is to pay

(a) A fine of $2400

(b) Costs of $1750 to the RIU and $750 to the JCA

Dated at Wellington this 14th day of August 2019

Hon J W Gendall QC

T Utikere

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