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Non Raceday Inquiry RIU v H J Habraken - Reserved Decision and Penalty Dated 26 November 2020 - Chair, Mr G Jones

Created on 30 November 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) – Mr O Westerlund (Investigator)

Informant

AND Hendricus Josephus Habraken

Licensed Harness Trainer

Respondent

Information No: A8485

Judicial Committee: Mr G R Jones, Chair and Mr B Scott, Member

Present: Mr N Grimstone (RIU Prosecutor), Mr O Westerlund, Mr H Habraken and Mrs Habraken (Support Person)

Hearing Date: 12 November 2020

RESERVED DECISION AND PENALTY OF THE JUDICIAL COMMITTEE DATED 26 NOVEMBER 2020

Introduction

[1] Licensed Harness Trainer, Mr H Habraken was charged with Misconduct, which is contained within r303(2) of the New Zealand Harness Rules of Racing.

[2] This prosecution was authorised by Mr Godber, the General Manager of the RIU, by way of letter dated 9 October 2020.

[3] The hearing of the charge took place at the Pukekohe Racetrack, Pukekohe on 12 November 2020.

The Charge

[4] The original charging document, (Information number A8485) was amended by leave of the Judicial Committee (the “Committee”) at the commencement of the hearing. The amended Information alleges that:

On Saturday the 26th September 2020 at the Franklin Park Training Centre in Pukekohe being a Licenced Trainer did misconduct himself by the ‘stable block’ by using abusive language towards Stipendiary Steward, John Muirhead in breach of the New Zealand Rules of Harness Racing - Rule 303(2) and subject to the penalties pursuant to Rule 1003(1).

The original charge made reference to Mr Habraken’s alleged failure to comply with a direction given by Mr Muirhead and it is this element of the charge that was amended.

The Plea

[5] When the Information was served on Mr Habraken he entered ‘no plea’ to the charge.

[6] At a teleconference convened by the Committee on 27 October 2020 Mr Habraken advised that he did not admit the charge and that his plea remains ‘no plea’. It was on that basis this matter was set down for a defended hearing.

[7] Refer to the attached Addendum No 1 for further information concerning the outcome of the teleconference.

[8] In light of the amendment to the charge, referred to at paragraph [4], Mr Habraken was asked to enter a plea. He confirmed that he wished to enter ‘no plea’ to the amended charge. This was regarded by the Committee as a ‘not guilty’ plea.

The Rule

[9] Rule 303(2) provides that:

No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stable-hand, 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.

Penalty Provisions

[10] Rule 1003(1) provides that:

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.

The Standard of Proof

[11] The standard of proof in proceedings before a Judicial Committee are determined on the balance of probabilities; which simply means that the allegation is more likely or probable than not to have either occurred or not occurred.

Request for a Ruling

[12] Prior to hearing evidence from Senior Stipendiary Steward, Mr John Muirhead, Mr Habraken raised an objection to the admissibility of the taped conversation / interview that took place between Mr Muirhead and Mr Habraken at the Franklin Park Training Centre on 26 September 2020.

[13] In order to resolve this objection, the Committee sought submissions from Mr Habraken and Mr Grimstone, after which we adjourned and made a Ruling.

[14] After considering the submissions we ruled that evidence of the recorded conversation was relevant and admissible for the purpose of determining the outcome of the charge.

[15] In reaching this decision the Committee was mindful of the following factors: (1) whether or not the failure to advise that the conversation was being recorded resulted in a breach of good faith or fairness thus tainting the interview; (2) the context and relevancy of the recorded conversation; and (3) whether Mr Habraken is now disadvantaged in his defence by the introduction of the taped conversation.

[16] We provided oral reasons for our decision. See attached at Addendum No 2 for our written reasons for allowing the recorded evidence to be admitted.

Evidence – Informant

Witness - Mr Cameron Kirkwood (HRNZ)

[17] Mr Kirkwood is an employee of Harness Racing New Zealand (HRNZ). His evidential statement was admitted by consent.

[18] The essence of his evidence was that on the afternoon of Friday 25 September 2020 he identified a warning flag for the horse I EXPECT BETTOR, co-owned by Mr Habraken and his son Jon. The horse was nominated to Race in Heat 5 at the Pukekohe Workouts the following day. The warning was in place because part owner, Mr Jon Habraken was on the ‘Unpaid Forfeiture List’ and the horse was therefore ineligible to race in the workout heat.

[19] It was Mr Kirkwood’s evidence that he contacted Mr Habraken (Snr) and advised him the horse was unable to start. According to Mr Kirkwood, Mr Habraken responded by “yelling at me” and Mr Habraken told him that he would be taking his horse to the workouts. In response Mr Kirkwood said that he advised Senior Stipendiary Steward, Mr John Muirhead.

[20] The horse I EXPECT BETTOR was removed from the workout heat.

[21] Mr Habraken was afforded but declined the opportunity to cross examine Mr Kirkwood via phone. However, in response he stated that on 17 September 2020 he notified HRNZ that his horse, I EXPECT BETTOR, was in work and believed that that notification should have raised a ‘red flag’ concerning the horse’s ownership, but he said, he never heard back from HRNZ and therefore thought it okay to proceed with the horse’s training preparation.

[22] Mr Habraken further commented that he believed the Pukekohe workouts are unofficial and inferred ‘officials’ therefore had no jurisdiction over the running of the workouts. In support of this claim he produced an email addressed to his wife from an unknown source which he said originated from HRNZ – the email included the following information:

“These workouts are UNOFFICIAL and NOT usually subject to stipendiary control. Harness Racing New Zealand Inc. advises that we are unable to verify any of this information. For any queries regarding workouts contact the club concerned: Auckland Trotting Club Inc.”.

[23] In response to this statement the Committee pointed out to Mr Habraken the provisions of Rule 714 which relates to Trial Meetings and Workouts. The rule provides that:

(1) These Rules so far as they are applicable shall apply to all trials meeting and workouts.

(2) A Stipendiary Steward or Racecourse Inspector may exercise any power or duty of a Stipendiary Steward or Racecourse Inspector in respect of any matter arising at or in connection with a workout.

Witness – Senior Stipendiary Steward Mr John Muirhead (RIU)

[24] The Committee heard detailed evidence from Mr Muirhead, a Senior Stipendiary Steward. His evidence was as follows:

[25] Mr Muirhead said he has been employed in this role for 37 years and part of his role as a Stipendiary Steward is the running of Harness Racing workout/trials meetings under the Rules.

[26] He said on Friday the 25th September 2020, as a result of information received via phone from Mr Cameron Kirkwood (HRNZ) regarding Mr Habraken (a Harness Licence Holder), he learnt that Mr Habraken was ineligible to run his horse I EXPECT BETTOR at the Franklin Park workouts on the Saturday the 26th September 2020 due to his son, Mr Jon Habraken, being on the Unpaid Forfeiture List – (his son owns a share in the horse mentioned).

[27] Mr Muirhead said that this information, was later confirmed to him in an email from Mr Kirkwood. In response, Mr Muirhead said he left a message with Mr Habraken, who later responded. Mr Muirhead said he advised Mr Habraken that HRNZ had removed his horse, I EXPECT BETTOR, from the workout heat programmed for the next day and Mr Habraken indicated it was still his intention to start the horse despite being withdrawn. Mr Muirhead said he advised him that he should not attempt to do this as he would be in breach of the Rules. 

[28] Mr Muirhead said that he suggested a remedy to Mr Habraken namely, that he should apply to have his son’s ownership share transferred into his and/or his wife’s name, which would then allow him to continue on with the horse’s preparation.

[29] Mr Muirhead added that Mr Habraken’s demeanour during this conversation varied between being calm, angry, abusive and emotionally upset. He said that Mr Habraken, during this conversation referred to his son and his dealings with HRNZ, RIU and the JCA on a number of occasions and his behaviour was of such a concern to him that he took active steps to arrange welfare follow-up.

[30] Mr Muirhead told the Committee that the following day, Saturday 26th September 2020, he attended the workout meeting at the Franklin Park Training Centre in Pukekohe. He said that Mr Habraken was competing in Race 1 with his horse IDEAL LINCOLN and he noted another horse partially geared up in the next stall which he later confirmed as the horse I EXPECT BETTOR, the horse which was the subject of the phone conversation the previous day. Mr Muirhead said that he was concerned that Mr Habraken would attempt to start the horse as he threatened to do. He said under the circumstances, he deemed it prudent to obtain his audio recorder to capture the conversation between Mr Habraken and himself.

[31] After competing in race 1 Mr Habraken returned to his stall and he spoke to him concerning his intentions regarding I EXPECT BETTOR.

[32] This conversation was recorded, (produced as an exhibit) and played during the hearing. The conversation continued for some time during which Mr Habraken used the language, which was the basis of the misconduct, as alleged in the charging document.

[33] There was value in the Committee hearing the audio of taped conversation as it provided a good indication of the tone, nature and context of what was actually said by both parties to the conversation.

[34] We do not intend to repeat in detail everything that was said other than provide a brief summary as outlined below of the salient points relevant to the charge. This we believe provides an indication of the language alleged to have been used by Mr Habraken:

“F…ing bullshit”, “You can F….. sort that out”, “this “F….. thing is going out I told you this F….. thing is going out there”, “No – you’re not F….. listening”, “we haven’t F….. ignored it”, “It does F….. work like that”, “No – Get F….ed”, “ It doesn’t F….. matter about us”, “It F….. doesn’t matter”.

[35] Mr Muirhead said that Mr Habraken, was shouting when using the language complained of and he said it could clearly be heard by people in the vicinity.

Mr Muirhead said, I observed him during the remainder of the trials meeting from the Stewards viewing position and Mr Habraken did not attempt to start the horse in any of the remaining heats.

[36] Mr Muirhead said that after giving the matter some thought he lodged a complaint against Mr Habraken. Mr Muirhead concluded his evidence by adding that it is not standard practice for interviewees to be advised by Stewards that their conversations are recorded.

[37] Mr Habraken, in cross examination put a number of statements to Mr Muirhead. The thrust of those statements concerned the fact that he did not know his son, Jon, was on the Unpaid Forfeiture List.

Witness – RIU Investigator Mr O Westerlund (RIU)

[38] Mr Westerlund said that he interviewed Mr Habraken on Tuesday the 29th September 2020 and the interview was recorded with Mr Habraken’s knowledge. The duration of which was 35 minutes and a transcript was provided to the Committee.

[39] Mr Habraken indicated that he accepted the contents of the interview and but for some minor comments / amendments, Mr Westerlund’s evidence could be admitted by consent.

[40] Mr Habraken identified 3 changes that he sought to highlight arising from what he said during his interview, namely, (1) at page 4 for he wished to add that he did not know his son was on the Unpaid Forfeiture List; (2) at page 5 he had referred to his son’s fine (or order for costs) as a “misdemeanour” and wished to change the word misdemeanour to “penalty”; and (3) at page 6 he said that he meant to highlight that fact that his son, Jon, had a betting problem.

[41] Mr Westerlund advised the Committee that by way of explanation, Mr Habraken stated that it was the phone call from HRNZ that triggered his anger, i.e. the call advising that he was not permitted to race the horse at the workouts and the follow up phone call and the visit at the workouts by Mr Muirhead were part of his ongoing anger.

[42] The majority of the interview focused on Mr Habraken’s concern about the outcome of the case relating to his son, Jon who had been charged with aiding (a betting offence) by another licence holder.

[43] The Committee notes that it is clear from Mr Habraken’s interview responses that this has caused him some considerable and ongoing grief and anxiety. The Committee senses that this is at the root cause of his reaction to his encounter with Mr Muirhead and perhaps it goes some way to explain why he reacted in the manner that he did.

[44] Mr Habraken did not have any questions of Mr Westerlund in cross examination.

Evidence – Respondent

[45] Mr Habraken opened his case by stating that he has no trust in the ‘system’. He then made the following statements:

• HRNZ is the perpetrator as there was no ‘red flag’ concerning any issues with the ownership of the horse, I EXPECT BETTOR.

• There was no notification concerning the Unpaid Forfeiture List.

• John Muirhead should have handled the situation differently; and

• The workouts are not official, again referring to the advisory from the unknown source concerning the status of the workouts.

[46] Mr Habraken made further statements alleging he has been ‘set up’ by HRNZ to get at his son Jon and ‘they’ are trying to make an example of him. He continued to make a number of similar uncorroborated statements but at no time did he, in any meaningful way, address the substance of the charge, i.e. the language he directed at Mr Muirhead.

[47] Under cross examination from Mr Grimstone, when asked if he thought his behaviour was acceptable, Mr Habraken responded “not really”.

Witness – Mr B Hughes (Trainer)

[48] Mr B Hughes, a Licensed Trainer with more than 45 years’ experience in the Harness industry, gave evidence on behalf of Mr Habraken. It was his evidence that he was present in the stabling area when at the Pukekohe workouts.

[49] Mr Hughes said that, from 20 boxes away, he heard some of the conversation between Mr Muirhead and Mr Habraken. It was his view that “it should have been conducted behind closed doors, and it may have had a different outcome”.

[50] He added that he had no comment to make about what was said but believed that John Muirhead should have walked away, and it could have been handled in a more professional manner.

Summing up – Informant

[51] In summing up the Informant’s case, Mr Grimstone made the following submissions:

• That trials are covered by Rule 714 and Stewards do have jurisdiction.

• That the taped conversation is self-explanatory and is evidence that Mr Muirhead was just doing his job.

• That it is unacceptable that any Official is subject to the abuse, and such behaviour must be denounced.

• That the Committee should determine Mr Habraken’s behaviour to be misconduct.

Summing up – Respondent

[52] In summing up, Mr Habraken made the following submissions:

• That as a part-owner in the horse I EXPECT BETTOR, he should have been advised his son was on the Unpaid Forfeiture List.

• That there was no ‘red flag’ warning from HRNZ concerning the Unpaid Forfeiture List.

• That John Muirhead’s approach was heavy handed and he should have walked away.

[53] Prior to adjourning to deliberate Mr Habraken was asked if he regretted his behaviour on the day and in response he said, “of course I do”.

Exhibits

[54] The schedule of exhibits produced is as follows:

(a) Unpaid Forfeiture List – Arrears due to HRNZ produced by witness, Mr Kirkwood

(b) Audio recording of interview - Muirhead and Habraken produced by witness, Mr Muirhead

(c) Workout fields for 26.09.20 – produced by witness, Mr Muirhead

(d) Audio recording of Interview – Westerlund and Habraken produced by witness, Mr Westerlund

(e) Authority to prosecute letter – produced by witness, Mr Westerlund

(f) Email addressed to Catherine Nicola Habraken (details deleted) <……@hot.mail.com> concerning workouts produced by the Respondent, Mr Habraken

(g) Email attachment concerning the status of the horse IDEAL ZEN Heat 5 – submitted by the Respondent as part of his penalty submissions.

Decision and reasons

Decision

[55] The (Misconduct) Rule 303(2) provides that “No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stable-hand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward…..”.

[56] The elements of the charge against Mr Habraken that must be proved are therefore that:

(a) being a licensed trainer (under the Rules);

(b) he did misconduct himself on 26 September 2020 at Franklin Park Training Centre;

(c) by using abusive language towards Senior Stipendiary Steward, Mr John Muirhead.

[57] After carefully considering the totality of the evidence and submissions of both the Informant and Respondent the Committee found that in the circumstances Mr Habraken’s repeated use of expletives, directed at Mr Muirhead does amount to misconduct.

[58] The Committee consequently finds the charge proved to the requisite standard.

Reasons

[59] Mr Habraken is a licensed horse trainer and as such he has an obligation to adhere to the Rules. This is made clear within Rule 102(1) which provides that:

These Rules shall apply to all Races and Race Meetings and shall apply to and be binding on:-

(c) all licensed persons and all persons working in or about any harness racing stable or associated with the management, care, control or superintendence of harness racing horses and their training or riding or driving;

(o) every person who so acts as to bring himself within the purview of these Rules.

[60] In part Mr Habraken’s defense to the charge was essentially that the Pukekohe workouts are ‘unofficial’ and therefore Mr Muirhead had no jurisdiction to question him. Mr Habraken produced an email from an unknown source in support of his claim. Unfortunately, the information given to Mr Habraken is erroneous as it is not in conformity with Rules. We touched on this aspect earlier in this decision, but for the sake of clarity we repeat that Rule 714(1) makes it clear that HRNZ Rules are applicable to ‘Trials and Workouts’. The Rule also makes clear that a Stipendiary Steward may exercise any power or duty in respect of any matter occurring at a workout.

[61] Accordingly, Senior Stipendiary Steward, Mr Muirhead was correctly authorised and well within the bounds of his duties to attend the workout and moreover he was, in our view, entitled to speak with Mr Habraken, concerning his intention to run his horse after being directed, the previous day not to do so. The Rules of Racing provide Stipendiary Stewards with broad powers enabling them to speak with Industry participants concerning racing matters. For example, r 201 provides:

(2) At any time, a Stipendiary Steward shall, in addition to all other powers conferred on him by these Rules, have power to:-

(a) question any person and require any person to, supply any information within their knowledge or possession, or to make a written declaration (statutory or otherwise) or statement, respecting any matter connected with harness racing or otherwise being investigated by a Stipendiary Steward or Racecourse Inspector;

[62] Mr Habraken provided detailed background information during his interview with Investigator Westerlund as to why he reacted and behaved in the manner he did when questioned by Mr Muirhead. Much of this, it was said, was to do with his resentment concerning the case against his son, and on that point the Committee accepts that the outcome of his son’s case has continued to cause Mr Habraken some considerable anxiety and grief.

[63] However, whilst this is helpful in explaining why Mr Habraken reacted towards Mr Muirhead, by no means does it justify the language used.

[64] The Committee has listened to the recorded interview and read the transcript. The language used was loud, aggressive, abusive and prolonged- with the ‘F’ word being directed toward Mr Muirhead on no fewer than 17 occasions, which we deem totally unacceptable. Moreover, in the context of the conversation the tone and use of the language was unnecessary and disproportionate.

[65] Mr Habraken in his submissions indicated that Muirhead was heavy handed and he should have walked away. This comment is not supported by the taped evidence and in fact we find that the aggression was led by Mr Habraken, who in his second sentence in response to a query from Mr Muirhead, commenced to use the ‘F’ word.

[66] The Committee appreciates that the question of whether the words used by Mr Habraken amount to misconduct must be considered in light of the time, place and context. Whilst the use of an occasional or one-off expletive may be acceptable in some settings, the repeated use directed at an Official in the execution of their duty is rarely acceptable or indeed justified. It was the evidence of both Mr Hughes and Mr Muirhead that the verbal exchange between Mr Habraken and Mr Muirhead could be clearly heard - Mr Hughes said he was 20 boxes away. We were also told that other owners, Trainers and Officials were in the vicinity and would have clearly been within hearing distance. 

[67] Mr Habraken submitted that Mr Muirhead could have or should have simply walked away. Perhaps in hindsight it is true that Mr Muirhead could have picked a more opportune time and place, but equally, Mr Habraken could have avoided the outburst by simply declining to answer any questions at that point in time, due to as he stated, being ‘busy ungearing his horse’.

[68] In the Supreme Court case, Brooker v Police it was said that in order to warrant intervention of the criminal law, the conduct (language in this case) must be at a level which is beyond what a reasonable citizen should be expected to bear. Whilst this case is being heard in a disciplinary setting (and not one requiring intervention of the criminal law), we believe that the language which was directed at Mr Muirhead in his official capacity is well beyond what an Official should reasonably be expected to bear and therefore amounts to misconduct.

Penalty Submissions – Informant

[69] Mr Grimstone provided the Committee with written penalty submissions and in his oral submissions he reinforced the following points:

(a) That Mr Habraken has shown little or no remorse for his offending.

(b) That Mr Habraken needs to shoulder some of the responsibility for the issues he raised, rather than blaming others.

(c) That a fine of no less than $1,000 is sought by the RIU.

(d) That the only costs sought by the RIU are $220.50 for transcribing the recording.

[70] The RIU’s written submissions highlighted the following points:

That the three key sentencing principles for the Committee to consider are:

(a) That penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense the punishment is disproportionate to the offence, but the offender must be met with a punishment.

(b) That in a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences; and

(c) That the penalty should also reflect the disapproval of the JCA for the type of offending in question.

Mitigating factors raised by the Informant

[71] That Mr Habraken has no previous breach of the Rules for Misconduct.

Aggravating factors raised by the Informant

[72] That Mr Habraken has been involved in the Harness Racing Industry for some time and knows the importance of conducting himself in a professional manner and maintaining the integrity of racing.

[73] That the abusive language used towards a Stipendiary Steward in the stabling area where other Trainers, Drivers and other participants were present, does not reflect well on Harness Racing.

Precedent cases

[74] Mr Grimstone submitted that The JCA guidelines on penalty (2015) for Harness Racing do not list a starting point for the general charge of misconduct, however for the serious racing offence of directing offensive language to a Steward – Rule 1001(1)(v)(ii) – the starting point is a $1,500 fine. The starting point for general misconduct under the Thoroughbred Racing Guidelines is ‘fact dependent’ with the serious racing offence of Offensive Language to a Steward is also a $1,500 fine. It can therefore be inferred that the starting point for general misconduct for Harness Racing is also ‘fact dependent’.

[75] The following charges of misconduct have resulted in fines ranging from $400 - $2,000:

RIU v B Orange (2020) – Misconducted himself by repeatedly telling RIU staff to f… off when lawfully investigating a racing matter. Total fine imposed of $1,000.

RIU v S Dickson (2017) – Misconducted himself by using abusive language and failed to comply with the direction of a Stipendiary Steward. Total fine imposed of $850.

RIU v S Lethaby (2010) – HR Open Horseman – Misconducted himself by swearing in the Stewards room and failed to remain when ordered to do so. Total fine imposed of $650.

RIU v R Nyan (2009) – HR Open Horseman - Misconducted himself by using insulting language to a Steward. Total fine imposed of $400.

RIU v M Walker (2009) – Jockey – used insulting and threatening language to another jockey in the weighing area post inquiry. Total fine imposed of $2,000.

[76] In his concluding comments, it was submitted by Mr Grimstone that the RIU are mindful of the Appeals Tribunal Ruling in the case of RIU v Lawson where at [25] the Appeals Tribunal commented:

Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/and those who are to deal with the profession. Disciplinary sanctions are designed for some important different purposes, and although guidance can be gained from the criminal jurisdiction, there are broader considerations.

The Harness and Thoroughbred racing "industry " is a profession where key participants are required to be licensed in order to practice in various ways within that sphere. Comprehensive rules of practice, behaviour, procedure and the like are set down in extensive detail in the Rules which govern the codes and behaviour. As with most professions, a careful internal disciplinary and regulatory process is set up. Those who practice within professions (whether law, accountancy, medicine, teaching, real estate, and the like) are subject to sanctions for breaches of standards of conduct or rules designed to protect members of the profession as well as the public. Such sanctions can at the highest end include removal from a profession for serious breaches of professional rules and standards involving dishonest or immoral conduct. Such behaviour if unchecked may greatly harm the reputation of the profession and "bring it into disrepute" – that is, the public loses

[77] It was submitted that the Lawson Appeal decision marks a clear shift in the approach in imposing sanctions for a breach of racing Rules and correctly brings a disciplinary approach. The RIU does not consider the Respondent to be a habitual offender and nor to be a person of low moral character that he would bring the Harness Racing Code to ‘disrepute’ should he remain in this profession.

[78] Mr Grimstone submitted the RIU believes however that breaches of the Rules should be penalised and that such penalty should reflect the Industry’s ‘clean racing’ image and to remind participants of their obligations under the Rules and precedents set.

Penalty Submissions – Respondent

[79] After penalty submissions were lodged by the Informant, Mr Habraken was afforded the opportunity to provide written submissions. He accepted this offer and his written submission was received by the Committee on 18 November 2020.

[80] Mr Habraken submits that Mr Kirkwood, Mr Muirhead and himself are equally blameworthy as all three had a part to play.

[81] He reiterated his early concern that he ought to have been notified by HRNZ that his son had been placed on the Unpaid Forfeit List, and further that they should have advised him earlier that he could not race I EXPECT BETTOR until his son’s name was removed from the ownership papers.

[82] Mr Habraken further submits that there were no ‘red flags’ raised concerning I EXPECT BETTOR’s ownership and therefore some of the fault rests with HRNZ.

[83] Mr Habraken submits that the conversation between Mr Muirhead and himself (on 26 September 2020) should never have been dealt with in a public area and that Mr Muirhead should have walked away to avoid further confrontation. He added that the whole issue could have been handled in a different manner.

[84] Mr Habraken submitted that the horse was nominated for the workout; no money was at stake and nor was the TAB involved. He contends that an agreement could (or should) have been reached to allow him to run his horse and the ownership issue could have been sorted out later. By way of example of having an issue or irregularity sorted out later, Mr Habraken submitted the Workout Sheet’ for Heat 5 and pointed to the fact that horse No 3 (IDEAL ZEN) was permitted to start in that heat without having confirmed trainer or colours registration.

[85] Mr Habraken repeated that the approach was heavy handed and added that he has been involved in the Harness Industry for 40 plus years and has not had any other issues.

[86] In conclusion, Mr Habraken submitted that due to there being a number of factors created by the other parties prior to the argument he seeks the matter to be dealt with by way of diversion as opposed to the $1,000 fine sought by the RIU.

Discussion and Penalty Decision

[87] We have found the charge of misconduct proved. The JCA Penalty Guide does not specify a starting point for misconduct as a breach of this nature can cover a multitude of situations and penalties need to take into account specific factors concerning culpability and the personal circumstances of the Respondent. Accordingly, any penalty should quite properly be treated as fact dependent.

[88] Much of the hearing time was consumed with discussion and evidence of matters leading up to the confrontation. Some of this was useful to the extent it explained why Mr Habraken was irritated and why Mr Habraken’s evidence and submissions focused on these issues.

[89] However, at no point has Mr Habraken addressed the language and abuse he directed at Mr Muirhead. Nor has he demonstrated any genuine remorse.

[90] We have reflected on the various precedent cases that were submitted for our consideration and determined that the circumstances in the case of the RIU v Orange (2020) most closely matches this matter in terms of the language used, albeit there are some points of difference between the two cases. The most glaring difference being that Mr Orange admitted the breach at the first available opportunity; he wrote a letter of apology and agreed for the matter to be dealt with on the papers thus eliminating the costs associated with a full hearing. These mitigating factors we understand ultimately would have contributed to the resultant of a $1,000 fine from the $1,500 starting point which the Judicial Committee in that case adopted.

[91] In this case there is an absence of any such mitigating factors. Mr Habraken, as he was entitled to do, entered no plea and the case was dealt with as a defended matter. And as has already been highlighted Mr Habraken has shown no remorse and continues to blame others for the situation that led to him directing expletives at Mr Muirhead. We have no sense that he has accepted any accountability whatsoever for his conduct and therefore, these factors, in our view are aggravating features.

[92] Mr Habraken has been involved in the Harness Industry for more than 40 years and he has an unblemished record. We have therefore treated his commendable record as a mitigating factor. There are no other mitigating factors for our consideration.

[93] Mr Habraken has requested that we consider diversion as an appropriate penalty. Diversion is a tool used by New Zealand Police (NZP), with the support of the Courts to dispense with a case where certain preconditions are met. According to the NZP website, under the Police Adult Diversion Scheme, some offenders who have been charged are dealt with in an 'out of court' way. If an offender completes agreed conditions the Prosecutor can seek to have the charge withdrawn and a conviction will not be recorded.

[94] The preconditions for diversion are:

• generally, it is the offender's first offence

• the offence is not serious

• the offender has accepted full responsibility for the offences as described in the summary of facts

• the offender agrees to the terms (conditions) of diversion.

[95] This Committee is not empowered to offer Mr Habraken diversion, but even if it was an option, he would not qualify due to his failure to accept responsibility or admit wrongdoing.

[96] In the Orange case the starting point was a $1,500 fine and we have adopted this figure as our starting point. The RIU has sought a fine of no less than $1,000. In our view Mr Habraken’s conduct is more serious and therefore he is more culpable than was Mr Orange.

[97] The penalty we impose must be proportionate and balance the need to denounce misconduct of this nature and act as a deterrent. There would chaos if Industry participants were able to abuse Officials without being held to account or penalised. Therefore, we determine that a fine less than $1,500 but more than $1,000 is appropriate in the circumstances of this case.

[98] In the final result we impose a fine of $1,250 and order costs as set out below.

Costs

[99] The RIU have sought costs of $220.50 for transcribing the audio recording. No other costs associated with the hearing have been sought by the RIU.

[100] Accordingly, we order that this sum ($220.50) be paid by the Respondent to the RIU.

[101] In addition, the Respondent is ordered to pay $400 to the JCA as a contribution towards its costs.

Dated at Auckland this 26th day of November 2020

Gavin Jones

(Chairman)

_______________________________________________________________________________________________                                                                 
Addendum No 1

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) – (Mr O Westerlund)

Informant

AND Hendricus Josephus Habraken

Licensed Harness Trainer

Respondent

Information No: A8485

Judicial Committee: Mr G R Jones, Chair and Mr B Scott, Member

Teleconference at 4.00 pm on Tuesday 27 October 2020

Present: Mr O Westerlund and Mr Habraken

MINUTE OF JUDICIAL COMMITTEE DATED 27 OCTOBER 2020

Introduction

[1] A teleconference was convened by the Judicial Committee (“the Committee”) at 4 pm on 27 October 2020.

[2] It was noted by the Committee that Mr Habraken had endorsed on the Information (No. A8485), that he ‘entered no plea’ to the charge. The hearing of this Information has been set down to be heard prior to race 1 at the Waikato RC meeting on Saturday 7 November 2020. Mr Habraken’s plea to the charge will have a bearing on both logistics and the viability of hearing the charge prior to the commencement of the raceday meeting.

[3] The purpose of this teleconference was therefore to establish how Mr Habraken intends to plead when the charge is heard. A further purpose was to set out the proposed conduct for hearing and answer any queries from the informant and/or Respondent.

Outcome of Teleconference

[4] Mr Habraken confirmed that he proposes to enter ‘no plea’ to the charge. His rationale being that he says he has “no confidence in the system”. On that basis the Committee is treating this matter as a denied breach and will require evidence to be heard in support of the charge.

[5] The Committee was advised that the RIU intended to call 3 witnesses and Mr Habraken none, but he asked that his wife attend as a support person. The Committee has no objections to Mrs Habraken attending the hearing in a support role.

[6] As a consequence it was determined the matter could not be expeditiously dealt with on a raceday and some discussion followed before agreeing on a suitable hearing time, date and place.

[7] The following was agreed:

Date: Thursday 12 November 2020

Time: 10 30am

Place: Stewards room, Pukekohe racetrack (thoroughbred)

[8] It was further agreed that the RIU will provide a transcript of a tape-recorded conversation between Mr Muirhead and Mr Habraken, as well as any other documents not included in the initial disclosure package. Such documents are to be forwarded to the Executive Office: JCA.

G R Jones (Chair)

27 October 2020

_______________________________________________________________________________________________ 
Addendum No 2

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) – (Mr O Westerlund)

Informant

AND Hendricus Josephus Habraken

Licensed Harness Trainer

Respondent

Information No: A8485

Judicial Committee: Mr G R Jones, Chair and Mr B Scott, Member

Present: Mr Grimstone (Prosecutor), Mr O Westerlund and Mr and Mrs Habraken

RULING OF JUDICIAL COMMITTEE DATED 12 NOVEMBER 2020

Introduction

[1] Prior to hearing evidence from Senior Stipendiary Steward Mr John Muirhead, Mr Habraken advised the Committee that he objected to the admissibility of the taped conversation / interview that took place between Mr Muirhead and Mr Habraken at the Franklin Park Training Centre on 26 September 2020.

[2] In order to resolve this the Committee sought submissions from Mr Habraken and Mr Grimstone, after which we adjourned and made this ruling in relation to the objection.

Submissions

[3] Mr Habraken submitted that he objected to the evidence of the taped conversation because he was not advised beforehand that it was being taped. He added that “what he said is what happened”. Mr Habraken further submitted that he disputes the conversation was an interview….rather he says “it was straight out; you listen to me and do as you are told”.

[4] Mrs Habraken confirmed that they object to the interview being played because he (Mr Habraken) was not told it was being taped. She added “we don’t object to what was said”.

[5] Mr Grimstone submitted that:

• It is critical to the RIU case that the taped evidence is admitted.

• It is the ‘best evidence’.

• It is good practice to record interviews to avoid situations where what is said is later disputed

• There must be a record of what was said.

• The RIU position is that it is fair and reasonable and it provides context.

[5] In response to a query from the Committee we were told that the RIU does not have a specific interview / recording policy, but all Stewards and Investigators have been provided with devices for the purpose of recording interviews.

Decision and reasons

[6] It is well established that a Judicial Committee is permitted to allow evidence to be given that may otherwise not be admissible in a Court of Law. Although Committees are not bound by the Evidence Act 2006, it nevertheless remains a is a useful guide. The important consideration for the Committee is that evidence is fair, relevant and natural justice is served. These points are reinforced not only in the Guide for Judicial Committees, but also in the Rules of Racing (in particular Fifth Schedule of the Rules of Harness Racing).

[7] Whist it is not unlawful or illegal per sue, for a conversation to be taped between two people by one of the parties to that conversation, the fairness of doing so needs to be considered on a case by case basis taking into account the totality of the circumstances and context that gave rise to the recording.

[8] We understand that in this case Senior Stipendiary Steward Muirhead deemed it necessary and prudent to record conversation between himself and Mr Habraken due to the nature of a conversation they had the day before.

[9] Although all RIU Stewards and Investigators have been supplied with recording devices there is no specific policy on their use for evidential purposes or when seeking a voluntary interview of a ‘person of interest’.

[10] When seeking to undertake a voluntary interview it is good practice for the interviewer to seek consent and to advise the interviewee that it is proposed to record the interview by way of recorder. In doing so it demonstrates good faith and may negate any actual or potential perception of a heavy-handed approach.

[11] In this case Mr Habraken was not afforded the opportunity to consent or give his permission to the use of the recorder, and therefore, on the face of it we can understand his objection. The question(s) for this Committee to consider are; (1) did that failure result in a breach of good faith or fairness thus tainting the interview; (2) is the taped conversation relevant; and (3) is Mr Habraken now disadvantaged in his defence by the introduction of the taped conversation.

[12] As we alluded to earlier, this Committee can admit evidence as we see fit and at our discretion. We note the comments of Mr Habraken that he thought his interaction with Mr Muirhead was a conversation, rather than an interview, and that he does accept that “what was said is what happened”. This was also reinforced by Mrs Habraken who said that they object to being taped, but “we don’t object to what was said”.

[13] Given what had occurred and what was said during the phone conversation between Mr Muirhead and Mr Habraken the day before, we believe the follow up questions by Mr Muirhead ought not have come as a surprise. Mr Muirhead as an ‘Official’ acting in his capacity and within his jurisdiction as a Senior Stipendiary Steward, had every right to question Mr Habraken (a licensed trainer). Under the circumstances, we would have thought there was a reasonable expectation that Mr Muirhead was going to record the conversation, either in writing or on a recording device.

[14] Further there is no complaint or objection about the contents of the taped conversation,

[15] We note:

a) That as a matter of good practice Mr Muirhead should have at least advised Mr Habraken that he intended to record the conversation.

b) That the contents of the conversation provide context to the charge and are relevant.

c) That the admission of the taped evidence does not unfairly prejudice Mr Habraken in his defence, as his defence is not solely based on what was said, in fact there is an acceptance that “what was said is what happened”.

[12] Having carefully considered all these factors the Committee allows the evidence of the taped conversation to be admitted.

G R Jones (Chair)

13 November 2020

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