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Non Raceday Inquiry RIU v J McCook - Penalty Decision dated 27 February 2019 - Chair, Mr R McKenzie

Created on 28 February 2019

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Greyhound Racing New Zealand Rules of Racing

IN THE MATTER of Information No. A10827

BETWEEN S W WALLIS, Senior Stipendiary Steward for the Racing Integrity Unit

Informant

AND JANINE M McCOOK (formerly Jopson) of Darfield, Trainer

Respondent

Date of Hearing: 22 February 2019

Venue: Addington Raceway, Christchurch

Judicial Committee: R G McKenzie (Chair)

D M Jackson

Present: Mr S W Wallis, the Informant

Mrs J M McCook, the Respondent

Mr A McCook

Mr R A Quirk, Registrar

Date of Decision: 27 February 2019

PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A8904 alleges that the Respondent, Mrs McCook, committed a breach of Rule 84 and The Welfare Code paragraph 6.2 in that, as a Licensed Public Trainer, she allowed greyhounds under her control to be transported in a transportation vehicle which did not have a current Warrant of Fitness.

[2] Mr Wallis produced a letter signed by Mr N G McIntyre, General Manager of Stewards, authorising the filing of the information pursuant to Rule 66.2 (a).

[3] The information was served on Mrs McCook on 9 January 2019. She had signed the Statement by the Respondent on the information form indicating that she admitted the breach.

[4] Mrs McCook was present at the hearing of the information. The charge, the Rule and the relevant provision of the Welfare Code were read to her and she indicated that she understood them and confirmed that she admitted the breach.

The Rule and Welfare Code

[5] Rule 84 provides as follows:

A Licensed Person shall at all times comply with the Welfare Code. In particular, and without limitation, the Licensed Person shall provide proper care and accommodation for the Greyhounds under his/her control and such accommodation shall be subject to the approval of the Association and be open to inspection by Officials or Stewards or Racecourse Investigators at any time.

Paragraph 6.2 of the Code of Welfare provides:

All transportation vehicles must hold current warrants or certificates of fitness.

The Facts

[6] Mr Wallis produced a number of photographs showing the trailer and the damage sustained by it and gave an explanation of each.

[7] Mr Wallis then presented the following agreed Statement of Facts:

1. The Otago Greyhound Racing Club held a race meeting at Forbury Park Raceway on the 1st January 2019.

2. The Respondent, Licensed Trainer Mrs Janine McCook from Hororata, Christchurch, had 12 greyhounds engaged to race at the meeting. 

3. They were taken to the race meeting by means of a van and trailer by Licensed Trainer Mr Corey Steele and riding with him on the day was Licensed Person Mr Blair Shaw and Mr Shaw’s son, Lachie.

4. The trailer was a white tandem axle home-built trailer Registration Number B624J. This trailer was borrowed from Licensed Trainer Miss Jasmine Tanner from Chertsey. Miss Tanner’s mother is the registered owner of the trailer.

5. This trailer had a registration valid through to 6th October 2019 and it had a warrant of fitness that had expired on 22nd January 2017, although Mrs McCook believed it to have a current warrant of fitness. (Mr Wallis explained that he had made enquiries and had learned that a trailer weighing less than 3,500 kilograms can obtain a registration certificate without proof of a current warrant of fitness).

6. In it were six racing greyhounds namely, CORNALI, EL HAPPY JACK, EPIC OWEN, SHOE FLY, SLY BET and TUBBY KEVIE.

7. Approximately 15 kilometres north of Hampden, the trailer became detached from the drawbar and veered across two lanes of road before crashing into the bank on the far side of the road, coming to rest on its side in the middle of the road. (Mr Wallis explained that the drawbar had not become detached but rather had broken or snapped).

8. Mr Steele, Mr Shaw and Master Shaw then commenced to right the trailer and push it to the side if the road, away from any oncoming traffic.

9. The greyhounds were then attended to and placed in the van and brought to the track. The trailer was left in a safe place on the side of the road to be picked up the following day.

10. Veterinary examinations at the track of the greyhounds involved various injuries as detailed below:

CORNALI – grazes to face – 7 day stand down

EL HAPPY JACK – abrasions to right-front wrist – 14 day stand down

EPIC OWEN – small abrasion to face and shoulder – 14 day stand down

SHOE FLY – general bruising – 7 day stand down

TUBBY KEVIE – abrasions left arm (large area) – 21 day stand down

SHOE FLY – initially presented with haematoma to its right lateral thorax. However, this greyhound’s condition deteriorated through the course of the day, becoming pale with an increased respiratory effort. It was taken to the Mornington Veterinary Clinic where it was put straight on IV saline shock fluids and given morphine. There was concern of possible pneumothorax and, although some air was relieved through thoracentesis, the greyhound was still in a lot of pain/discomfort, gasping and pupils becoming dilated. With Mrs McCook’s permission, SHOE FLY was euthanised.

11. Mr Steele arranged for the other greyhounds to be transported home with other trainers.

Decision

[8] Mrs McCook having admitted the charge, it was found proved.

Penalty Submissions of the Informant

[9] Mr Wallis presented the following penalty submissions to the hearing:

1. Mrs McCook has been charged with a breach of Greyhound Racing New Zealand Rule 84, that on the 1st January 2019, being a Licenced Public Trainer, she failed to comply with the Greyhound Code of Welfare 2018 by failing to provide proper care for greyhounds under her control.

2. Mrs McCook has been charged with and admitted to breaching this Rule, and in particular Welfare Standard 6 which reads;

6.1 Greyhounds must always be transported in modes of transport that do not cause injury or distress.

Modes of transport may include:

a. Enclosed, insulated, ventilated trailer:

b. In a car with owner or handler; or

c. In a rear compartment of a station wagon, van or bus.

Modes of transport that are not suitable include but are not limited to:

a. Wire cages in trailers or utilities, open to the elements.

c. Non-ventilated or non-insulted trailers.

6.2 All transportation vehicles must hold current warrants or certificates of fitness.

3. Mrs McCook has failed to provide the six greyhounds named earlier proper care by allowing them to be transported in a trailer which had not held a Warrant of Fitness and had not done so for close to 2 years.

4. The trailer’s drawbar has become detached from the trailer at the same point on both sides.

5. As a result of the drawbar becoming detached, six greyhounds have been injured to various degrees and ultimately one greyhound, SHOE FLY, has had to be euthanised.

6. The RIU assesses the degree of culpability on Mrs McCook to ensure transportation vehicles she uses to transport her greyhounds as high end, ultimately, she is responsible for this and under GRNZ Rules she cannot delegate this responsibility to any other person.

7. The penalty imposed has to mark the seriousness of the breach, uphold the reputation of the greyhound industry, and hold the Respondent accountable for her actions/omissions. The death of a greyhound and injuries to five others, in itself, is a clear deterrent and hopefully a reminder to all industry participants the importance of having vehicles that are roadworthy when transporting greyhounds.

8. There are no other similar cases to compare this case to and penalties for these cases need to be fact dependant.

9. Mr Wallis brought to the Committee’s attention to RIU v M. In the M decision, the Committee, having had regard to the maximum penalty of $10,000 took a global starting point for mid-range breaches of $7500. M was subsequently fined the sum of $5000.

10. The RIU believes this breach has to fall in the high end of a breach of point 6.2 of the Welfare Code.

11. Although the act in transporting a greyhound in a non-warranted trailer in itself is only a low-end breach, the consequential effects on Mrs McCook’s greyhounds on this occasion, which has ultimately seen a greyhound euthanised, has to place the seriousness at the high end.

12. The RIU is submitting a fine of $1500 is appropriate. When coming to this figure Stewards have taken into account Mrs McCook’s clear record, the professional manner in which she has conducted herself and the adverse publicity for herself which could be seen to tarnish her good reputation within the industry.

13. A fine of this figure will act as a reminder to industry participants regarding their obligations to comply with the Welfare Code.

Submissions of the Respondent

[10] Mrs McCook presented the following written submissions to the hearing:

On the 31st December 2018 I borrowed a trailer off Miss Jasmine Tanner to travel my greyhounds south to Otago for the meeting on the 1st January. I decided to do this as I felt my trailer was not roadworthy enough for a big trip and thought it wiser to take up the offer of borrowing one that I thought was.

After picking up the trailer I proceeded to get it ready for travel checking the lights and tyre pressure etc and noticed the registration was well up to date. I didn’t check the warrant as I believed a vehicle had to be warranted to be able to be registered so I took it for granted that was also well up to date.

I was most upset when I found it to be the case that it wasn’t warranted. It had been presented for a warrant and needed a wheel bearing done which had been completed but it hadn’t been represented therefore no warrant. Miss Tanner was also mortified by this and obviously feels very upset also.

I have had it looked at by a couple of engineers and they believe that it was a manufacturer fault and a freak accident where it has snapped. There is no rust present and it wasn’t on a join the box section was just not strong enough to take the pressure they believe [sic].

This was a very distressing time with having these dogs injured and then losing SHOE FLY a nice race dog and a breeding proposition for myself and the owner after her racing career was finished.

I pride myself in taking care of my greyhounds and animal welfare is my primary concern. I would never knowingly put any of my dogs in danger as you will know I had recently fought a rule breach after withdrawing my greyhounds from racing on a track that I found most unsuitable and dangerous to their welfare in which we were successful in the hearing.

Before you consider the monetary penalty for me in this case please appreciate it has been a costly episode for me to have these dogs sidelined, losing SHOE FLY and now I am in the process of buying a new trailer for myself and Jasmine (Tanner) which will cost $23,600 each which I feel I have to do even though this was a freak accident.

[11] Mrs McCook, in reply to a question from the Committee, said that three of the surviving five greyhounds have resumed racing in the last few weeks and have been placed. Another is trialling and will probably race in the next few weeks. The remaining greyhound is a younger dog and she is taking her time with it, she said. All have made full recoveries.

[12] When asked by the Committee, Mrs McCook said that she had borrowed the same trailer previously.

[13] Mr McCook told the hearing that he had spoken to engineers subsequent to the accident and was informed that the boxing on the trailer was square (50mm x 50mm) as opposed to rectangular (50mm x 70mm). Rectangular boxing was stronger and less likely to snap, he said. Referring to the photographs that had been produced to the hearing, Mr McCook submitted that there was no rust evident. It had been a “freak accident”, he submitted. He further submitted that the photographs confirmed that the trailer had stood up well to the accident and showed it was otherwise in good condition. The trailer had been built in 2003, Mr Wallis said, referring to the registration sticker.

Reasons for Penalty

[14] The GRNZ Health and Welfare Standards (the Welfare Code) specifies the duty of care required to meet the physical, health and behavioural needs of greyhounds under the jurisdiction of GRNZ. The document supplements the Animal Welfare (Dogs) Code of Welfare, which is applicable to all dogs in New Zealand and must be read and adhered to in conjunction with these GRNZ specific standards.

[15] The agreed Summary of Facts reveals an unusual set of circumstances quite unlike any previous case to come before a Judicial Committee. It involves a breach of the New Zealand Greyhound Racing Association’s Code of Welfare, effective 1 August 2018.

[16] Mr Wallis was able to refer the Committee to only one previous case involving a breach of the Welfare Code, that of RIU v M (August 2018). We were able to gain only very limited assistance from that case, as the fact situation was quite different involving, as it did, the death of five greyhounds following a ferry crossing from Wellington to Picton and a van trip from Picton to Darfield.

[17] The Judicial Committee in M took a starting point for penalty of $7,500 for a mid-range breach based on the maximum fine of $10,000. In the event, M was fined the sum of $5,000. The Committee identified a number of respects in which M had failed to adhere to the Code of Welfare and provide proper care for his greyhounds.

[18] Mrs McCook and Mr McCook, at various times, each described what happened as a “freak accident” and that is not an unfair description. Of course, as the registered trainer of the greyhounds, Mrs McCook is the person ultimately responsible for the welfare of those greyhounds and Mrs McCook acknowledged this fact. She has failed to comply with the Code of Welfare and provide proper care for the greyhounds by failing to ensure that the trailer borrowed to transport the dogs to the race meeting in Dunedin had a current warrant of fitness, in breach of paragraph 6.2 of the Code.

[19] Such a breach might otherwise have been categorised as minor or low-end but for the consequences. Mrs McCook told us that she elected to transport the greyhounds in the borrowed trailer, notwithstanding that she herself owned a registered and warranted trailer, as she considered that the borrowed trailer was more suitable and, presumably, safer. She clearly meant well, and believed that the trailer had a current warrant of fitness as she had checked to see that it was registered. This shows some concern on her part for the welfare of the greyhounds but, unfortunately for her and those greyhounds, she omitted to check the currency of the warrant of fitness.

[20] It is quite possible, and somewhat ironic, that the defect in the trailer may well not have been detected, even in the most thorough of warrant checks, in which case this would truly have been a “freak accident” and Mrs McCook would not have been facing this charge.

[21] Mrs McCook impressed the Committee as being very remorseful over the incident. She has not attempted to deflect blame and readily admitted her responsibility before this Committee. We were told that she has conducted herself in a very professional manner during the course of the RIU investigation. We accept that she has also had her good reputation tarnished in the eyes of industry participants and the effect of this cannot be quantified in dollar terms. She has also lost a dog with a stud future, of which she owned a part share. We understand that this was Mrs McCook’s first breach of the Welfare Code.

[22] The consequences are high-end. Obviously, it is always a serious matter when greyhounds are unnecessarily injured or, worse, one loses its life through lack of proper care. The responsibility on trainers under the Code of Welfare is a very heavy one, as it must be, to ensure the welfare of the animals.

[23] The Penalty Guide does not contain any guidelines for Judicial Committees to determine an appropriate penalty for a breach of the Welfare Code. We can get only limited assistance from the earlier case of RIU v M, which is the only previous case of which we are aware.

[24] Weighing up all relevant factors, including the high-end consequences of the breach and, against that, the mitigating factors referred to in paragraph [21] above, the Committee has determined that an appropriate penalty is a fine of $1,000.

[25] This fine, we believe, will suffice to satisfy the general purposes of sentencing which are well-established – to hold the offender accountable for his/her actions, to promote in the offender a sense of responsibility, to denounce the conduct of the offender and to deter the offender or other persons from committing the same or a similar offence. The welfare of greyhounds is a paramount consideration. The Committee has also had regard, as always, to the important consideration of the need to maintain integrity and public confidence in Greyhound Racing.

Penalty

[26] Mrs McCook is fined the sum of $1,000.00.

Costs

[27] The matter was heard on a raceday and, therefore, there will be no order for costs.

R G McKenzie                   D M Jackson

Chair                                Panellist

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