You are here: Home / Non race day hearings / Non Raceday Inquiry RIU v J T McInerney - Reserved Decision dated 3 September 2020 - Chair, Mr R G McKenzie

Non Raceday Inquiry RIU v J T McInerney - Reserved Decision dated 3 September 2020 - Chair, Mr R G McKenzie

Created on 04 September 2020

BEFORE A JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT CHRISTCHURCH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association Incorporated

BETWEEN MICHAEL AUSTIN, Stipendiary Steward for Racing Integrity Unit

Informant

AND JOHN THOMAS McINERNEY of Darfield, Public Trainer

Respondent

Judicial Committee: R G McKenzie (Chair)

D J Anderson (Member)

Date of Hearing: 28 August 2020

Venue: Addington Raceway, Christchurch

Present: Mr S W Wallis, Chief Stipendiary Steward (Greyhound Racing), for the Informant

Mr J McInerney Jnr, representing the Respondent

Date of Decision: 3 September 2020

RESERVED DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A10907 filed by the Informant alleges that, at the meeting of Palmerston North Greyhound Racing Club at the Manawatu Raceway on 25 August 2020, Mr McInerney, as the trainer of the greyhound, HOMEBUSH CAPTAIN, presented that dog to race in race 2, in breach of rule 45.11, “1.6 kilograms down from his last race start on 28 July 2020. This being the fourth weight offence since a reset – rule 45.11 states that a greyhound must not have raced in the preceding 28 days of a meeting”.

[2] The Information was served on the raceday on kennel representative, Ms Sammy Stone, who signed the Statement by the Respondent on the Information form indicating that the breach of the rule was admitted.

[3] The hearing of the Information was adjourned and was heard at Addington Raceway, Christchurch, on 28 August 2020.

[4] At the outset of the hearing, Mr McInerney said that the charge was denied on the basis that the proviso to rule 45.12 should apply but it was not disputed that HOMEBUSH CAPTAIN had recorded a weight variance of more than 1.5 kilograms.

The Rules

[5] The relevant rules are as follows:

45.11 Where the weight of a Greyhound recorded at a Meeting varies by more than one and a half (1.5) kilograms from the weight recorded in a Race in which it last performed that Greyhound shall be permitted to compete in the current Race but the Trainer of the Greyhound shall be guilty of an Offence unless permission has been granted under Rule 45.12

45.12 Permission shall be granted by Stewards for a Greyhound recording a weight variance of more than one and a half (1.5) kilograms to start in a Race provided that such Greyhound has not performed in any Race during the preceding 28 days, and no fine shall be imposed. For the avoidance of doubt, the day of the dog’s last start shall be counted as a day for the purposes of the 28 days.

Submissions of the Informant

[6] Mr Wallis presented the following written submissions:

1. HOMEBUSH CAPTAIN was correctly entered and accepted as a starter in Race 2, the Total Bodyshop Supplies C1-410 metres, at the Palmerston North GRC’s meeting on the 25 August 2020.

2. HOMEBUSH CAPTAIN was presented for a mandatory pre-race veterinary examination and weighing by Licensed Handler and Kennel Representative, Ms Sammy Stone.

3. The Greyhound, after being weighed on two occasions, weighed in officially at 31.3kgs, this being down 1.6kgs from its most recent start on the 28 July 2020 where it recorded a weight of 32.9kgs.

4. The relevant rules are rules 45.11 and 45.12 – see para [5] above

5. For clarity, I will bring the Committee’s attention to the reference of “preceding 28 days” in GRNZ Rule 45.12. This dictates that Stewards count backwards 28 days from the day before the race day concerned and, “for the avoidance of doubt the day of the greyhound’s last start shall be counted as a day for the purpose of the 28 days”. (Mr Wallis produced a calendar showing the months of July and August 2020).

6. “Preceding” is defined in the “Collins Online Dictionary” as “that precedes; going or coming before”.

7. So, to summarise:

HOMEBUSH CAPTAIN is engaged to race on the 25 August 2020 -

(i) 28 days preceding this race day is the 28 July 2020;

(ii) This is counted backwards from the 24 August 2020 as it is the first day preceding the raceday on the 25th August 2020;

(iii) HOMEBUSH CAPTAIN’s last start was on the 28th July 2020 which is the 28th day from the 24th August 2020; and

(iv) Under GRNZ Rule 45.12 the greyhound had performed in the preceding 28 days and therefore Mr McInerney is guilty of an offence by presenting the greyhound with a variance of more than 1.5kgs

8. Given what I have presented to the Committee, it is clear that HOMEBUSH CAPTAIN was presented to race within the preceding 28 days from its last start on the 28 July 2020. Its weight was not contested and has officially been recorded down 1.6kgs from its last start. The Stewards on the day had no other option other than to issue a charge under this Rule and, with this, I respectfully submit to this Committee that the charge has to be found proven.

Submissions of the Respondent

[7] Mr McInerney said that the Respondent’s defence to the charge was based on the interpretation of rule 45.12. In essence, his submission was that the date of the offence (in this case, 25th August) should be included in the count of days, along with the date of the previous breach, for which the Rule specifically provides. It is anomalous, he submitted, for the Rule not to provide that both days are included – that is to say, 28th July and 25th August. The situation at the present time, as far as interpretation of the Rule is concerned, is unclear, Mr McInerney submitted. If the date of the breach (25th August) is to be included, then the breach would be outside of the 28 days.

[8] Mr McInerney was given the opportunity by the Committee to expand on that argument and some discussion took place involving Mr McInerney, Mr Wallis and the Committee.

[9] Mr McInerney, when asked by the Committee, confirmed that, when presenting HOMEBUSH CAPTAIN to race on 25th August, the kennel had done so based on their calculation that the 28-day period included 25th August, in other words, 25th August was the 29th day and, accordingly, the proviso to rule 45.12 applied. They were confident that the dog was able to race on 25th August, without the risk of a weight fine being imposed.

Decision

[10] The charge is found proved.

Reasons for Decision

[11] The sole matter for the Committee to decide, the Respondent having admitted that HOMEBUSH CAPTAIN had been presented to race at a weight 1.6 kilograms down from the weight recorded in the race in which it last performed, is whether a fine should be imposed or whether the proviso in Rule 45.12 applies.

[12] That proviso states that, if the dog in question has not performed in any race during the preceding 28 days, then no fine shall be imposed.

[13] For the purposes of the calculation of the 28-day period, Mr Wallis argued that, counting the days back from 25th August, excluding that date but including the date of the dog’s last race on 28th July, HOMEBUSH CAPTAIN had raced within the “preceding 28 days”.

[14] Mr McInerney, on the other hand, argued that it was illogical or anomalous that only the date of the dog’s previous start should be included in the count, but not the day of the offence. He said that he understood the Rule as interpreted by Mr Wallis but submitted that the Rule was wrong.

[15] While the Committee understood Mr McInerney’s argument, it could not agree with it. In the Committee’s view, the Rule is clear and only capable of one possible interpretation. We agree with the interpretation of the Rule as put to us by Mr Wallis.

[16] With the wording of Rule 45.12 – “the preceding 28 days” – this can only mean excluding the date of the offence. “Preceding” is not capable of any other meaning in this context. It is a simple arithmetical exercise to calculate the number of days from 28th July to 24th August, both days inclusive, at 28 days.

[17] Accordingly, the Committee finds that HOMEBUSH CAPTAIN has been presented by the Respondent to race at Palmerston North GRC on 25th August 2020 recording a weight variance of more than 1.5 kilograms, having performed in a race during the preceding 28 days – namely, on 28th July at Addington. That dog having raced in the preceding 28 days, the “no fine” proviso in rule 45.12 does not apply.

Penalty Submissions of the Informant

[18] Mr Wallis presented the following written submissions in relation to penalty (of relevance in the event that the Committee find shall find the charge proved):

1. Mr McInerney runs two kennels, one here in Canterbury and one in Palmerston North.

2. This is the fourth breach of this Rule in the past 98 days.

3. A weight infringement offence may be classified as a Minor Infringement Offence where the person who has committed the offence has not committed more than two (or such higher number as may be determined by the Steward from time to time in the Steward’s discretion) breaches of that Rule in the period 120 days immediately preceding, and including, the date that the Offence has been committed as per GRNZ Rule 62.3(b).

4. Mr McInerney’s Palmerston North kennel was issued a Minor Infringement and fined $100 when presenting PUNCH ON RUBY, up in weight 1.6kgs at Wanganui on the 19th May 2020. This was the first infringement in the reset period following a fourth breach of this Rule on the 9th December 2019 (163 days between offences).

5. Mr McInerney’s Palmerston North kennel was again issued a Minor Infringement and fined $150 as per a second offence for a breach of this Rule under the Sixth Schedule for presenting TRAJAN up 1.8kgs at Wanganui on the 24th June 2020. (37 days between offences).

6. Mr McInerney’s Palmerston North kennel was then issued a Minor Infringement and fined $150 under GRNZ Rule 66.5 which provides the option for RIU Stewards to impose another fine at the level documented in the 2nd offence or to refer it to the JCA after presenting MITCHAM NIKORIMA up 1.6kgs at the Palmerston North GRC’s meeting on the 28th July 2020. (35 days between offences)

7. HOMEBUSH CAPTAIN will be Mr McInerney’s Palmerston North kennel’s fourth breach of this Rule in a 99-day period, and sixth in total in the preceding 12 months, all from his Palmerston North base.

8. The RIU has always submitted a fine of $300 for a fourth breach of this Rule. However, previously a fourth breach of this Rule has brought fines in the vicinity of $200 - $550.

See:

• Evans & Evans dated 25th February 2020 - $300
• McInerney dated 25 May 2019 - $200
• McInerney dated 14th October 2019 - $550 (Reduced to $300 on appeal – See decision dated 19th November 2019)
• McInerney dated 23 December 2019 - $500

9. Generally, these charges are not defended, as the proof is in the officially recorded weight that an offence has been committed. This charge could have been heard on papers should a guilty plea have been tabled. That being said, Mr McInerney is well within his human rights to defend himself. With the penalties imposed under this Rule being fact dependent as per the above cases, we feel it best served to allow the Committee to impose a fine that it sees as appropriate after hearing all of the evidence.

Penalty Submissions of the Respondent

[19] Mr McInerney conceded that the Respondent’s Palmerston North kennel had incurred a number of weight penalties in recent times. Should the Canterbury kennel commit a breach, however minor, in the near future and still within the 120-days period, then that would be a fifth breach for the kennel. He pointed out that the outcome of previous charges had involved fines in the range of $200-$300 for third and subsequent breaches. He added that their kennel is very large and races a large number of dogs. They have attempted to have the Rule looked at, as it is unsatisfactory at present, Mr McInerney said.

Reasons for Penalty

[20] The matter of penalty for third and subsequent breaches of rule 45.11 was addressed by an Appeals Tribunal in McInerney v RIU (November 2019) and penalties in previous cases before the JCA were reviewed. That case was an Appeal against a fine of $550 imposed by a Judicial Committee for a fourth offence within the 120 days. On the facts peculiar to that case, the Appeals Tribunal treated the offence as a third breach and reduced the amount of the fine to $300.

[21] In an earlier case involving a fourth offence (RIU v McInerney, May 2019), the Judicial Committee imposed a fine of $200, after taking a starting point of $300 and reducing it to $200 for concerns regarding the accuracy of the scales raised by the trainer. It is significant that that case involved a fourth breach, as does the present case.

[22] It should be mentioned that there has been a subsequent case to the two referred to in which the Judicial Committee imposed a fine of $500, taking a starting point and adding an uplift of $200 for a “poor record”. We do not agree with the penalty reasoning of the Judicial Committee in that case.

[23] Mr Wallis, in his penalty submissions, said that the RIU has “always submitted for a fine of $300 for a fourth breach of this Rule”, before making reference to a number of cases, including the cases to which we have referred.

[24] We believe that it is relevant to consider the circumstances of the present breach. The weight variance was only 100 grams over the allowable weight variance but, of even more relevance is that, it appears and we are satisfied, the breach was most likely the result of a genuine mistake on the part of the Respondent in counting the number of days between HOMEBUSH CAPTAIN’s previous start on 28 July and the date of the race meeting, based on an incorrect interpretation or understanding of Rule 45.12. The greyhound would have been eligible to race at that weight on the next day without penalty to the Respondent, as the period of “the preceding 28 days” would have elapsed.

[25] The Committee is satisfied that a fine of $300 consistent, in the main, with other penalties is a sufficient penalty for what the Rules categorise as a “minor infringement”. We have had regard to the need to hold the Respondent accountable for his offending, the need to promote in him a sense of responsibility for and an acknowledgement of his offending and the need to deter him from similar offending.

Penalty

[26] Mr McInerney is fined the sum of $300.

Costs

[27] There will be no order as to costs as the hearing took place on a raceday.

R G McKenzie

(Chair)

Document Actions