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Non Raceday Inquiry RIU v J Waddell - Decision dated 5 May 2021 - Chair, JH Lovell-Smith

Created on 31 December 2020

BEFORE A JUDICIAL COMMITTEE
OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003

 
IN THE MATTER OF THE NEW ZEALAND
THOROUGHBRED RACING INC.
RULES OF RACING


BETWEEN RACING INTEGRITY UNIT
Informant


AND JASON WADDELL
Class A Jockey (Disqualified)
Respondent

Hearing: On the papers

Judicial Committee: J H Lovell-Smith, Chair - S Wimsett, Member

Appearances: S Symon and E Smith for the Informant
                      No appearance by Respondent

Decision: 5 May 2021

 DECISION OF JUDICIAL COMMITTEE

Introduction

[1] Jason Waddell is the holder of a Class “A” Jockey licence issued by New Zealand Thoroughbred Racing (NZTR). On 19 November 2020, Mr Waddell pleaded guilty to one charge of failing to provide a urine sample for analysis and has been disqualified from racing for 22 months from 17 September 2020 to 16 July 2022.

[2] Mr Waddell faces three Informations alleging that he committed serious racing offences contrary to New Zealand Rules of Thoroughbred Racing by committing acts detrimental to the interest of racing, namely:

Information No. A7523

THAT on Friday 4th of December 2020 at Hamilton, did an act detrimental to the interests of racing, in that he made a threatening phone call to Andrew James CASTLES, an official, and threatened to kill him by saying “Your dead ****, watch your back”. An alleged breach of Rule 801(1)(s)(i) New Zealand Thoroughbred Racing Rules.

Information No. A7524

THAT on or about the 8th of December 2020 at Hamilton, did an act detrimental to interests of racing, in that firstly, he posted an insulting message on social media about [name withheld] and secondly, made a threatening phone call to [name withheld] stated “I am coming after you”. An alleged breach of Rule 801(1)(s)(i) New Zealand Thoroughbred Racing Rules.

The complainant in respect of this charge is a prominent racing identity and a member of New Zealand Thoroughbred Racing. The Judicial Committee has withheld his name as it is not material to the charge that his name be published.

Information No. A7525

THAT on the 8th of December 2020 at Cambridge did an act detrimental to the interests of racing, in that he unlawfully entered onto the property of Senior Racing Investigator, Andrew Bryan CRUICKSHANK and using a weapon, smashed off his RIU Vehicle’s passenger wing mirror. An alleged breach of Rule 801(1)(s)(i) New Zealand Thoroughbred Racing Rules.

Procedure and Conduct of Hearing

[3] Rule 901(3) of New Zealand Thoroughbred Racing Rules (NZTR) states that the Judicial Committee may determine the procedure and conduct of any hearing as it thinks fit subject to the Rules.

[4] If the defendant does not appeal, and the defendant is aware of the date of hearing, then the hearing may proceed in the absence of the defendant and evidence of a fact or opinion which could have been given orally may be given by way of affidavit.

[5] Mr Waddell has taken no steps in these proceedings.

[6] Mr Waddell has been served with the Informations, the affidavits and submissions filed by the RIU. The Executive Officer of the JCA advised Mr Waddell of all dates, times and details of the Judicial Committee telephone conferences with the parties regarding the hearing directions.

[7] We have advised Mr Waddell to obtain legal advice in our Minutes recording the outcomes of the teleconferences. We repeated this advice in Minute No. 4 of the Judicial Committee dated 30 March 2021. We noted there had been no response from Mr Waddell or his legal representative. Mr Waddell was advised that as the RIU’s affidavit evidence and submissions had been served on him that he should respond by 23 April 2021. Should he choose not to do so, the Judicial Committee would proceed to deal with these charges on the papers as advised in our Minute dated 11 February 2021.

[8] For these reasons, this hearing will proceed in the absence of Mr Waddell on the papers.

Evidence

[9] All three Informations allege Mr Waddell breached Rule 801(1)(s)(i), which states:
A person commits a serious racing offence within the meaning of these rules who:
(a) Either by himself or in conjunction with any other person:
(i) Does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of racing; or

[10] The elements of the offence in respect of each of the three Informations are:
(a) Doing an act;
(b) That the Judicial Committee deems detrimental to the interests of racing.

[11] In respect of each Information, the RIU must prove each of these elements on the balance of probabilities.

[12] In respect of Information No. A7524 Rule 801(1)(s)(iii), provides:
A person commits a serious racing offence within the meaning of these rules who:
(s) either by himself or in conjunction with any other person:
(ii) at any time writes or causes to be written, publishes or causes to be published, or utters or causes to be uttered, any insulting or abusive words with reference to a Tribunal, NZTR, committee of a club or a member or official of any such body or a stipendiary steward or investigator or Registered Medical Practitione
r.

[13] The elements of that offence are:
(a) Writing, or causing to be written, publishing or causing to be published, uttering or causing to be uttered, any words;
(b) That are insulting or abusive;
(c) That refer to a NZTR member or official.

[14] The Rules do not define the words insulting or abusive.

[15] We accept the RIU’s submission that the words should be given their natural and ordinary meaning. A Judicial Committee in RIU v Molloy (3 August 2020) said that “insulting” means “scornfully abusive or to denigrate or be rudely offensive,” and that “to use abusive language is to use remarks intended to be demeaning, humiliating, mocking, insulting or belittling. It is often derogatory and obscene.”

Affidavit Evidence

Information No. A7523

Affidavit of Andrew James Castles dated 9 March 2021

[16] Andrew James Castles is the Chief Executive Officer of the Waikato Racing Club.

[17] On the evening of 4 December 2020, Mr Castles received a phone call from the number 027 863 2298, which lasted for eight seconds. He answered the phone with, “Hello”. A male voice then said, “You’re dead ****, watch your back”, before hanging up. The caller sounded intoxicated. A photograph showing that call in the call history of Mr Castles’ cell phone was annexed to his affidavit.

[18] Mr Castles was so shaken by the call, he phoned Neil Grimstone, Investigations Manager for the Racing Integrity Unit, to discuss what had happened. He initially thought the call came from another person of the RACE Group of Clubs and he told Mr Grimstone this.

[19] Mr Grimstone advised Mr Castles to put what had happened in writing and email it through to him, which he did.

[20] The following morning, Mr Castles decided to re-dial the number from which he received the call the previous evening. The voicemail identified Jason Waddell as the user of the phone.

[21] He then searched the New Zealand Thoroughbred Racing booklet for Mr Waddell’s phone number. A copy of the relevant page was annexed to his affidavit. It lists Mr Waddell’s phone number as 027 863 2298.

[22] Realising he had initially misidentified the caller, Mr Castles immediately emailed Mr Grimstone to inform him of his mistake and confirm that the call had in fact come from Mr Waddell. A copy of that email was annexed to his affidavit.

[23] On 8 December 2020 Mr Castles met with Mr Grimstone for an interview about the events.

[24] Mr Castles was aware that Mr Waddell had been found guilty of failing to provide a urine sample prior to racing at Te Rapa Racecourse. Mr Castles had provided a statement to the Racing Integrity Unit outlining his concerns regarding Mr Waddell’s behaviour at that race meeting.

Information No. A7524

Affidavit of [Name withheld] dated 8 March 2021

[25] On the evening of 8 December 2020, [Name withheld] was made aware of a post made about him on the “EX and current Jockeys and Trainers Club” Facebook page.

[26] [Name withheld] is not a member of the Facebook page. A screenshot of the post was sent to him by another. A copy of that screenshot is annexed and it reads:
“Now let’s spread the light on the biggest offender . . . welcome [Name withheld] to No 1 on the leader board for abusing young woman!!”

[27] This is followed by two emojis: one of a fruit and another of a water gun.

[28] The post was made by Jason Waddell, as indicated by his name at the top of post.

[29] The following night of 9 December 2020, [Name withheld] received a phone call from a man who stated “I am coming after you.”

[30] [Name withheld] recognised the voice as that of Jason Waddell. He stated that he had had multiple interactions in the past with Mr Waddell. He had spoken to him in person on numerous occasions and Mr Waddell has previously ridden his horses on race days. [Name withheld] is certain it was Mr Waddell’s voice on the phone that night.

[31] [Name withheld] did not know why Mr Waddell would post that about him online, as three weeks earlier Mr Waddell was asking him to buy one of his horses and he exchanged text messages with him on 19 November 2020 about the horse.

[32] After receiving this phone call, [Name withheld] immediately contacted Racing Integrity Unit Senior Investigator, Andy Cruickshank and sent a screenshot of the Facebook post to him. Mr Cruickshank advised him to report these incidents to Police.

[33] [Name withheld] reported these incidents to Police on 9 December 2020 and made a formal statement to Police on 17 December 2020 and signed it the following day.

[34] [Name withheld] states that the post is incorrect and insulting and an unfounded attack on his character and reputation causing he and his family significant distress.

Information No. A7525

Affidavit of Andrew Bryan Cruickshank, Racing Integrity Unit Senior Investigator Affidavit dated 8 March 2021

[35] Andrew Bryan Cruickshank resides in Cambridge and is a Senior Investigator with the Racing Integrity Unit by occupation.

[36] At approximately 10:00 pm on 8 December 2020 Mr Cruickshank was at his home in the upstairs lounge when he heard a loud smashing noise. He immediately ran outside on to the balcony.

[37] Mr Cruickshank saw a male person getting into the driver’s side of a grey vehicle he recognised as a Kia Stinger. The engine was already running. The car was approximately 50 metres from where he was standing on the balcony and illuminated by a nearby streetlight. The car was driven off at speed.

[38] Mr Cruickshank picked up a torch and went downstairs to investigate. When he went outside he saw that the passenger side wing mirror of his company car had been smashed off. His company car does not have any Racing Integrity Unit signwriting, but it is the vehicle he drives for work, including to race meetings and Judicial Committee hearings. At the time of the incident it was parked just outside his house on his private property. Photographs of the damage were annexed to his affidavit.

[39] Mr Cruickshank is aware that Jason Waddell drives a grey Kia Stinger with the registration LUT552. He saw him driving that vehicle on 17 September 2020 and has seen him driving it on a number of other occasions.

[40] It is Mr Cruickshank’s belief that this incident was in response to his role as the investigator in charge of the prosecution of Mr Waddell for failing to provide a urine sample at Te Rapa Racecourse on 17 September 2020.

[41] On that day he had observed Mr Waddell arriving at the Racecourse in a grey Kia Stinger motor vehicle, registration LUT552.

[42] Mr Cruickshank had received information from colleagues about Mr Waddell behaving erratically and aggressively towards other Riders at a trial meeting two days earlier. It was this behaviour that led Mr Cruickshank to undertake drug testing at the Te Rapa Racecourse on 17 September 2020. Mr Waddell did not provide a urine sample on that date when he had required him to do so.

[43] Mr Cruickshank was aware, because he was at the hearing, that Mr Waddell pleaded guilty to the charge of failing to provide a urine sample and was disqualified from racing for 22 months on 3 December 2020.

[44] On 9 December 2020 Mr Cruickshank met with Neil Grimstone and gave him an interview about these events.

[45] As a result of these events, Mr Cruickshank has put in place additional security at his home and for several days afterwards he did not stay at home as he did not feel safe there.

[46] Separately on the morning of 9 December 2020 Mr Cruickshank received a screenshot of a Facebook post made by Mr Waddell from [Name withheld]. He called [Name withheld] who was extremely concerned by the false accusations in the post. He informed [Name withheld] that several other matters had arisen in recent days regarding Mr Waddell and he would follow up this information as part of the investigation.

[47] Mr Cruickshank suggested to [Name withheld] that the administrators of the “Ex and current Jockeys and Trainers Club” Facebook group, on which the post was made, should consider banning Mr Waddell for his misuse of the platform. [Name withheld] subsequently sent him a screenshot listing the administrators of the group.

[48] Later that day, Mr Cruickshank received a further phone call from [Name withheld] who advised that he had just received a call from a private number. A male voice had told him “I am coming for you.” [Name withheld] was certain that this voice belonged to Mr Waddell. Mr Cruickshank advised him to report the matter to police which he did.

Information No. A7523
Information No. A7524
Information No. A7525

Affidavit of Neil John Grimstone dated 4 March 2021

[49] Neil Grimstone is the Manager of Integrity Assurance for the Racing Integrity Unit.

[50] On 4 December 2020 Mr Grimstone received a phone call from Andrew Castles, Chief Executive of the Waikato Racing Club, in relation to a threatening phone call he received early that evening. Mr Castles informed him that he had just received a call from a person he believed at the time to be another person of the RACE Group of Clubs, who told him “You’re dead ****, watch your back”. He advised Mr Castles to put the matter in writing and email it to him, which he did.

[51] The following morning, Mr Grimstone received another email from Mr Castles who, having done his own investigation, now identified the caller as Jason Waddell.

[52] On 8 December 2020, Mr Grimstone interviewed Mr Castles in relation to the above matter.

[53] On 9 December 2020 Mr Grimstone interviewed Mr Cruickshank in relation to an incident the previous evening where a wing mirror of his company car was smashed off by a male who fled the scene in a grey Kia Stinger.

[54] Just before mid-day on 15 December 2020, Mr Grimstone visited Mr Waddell’s address at 125 Williams Street, Cambridge, accompanied by his colleague Oscar Westerlund. Their intention was to speak to Mr Waddell regarding his recent behaviour. No vehicles were present at the address and multiple knocks on both the front and back doors of the property went unanswered.

[55] As they were leaving the property, Mr Waddell pulled up in a white Suzuki SUV, registration KEB459. The passenger window was wound down.

[56] Mr Grimstone spoke with Mr Waddell through the window, as he remained in the vehicle and informed him that they needed to speak to him about his recent behaviour and the details were in the letter he was formally serving on him. Although Mr Waddell was warned that it was an offence not to turn up he said he would not be coming to the interview. Mr Waddell then reversed out of the driveway and drove off down the street.

[57] Mr Grimstone has had dealings with Mr Waddell before but had not seen him driving this vehicle; on the other occasions when Mr Grimstone dealt with him where he has seen him with a vehicle, it has always been a grey Kia Stinger. He remembers dealing with Mr Waddell at Te Rapa on 17 September 2020. On that occasion he was driving the Kia Stinger.

[58] On 15 December 2020 a short time after Mr Westerlund and Mr Grimstone had been to Mr Waddell’s address, Mr Grimstone received a phone call from him which Mr Grimstone recorded. The voice on the other end asked, “Is that F***stone?”, to which he replied, “Yes, Neil Grimstone speaking.” Mr Waddell said he would not be attending the interview as he was disqualified and to let the Police deal with it.

[59] Mr Waddell admitted making the phone call to Mr Castles on 4 December 2020, but said “I’ve got a little bit of a lisp and I didn’t say kill, I said skill, I’m going to skill him up on a few lessons.” Mr Waddell said he was intoxicated at the time and that makes his lisp worse.

[60] Mr Waddell denied having any knowledge of the damage to Mr Cruickshank’s car. He denied being anywhere near Mr Cruickshank’s house and had nothing to do with smashing the wing mirror of his car. He acknowledged he owned a Kia Stinger motor vehicle.

[61] Mr Waddell admitted making the post about [name withheld] but said that it had been taken down very quickly. He denied making the subsequent phone call saying “I’m coming after you.” He refused to give Mr Grimstone his telephone numbers. Mr Waddell’s explanation for the post was vague, irrelevant and unsubstantiated.

[62] Mr Grimstone told Mr Waddell the phone call was being recorded and as Mr Waddell had given his version of the events there was no requirement for him to attend an interview the following day. Mr Waddell confirmed he had nothing further to say about the allegations.

[63] Mr Grimstone prepared a report about the complaints made by Mr Castles, [Name withheld] and Mr Cruickshank for the RIU and was accordingly authorised to file Informations alleging breaches of the Rules. He filed the three Informations that are now before the Committee and served a copy on Mr Waddell by email to jwaddell86@hotmail.co.nz on 22 December 2020. Mr Waddell responded by return email on the same date: “Dear Mr F***stone. I kindly advise you to get a giant desert spoon and eat my a***. Your kindly”.

Findings

Mr Grimstone’s evidence

[64] We accept Mr Grimstone’s evidence as reliable and credible. Mr Grimstone's interview with Mr Waddell over the telephone on 15 December 2020 was recorded by Mr Grimstone, transcribed and annexed to his affidavit dated 4 March 2021. We take into account the fact that the statements made by Mr Waddell were unsworn and made in the course of a telephone call. It was not until towards the end of the telephone call that Mr Grimstone advised Mr Waddell that their discussion could be regarded as an interview and therefore there was no longer any need for Mr Waddell to attend an interview.

Information No. A7523

[65] Mr Castles is the Chief Executive of the Waikato Racing Club, an industry role within the scope of Rule 801(1)(s)(ii).

[66] Mr Castles’ evidence was that he received a phone call in the evening on 4 December 2020 from the number 027 863 2298, which lasted for eight seconds. Initially, he incorrectly identified the caller, but when he searched, the NZTR booklet confirmed that this telephone number is listed as belonging to Mr Jason Waddell. The phone call said, “You’re dead ****, watch your back.”

[67] Mr Waddell’s explanation to Mr Grimstone is unconvincing and implausible. There is no issue he made the phone call to Mr Castles.

[68] We accept Mr Castles’ evidence as reliable and credible and that the words Mr Waddell used were “You’re dead ****, watch your back.” We find the charge proved on the balance of probabilities and that the words used by Mr Waddell were clearly a threat to kill Mr Castles, a serious racing offence detrimental to the interests of racing in breach of Rule 801(1)(s)(i) New Zealand Thoroughbred Racing Rules.

Information No. A7524

[69] There is no issue that the affidavit of [Name withheld] establishes that on 8 December 2020, Mr Waddell posted on the “Ex and Current Jockeys and Trainers Club” Facebook page:
“Now let’s spread the light on the biggest offender . . . welcome [Name withheld] to No. 1 on the leader board for abusing young women!!”

[70] Mr Waddell acknowledged that he took the Facebook post down “very quickly.” Mr Waddell’s denial when Mr Grimstone asked him about the threatening telephone call the night after the Facebook post is unconvincing. We find [Name withheld] evidence that he recognised Mr Waddell’s voice to be credible and reliable.

[71] In our view, not only did Mr Waddell seriously malign [Name withheld] on social media, but he also threatened [Name withheld] the following night over the phone using the words “I am coming after you”.

[72] We find the charge proved on the balance of probabilities and Mr Waddell’s actions to be detrimental to the interests of racing in breach of Rule 801(1)(s)(i) New Zealand Thoroughbred Racing Rules.

Information No. A7525

[73] We accept the evidence of Mr Cruickshank as credible and reliable. The day after Mr Waddell was disqualified for conduct involving his refusal to obey the officials’ lawful instructions, he began to threaten officials and those he regarded being responsible for his disqualification.

[74] Mr Cruickshank heard a loud smashing noise outside his house on 8 December 2020. He ran outside and saw a man getting into a grey Kia Stinger and driving away at speed.

[75] Mr Cruickshank then discovered that the passenger wing mirror of his company vehicle had been smashed off. Understandably Mr Cruickshank no longer felt safe in his own home.

[76] We have a suspicion that Mr Waddell was responsible for damaging Mr Cruickshank’s motor vehicle on 8 December 2020 but we are not able to be satisfied on the balance of probabilities that the person was Mr Waddell.

[77] For these reasons, we do not find this charge proved.

Penalty Submissions

[78] Section 801(2) of the Rules provides:
“A person who commits a serious racing offence shall be liable to:
(a) be disqualified for any specific period or for life; and/or
(b) be suspended from holding or obtaining a licence for a period not exceeding 12 months, if a licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed licence; and/or
(c) a fine not exceeding $50,000.

[79] The decision of the Judicial Committee (finding Informations No. A7523 and No. A7524 proved) will be served on Mr Waddell by the Executive Officer of the Judicial Conduct Authority. We urge Mr Waddell to obtain legal advice.

[80] If Mr Waddell wishes to apply for a rehearing or be heard on the issue of penalty, then he should apply to the Judicial Committee no later than 15 days after the service on him of the Judicial Committee’s decision.

[81] If Mr Waddell does not apply within 15 days for a rehearing or provide written submissions on penalty, then the Judicial Committee will consider the penalty on the papers.

[82] RIU submissions as to costs to be received by Executive Officer, JCA by 28 May 2021.


____________________
J H Lovell-Smith

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