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Non Raceday Inquiry RIU v K A Dixon - Written Decision dated 12 July 2019 - Chair, Mr R G McKenzie

Created on 16 July 2019

BEFORE A JUDICIAL COMMITTEE

AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A7227

BETWEEN KYLIE ROCHELLE WILLIAMS, Racing Investigator for the Racing Integrity Unit

Informant

AND KENNETH ANDREW DIXON of Prebbleton, Holder of Licence to Train

Respondent

Judicial Committee: Mr R G McKenzie (Chairman)

Mr S C Ching

Date of Hearing: 4 July 2019

Venue: Stewards’ Room, Addington Raceway, Christchurch

Present: Mrs K R Williams, the Informant

Mr K A Dixon, the Respondent

Mr J M McLaughlin, Registrar

Date of Written Decision: 12 July 2019

DECISION OF JUDICIAL COMMITTEE

Background

[1] Information No. A7227 has been filed by the Informant, Racing Investigator, Mrs K R Williams, against the Respondent, Mr K A Dixon, Holder of a Licence to Train, alleging that Mr Dixon has committed a breach of Rule 1001(1)(v)(i) of the New Zealand Rules of Harness Racing in that, being a licensed trainer, he “did an act that was detrimental to the interests of harness racing when disposing of a horse without the permission of the owners”.

[2] Mrs Williams produced a letter dated 22 April 2019 and signed by Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the lodging of the information pursuant to Rule 1108(2).

[3] The information was subsequently served on Mr Dixon (on 26 April 2019). He indicated and signed in the Statement by the Respondent on the information form that he did not admit the breach.

[4] The hearing of the charge took place on 4 July 2019. Mr Dixon was present at the hearing. The rule and charge were read to him and he confirmed that he understood them and that he denied the breach.

The Rule

[5] Rule 1001 provides as follows:

(1) Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:-

(v) either by himself or in conjunction with any 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 harness racing.

Case for the Informant

[6] Mrs Williams presented the following evidence:

1. Mr Dixon leased two colts. HARLEY BROMAC (2016 bay colt by Auckland Reactor – Honky Tonk Bromac) and TRIBECA BROMAC from Mr Bob McArdle from Bromac Lodge in 2017.

2. Mr McArdle died on 25 January 2018.

3. Lease papers were posted to Mr Dixon on 6 March 2018, when the trustees of Mr McArdle’s estate were tidying up all of the paperwork for horses owned by Bromac Lodge Limited. The lease papers were signed by Denese McArdle on behalf of the lessor, Bromac Lodge Limited.

4. Mr Dixon did not lodge the lease papers with HRNZ despite being required to within 14 days under the Rules. Mr Dixon held the lease papers at his house.

5. Mr Dixon finished with TRIBECA BROMAC and this horse was sent to another trainer. Mr Dixon said that it had been sold.

6. Mr Dixon decided to finish with HARLEY BROMAC in January 2019 after he had an accident with the horse.

7. Mr Dixon arranged for the horse to be picked up and taken away for disposal. He was not paid for the horse.

8. Mr Dixon did not make any inquiries with anyone from Bromac Lodge to see if they wanted the horse returned.

9. Mr Dixon told staff from Bromac Lodge that the horse had been disposed of after he had done so.

10. Connections from Bromac Lodge are quite adamant that they would have wanted the horse returned to be tried by another owner or trainer or arranged for it to be re-homed as they have done with other horses that have been returned.

11. It clearly states on the front page of the lease paper: "At the termination of this agreement the lessee shall at his own expense deliver the horse to the lessor at Bromac Lodge, Springs Road, Christchurch".

12. Mrs Williams produced the lease document (Exhibit “A”) to the Committee. The lease provided that the term of the lease was for the period from 26 February 2018 to 31 July 2022. The total percentage payable by the lessee to the lessor was 15% of all stakes over $1,000 for all placings. The lease provided for a right of purchase for $7,000 plus GST.

13. Mrs Williams played to the hearing part of an interview with Mr Dixon in which he confirmed the terms of the lease as above. She submitted that this evidenced that Mr Dixon did not own the horse.

14. Mr Dixon was interviewed on 28 March 2019 and he advised that he had arranged for the horse to be picked up and disposed of as he felt he was doing the owners “a favour” as, in his opinion, the horse was no good and was dangerous. When asked by Mrs Williams, Mr Dixon confirmed that he did not own the horse but rather leased it under an arrangement with the late Mr McArdle, although not having signed the lease.

15. Mr Dixon supplied the original lease documents that confirm the conditions of the lease.

16. This horse was not suffering from any illness or injury. Mr Dixon decided that he wanted to finish with the horse after being tipped out of the sulky one day. In this instance, the horse’s best interests and welfare were clearly not met. It may have been possible for the horse to be re-educated and tried again by another trainer. Simply because Mr Dixon may not have liked this horse or even if a horse is a rogue or not fast enough, these would not be sufficient reasons for anyone to have a horse put down without first seeking the permission of the rightful owners.

17. Mr Dixon confirmed that, at no stage, had he discussed with Mr McArdle putting down the horse if it showed no ability.

18. There was no immediate need to have the horse disposed of without making a simple phone call to the owners. Mr Dixon was not the legal owner of the horse.

19. The Racing Integrity Unit believes that Mr Dixon’s behaviour is detrimental to the interests of Harness Racing by being the trainer and lessee of the horse HARLEY BROMAC and having it disposed of without consultation with the owners.

20. Mrs Williams produced a printout of “Horse Details” (Exhibit “B”) in respect of HARLEY BROMAC from Harness Racing New Zealand records. It showed the owners of the horse as being Bromac Lodge Limited, Mrs P D McArdle and Dr M R Marlow, as at 4 August 2017.

21. Mrs Williams played an audio recording of part of an interview with Mr Dixon

KW: You agree you didn’t own the horse, you only leased it?

KD: That’s right.

KW: So you did lease the horse off Bromac Lodge? Did you have a verbal agreement with Bob?

KD: No. The lease was . . they didn’t sign the lease.

22. Later in that interview, Mr Dixon stated: “I didn’t sign the lease and Bob didn’t. Bob didn’t worry about it”.

Then, later again:

KW: Did you discuss that if the horse was to be no good then you would get rid of it?

KD: No.

Submissions of the Respondent

[7] Mr Dixon stated that he had been given HARLEY BROMAC by Mr McArdle. There was at present no actual owner of that horse. He claimed that the horse had been bred by Mr Ken Odgers and given to him by Mr McArdle by “word of mouth”. He dealt with Mr McArdle but had never lodged a Transfer of Ownership. It had been agreed, he said, that there would be no formal lease

[8] Mr Dixon said that he accepted Mrs Williams’ evidence “in principle”, but said that he had not signed the lease.

[9] Mr Dixon maintained that he was doing all concerned a favour by having the horse put down. It was dangerous, he said. He has had 50 years’ experience in harness racing and would not put down a horse that was likely to win only three races, Mr Dixon said.

[10] Mr Dixon said that he had a long-standing arrangement with Mr McArdle that, if a horse showed no ability, he would put it down. However, he had no such arrangement with Mr McArdle concerning HARLEY BROMAC, he said.

[11] Mr Dixon confirmed, in response to a question from the Committee, that he neither owned nor leased HARLEY BROMAC during the period from the date of death of Mr McArdle to the date on which the horse was put down. He confirmed that he had awaited signing the lease document until he was satisfied that the horse was going to be a viable racing prospect.

[12] The Committee put it to Mr Dixon that, given Mr McArdle had been dead for over 12 months, it would have been reasonable to expect him to establish who owned HARLEY BROMAC and to approach that owner for permission to discontinue with the horse. He said that he did not wish to deal with Mr McArdle’s daughter. He agreed that, had Mr McArdle still been alive, he would have discussed the matter with him. He questioned how he could return the horse to its owner when that owner, Mr McArdle he claimed, was dead.

Reasons for Decision

[13] The Committee finds the following facts:

1. HARLEY BROMAC was foaled on 26 October 2016.

2. Some time in 2017, Mr Dixon agreed to take HARLEY BROMAC and another horse on lease from the owner, Bromac Lodge Limited. We are unable to establish the precise date of this arrangement, but it is likely to have been towards the end of 2017, at which time HARLEY BROMAC would have been a yearling.

3. Mr Dixon believed that he was leasing the horse. He did not own the horse.

4. Mr McArdle died on 25 January 2018.

5. On 6 March 2018, the lease document, signed by Mrs Denese McArdle on behalf of Bromac Lodge Limited as owner (lessor), was posted to Mr Dixon for signing by him as lessee. However, Mr Dixon never signed the lease which, the Committee understands, is quite a common practice prior to it being determined whether the horse is likely to be a racing proposition. This is, we were told, to avoid unnecessary payment of the fee of (now) $80.00 payable to HRNZ.

6. In January 2019, significantly 12 months after the death of Mr McArdle, Mr Dixon determined that HARLEY BROMAC, then a 2-year-old, was “no good” and was dangerous, and Mr Dixon made the decision to have the horse put down without reference to the horse’s owner, Bromac Lodge Limited, or even Mr McArdle’s personal representatives. Mr Dixon did not dispute this.

7. HARLEY BROMAC died on 7 March 2019, according to the records of Harness Racing New Zealand.

[14] Mr Dixon did not dispute any of the above but, nevertheless, defended the charge on the grounds, firstly, that the horse was not a viable racing proposition and was dangerous and, secondly, that had Mr McArdle been alive he would have agreed to the horse being put down in those circumstances. The Committee does not accept that this would necessarily have been the case and, in any event, this does not provide a defence to this charge.

[15] Neither of those arguments, the Committee finds, justified Mr Dixon in taking the action he did in having HARLEY BROMAC put down without reference to the owner. In this regard, Mr Dixon argued that, Mr McArdle having died, the horse did not have an owner. This argument is, of course, without merit and it would have required only minimal effort on Mr Dixon’s part to discover who the owner was. We do not accept that Mr Dixon was that na├»ve, especially in the light of his own evidence that he had been involved in harness racing for 50 years. He must have known that it would be a simple matter to find out who the owner of the horse was, and then to return the horse to that owner in terms of the provision in the lease document. The owner, according to the lease document which he held, was Bromac Lodge Limited but Mr Dixon expressed reluctance to deal with the representative of that company, one Lisa Fabri, who is Mr McArdle’s daughter.

[15] Any arrangement, which could only have been informal, that Mr Dixon had with Mr McArdle was terminated by the death of Mr McArdle.

[16] Mr Dixon relied heavily in his defence on the fact, as he alleged, that HARLEY BROMAC showed no ability and, in fact, was dangerous to handle. That is as may be, but the issue that the Committee is called upon to determine has nothing to do with the ability or potential of the horse or its nature or tendencies but, rather, the manner in which Mr Dixon disposed of the horse, having decided that the horse was not a racing proposition for whatever reason. Mr Dixon appeared to have difficulty in accepting this and maintained that his assessment of the horse justified his unilateral decision to have it put down without the consent of the owner. It did not justify that decision.

[17] Having found the facts of this case to be as set out above, the Committee needed, as a next step, to decide whether Mr Dixon’s actions can be deemed to be “detrimental to the interests of harness racing”.

[18] A similar rule was considered by the Court of Appeal in New Zealand Trotting Conference v Ryan (1991). In that case, the term “deem” was considered and Richardson J stated:

In its context, the word “deem” must I think be given its ordinary meaning of consider or decide and it is implicit that the named body or person must act rationally or reasonably in reaching that conclusion.

[19] In the same case, Casey J stated:

In its context, the word “deem” means no more that “thinks” or “considers”, and there is of necessity the implicit qualification that those entrusted with the task of reaching a conclusion about the nature of the act charged must do so rationally and in the interests of trotting.

[20] Referring to the “detrimental to the interests of harness racing” provision, Richardson J stated:

. . .given the impossibility of identifying in advance every situation which might give rise to conduct adversely affecting trotting, the framers of the rules provided a general safety net to catch conduct regarded as offending but not specifically caught by any of the particular provisions.

[21] The Committee is therefore tasked with considering or deciding, rationally or reasonably, whether Mr Dixon’s deliberate actions in having the 2-year-old horse, HARLEY BROMAC, which he clearly did not own but rather had agreed to take on lease if it showed sufficient ability or promise, disposed of without reference to the horse’s owner, Bromac Lodge Limited, were detrimental to the interests of harness racing. We take “detrimental” to mean “having a harmful or damaging effect”.

[22] The Committee believes that any right-minded, reasonable person would consider that Mr Dixon’s actions were caught by the “general safety net” referred to by Richardson J.

[23] The terms of the lease document, although not signed by Mr Dixon for the reasons he gave, clearly required him to return the horse to Bromac Lodge Limited (see [6].11 above). Mr Dixon argued that the lease was not signed and that this fact, somehow, excused him from returning the horse. The Committee is satisfied that Mr Dixon had the horse in his care on the conditions set out in the lease document, even though that document was not signed by him. It was, we believe, his intention to eventually sign the lease if HARLEY BROMAC turned out to be a viable racing proposition.

[24] Regardless of whether the lease terms applied, Mr Dixon had no right to dispose of the horse without reference to its legal owner.

[25] The Committee deems Mr Dixon’s act in doing so to be an act detrimental to the interests of harness racing and, therefore, a breach of rule 1001 (1) (v) (i).

Decision

[26] The charge is found proved.

Penalty and Costs

[27] The Committee requires both parties to file submissions in writing in relation to penalty and costs. The submissions of the Informant are to be filed with the Judicial Control Authority by not later than Thursday, 18 July next, and the submissions of the Respondent are to be filed within 7 days of receipt by him of those submissions.

R G McKENZIE        S C CHING

Chair                      Panellist 

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