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Non Raceday Inquiry RIU v L Molloy - Reasons dated 3 August 2020 for Decision Delivered Orally on 30 July 2020 - Chair, Hon J W Gendall QC

Created on 03 August 2020

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

Information No. A8714

BETWEEN RACING INTEGRITY UNIT

Andrew Cruickshank, Investigator

Informant

AND LEO MOLLOY

Thoroughbred Owner

Respondent

INQUIRY HELD AT ELLERSLIE RACECOURSE AUCKLAND ON 30TH JULY 2020

Committee:

Hon J W Gendall QC (Chair)

Mr L N McCutcheon (Member)

Present:

Mr S Symon and Ms E Smith, Counsel for the Informant

Mr Andrew Cruickshank, Investigator, Informant

Mr Leo Molloy, Respondent

REASONS OF JUDICIAL COMMITTEE OF JCA DATED 3 AUGUST 2020 FOR DECISION DELIVERED ORALLY ON 30 JULY 2020

1. Mr Molloy was charged with a breach of Rule 801(1)(s)(ii) of the NZ Thoroughbred Rules of Racing in that:

On the 13th March 2020 he wrote and caused to be published on the website RACE CAFÉ insulting and abusive words directed at Racing Investigator and Manager Integrity Assurance of the Racing Integrity Unit, Mr Neil Grimstone, namely:

“Grimstone later admitted to Duncan Garner that he knew all along that Pora didn’t do it yet he was happy to lock that poor handicapped man in jail for life….because he’s a callous racist cxxt….and he’s given you dummies false evidence in this inquiry, either knowingly (which means he’s a liar) or because he’ ignorant and stupid, and is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 801(2) ….”

2. Rule 801(1)(s) (ii) provides that a person commits a Serious Racing Offence who either by himself or in conjunction with any other person,

“at any time writes or causes to be written, publishes or causes to be published …any insulting or abusive words with reference to a Tribunal, NZTR, Committee of a Club, or a member or official of such body, or a Stipendiary Steward or Investigator….”

3. Rule 801(2) provides penalties for Serious Offences of Disqualification for a specified period of life, and/or suspension of a licence for up to 12 months and/or a fine not exceeding $50,000.

4. At the conclusion of the hearing on 30 July 2020, and after deliberating for some time, we found the charged to have been proven to our comfortable satisfaction and we heard submissions from the parties as to penalty. Mr Molloy was disqualified for a period of 12 months commencing on 30 July, fined $5000, and ordered to pay costs to the RIU of $7,000 and to the JCA of $3,000. What follows are the written reasons for our findings and the penalty decision.

5. We need to record by way of background, that at an initial teleconference held on 17 June 2020 Mr Molloy elected to admit the charge, in the circumstances set out in the Committee’s Minute of that date. He said that he wished to explore and provide what he said was “context” for his remarks in his submissions on penalty. Because of his admission of the charge and with the agreement of the parties the penalty and costs issues were to be dealt with on the papers. The written submissions of Counsel for the Informant were received. Mr Molloy did not forward submissions on penalty, and the following later events occurred.

6. Later, on 1 July 2020 Mr Molloy advised that he wished to withdraw his “plea” - that is, his admission on the charge. He was advised in the Committee’s Minute Number 3 that he had that option. As a consequence, a hearing date and time was fixed by agreement and after consultation with the parties, as 10am 30 July 2020 at Ellerslie Racecourse, Auckland, to enable for a defended hearing to take place.

7. We record some preliminary matters given that Mr Molloy’s later posts on RACE Café as to the charge he faced, have resulted in certain published and ill-informed comments by him and some other members of the public. First, the charges are brought by the Racing Integrity Unit and NOT by the person about whom the statements were made. Secondly, Mr Molloy is recorded as stating (as we mention in our Minute Number 3 of 22 July 2020), that he intended to “have quite some fun” at the impending hearing, and would “use it as a platform” to enquire into unrelated issues he feels he has about police proceedings called operation “Inca”. As we advised his then Counsel (who no longer acts as Counsel for Mr Molloy in these proceedings) at the last teleconference, that would only be permitted on the subject of our hearing the charge unless if it was directly relevant to the charge, and relevant to defences available to Mr Molloy. But he can advance his reasons for his views of the Investigator, and RIU provided any Court suppression orders are honoured. The matter is addressed in our reasons after the preliminary hearing on 30 July 2020, in which the application for recusal was declined.

ESSENTIAL FACTS ALLEGED BY THE INFORMANT

8. Mr Molloy is a part owner of a Thoroughbred racehorse. As such he is bound by the Rules of Thoroughbred Racing. He is described in an earlier decision of the JCA on 7 May 2013 (when he admitted 3 breaches of The Rules in using insulting and abusive language directed at a senior official), as being “a determined commentator upon the administration of Thoroughbred Racing in New Zealand”. That comment equally applies to his views on Harness Racing.

9. On 30 September 2019 he received a warning from Mr M Godber, the General Manager of the RIU, for allegedly sending what was claimed to be bullying and abusive texts to an official of NZTR. He was advised in writing, “you need to take this as a warning and desist from such personal abuse and bullying in the future.” Notwithstanding that warning, Mr Molloy published through a “post” on RACE CAFÉ under his nom de plume, “Pound for Pound”, a message which contained the words complained of in the charge. The full text appeared to be directed to and very critical of police officer (s) which need not be set out further – but it contained the words about Mr Grimstone set out in para 1 above. The message was available to be read by any member of the public accessing that website, which remains the case.

10. The RIU sought an explanation from Mr Molloy on this post as it related to the Investigator, and he responded with matters he said justified his post, in particular that:

“ …the RIU either lies, orchestrates evidence or is ignorant of scientific facts…. Sadly at least two of your staff are liars or incompetent and it’s time someone exposed you for what you are, inept, uneducated, bumbling fools…. Grimstone did say exactly what I claimed to Garner, and that was before he made the regrettable racist remarks about the Asian community…. Bring it on Mike, it’s about time your dirty laundry saw a bit of sunlight”.

11. Mr Molloy has been involved in the Racing Industry or Code for many years and was previously a licenced trainer. When a trainer he was charged and pleaded guilty to 3 charges of misconduct in respect of postings he made on RACE CAFÉ which were abusive and insulting of the then Chief Executive of NZTR, to which we refer in para 8 above. The Judicial Committee imposed fines totalling $1,050 and $300 towards the JCA costs.

SUBMISSIONS OF INFORMANT and RESPONDENT

12. Mr Symon, on behalf of the RIU contended that Mr Molloy, as an owner, and also because he brought himself within the ambit of the Rules by posting on a racing industry website, was bound by the provisions of the Rules Of Racing. Mr Molloy contended that the Rule in question was not intended to apply to persons in his position as it was aimed at jockeys, trainers, and licensees, using insulting and abusive language to person named in the Rule. We do not accept that argument.

13. Mr Symon referred to the previous case involving Mr Molloy and the decision of the Tribunal in the case of RIU v McAnulty (29 April 2011) which highlighted that those who hold strong views or opinions about the governance of racing are entitled to make those views known without resort to personal abuse or insult. We agree, and we permitted that to occur at this hearing.

14. Apart from arguing that he was not bound by the Rules, Mr Molloy contended that the decision in Cropp v Judicial Committee [2008] NZSC 46 [2008] 3 NZLR 774 required the Rules of Racing to be consistent with the New Zealand Bill of Rights, and the Rule the subject of this Information unreasonably curtails or restricts his right to express his opinions. We accept the submission of Mr Symon that the legislation requires the Codes to promulgate Rules to regulate the conduct of racing, and the Codes are dependent on public support, through wagering. If the profession dose not impose minimum standards of behaviour to uphold its integrity, public support and confidence may be lost. Counsel referred us to a similar situation where a sport, or profession, or standards of behaviour in courts. He referred us to Communication Principles set out in s 6 of the Harmful Digital Communications Act 2015, (such as communications not being grossly offensive, indecent or obscene. And s 6(2) requires Courts and others to act consistently with the right to freedom of expression contained in NZBORA. We do not need to decide whether that Act applies to the present case.

15. We are satisfied that the restriction on certain types of behaviour referred to in the Rule can be a justified limitation of the right to freedom of speech, because without it the racing Codes and profession would descend into mayhem. But if the insulting and abusive words referred to in the Rule reach the level of obscenity, the freedom of expression available in BORA is curtailed.

16. Mr Molloy contends that what he said was true. He referred to an article, in which there is a description of the Investigators service as a police officer, in which he is reported to have made a racist comment (which he is recorded as saying it was meant to be a joke and for which he apologised). Mr Molloy’s claim is that he honestly believed that the remarks he posted afford him an excuse for the grossly obscene description of the official as a “cxxt). As we have already mentioned, in the earlier decision, fair comment or criticism of the industry, its processes, ought not be stifled. But the Rule is directed at “abusive and insulting” words towards named parties, and public excoriation in obscene terms of a named official is impermissible.

17. We make a general, but important, observation to Mr Molloy and his “supporters”. Those who wish to participate in the racing Codes, whether as licensees, owners, and otherwise, are required to obey the Rules of Racing properly laid down by the Codes. It is the same with any profession, participation in a sport or calling. For example, a lawyer or accountant or other professional is required to follow the Codes of ethics that apply to those wishing to participate in the calling, and if they decline to do so, they may forfeit the privilege of participation in that calling. Those in the horse racing arena depend and rely upon the Rules to allow and regulate their participation. If they do not wish to comply with the Rules they may of course exit from participation in the sport/industry. If the Rules do not apply to them, they may say and do whatever they wish, within the boundaries of the civil and criminal law. But they cannot expect to retain the privilege of participation without committing to obey the Rules of the Code. Legitimate comment about the operation of the Codes may occur but not with personal excoriation in obscene terms conveyed to the world at large.

18. A serious Racing Offence under Rule 801(1)(S)(II) may take many different and an infinite variety of forms. There can be situations when insulting or abusive words are directed to an official, investigator, or body referred to in the Rule, which are made in private (such as at an inquiry or on raceday when interviewed or made only to an official). They might be made in the “heat of the moment“ when momentary loss of temper or control occurs, and for which the person later regrets. At the other end of the spectrum is the publication of insulting or abusive words made against a named official in a public forum, where there is premeditation and a deliberate aim and intent to harm the emotions and reputation of a person, who is unable to respond to the harm aimed at him. So too, the type and degree of insult or abuse will vary depending on the words used and the manner of their use. We are compelled to reach the view that this charge by any measure, falls at the high end of gravity, because of the words used and the dissemination of them to the wide public at large.

19. Factors which relate to its seriousness of his actions:

• the words used. “Insulting” means scornfully abusive or to denigrate or be rudely offensive.

• to use abusive language is to use remarks intended to be demeaning, humiliating, mocking, insulting or belittling. It is often derogatory and obscene.

• Mr Molloy chose to excoriate the official, that is to “censure, criticize severely, denounce and condemn.”

• to say that “he’s a callous racist cxxt” is to belittle him obscenely. To later add that he “is a racist turd” highlights the intent behind the earlier obscenity.

Mr Molloy deliberately and wilfully published his remarks on a website to which countless thousands of followers of racing, as well as the general public, had access.

20. To allege a named person is “a cxxt” (and Mr Molloy and we have no doubt what he meant) is unquestionably grossly offensive to a reasonable bystander. The noun “cxxt” is as damning as any obscenity as people could imagine. It excoriates the official in an abusive and insulting manner, in defiance of a recent warning about his use of Race Café to denigrate in obscene terms, a named official.

21. We repeat para (4) that after deliberating at the conclusion of the hearing we found the charge proven to our comfortable satisfaction. Indeed, beyond reasonable doubt. The words used and published to the world at large to publicly excoriate the official were insulting, offensive, denigrating and obscene. It is no defence that Mr Molloy held such view as they were directed at the personal character of the official and were seriously irresponsible and in breach of Rule 801(1). The use of the word “cxxt” was “insulting and abusive” at a very high level. We reject his argument that it was permissible because he had “reasons”.

PENALTY

22. Counsel for the Informant, Mr. Symon and Ms Smith initially sought penalties in the range of a disqualification of 13 -13 ½ months plus a fine of between $6,400 to $6,800. Those initial submissions were made in the context of Mr Molloy’s admission of the charge and incorporated an element of discount for the guilty plea. As that no longer applied the submission, advanced was that sanctions of disqualification for 16 months and a fine of $8,000 were sought. Their submission is underpinned by the contention that unprovoked personal attacks using insulting and abusive words against racing officials, made in a public forum cannot be tolerated. They submit that there were aggravating features such as the content of the post, it was made in a public website to the world at large, despite warning within 6 months to desist, and that there had been previous disciplinary sanctions for similar offending. Counsel submit that there has been no attempt to resile from what Mr Molloy posted nor any expression of remorse or regret. And in fact his continuing to insult and abuse on 22 June 2020 on Race Café, (he ”is an ignorant imbecile actually” and “is a racist turd”) after being served with the Information, and before he withdrew his admission of the charge, illustrates, sadly a total lack of contrition, and insight, and a defiance of the Rules well known to him.

23. Counsel referred to the earlier JCA decision in RIU v McAnulty, (29 April 2011) where sanctions of 11 months disqualification, and a fine of $6,000 and costs of $17,500 followed upon that Respondent leaving a series of abusive obscene emails and voice messages with the then Chair of the NZ Racing Industry Board and the Chief Stipendiary Steward, over a period of 4 days. This was not in a public forum but directly to the individuals concerned. Counsel submit that Mr Molloy’s offending ought to been seen as more serious, having occurred in a wider publication. Mr Molloy’s position was that the insults and abuse by Mr McAnulty were far worse in their content than his and were repeated several times against 2 officials, which distinguished his culpability. We note that those insults were made on voice and email messages, and not to the world at large. They were in that sense transitory whereas Mr Molloy’s post was and remains available, and continuing, to the world-wide population of those who choose to access the site.

24. The previous offending by Mr Molloy in 2011 and 2012 involving insulting and abusive comments directed against the then CEO of NZTR for which he was fined on each of 3 charges $350 (a total of $1,050) and his refusing to heed the warning are also aggravating. It was submitted that a higher penalty is necessary in this case in order to deter Mr Molloy, and others, from this type of conduct. Counsel contended that it was clearly Mr Molloy’s “intention to continue to push the boundaries of acceptable commentary about others in the industry”, he had demonstrated by his actions that he is not remorseful. There were no personal or other mitigating factors.

25. Mr Molloy contended, as referred to above, that his behaviour fell far below that of Mr McAnulty and that a disqualification of 3 months and a fine of $5,000 - $6,000 (which he would pay to the Riding for Disabled Charity) was all that was justified.

PENALTY AND COSTS

26. The need to provide a deterrent to others is important. But in Mr Molloy’s case the issue of personal deterrence is very necessary. This is because he has shown no inclination to cease personal insulting abuse and we are very concerned that he may continue to do so. As set out above:

(a) He is disqualified for 12 months commencing today 30 July 2020.

(b) He is fined $5,000.

(c) He is ordered to pay $7,000 being a portion of the RIU costs and $3,000 to the JCA as a portion of its costs. None, or little of these costs would have arisen if he had maintained the admission of the charge, but having elected to prolong the inquiry we do not regard it as proper for the Racing Industry to bear all the costs incurred as a result of his actions.

Dated at Wellington this 3rd day of August 2020

Hon J W Gendall QC (Chair)

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