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Non Raceday Inquiry RIU v M J Anderson - Decision dated 14 July 2020 - Chair, Mr M McKechnie

Created on 15 July 2020

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MATTHEW JASON ANDERSON

Licensed Public Trainer

Respondent

Informations: A7521/A7522

Present:

Judicial Committee: Murray McKechnie, Chairman

Prof Geoff Hall, Committee Member

Counsel for RIU: Mr Brian Dickey

Counsel for Respondent: Mr Allister Davis

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

14 JULY 2020

1. MR ANDERSON’S CIRCUMSTANCES & THE CHARGES HE FACES

1.1 The Respondent, Matthew Jason Anderson, is an open driver/public trainer aged 27 years. His licence was issued under the rules of Harness Racing New Zealand.

1.2 In April of 2017 the national organised crime group of the New Zealand Police commenced an investigation into deception and race-fixing within the New Zealand Harness Racing industry. Throughout this investigation they were assisted by the Racing Integrity Unit. This was known as Operation Inca.

1.3 In September of 2018, Operation Inca was terminated by the New Zealand Police and the Respondent, Mr Anderson, was interviewed and arrested on a number of charges. He appeared in the Christchurch District Court. Sentencing took place on 17 December 2019.

Mr Anderson pleaded guilty to three charges involving the Class B drug MDMA, commonly known as Ecstasy. Other charges that had been laid were withdrawn.

1.4 The sentencing Judge in the Christchurch District Court, Judge Neave, determined that Mr Anderson be discharged without conviction pursuant to s106 of the Sentencing Act 2002. More will be said about the Court proceedings later in this decision. Name suppression was not granted and Mr Anderson’s appearance received considerable media coverage.

1.5 The Racing Integrity Unit was supplied with the Summary of Facts presented to the District Court and the probation report that had been prepared by the Department of Corrections for the sentencing of Mr Anderson.

1.6 As a result of the matters spoken of above, the Racing Integrity Unit undertook an investigation. This established that Mr Anderson’s offending in the weekend of 24 and 25 March 2018 involved the supply of Ecstasy to Messrs Z and W. Both are prominent harness reinsmen. In the District Court proceedings against Mr Anderson, the names of Messrs Z and W were the subject of a Suppression Order. More will be said of that later in this decision. On the Saturday of that weekend Mr Anderson had, along with Messrs Z and W, attended a harness racing meeting at Winton in Southland. Following the meeting the three men travelled together to Dunedin where they stayed the night. While in Dunedin Mr Anderson had supplied Messrs Z and W with an unknown amount of the Class B controlled drug MDMA. The following day Mr Anderson and Messrs Z and W travelled to Waimate where all three took part in another harness racing meeting.

1.7 On 27 January 2020 in Christchurch, Mr Anderson was interviewed by Racing Integrity Unit inspectors. His legal counsel, Mr Davis, was present. He was questioned about his involvement in the supply of MDMA to Messrs Z and W and his own drug use.

1.8 On 3 February 2020 two informations were laid against Mr Anderson by the Racing Integrity Unit. These are now set out together with the relevant rules and penalty provisions.

INFORMATION A7521

CHARGE 1 Between March and September 2018 did supply Class B controlled drugs to two HRNZ licensed drivers, Z and W, and was found in possession of Class B controlled drugs for supply, for which he was charged by the NZ Police and pleaded guilty to in the Christchurch District Court, acts which a Judicial Committee deem detrimental to the interests of harness racing.

INFORMATION A7522

CHARGE 2 On 27 January 2020 in Christchurch, when interviewed by Racing Integrity Unit Inspectors, refused to supply information relating to the supply of Class B controlled drugs to other HRNZ licensed persons and his possession of Class B controlled drugs for supply.

RULES 1001(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;

1001(1)

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

(i) refuses to supply any information or make a written Declaration (Statutory or otherwise) or statement respecting any matter connected with harness racing or any horse registered with HRNZ or the ownership thereof which the Judicial Committee, Appeals Tribunal, the Board, a Stipendiary Steward or· a Racecourse Inspector require him to supply or make;

PENALTY 1001(2)

Every person who commits a serious racing offence shall be liable to the following penalties:

(a) a fine not exceeding $30,000; and/or

(b) suspension from holding or obtaining a licence, for any specific period or for life; and/or

(c) disqualification for a specific period or for life.

1.9 Mr Anderson has denied both charges.

2.0 THE COURSE OF THESE PROCEEDINGS

2.1 The hearing of the charges against Mr Anderson has been significantly delayed as a result of the Corona virus pandemic lockdown.

2.2 There was a teleconference on 19 March 2020, after which a Minute issued setting out directions for hearing. Thereafter with the lockdown in place no progress could be made until May of this year. On the 22nd of that month there was a further teleconference; a date was set for hearing and the objection to proposed evidence was noted. That objection made by Mr Davis was to the proposed evidence of Mr Kirk Hardy.

Submissions were sought from counsel on the question of what penalties might be imposed in the event that Mr Anderson were found guilty of either or both of the charges. Those submissions were received by the Committee in advance of the hearing.

2.3 The hearing took place at Addington Raceway on 12 June this year. At the conclusion of that hearing the Committee issued directions for the filing of further submissions and for Mr Davis to make available advice from the Department of Justice in relation to the name suppression Orders made by Judge Neave in the Christchurch District Court with reference to Messrs Z and W. Those submissions have now been received and likewise advice in relation to the name suppression Order. For completeness a copy of those directions is attached (one page).

3.0 THE CASE FOR THE RACING INTEGRITY UNIT

3.1 Mr Neil Grimstone gave evidence, having submitted a signed written brief.

3.2 Mr Grimstone is the Manager of Integrity Assurance for the Racing Integrity Unit. He is a former senior police officer with some 28 years service. Under the Harness Racing New Zealand rules he is a designated racing inspector. He told the Committee that he was the person in charge of Operation Inca from the position of the Racing Integrity Unit.

3.3 Following the termination of Operation Inca in September 2018, Mr Grimstone explained that application was made to the Christchurch District Court to obtain copies of relevant charging documents that pertained to persons licenced under the Harness Racing New Zealand rules. The charging documents in relation to Mr Anderson were subsequently made available. Some time later Mr Grimstone received documents from the Christchurch Crown solicitor in relation to Mr Anderson. Those documents included a redacted Summary of Facts and the pre-sentence report. Those documents were put before the Committee and likewise the charging document earlier referred to.

3.4 Mr Grimstone explained that he searched the Harness Racing New Zealand website to obtain the results of the race meeting held at Waimate on 25 March 2018. A printout of those results was put before the Committee and Mr Grimstone explained the extensive involvement of Messrs Z and W on that day.

3.5 On 27 January this year Mr Grimstone, in the company of the racing inspector, Mr Simon Irving, interviewed Mr Anderson at Addington Raceway. This interview took place in the company of Mr Anderson’s legal counsel, Mr Allister Davis. Mr Irving provided a signed evidential statement. He was not required for cross-examination. A transcript of that interview was produced by Mr Irving. There was some discussion between the Committee and counsel as to whether the recording of the interview should be played. It was agreed that this need not be done however the recording was produced in evidence as an exhibit. Mr Davis has subsequently requested that this be made available but as the Committee understands the position, that request has not been pursued. Mr Grimstone told the Committee that whenever questions were asked of Mr Anderson about his drug dealing or to whom he had supplied drugs, the answer was “no comment”. The transcript makes clear that when Mr Irving pointed to Rule 1001(1)(i) which has to do with the refusal to supply information or make a statement respecting any matter in connection with harness racing, Mr Anderson was acting upon advice. Mr Davis is recorded as having said – page 4 of the transcript:

“He’s not obliged to self-incriminate either. He’s under advice. We are well aware that this was gonna happen so carry on with your questions and we’ll address those issues”.

Further down page 4 of the transcript of interview Mr Davis is recorded as having said:

“If he answers them he’s in breach of the Suppression Order”.

3.6 On page 5 of the transcript of evidence it is recorded that Mr Grimstone asked Mr Anderson about his own use of Ecstasy. The relevant passage is as follows:

Mr Grimstone. “In your probation report it talks about you using Ecstasy whilst trying to obtain the junior apprentice of the year on a number of occasions. Is that correct?”

Mr Anderson. “No comment.”

Mr Grimstone. “And that you’d obtained your MDMA through an associate and that it was the only way you would be able to function at the time and create some form of normality, is that correct?”

Mr Anderson. “No comment.”

Further down page 5 of the transcript Mr Irving asks questions. The relevant passage is as follows:

Mr Irving. “If I was to direct you to submit to a drug test, how would you go?”

Mr Anderson. “Pass.”

Mr Irving. “If I was to direct you to submit a hair sample that could date back to a year, how would you go?”

Mr Anderson. “Pass.”

3.7 On 31 January 2020 Mr Grimstone received authority to charge Mr Anderson with two serious racing offences, the particulars of which are set out above in paragraph 1.8. The relevant documents were served on Mr Anderson on 3 February 2020.

3.8 In answer to questions in cross-examination Mr Grimstone advised that Messrs Z and W had not been drug tested. Further, he acknowledged that he did not know whether Messrs Z and W had actually taken MDMA over the weekend of 24 and 25 March 2018.

3.9 Mr Grimstone accepted in answer to further questions in cross-examination that there was nothing to indicate that Messrs Z or W had been in any way compromised at the Waimate harness race meeting.

3.10 When asked about the interview with Mr Anderson, Mr Grimstone said that this was terminated because it was “getting nowhere”. He said that he and Mr Irving were “stonewalled”.

3.11 When re-examined Mr Grimstone explained that he and his colleague Mr Irving wanted to know where and when the prohibited drug MDMA had been supplied to Messrs Z and W. He further explained that those persons had not been interviewed because of the ongoing Police charges pending in the criminal Courts. He said that any attempt to interview those persons by the Racing Integrity Unit might compromise the ongoing criminal proceedings.

3.12 The Racing Integrity Unit then called Mr Kirk Hardy to give evidence. Mr Hardy who is domiciled in Auckland appeared by AVL. That had earlier been agreed between the Committee and counsel. Mr Davis had raised objection to Mr Hardy’s proposed evidence, having been furnished with a written brief. It was agreed that the concluding passage in the written brief was not admissible and was removed.

3.13 Mr Hardy was called as a witness for the RIU to give evidence of the harmful effects of MDMA. His qualifications to give such evidence were challenged by counsel for Mr Anderson.

Mr Hardy served in the NZ Police for many years. Since leaving the Police he has been involved in drug testing in a number of industries. He told the Committee that he was involved in something around 200,000 drug tests per annum. He has worked with international drug detection agencies.

It was said for Mr Anderson that Mr Hardy was not acquainted with the code of conduct for expert witnesses under the High Court Rules. The Committee is of the view that that code of conduct has application only to persons who are giving evidence in Court proceedings. It does not have application to professional disciplinary tribunals. That is essentially the nature of a hearing before a Non-Raceday Judicial Committee.

Refer 5th Schedule to the NZ Rules of Harness Racing. Rule 17.1 is as follows:

The Judicial Committee may receive as evidence any statement, document, information or material that would be inadmissible in a Court of law if it satisfied the evidence would assist to deal justly, speedily and in expeditiously with the matters before it.

The Committee has had regard to s23 to 26 of the Evidence Act 2006. S25(1) provides that an opinion by an expert is admissible if the fact finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceedings or in ascertaining any fact that is of consequence to the determination of the proceeding.

3.14 Case law determines that the enquiry into what is or might be substantially helpful “necessitates consideration of an amalgam of relevance, reliability and probative value in assessing the admissibility of expert evidence”. See judgment of Court of Appeal in Mahomed v R [2010] NZCA 419 at 35.

3.15 It is important to look closely at the nature of the evidence offered by Mr Hardy. It is of a general character. It does not seek to establish the precise consequences of consumption of MDMA which may have taken place. It is acknowledged as part of the RIU case that there is no direct evidence that MDMA supplied to Messrs Z and W was actually ingested by them. Further, the evidence of Mr Hardy properly acknowledges that the consequences of taking MDMA are dependent on a number of considerations. Principally these are as follows:

A. The amount of the drug consumed

B. The purity of the substance. Mr Hardy acknowledged that this can vary very significantly

C. The metabolism of the drug taker

D. Whether or not other drugs or alcohol may have been ingested around the time MDMA was taken

The Committee is not persuaded that formal medical qualifications are necessary before the witness is qualified to speak of the adverse consequences that can follow from the ingestion of MDMA. The very fact that MDMA is a prohibited Class B drug demonstrates that the lawmakers recognise that the drug can be harmful.

3.16 Evidence was put before the Committee which demonstrated that Messrs Z and W had extensive driving commitments at the harness racing meeting at Waimate on 25 March 2018. The MDMA had been supplied by Mr Anderson to Messrs Z and W on 24 March in Dunedin. The three persons were travelling from a race meeting at Winton to the race meeting to take place at Waimate on the 25th. The evidence before the Committee in relation to the drives of Messrs Z and W at Waimate indicates that there was nothing which was observed by the Race-day Stewards to indicate that either driver was in any way impaired or compromised.

3.17 The Committee rules that the evidence of Mr Hardy is admissible and it is accepted. That evidence does no more than make clear that in certain circumstances the ingestion of MDMA may impair the judgment of the person who has taken the substance.

4.0 MR ANDERSON’S POSITION

4.1 Mr Anderson did not give evidence or call evidence.

4.2 The defence advanced for Mr Anderson on the first charge was based upon the interpretation of the New Zealand Rules of Harness Racing. On the second charge the defence was based upon the existence of the name suppression Order made in the Christchurch District Court in respect of Messrs Z and W.

4.3 We take the first charge. Mr Anderson’s counsel pointed to the wording of Rule 102(1). It was contended that the wording is restrictive and critically important to determining whether the Judicial Committee has jurisdiction. The Rule 102(1) is as follows:

These rules shall apply to all races and race meetings and shall apply to and be binding on…

Mr Davis places particular emphasis upon the words “races or race meetings”. He submits that the Committee does not have jurisdiction under the rules to deal with conduct which occurs outside of races or race meetings. He further points out that criminal prosecutions and the outcome of criminal offending is dealt with under the Racing Act 2003. It is said that the rules do not extend to actions undertaken by individuals away from races, race meetings, stables or any type of connection to racing and that for the Committee to have jurisdiction the conduct in question must relate to the conduct of races, race meetings or the conduct of stables.

4.4 Mr Davis pointed to the following:

A. Neither of the persons supplied with MDMA by Mr Anderson have been spoken to.

B. Neither of the persons supplied with the drug has been charged with a breach of the rules.

C. There is no evidence that the persons supplied with the drug ingested the prohibited substance.

D. That the supply of the drug had no connection with racing. It is said that it was in a “private setting”.

4.5 The Judicial Committee drew to the attention of both counsel the judgment in Carter v JCA & Ors. This is a judgment of the High Court 7 December 2006 Harrison J. That was a judgment concerned with the interpretation of the New Zealand Thoroughbred Rules of Racing.

The relevant rule was R304. That directly addresses misconduct. Rule 304 provides:

Every holder of any licence or permit or certificate or registration…and every owner, owner/trainer, stable-hand, unlicensed apprentice, racing manager or official or employee of any club who misconducts himself in any way commits a breach of these rules.

There is no rule framed in the same language under the New Zealand Rules of Harness Racing. Mr Davis points to paragraph 16 of the judgment where it is said “Rule 304 was plainly limited to misconduct connected with racing. It has no greater reach and cannot sensibly be read in any other way”. Further Mr Davis quotes from paragraph 17 as follows:

“That the rules could never confer jurisdiction on a disciplinary body to determine a complaint that did not relate to matters connected with racing”.

And further in the same paragraph:

“What is absolutely determinative is the clear framework of limitation on the application of the rules to all matters connected with racing”. The offence of “misconduct in any way” can only relate back to this qualification.

It is acknowledged that the wording of Rule 304 NZTR, now Rule 101(1) and Rule 102(1) NZHR do not adopt the same wording.

4.6 By reference to the quotations above, it is the submission for Mr Anderson that the supply of MDMA on 24 March 2018 was not “connected with racing”. It is said that Mr Anderson’s conduct took place away from any racecourse or race meeting, away from stables or anything that created a connection with racing.

4.7 In the submissions for the RIU to which reference will be made in due course, there is reliance upon the decision of RIU v Breslin, decision of Non-Raceday Judicial Committee 3 July 2017. Mr Davis, for Mr Anderson submits that the Breslin decision is clearly distinguishable for the following reasons:

A. It was decided under the thoroughbred rules and those make reference in Rule 304 to “any matter relating to the conduct of races or racing”. It is said that the harness racing rules are much more restrictive.

B. The events in the Breslin case occurred immediately after a race meeting. It is said that in this case some three hours at least would have elapsed between the conclusion of the Winton race meeting and the arrival in Dunedin.

C. That there is no causal connection between the racing at Winton and the events which are the subject of the charge nor is there any causal connection between the supply in Dunedin and the race meeting at Waimate the next day.

D. The Judicial Committee in Breslin concluded that the conduct complained of was an extension of the events which had occurred on the race track some time earlier that day.

E. It is said that at the time of supply Mr Anderson was “a civilian” and not involved or connected with racing. The submissions use the expression “it was his down time”.

F. In response to the RIU submission that the conduct of Mr Anderson put health and safety at risk or may have enhanced drivers performance, it is submitted that there is no direct or indirect evidence to support either proposition.

4.8 In relation to the second charge it is the position for Mr Anderson that answering the questions asked of him at the interview with Messrs Grimstone and Irving would have involved a breach of the Suppression Order made in the District Court by Judge Neave.

4.9 In accordance with the directions made at the conclusion of the hearing on 12 June, Mr Davis has obtained advice from the Deputy Registrar at the Christchurch District Court as to the interim name suppression Order for Messrs Z and W. It is said that there is to be no publication of identifying particulars. Further, on 19 December 2019 Judge Neave made a final name suppression order for any identifying particulars of those persons to whom Matthew Anderson had supplied MDMA.

5.0 THE RESPONSE OF THE RIU

5.1 With reference to the first charge. It is said for the RIU that pursuant to s29 of the Racing Act 2003 individual rules are to relate to racing as the racing code sees fit. It is said that the appropriate enquiry is to determine whether Rules 1001(1)(i) and 1001(1)(v)(i) are rules that relate to racing and whether Mr Anderson’s conduct satisfies the Committee that there has been a breach of those rules.

5.2 The submissions for the RIU draw attention to various relevant parts of Rule 102(1). These are now set out:

Rule 102(1) reads:

These Rules shall apply to all races and race meetings and shall apply and be binding on:

(a) HRNZ, the Board and every member thereof and every Committee, and all Officers, Officials and servants thereof;

(c) all licensed persons and all persons working in or about any harness racing stable or associated with the management, care, control or superintendence of harness racing horses and their training or riding or driving;

(m) every person who in any manner directly or indirectly by himself or by any other person, on his own behalf or on behalf of any other person, does or attempts to do any act or thing for the purpose of securing any right benefit or privilege which he or any such other person is not entitled to receive under these Rules, or to evade any disability or penalty of any kind which has been imposed on him or on any such other person or which they may respectively become liable by or under these Rules;

(o) every person who so acts to bring himself within the purview

of these Rules.

5.3 It is said that the use of the words “and shall apply and be binding on” and the list that follows means that all of the persons listed are covered by the rules. Thus it said that the wording and structure of Rule 102 is wide-ranging and has application as follows:

(a) It starts by including all races, and there are a multitude of rules that relate to a race, for example rules 601–604.

(b) It then expands to “race meetings” by use of the “and”, again there are a multitude of rules that relate to the to race meetings, for example rules 701–714.

(c) The rule then further casts the net again by usage of “and shall apply to those persons listed/described by designation or category at the following (a)–(o) inclusive.” The repeated use of the word “and” signifies all these matters are covered by the Rules and there is no basis to differentiate the meaning and effect of the use of the word “and” in the rule.

5.4 The RIU submission points out that there are rules that do not relate to races or race meetings. There are for example rules which relate to the stud book.

5.5 Emphasis is placed on s29 of the Racing Act 2003. It is said by reference to subclause(2)(i) that rules may be made for “any other matters relating to the conduct of races and racing that the racing code thinks fit.”

5.6 It is submitted that Rule 101(1)(v)(i) relates to harness racing by use of the words “detrimental to racing”. As to Rule 1001(1)(i) it is said that this rule relates to harness racing by use of the words “any matter connected with harness racing”.

5.7 The RIU takes a different view of the judgment of Harrison J in Carter v JCA. It is submitted for the RIU that the correct interpretation of the judgment is that so long as the subject rules are within the terms of s29 of the Racing Act 2003 and are breached by persons covered by Rule 102(1)(a)-(o) then it is not, contends the RIU, a question of whether the rule is within jurisdiction, but rather whether the subject matter of the complaint falls within the rules. That it is contended is not a jurisdictional enquiry but rather a matter of whether there are adequate facts to provide proof of the allegation.

5.8 As to whether there is adequate proof of a breach, the RIU submissions point to the following:

A. Mr Anderson was on a circuit of race meetings and the supply took place the night between two of those meetings.

B. He supplied the drug he believed to be MDMA.

C. He had used that drug to maintain his own driving performance. That is clear from what he told the author of the pre-sentence report in the Christchurch District Court.

D. The two persons supplied were well known to him and he well knew that they had extensive driving commitments the next day at Waimate.

The RIU submits that this conduct by Mr Anderson, at the very least, gave rise to a risk of an illicit drug being consumed the night before a race meeting and therefore possibly affecting the abilities of those persons who ingested the drug the following day. The RIU further says that it was highly likely that the drug was in fact taken that evening by all three persons although it is acknowledged that there is no direct proof.

5.9 Unsurprisingly the RIU takes a different view of the decision of the Non-Raceday Judicial Committee in RIU v Breslin. In essence the RIU contends that the conduct of Mr Anderson on the evening between two race meetings on successive days is sufficiently “connected to racing”.

5.10 We turn to the second charge. The RIU submits that Mr Anderson would not have been in breach of the suppression Orders made by Judge Neave had he answered the questions about to whom he supplied MDMA. In support of that proposition the RIU puts forward the judgment of the Supreme Court in ASG v Hayne [2017] NZSC 59. A copy of that decision was made available to the Committee.

5.11 It is said that the RIU had a genuine interest in determining who had been supplied with the illicit drug and it mattered not that they may have already had advice as to who those persons were. Further and importantly, the RIU wished to enquire into the Respondent’s own drug use which was referred to in his pre-sentence report in the District Court. Further again, Mr Anderson and his legal advisor must have known that an RIU enquiry was likely given the comments of Judge Neave at Mr Anderson’s sentencing on 19 December 2019.

5.12 It is submitted for the RIU that it is no answer for Mr Anderson to say that he acted on legal advice and in any event it is the position of the RIU that such advice was misplaced. The Committee observes that whatever advice Mr Anderson may have been given in relation to the persons he supplied, there are two passages in the interview with Messrs Grimstone and Irving where Mr Anderson is asked about his own drug use. These are on page five of the transcript and as set out in paragraph 3.6 above. Neither Mr Anderson nor his legal counsel gave any explanation as to why he would not answer those questions concerning his own admitted drug use. We observe that the submissions made for Mr Anderson do not address this aspect. At the time of the interview with Messrs Grimstone and Irving, Mr Davis is recorded as having said that, with reference to Mr Anderson’s position “he’s not obliged to self-incriminate either”. The New Zealand Rules of Harness Racing and in particular Rule 1001(1)(i) do not provide the privilege of what might be described as “the right to silence” which exists under the general criminal law of New Zealand.

5.13 The Committee considers that the suppression Order made by Judge Neave had reference to publication or identification to the wider public. The Committee does not believe it was intended to in some way inhibit an RIU investigation. Such investigation was clearly contemplated by the Judge. Answering questions asked of the RIU would not in the Committee’s view amount to the “publication of identifying particulars”. It would not have involved putting the suppressed information into the public arena or making it available to the media. The answering of questions by Mr Anderson to the RIU investigators would not have resulted in inappropriate information reaching the public arena. The information would have remained within the domestic disciplinary investigation of the RIU and would not have prejudiced the fair trial process in respect of the Police charges against Messrs Z and W.

6.0 DISCUSSION: CHARGE UNDER RULE 1001(1)(v)(i)

6.1 The purpose and intent of the New Zealand Rules of Harness Racing is to ensure that the code is conducted with integrity and that conduct which may put that integrity at risk be the subject of a meaningful response and where a breach of the rules is proven the imposition of an appropriate penalty. In approaching the question of statutory interpretation it is accepted that an interpretation should be adopted which gives efficacy to the rules so as best to address the issues that those rules are designed to govern.

6.2 Rule 102(1) of the rules must be read as a whole. Moreover, the rule must be read as being made under the authority granted to Harness Racing New Zealand by s29 of the Racing Act 2003. The plain purpose of that section, as emphasised by Harrison J in Carter v JCA is to ensure that each of the codes puts in place rules which can effectively ensure the integrity of the racing for which that code may be responsible. That is plainly the intent of Rule 102(1).

6.3 The interpretation of Rule 102(1) advanced for Mr Anderson would lead to an entirely artificial and unsatisfactory outcome. It cannot be realistic to suggest that objectionable behaviour can only happen on racecourses or at race meetings or around stables. Looking at the circumstances that are known here, the interpretation advanced for Mr Anderson would mean that had the drug MDMA been supplied to Messrs Z and W outside the front gate to the Waimate Racecourse then no breach of the rule would have occurred but if such supply had taken place after they had passed through the front gate, then there would be a breach of the rule.

6.4 The Committee considers that the appropriate interpretation of Rule 102(1) is to enquire as to how closely, or alternatively remotely, the conduct in question is with relation to races and/or a race meeting. Here Mr Anderson had been at the races with Messrs Z and W at Winton and the three men were travelling from there to Waimate when the MDMA was supplied. Mr Anderson knew that within the next 24 hours Messrs Z and W had extensive driving commitments at the Waimate meeting. We are satisfied from the evidence of Mr Hardy that ingestion of the Class B drug MDMA may have impaired the judgment of Messrs Z and W, and indeed that of Mr Anderson if he too had partaken of the drug. While there is no definitive proof that the drug was taken and no evidence that the performance of the three drivers was compromised, Mr Anderson by making the drug available in circumstances where inferentially it can be concluded that it was highly likely ingested soon after, created a situation where there was a real risk that the prominent reinsmen, Messrs Z and W, would be driving at Waimate within the next 24 hours with a real possibility that their judgment might be impaired or compromised.

6.5 The Committee recognises that there could well be circumstances where the supply of a prohibited drug to a licenced reinsman would not be sufficiently connected to races or a race meeting to bring Rule 102(1) into play. If, for example, a prohibited drug was supplied to a reinsman when it was known to the person who supplied the drug that the reinsman in question was not going to have driving commitments for several days. If the reinsman was however working around or involved with the operation of stables then Rule 102(1) might still have application.

6.6 For the reasons set out the Committee finds that there is jurisdiction to hear and rule on the first information faced by Mr Anderson: that under Rule 101(1)(v)(i) and further that the evidence demonstrates that the conduct alleged took place. There is after all Mr Anderson’s guilty plea in the Christchurch District Court.

6.7 We find the charge under Rule 101(1)(v)(i) to be proven.

6.8 We turn to the second information where it is alleged that Mr Anderson refused to supply information.

6.9 In relation to the questions put to Mr Anderson in respect of the supply to Messrs Z and W and his refusal to respond, we consider that the judgment of the Supreme Court in ASG v Hayne [2017] NZSC 59 is directly in point and supports the position of the RIU. As in those proceedings we consider that the RIU had a legitimate need to know the information. It is the function of the RIU to ensure the conduct of racing takes place with integrity and that both human and animal welfare are not put at risk. The link between Mr Anderson’s offending and the integrity of the conduct of the harness code is self-evident. Moreover, there is no reason to believe that the information that was being sought by the RIU would have reached the public domain.

6.10 Even if the Committee be mistaken in relation to the questions asked about Messrs Z and W, Mr Anderson faces insuperable difficulty in not answering questions about his own drug use. The relevant passages are set out at paragraph 3.6 above. It is our view that the failure to respond to those questions in relation to his own conduct is plainly a breach of the rule.

6.11 The charge under Rule 1001(1)(i) of refusing to supply information has been proven.

7.0 PENALTY

7.1 It is the position of the RIU that if both charges were proved there should be a disqualification for a period of 12 to 18 months. It is said that the charge of failing to answer questions is the more serious matter. It is submitted that that is critical to the integrity of harness racing.

7.2 The submissions for the RIU make reference to the recent decision of the Appeals Tribunal of the Judicial Control Authority in RIU v Lawson 13 May 2019. A copy of that decision has been furnished to the Committee. The offending in Lawson was of an entirely different character and in this Committee’s view, at a more serious level. It involved significant financial dishonesty.

7.3 With reference to drugs, the RIU points to the recent decision in RIU v Donoghue 30 November 2019. A copy of that decision was made available to the Committee. Mr Donoghue was licensed under the Thoroughbred Racing Rules. He was required to give a random drug test. This returned a urine sample containing methamphetamine and amphetamine. He acknowledged that he had smoked methamphetamine twice in the week before the test and admitted a breach of the relevant rule. A disqualification of 12 months was imposed. Here there is no direct evidence of drug use. Nonetheless the Committee points to what is said in paragraph 6.4 above where it might inferentially be concluded that it was highly likely that MDMA was ingested soon after it had been supplied by Mr Anderson.

7.4 The submissions for the RIU make reference to the decision of the District Court by which Mr Anderson was discharged without conviction under s106 of the Sentencing Act 2002. That in respect of the charges of possession and supply of MDMA. The submissions point out that the District Court did not have before it the allegation of failing to provide information to the RIU. Judge Neave in the District Court plainly recognised that it was a matter for the RIU to determine what charges, if any, might be preferred against Mr Anderson and for the Judicial Control Authority to determine those proceedings. It seems to this Committee that the principal reason for Judge Neave granting the discharge was that had a conviction been entered this would have resulted in Mr Anderson being prevented from entering a racecourse for two years. That pursuant to Rule 4 of the rules controlling or prohibiting admission to racecourses: see R v Anderson [2019] NZDC 25845 at (2). This is the ruling of Judge Neave of 19 December 2019.

7.5 The decision of RIU v Arbery is addressed in the submissions for the informant. This was in anticipation that the decision would be relied upon by counsel for Mr Anderson. It is said for the RIU that the offending there was significantly less serious. It involved the use of cannabis. There was co-operation with the RIU and a prompt guilty plea. Mr Arbery was suspended for six weeks.

7.6 Mr Davis submitted that Mr Anderson is a talented young reinsman. That is recognised by the Committee. He has a clean record.

7.7 Mr Davis made reference to the sentencing notes of Judge Neave on 11 and 19 December 2019. The Committee acknowledges paragraph 10 in the ruling of 11 December 2019. Paragraph 10 is to the following effect:

“The Court is entitled to take into account whether or not there was a real or appreciable risk of a Defendant losing his livelihood in the event of a conviction. In my view it would be utterly out of proportion for the Defendant to be disqualified for a lengthy period or permanently as a result of these acts or still relatively youthful folly, however that decision is not mine to make except to the extent that I can give that indication.”

It is appropriate to quote a further passage: this from the ruling of Judge Neave on 19 December 2019. Paragraph 7 is as follows:

“It is important, in considering discharges without conviction against the backdrop of the consequences for a trade or profession, that the Court does not adopt a course of action which completely removes, from professional bodies, appropriate levels of oversight of that profession, and indeed, effectively to abrogate to the Court a decision vested in another body.”

Clearly His Honour Judge Neave recognised that there would likely be an RIU investigation and in all probability the laying of charges under the rules of harness racing.

7.8 Mr Davis on behalf of Mr Anderson submits that the offending is comparable with that in RIU v Arbery. Here however, there are two breaches of the rules. The failing to provide information, when the rules expressly require that can be seen as a significant distinguishing consideration.

7.9 Upon an analysis of all of the relevant material, including the submissions of both counsel and the judgments referred to, together with the sentencing notes of Judge Neave in the District Court, the Committee has reached the view that disqualification is appropriate. A period of suspension would not be an adequate response to the level of offending. As to the period of disqualification, the Committee takes the view that the proposed disqualification of 12 to 18 months as advanced by the RIU is longer than is considered appropriate. The view reached by the Committee is that a period of disqualification of six months is appropriate. That in respect of each charge. The periods of disqualification will be concurrent, that is six months in total and will apply from 1 August 2020.

8.0 COSTS

8.1 Both parties are invited to make written submissions on the question of costs. Those submissions not to exceed four pages to be lodged with the Executive Officer of the JCA within five working days of the release of this decision.

9.0 PUBLICATION

9.1 The names of the persons to whom Mr Anderson supplied the Class B drug MDMA, Messrs Z and W will be published in the decision that is released to the parties and made available to the Board of the Judicial Control Authority. Those names of Messrs Z and W will be redacted from the JCA website. On the website they will be identified as Z and W. All parties involved in these proceedings are directed to ensure that the names of Z and W are not made known to any persons who do not have a direct and legitimate involvement in this matter.

Dated this 14th day of July 2020

Murray McKechnie

Chairman 

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1. DIRECTIONS OF NON-RACEDAY JUDICIAL COMMITTEE

1.1 The hearing at Addington Raceway on 12 June 2020 concluded at 3.30pm.

1.2 In preparation for the hearing Mr Davis, counsel for Mr Anderson, filed detailed submissions, particularly with reference to the issue of jurisdiction. The submissions in essence contend that the rules of harness racing do not give the Judicial Committee the authority to enquire into the alleged conduct of Mr Anderson. Today Mr Dickey has made a oral response and that was quite detailed and relevant. It would however significantly assist the Committee if both counsel were to provide summaries of the position they take on that subject. Accordingly, it is directed that the RIU will, within seven working days, file a summary of submissions in relation to the jurisdiction issue, such not to exceed five pages. Seven working days thereafter Mr Davis, counsel for Mr Anderson, will file a summary of the position which he takes: again not to exceed five pages.

1.3 In relation to the second charge failing to supply information, each party will file a summary of the position they take. The same timetable as above and the submissions to be together but in relation to the second charge of failing to supply information, the submissions in each case will be limited to three pages.

1.4 No further submissions are required in relation to the question of penalty in the event that the Committee were to find one or other or both of the charges proved.

1.5 Upon receipt of the written submissions under the timetable set out above the Committee will indicate as best it is able when a written reserved decision will issue. In the meantime Mr Anderson's status in relation to harness racing remains unchanged.

1.6 One of the explanations given by Mr Anderson and his counsel for not answering questions asked by the RIU Investigators was the existence of a suppression Order or Orders made in the District Court in Christchurch in relation to what has become known as the Inca enquiry. If that explanation by Mr Anderson and his counsel for not answering questions has validity, that can only be determined by an examination of the suppression Orders. These are not before the committee. Mr Davis has undertaken to search the position and make available copies of all relevant suppression Orders and those are to accompany the submissions which he is to file on behalf of Mr Anderson.

Dated this 12 day of June 2020

Murray McKechnie

Chairman

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