You are here: Home / Non race day hearings / Non Raceday Inquiry RIU v P Lowen - Reserved Decision dated 28 July 2017 - Chair, Prof G Hall

Non Raceday Inquiry RIU v P Lowen - Reserved Decision dated 28 July 2017 - Chair, Prof G Hall

Created on 02 August 2017

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL

CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND Mr Peter Lowen

Licensed Greyhound Trainer

Respondent

Information No. A8456

Judicial Committee: Prof G Hall, Chairman

Mr A Dooley, Member of Committee

Appearing: Mr O Westerlund, for the Informant

The Respondent in person

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] The respondent, Mr Lowen, holds an Owner / Trainer Licence under the Rules of Greyhound Racing New Zealand. He is 55 years old and has been a trainer since 2008. He has been involved in the industry for nearly 25 years and currently has three greyhounds in work.

[2] Mr Lowen is charged with failing to comply with the Greyhound New Zealand Mobile Phone Policy in respect of his dog WHEELIE GOOD in Race 4 at the Auckland Greyhound Racing Club’s meeting on Sunday 28 May 2017. This is an alleged breach of r 62.1(dd). This rule states:

Any person (including an Official) commits an offence if he/she: fails to comply with any policy, restriction or guideline punishable by a fine of $300.00 or less.

[3] Greyhound Racing New Zealand issued a Mobile Phone Policy in September 2015. This policy states:

The usage of mobile phones by handlers at race meetings is prohibited during the parading of dogs and anywhere on the racetrack pre or post-race. Phones must be switched off at all times in the aforementioned situations. Mobile phones can however be switched on again for usage after all relevant post-race procedures (e.g. swabs, etc.) have taken place. Failure to comply with this Regulation may result in charges being brought about under the auspices of Rule 87.1(q).

[4] We note that r 87.1(q) was repealed when the rules were rewritten as of 29 May 2017. Rule 87.1(q) provided:

Any person (including an Official) commits an offence if he/she: commits or omits to do any act or engages in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion of Greyhound racing.

[5] Rule 62.1(q) of the current Rules, below, is worded in an identical manner to r 87.1(q).

[6] The guideline has clearly not been updated, but at the time it was promulgated the reference was to r 87.1(q), which clearly was a relevant rule. We are satisfied that the respondent has not been materially misled as to his obligations under the Rules and that no miscarriage of justice is likely to have arisen through the continued reference to r 87.1(q) in the Mobile Phone Policy. However, the reference should be to r 62.1(q). This is a matter that NZGRA may wish to address.

[7] The informant produced authorisation in a letter dated 4 July 2017 from Mr Godber, General Manager of the RIU, to lay the information under r 62.1(dd).

[8] We have not been presented with any evidence to the effect that a breach of the Mobile Phone Policy is punishable by a fine of $300 or less. In these circumstances, despite the respondent’s admission of the breach, we believe it is appropriate to invoke our powers under cl 27.2 of the Seventh Schedule and to amend the information by substituting an alternative charge.

[9] There are 2 options open to the Committee: to amend the charge to either one under r 62.1(q) or one under r 62.1(cc). Rule 62.1(cc) provides:

Any person (including an Official) commits an offence if he/she: acts in contravention of or fails to comply with any provision of these Rules or any Rules made thereunder, or any policy, notice, direction, instruction, guideline, restriction, requirement or condition given, made or imposed under these Rules.

[10] Rule 62.1(q) provides:

Any person (including an Official) commits an offence if he/she: commits or omits to do any act or engages in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion of Greyhound racing.

[11] It can be seen that the need for the penalty to be a fine of $300 or less does not arise under either of these provisions. Having regard to the fact that the policy refers to the predecessor to r 62.1(q), we believe an amendment of the information to an allegation that the respondent committed a breach of this rule is the more appropriate course of action.

[12] We are satisfied that original charge has not misled Mr Lowen. As we have observed below, he has acknowledged that he was aware of the Mobile Phone Policy. We are thus satisfied that our amending the charge is in the interests of justice in this particular case.

[13] The delay in our delivering this decision is due to the difficulty the JCA has had in communicating with the respondent in order that we could inform him of our intention to amend the information and to hear any submission he might wish to make on this matter.

[14] Mr Lowen was eventually contacted on 28 July and a further teleconference was held. He agreed to the amendment of the information to a charge under r 62.1(q).

[15] Mr Lowen has admitted the breach of r 62.1(q), which we thus find proved, and has accepted the summary of facts.

Summary of facts

[16] Mr Lowen was at the Auckland Greyhound Racing Club meeting held at the Manukau Stadium race track on Sunday 28 May 2017. He entered a greyhound in Race 4, the Deli’s Sports Bar Clendon Inn Sprint 318 metres.

[17] He was leading his greyhound WHEELIE GOOD behind the starter’s box prior to the race commencing. He was seen during the television coverage to remove his mobile phone from his trouser pocket and to look at it before placing it back into his trouser pocket prior to the dogs entering the starting boxes.

[18] Mr Lowen was interviewed on 2 July 2017 at the Manukau Stadium race track. He admitted having his mobile phone present and looking at it behind the starting boxes prior to the start of Race 4.

[19] In explanation, he stated that he had heard a text notification sound on the way to the starting boxes. He got his mobile phone out to check it but he could not see the screen clearly because of the bright sun. When he arrived behind the boxes he thought he would check his mobile phone to see if it was turned off.

The informant’s penalty submission

[20] The informant commenced their submission by stating that the appropriate penalty for this breach was a $300 fine.

[21] Greyhound Racing New Zealand issued a Mobile Phone Policy to all trainers in September 2015 advising that a failure to comply with this Regulation (but see [6]) may result in charges being brought.

[22] The RIU referred to RIU v McInerney 4 January 2016 in support of the submitted penalty of a $300 fine. In that case, the respondent failed to comply with the Board’s Mobile Phone Regulation by using it while handling a dog at the starting boxes. The penalty imposed was a $300 fine.

[23] The RIU acknowledged that Mr Lowen had been fully co-operative with their investigation and had pleaded guilty to the breach at the first opportunity.

[24] Mr Lowen was said to be an experienced greyhound trainer who was well aware of the Mobile Phone Policy. He had been involved in the racing industry for approximately 25 years and knew the importance of conducting himself in a professional manner and maintaining integrity in racing. Although he was only checking to see if his mobile phone was turned off, he had made a regrettable mistake.

[25] The RIU did not seek costs.

The respondent’s penalty submission

[26] Mr Lowen confirmed the summary of facts and explained that the phone was new. He now realised that the text notification beep he had heard had not in fact been from his phone. But at the time, he was not aware of this and was concerned that had the phone rung whilst the dogs were being loaded, this could have caused problems. He could not read the phone when he looked at it while walking to the boxes because of the sun. This was why he checked his phone in the shade behind the boxes. He had quickly seen that the phone was indeed turned off and had immediately returned it to his pocket.

[27] The respondent stated that while he was aware of the Mobile Phone Policy, he had understood he was not supposed to have his phone turned on and that was why he was checking it. He said the RIU had checked the records of his phone use at the track that day and there were no texts or calls. He did not realise the Policy prohibited his looking at his phone.

Decision

[28] This breach of the Mobile Phone Policy is very clearly low end. While the respondent has had his phone in his hand in order to check for a text message whilst in the shade, the phone in fact was turned off. Nonetheless, this would not have been evident to the public and trackside viewers who simply would have seen Mr Lowen, phone in hand, with the dogs, behind the boxes. The respondent has estimated the phone would have been in his hand only for some 5 seconds. The informant did not disagree with this estimate.

[29] Mr Lowen has been in the industry for a number of years and has not previously breached the Mobile Phone Policy. He has admitted the breach and has co-operated with the RIU’s investigation. He has been frank in his oral submission to the Committee.

[30] The comparator case is McInerney. The circumstances there are different. The dog had been late scratched and the respondent, in the words of the starter, “had stood in front of the boxes, pulled out his phone and stated that he was calling his boss. I asked John [the respondent] if he could shift as I had to load Race 4 with the remaining seven dogs. Eventually, he moved over to a grassed area, had a short conversation on his mobile phone, then moved away towards the kennel block.” The informant’s penalty submissions describe the respondent’s actions as, “he had actually taken it [his cellphone] from his pocket, answered it and had a conversation on it while being shown on “Trackside”. The respondent’s penalty submission is also to this effect. He said, “he had answered the call from his father who was watching the events on “Trackside” and was anxious to know what was happening.”

[31] The circumstances in McInerney are quite different to those before us. It would appear from the decision that the respondent in that case answered a call and, significantly, there was a conversation by the boxes in full view of the Trackside audience. While Mr Lowen could be seen to have the mobile phone in his hand, he did not speak to anyone and we have not been told that anyone would have thought he was texting, although there is the possibility he could have been thought to be reading a text that he had received. We accept the RIU’s submission that the perception of TV viewers could well have been that the phone was turned on.

[32] Mr Lowen’s actions are clearly a notch below those in McInerney. For that reason, we believe a lesser penalty than that imposed in that case is appropriate. In the unusual circumstances of this case, we believe a penalty of $200 is sufficient to hold Mr Lowen accountable and to reinforce the need to uphold the integrity of Greyhound Racing.

[33] The RIU do not seek costs. The matter has been heard on the papers and by means of telephone conferences. There is no order in favour of the JCA.

Dated at Dunedin this 28th day of July 2017.

Geoff Hall, Chairman

Document Actions