You are here: Home / Non race day hearings / Non Raceday Inquiry RIU v S A Sharrock - Written Decision dated 20 August 2018 - Chair, Mr T Utikere

Non Raceday Inquiry RIU v S A Sharrock - Written Decision dated 20 August 2018 - Chair, Mr T Utikere

Created on 22 August 2018

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Racing Rules

BETWEEN RACING INTEGRITY UNIT

Informant

AND S A (ALLAN) SHARROCK

Respondent

Judicial Committee: Mr T Utikere (Chairman)

Mr N McCutcheon (Member)

Parties: Mr S Irving (for the RIU)

Mr A Sharrock (as the Respondent)

Hearing: 15 August 2018 at Awapuni Racecourse

Date of Oral Decision: 15 August 2018

Date of Written Decision: 20 August 2018

WRITTEN DECISION OF JUDICIAL COMMITTEE DATED 20 AUGUST 2018

[1] The Respondent is a Licensed Thoroughbred Trainer who faces one charge of Misconduct. The Charge is detailed in Information A8705 and alleges a breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing.

[2] As indicated in the Minute from the Committee (Dated 7 August 2018), we are in receipt of the Notice of Appointment, the Authority to Charge from the RIU’s General Manager, Mr M Godber, and the Charge Rule and Penalty Provisions. This matter was set down for a Defended Hearing at Awapuni on Wednesday 15 August 2018.

[3] The specific Charge alleges that:

“On the 27th day of June 2018, at New Plymouth, being a licensed trainer, did misconduct himself by using insulting and offensive language, during a phone conversation with Ms Bridget Flynn, the Central Districts Training, Safety and Welfare Advisor, thereby committing a breach of Rule 340 of the New Zealand Rules of Thoroughbred Racing AND IS therefore liable to the penalty or penalties which may be imposed pursuant to Rule 803(1) of the said Rules.”

[4] Rule 340 states:

“A Licensed Person, Owner, lessee, Racing Manager, Official or other person bound by these Rules must not misconduct himself in any matter relating to the conduct of Races or racing."

[5] At the commencement of the Hearing, Mr Sharrock confirmed his Not Guilty plea. It was also agreed that the attendance of Messrs Cruickshank and Pinn would not be necessary as their signed Evidential Statements could be entered into evidence without the need for either to be present at the hearing.

EVIDENCE

The Informant’s Case

[6] Mr Irving identified that ‘misconduct’ was not defined under the Rules of Racing and referred to the Dictionary definition of “unacceptable or improper behaviour, especially by an employee or professional” (Websters Dictionary). He also submitted that there was a high expectation that licence holders would conduct themselves in a particular manner in relation to racing. Further, that the alleged incident did relate to racing, as it was an alleged exchange from a licence holder to an NZTR official during a cognitive/concussion test with an apprentice.

[7] The position of the RIU was that there was an expectation within the racing industry that conduct must be at a higher level than it had ever been at, and that was also the case in other sporting codes, such as New Zealand Women’s Soccer and New Zealand Cycling.

[8] Mr Irving identified that the charge was brought under Rule 340 , which was at a lower level than a charge under Rule 801(s)(ii), and that after investigation, the RIU had opted to charge the Respondent under the lesser misconduct offence. The RIU stated that previous decisions had also clarified that the more serious the offence, the higher the standard of proof on the balance of probabilities.

[9] Mr Irving was specifically asked to identify what constituted the alleged misconduct . In response he referred to three components of the alleged conversation with NZTR official Bridget Flynn:

1. The statement: “How dare NZTR remove Alfred without hearing my side of the F***ing story”.

2. The statement: “I’ve already spoken to that f***ing Simon Irving, he is a piece of s*** and I have absolutely no respect for that man and I feel the same way about you and NZTR”.

3. The statement: “You are lucky this conversation has taken place over the phone, it would have been ten times worse if I had seen you in person”.

[10] As Mr Irving was referred to in an unsavoury manner in the alleged conversation, he was asked to comment on whether he had a potential conflict of interest in prosecuting this charge. In response, he stated that he did not believe he did, and that the RIU had considered this, and that was the reason why Mr Cruickshank had undertaken the interview with Mr Sharrock, to remove any perception of bias.

[11] Mr Sharrock confirmed to the Committee that he had no objection to Mr Irving prosecuting the matter before us. In light of this, we considered it appropriate to proceed.

Ms B Flynn

Ms Flynn read from her Brief of Evidence, which covered the following points:

1. I am employed by NZTR as a Training and Welfare Advisor in the Central Districts.

2. My role involves advising on industry training and education, and welfare of apprentice jockeys.

3. I was appointed to this role in July 2017 having previously being a Licensed Trainer at Racing Victoria in Australia for 13 years.

4. On Wednesday June 27th I met with Apprentice Jockey Wiremu Pinn at the Pukekura Raceway, New Plymouth to conduct a NZTR Rider Concussion Test and another cognitive test for Primary ITO.

5. Approximately 11.15 am we were in the Press room at the racecourse when Wiremu's employer Allan Sharrock phoned Wiremu on his cellphone.

6. Wiremu answered and had his phone on speaker as he was doing a computer test at the time.

7. I was sitting next to Wiremu and there was no one else in the room.

8. Allan asked Wiremu where he was and Wiremu replied that he was doing a concussion test.

9. Allan replied by saying “Why the f*** are you doing one of them?

10. I told Wiremu all jockeys need to do the test every two years and Wiremu relayed the message to Allan.

11. Allan asked Wiremu who was testing him and Wiremu said “it's Bridget.”

12. Allan then said, "I need to speak to that Bridget Flynn.”

13. Wiremu passed his phone to me.

14. Allan said that I should take the phone off speaker which I did.

15. He started talking about my involvement in the Alfred Chan case back in early December 2017.

16. I was unable to contribute to the conversation and my defence as he pursued in an aggressive and intimidating manner.

17. Allan stated, “How dare NZTR remove Alfred without hearing my side of the f***ing story” and then went on to say, “I've already spoken to that f***ing Simon Irving, he is a piece of s*** and I have absolutely no respect for that man and I feel the same way about you and NZTR.”

18. He was yelling at a level that Wiremu could hear him but not what he was saying.

19. Allan continued telling me about a man that shared the Sharrock house at the time Alfred was there and this man had told Allan that “Alfred was a lying little c***.”

20. At the conclusion of his tirade Allan told me “You are lucky this conversation has taken place over the phone, it would have been ten times worse if I had seen you in person."

21. After I got off the phone, Wiremu said "I haven't heard him go off like that for ages.”

22. At the conclusion of the testing I gave Wiremu forms that he took away for Allan to sign.

23. On bringing them back to me two hours later, Wiremu said “the boss is still pretty angry.”

24. I said, “at me still?” and Wiremu replied “yes”.

25. I asked Wiremu how he was going with Allan at work?

26. Wiremu replied “good, as long as I don't make any mistakes”.

27. I said, “well best you don't make any mistakes then.”

28. On leaving, Wiremu said to me “I'm sorry for the way the boss was today”.

29. I had previously had normal conversation with Allan via phone twice in April regarding apprenticeship / licensing documents for Wiremu and the Alfred Chan case was not mentioned.

30. I find Allan's comments to me abusive, intimidating and totally unprofessional.

31. His comments in paragraph 17 I find particularly insulting and offensive.

32. I often attend race meetings in my work capacity and I am concerned, especially given Allan's threatening comment “it would have been ten times worse if I had seen you in person”, what the outcome will be when our paths next cross on a racecourse.

33. I have worked in and around the racing industry for many years and I am used to a level of poor behaviour but this was way beyond what I believe is acceptable.

[12] In response to questions from Mr Irving, Ms Flynn confirmed that she first complained about the alleged incident via an email to NZTR authorities on 27 June. A full unredacted copy of the email was presented to the Committee. Ms Flynn had also sent a further email regarding the alleged incident to NZTR authorities on 29 June.

[13] She also confirmed that what she found most offensive and insulting was the reference to how NZTR handled the Chan incident; the unsavoury reference to Mr Irving, herself and NZTR; and the threat that the interaction would have been ten times worse if it had not occurred over the phone. She stated that she had never been spoken to like that in her role as a NZTR official, or as a former licensed trainer. She recalled that Mr Sharrock was off on a tirade, and that she had no opportunity to voice her opinion or defence to what Mr Sharrock was saying.

[14] In response to a question from the Committee, she confirmed that she did not have an issue with the specific language that was used, such as the word “f***”, but rather the unprofessional context of what he was saying.

[15] Under cross-examination from Mr Sharrock, Ms Flynn confirmed that his “tirade” was likely to be based on the incident involving his former apprentice Alfred Chan some seven months earlier.

[16] Mr Irving objected to the relevance of any previous incidents relating to Mr Chan. After hearing submissions from both parties, the Committee determined that questions relating to that incident were within scope as it provided context to the alleged offence. Ms Flynn then explained the actions she took in relation to Apprentice Chan back in December 2017.

[17] For the benefit of the Committee, Ms Flynn outlined that trainers were aware that a concussion test was to be administered to apprentices every two years. While this was common practice, and trainers were aware, Ms Flynn confirmed that it was not necessarily the practice of NZTR officials to inform the trainer that such testing was going to be undertaken.

[18] Under re-examination by Mr Irving, the witness agreed that she was also offended by Mr Sharrock’s alleged use of the work “c***” with reference to comments made by a third party about Mr Chan.

[19] With the consent of all parties, signed Evidential Statements from Mr Pinn and Mr Cruickshank were presented to the hearing.

Mr W Pinn

[20] Mr Pinn’s statement confirmed that he was an NZTR licensed Apprentice Jockey apprenticed to Mr Sharrock in New Plymouth. On Wednesday 27 June he was undertaking a concussion test with Bridget Flynn in a room at the New Plymouth racecourse. Mr Sharrock had rung him during that time, with the phone being on speaker phone. Once Mr Sharrock became aware that Ms Flynn was with him, he had asked to speak to her. Mr Sharrock had told her to take it off speaker phone, which she did and Mr Sharrock started talking to her.

[21] It was clear to Mr Pinn that Mr Sharrock didn’t seem too happy about something, but Mr Pinn was unable to hear anything clearly about the conversation, but confirmed that his employer was loud through the phone.

[22] Mr Pinn did not recall how the conversation finished, but was aware that it was about Mr Sharrock’s former apprentice Alfred Chan. Following the conversation, he returned to Mr Sharrock to get some papers signed, where Mr Sharrock was not in a good mood.

[23] When Mr Pinn returned to Ms Flynn, in response to a question from her about how things were working with Mr Sharrock, he replied “it was good, he’s a hard man but he’s fair”.

[24] Mr Sharrock had no issues with the content of Mr Pinn’s signed Statement.

Mr A Cruickshank

[25] Mr Cruickshank’s statement confirmed that he was employed by the RIU as a Racing Investigator, and had interviewed Mr Sharrock at his training facilities in New Plymouth on 5 July. He commenced an audio recording of an interview with Mr Sharrock on that day, which was played to the hearing.

[26] Mr Sharrock had no issues with the content of Mr Cruickshank’s signed Statement.

[27] The audio recording between Mr Cruickshank and Mr Sharrock identified a number of aspects, namely:

[28] That Mr Sharrock had asked Ms Flynn to take the phone off speaker phone so that he could talk privately and so that Mr Pinn was unable to hear the conversation with Ms Flynn. Mr Sharrock was very disappointed that his home had been entered by NZTR officials without any contact with him. He accepted that his manner was “aggressive, annoyed and angry”, and that he did not deny that. He also accepted that he also dominated the conversation as he felt very strongly about how the Chan matter had been handled.

[29] Mr Sharrock accepted during the interview that he made comments to the effect of “How dare NZTR remove Alfred without hearing my side of the story”, and that “I’ve already spoken to that Simon Irving, and I have absolutely no respect for that man and I feel the same way about you and NZTR”, or something similar. Mr Sharrock did not fully accept that he used unsavoury language as part of the exchange with Ms Flynn, but agreed that he was vocal and loud.

[30] Mr Sharrock thought the incident currently before the Committee had been “put to bed” as he had contacted NZTR CEO Mr Saundry on 27 June to discuss alleged comments about Mr Chan to Apprentice Pinn by Ms Flynn.

[31] Mr Sharrock was disappointed that he was not contacted after the Chan incident by anyone from NZTR. He believed he had never been given a chance to explain his side of what had occurred. It was this fact that had annoyed him, as he had made contact with Mr Saundry where he expressed concern about how NZTR had handled that matter.

[32] The Respondent also accepted during the interview with Mr Cruickshank that he made the statement: “You are lucky this conversation has taken place over the phone, it would have been ten times worse if I had seen you in person”. The reason for making that statement was that he did not want his apprentices being ‘interrogated’ without him being present, and he believed it would have been embarrassing for Ms Flynn as he believed it was best that he dealt with it on the phone instead of at the races with people walking past.

[33] He conceded that he probably could have picked a better time to talk with Ms Flynn about it, but that it was still going to happen at some stage.

The Respondent’s Case

[34] In presenting his case, the Respondent confirmed at the time of the alleged incident, he was very annoyed, and that the annoyance stemmed from the way that racing authorities had handled the Alfred Chan matter. Mr Sharrock had fundamentally taken issue with racing officials being allowed to enter his house whilst he was not there without his permission. With reference to that matter, he described it as a matter of integrity, and that racing officials had not followed the correct process.

[35] He thought the matter had been “put to bed” following his contact with Mr Saundry, and he now found himself in a position where his integrity as an apprentice mentor had been impacted, and as a result he had lost a lot of faith in the RIU and NZTR.

[36] Mr Sharrock agreed that the Chan incident was the reason as to why he did not believe he was guilty of misconduct, and that if it had been handled professionally by authorities, then he would not be in this situation.

[37] While he and Mr Saundry had agreed to differ in their opinions on 27 June, he submitted that Mr Saundry conceded to him that NZTR could have handled the Chan matter better. Mr Sharrock also identified that he had spent approximately 36 years in the racing industry.

The RIU’s Closing Submissions

[38] Mr Irving referred the Committee to the McKenzie (RIU v PL McKenzie, Decision Dated 7 May 2013) decision, which identified that:

“We are equally in no doubt, despite the submissions made to us by Mr Ryan, that it is no defence to a charge of misconduct under R. 340, involving the use of offensive and insulting language, that the person charged may have been provoked or felt justified in using the offending language by the conduct or language of the person or persons involved in the interchange in which the offending language was used. Those matters may be relevant to the assessment of penalty but do not, in our view, constitute a defence to the charge.” (Ibid., at Para 4.2)

“...Whether or not Mr Zarb was personally offended or insulted by the language used does not define the test which is whether a reasonable person, cognisant of the circumstances, would regard the language used as being offensive and insulting…”(Ibid., at Para 4.5)

[39] The RIU also submitted that Mr Sharrock had seven months to deal with grievances over the process used in the Chan incident, and that he had not taken the opportunity to do so. To use it as an excuse for his behaviour some seven months later was in the RIU’s view quite unacceptable. Mr Irving believed that the Respondent was still aggrieved regarding that matter and had disclosed a copy of an RIU Investigation Report into the Chan matter to Mr Sharrock and the Committee.

[40] Mr Irving also referred us to a previous case (NZTR v C [2006]) where he identified that misconduct as a direct result of an action that someone felt aggrieved about, was not a defence to a charge.

[41] He believed the salient points of Mr Sharrock’s interview with Mr Cruickshank were that he admitted that his tone was characteristic of someone who was annoyed, angry and aggressive; and that he admitted the comments that he had made to Ms Flynn. Part of Ms Flynn’s role was as a Welfare Advisor, and that it would have been remiss of her to not enquire as to the progress and welfare of Mr Pinn. Mr Irving believed that Ms Flynn had taken the Respondent’s comments to be threatening in nature, and that she was concerned as to what the outcome would be when their paths crossed in the future. The comments were made to a woman, who was a NZTR employee simply performing her duties.

[42] He confirmed that the three main statements that Ms Flynn found abusive, intimidating and offensive were contained in paras 17, 19 and 20 of Ms Flynn’s Brief of Evidence. Mr Sharrock had identified that making those comments were going to happen, and the RIU believed that indicated a level of pre-meditation; that his comments were not an instantaneous reaction. Mr Sharrock had time to think about what he was going to say to her, and that nonetheless he still continued to speak to her in an unacceptable manner.

[43] In response to a question from the Committee, Mr Irving accepted that the use of the word ‘c***’ was Mr Sharrock allegedly relaying what he had been told by a third party, but the RIU position was that by choosing to use the word in conversation with a woman, he could have chosen to substitute the word with something else, but he had elected not to.

The Respondent’s Closing Submissions

[44] Mr Sharrock summarised his view that his reaction stemmed from the Chan incident, and that he was bitterly disappointed with how it had been handled. He had nothing further to say.

REASONS FOR DECISION

[45] Mr Sharrock is a licensed trainer who is charged with misconduct under the provision of Rule 340. It is specifically alleged that on 27 June 2018, at New Plymouth, he used insulting and offensive language, during a phone conversation with NZTR Welfare Advisor Ms Bridget Flynn.

[46] The evidence of all witnesses, along with that of the Respondent, is that a phone conversation took place. That is not in dispute. It is also accepted by the Respondent that comments were made by him relating to how the Chan incident was handled by racing authorities; the competence and work ethic of Mr Irving, Ms Flynn and NZTR; and the suggestion that the conversation would have been worse if it had taken place face to face.

[47] Mr Sharrock cannot recall if specific profanities were used, but it is clear that Mr Sharrock was angry, annoyed and rather assertive during the conversation. In the context of this conversation, it is fair to say that it could be described as far from cordial.

[48] There is no definition of ‘misconduct’ under the Rules of Racing. We accept that in its purest form it is an “unacceptable or improper behaviour, especially by an employee or professional person” (as identified at Para 10 in RIU v Hodgson [2017]), and as a licensed trainer, Mr Sharrock falls within this definition.

[49] Context is extremely important to charges of misconduct, and previous decisions have consistently identified that. It is clear to the Committee that Mr Sharrock had been chewing over how the Chan incident had been handled by the RIU and NZTR for some seven months.

[50] The McKenzie decision, identified by Mr Irving, is of value in this regard. In para 4.2 of that decision, the Committee identifies the appropriate process where feelings of justification or provocation are best considered by Committees. While we may agree that Mr Sharrock may have felt that he had been provoked by the previous actions of racing authorities, or that he felt he was justified in making the comments that he did; that rationale is not a defence to the charge of misconduct.

[51] The bone of contention from his point of view, is clearly around the Chan matter, and the steps taken by the racing authorities at the time. A compounding factor is that the Respondent was under the impression from his contact with Mr Saundry that the matter had been ‘put to bed’. It’s clear to the Committee that this had inflamed Mr Sharrock’s view of the charge he is facing.

[52] The Committee is in receipt of the RIU Report into the Alfred Chan matter. While it has been helpful in providing context to the position adopted by Mr Sharrock, we do not intend to delve into the specifics of the Report, except to make some observations in response to the position that Mr Sharrock has taken.

[53] A home is distinctly different from a licensed premises, and the Committee is concerned that NZTR considers it appropriate to enter a licence holder’s home without the consent to do so. Mr Sharrock is responsible for the everyday living, activities and behaviours of any apprentice he mentors, and surely there is an expectation around racing authorities working closely with him and notifying him of any interaction that NZTR or the RIU might have with his apprentice; if at least out of courtesy.

[54] When we look at the specific context of the current charge, Mr Sharrock accepts that if it wasn’t for the Chan incident, what occurred on 27 June would not have happened. We are required to step back and look at it objectively, assess the evidence, and consider whether the comments made by Mr Sharrock are acceptable by a licence holder.

[55] Upon review of the evidence, we consider the comments directed at Ms Flynn (collectively and not in isolation), are not what the industry expects from a licence holder and therefore they constitute misconduct.

DECISION

[56] We find the charge against Mr Sharrock proved.

PENALTY SUBMISSIONS

The RIU

[57] Mr Irving submitted that the appropriate end result in this matter was a fine of $1,000.

[58] He identified the fact that the comments were directed towards a woman as an aggravating factor, alongside the suggestion that as a senior licenced trainer, and a leader in the industry, there was a higher expectation upon Mr Sharrock to not misconduct himself.

[59] In mitigation, the RIU identified Mr Sharrock as a professionally licensed trainer for more than 30 years. He had one previous misconduct from December 2001 for which he received a $1,200 fine.

[60] While the RIU understood Mr Sharrock’s position with regard to the Chan incident, Mr Irving stated that the rationale for entering his home was for Mr Chan to remove his possessions, and when they arrived was the only time that they could do so.

[61] Mr Irving referred to the two misconduct cases of McKenzie (RIU v PL McKenzie, Decision Dated 7 May 2013) and Vile (RIU v GV Vile, Decision Dated 25 June 2014), where fines of $400 and $350 respectively were imposed. In relation to McKenzie, he submitted that circumstances involved the competency of a stipendiary steward in that case and were minor compared with the current case. In relation to Vile, while the RIU considered the words used in that breach to be less offensive and related to the competency of a NZTR Handicapper, they were also perceived as being uttered in a less intimidating manner than Mr Sharrock.

[62] In submitting a fine of $1,000 the RIU were seeking a significant uplift from the penalties imposed in previous decisions, as a more significant fine was required to denounce such conduct. Mr Irving stated that while some forms of conduct may have been acceptable five to ten years ago, that was no longer the case, and other sporting codes had made that clear as well.

[63] In relation to costs, Mr Irving confirmed that no costs were being sought by the RIU.

The Respondent

[64] Mr Sharrock submitted that whether he was perceived as intimidatory, was a matter of interpretation. He noted that he did not have an actual physical presence with Ms Flynn at the time as the conversation was conducted via the phone.

[65] He accepted that he certainly did not condone the language that was used, but did rely on the Chan incident as a driver for his actions at the time. He had no submission on the level of fine submitted by the RIU.

REASONS FOR PENALTY

[66] The Committee considered all of the submissions placed before it. The relevant Penalty Provisions are contained in Rule 803(1), which states:

“A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; 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 $20,000.”

[67] The JCA Penalty Guidelines identify the starting point for a breach of Rule 340 as fact dependent. This means it is the responsibility of the Committee to determine an appropriate starting point given the context of the specific breach. We consider a fine as appropriate on this occasion.

[68] The Committee is familiar with the two cases that Mr Irving has made available to us. While it is true that both those cases are some four and five years in age, the decisions still provide some guidance as to an appropriate level of fine to impose.

[69] The RIU have sought a significant uplift from previous penalties for misconduct of a similar nature. In our view, after considering the specific circumstances of this case, the significant uplift sought, is not justified. Penalties must depend on the context, alongside the proportionate need for denunciation and deterrence, amongst other factors. We believe the approach we have taken to determining what is the appropriate quantum of penalty will fulfil those aspects.

[70] After considering the aggravating features of this breach we believe that a fine of $700 is an appropriate starting point for us to adopt. In mitigation we accept that the Respondent has been a licensed trainer for more than 30, if not 35, years. Over that time, he has a misconduct blemish from 2001; a very long time ago, so we must therefore apply little weight in that regard.

[71] We understand the aspects that may have driven Mr Sharrock to conduct himself in the manner that he did; largely relating to the Chan incident. In any event, that does not excuse or justify his actions as a licence holder, and for that he must be held accountable.

[72] After considering all factors, we determine that a fine of $500 is an appropriate penalty.

PENALTY

[73] Mr Sharrock is fined $500.

COSTS

[74] The RIU are not seeking any costs, however there will be a part contribution towards costs incurred by the JCA. As such, Mr Sharrock is ordered to pay $350 in favour of the JCA.

Signed at Palmerston North this 20th day of August 2018.

Mr Tangi Utikere

Chairman

Document Actions