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NZGRA Request for Review GRNZ v L Cole - Decision dated 22 May 2019 - Chair, Prof G Hall

Created on 24 May 2019

BEFORE A JUDICIAL COMMITTEE OF

THE JCA AT PALMERSTON NORTH

IN THE MATTER of the Rules of New Zealand Greyhound Racing Association (Incorporated)

BETWEEN

Greyhound Racing New Zealand (GRNZ)

Informant

AND

Mrs Lisa Cole, Licensed Trainer

Respondent

Information: A11251

Judicial Committee: Prof G Hall, Chairman

Mr R McKenzie, Member

Appearing: Mr J Kaye, for the Informant

Mr P Brosnahan, for the respondent

DECISION OF JUDICIAL COMMITTEE

[1] On 5 October 2018 the Wanganui Greyhound Racing Club held a race meeting at Wanganui.

[2] Information No A11251, which was filed by Mr Greg Kerr, Head of Racing, on behalf of New Zealand Greyhound Racing Association Incorporated (GRNZ), alleges in race 10 at that meeting “that dog #2 BLAZIN’ CARTER turned its head into dog #7 just out of the final bend”. The Respondent is named as Mrs Lisa Cole and the allegation is an alleged breach of r 55.1(b) of GRNZ’s Rules.

[3] Rule 55.1 states:

Where a Greyhound (b) fails to pursue the lure in a race, the Stewards may impose the following periods of suspension:

(c) In the case of a first offence, 28 days and until the completion of a satisfactory trial; or

(d) in the case of a second offence under r 55.1 (which for clarity need not be the same offence as the first offence under that subsection), three (3) months and until the completion of a Satisfactory Trial, or

(e) in the case of a third or subsequent offence, under r 55.1 (which for clarity need not be the same offence as the first offence under that subsection), twelve (12) months and until the completion of a Satisfactory Trial.

[4] “Fails to Pursue The Lure” is defined in r 1 as “ the action of the Greyhound voluntarily turning the head without making contact with another Greyhound, or voluntarily easing up, or stopping during a Race while free of interference.”

[5] With respect to the powers of this Committee, r 66.11 provides that where a Committee finds an offence proved it may impose any penalty and/or affect any remedy provided by the Rules.

[6] Mr Kaye described the sequence of events. We summarise this by way of a timeline:

• 5 October 2018 BLAZIN’ CARTER races in race 10 and finishes sixth. There is no observation by the Stewards on the day that BLAZIN’ CARTER has failed to pursue the lure.

• 8 October email. The issue as to whether BLAZIN’ CARTER has failed to pursue is raised by Mr Kerr, Head of Racing GRNZ, with Mr Whiterod, Chief Stipendiary Steward.

• 9 October email. Mr Whiterod responds stating that he is unable to view clear footage on his computer and is not able to make a call at this time.

• 10 October email. Mr Whiterod responds that it is not clear enough for him that BLAZIN’ CARTER has failed to pursue, and he believes it would be strongly defended and thrown out by the JCA.

• 10 October letter. Formal request by Mr Kerr to Mr Whiterod that he reconsider the matter and refer the issue to the JCA in order that it can be dealt with transparently by a Judicial Committee.

• 11 October email. Mr Whiterod to Mr Kerr reiterating with reasons that the Stewards are of the view that BLAZIN’ CARTER did not fail to pursue.

• 13 October GRNZ Board pass unanimously a resolution that the Board will file an Information pursuant to r 5.1(e) alleging that BLAZIN’ CARTER has failed to pursue the lure.

• 19 October GRNZ file an Information with the JCA.

• 2 May 2019 After a series of telephone conferences and the provision of written submissions from the parties, the matter is heard at Palmerston North.

• 9 May Further written submissions from the Informant and the respondent

A summary of each party’s case as to process

[7] The Informant submitted that a greyhound that fails to pursue the lure commits an offence under r 55.1. A greyhound that commits an offence contravenes the Rules of Racing, which is an offence under r 62.1(a). Nothing in r 55.1 requires an Information to be filed by a Steward, although that rule sets out the penalties that may be imposed by a Steward. The Information filed by the Informant seeks the view of the Judicial Committee as to whether BLAZIN’ CARTER failed to pursue the lure. Any penalties are for the Judicial Committee to impose if it is satisfied an offence has been committed.

[8] Mr Kaye contended that where a greyhound has failed to pursue the lure the opportunity to have a veterinarian examination is a “benefit” for the owner or trainer, as it enables them to avoid a suspension if the greyhound was seriously injured. Requiring all greyhounds that fail to pursue the lure to be examined by a veterinarian would prevent an Information for failing to pursue the lure being filed after a race based on an examination of race footage.

[9] The respondent submitted that r 55.1 applies to a greyhound, not a person; failing to pursue the lure under r 55.1 is not an offence under the Rules; an Information for failing to pursue the lure may only be filed by a Steward and only when there has been a veterinarian examination of the greyhound; and the Board has no power to file an Information under r 55.1.

[10] Mr Brosnahan said the process adopted by the Informant was ill-conceived. He questioned the logic in the Board seeking a retrospective penalty seven or eight months after the event in circumstances where BLAZIN’ CARTER had subsequently raced 22 times without incident.

[11] Mr Brosnahan submitted that r 55.1 was designed to be an on-the-spot exercise. There must be a veterinarian check (r 55.2). This was reinforced by the 72-hour provision (r 55.4). He described the veterinarian check as “a condition precedent” to a finding of failing to pursue. A veterinarian check was necessary to “complete the breach”. The decision as to whether a dog has failed to pursue is one for the Stewards on the day subject to review by the owner or trainer under r 55.11. There was no provision for the Board to effectively have the right of review of the raceday Stewards’ decision. That was reserved specifically for the owner or trainer because the whole process was one that was designed to be assessed, investigated and, if the Rules required an examination, all occurring on the day. There was no provision enabling the Board to take the steps it had and issue an Information against the trainer who had done absolutely nothing to contravene any of the rules of GRNZ.

Procedural issues

[12] The first issue for the Committee is whether the respondent should be the greyhound BLAZIN’ CARTER or Mrs Cole.

[13] Mr Kaye submitted that r 55.1 sets out the offence of failing to pursue and the penalties are set out in r 55.1(c), (d) and (e) and in r 63.1 (viz, a fine, suspension, disqualification and/or warning off).

[14] Mr Brosnahan stated that Mrs Cole cannot breach r 55.1(b) and that BLAZIN’ CARTER should be the respondent. He accepted that the Information form itself is worded in such a manner that a person is clearly the intended respondent, with respect to the rights of a respondent, acknowledgement of receipt, etc that are listed on the form. However, as Mr Brosnahan, later identified in his submission, r 66.1(a) states that a greyhound may be the subject of an Information. We were told that this is the only reference in the Rules to an Information being filed against a greyhound.

[15] Rule 66.1(a) deals with the filing of Informations and provides as follows:

An Information may be filed against any Person, Body and/or Greyhound in respect of any incident, matter or thing occurring, arising or taking place during the course of a Meeting, by any Steward or Racecourse Investigator who has reasonable cause to believe that an Offence has been committed.

[16] However, as Mr Brosnahan further submitted, r 66.1(a) requires that an Information allege that an offence has been committed. He contended that that r 55.1 does not create an offence, therefore this rule has no application — failing to pursue the lure under r 55.1(b) is not an offence. We return to this submission later in our decision.

[17] Mr Kaye submitted that r 66.1(a) has no application in this case as the Information was filed by the Board pursuant to r 5.1(e) and was not filed by a Steward or Racecourse Investigator.

[18] Nonetheless, Mr Kaye sought leave to amend the Information by naming BLAZIN’ CARTER as the respondent. Mr Brosnahan objected to this, stating that to substitute the name of a greyhound for that of Mrs Cole was too fundamental a change.

[19] We indicated that in our view an amendment to the Information was not necessary. This was because we did not believe that the respondent had been misled by the manner in which the Information was worded. It clearly alleges that BLAZIN’ CARTER has failed to pursue the lure in the named race. Mrs Cole is present as the named respondent. She is the trainer of BLAZIN’ CARTER. If the dog was the named respondent, it is likely she would have been present in her capacity as the dog’s trainer. We see no likelihood of a miscarriage of justice by our determining the Information as it is worded.

[20] With respect to r 63.1, which together with r 55, was referred to by Mr Kaye, he agreed with the Committee’s observation that this is a general penalty provision and applies only where a person is found guilty of an offence. Mr Kaye accepted that a greyhound is not a person and therefore cannot be punished under this rule.

[21] The Informant then submitted that in order to ensure the fair application of r 55.1 there has to be the ability for other persons, such as the Board, to request a Steward to review a decision that a greyhound has not failed to pursue the lure, and for the Board to file an Information if it considers a greyhound has failed to pursue. This was the situation that had occurred. The Board requested the Stewards to review the decision that BLAZIN’ CARTER had not failed to pursue the lure. The Stewards did so but maintained the view that BLAZIN’ CARTER had not failed to pursue. By the time the Stewards had reviewed their decision, there was no opportunity for the Board to have BLAZIN’ CARTER examined by a veterinarian. The Board disagreed with the Stewards’ decision and sought a review of that decision by laying the Information with the JCA.

[22] Mr Kaye stated there was no suggestion that BLAZIN’ CARTER was seriously injured when the dog allegedly failed to pursue. The greyhound had raced successfully in a series of races shortly after the race in question. (Mr Brosnahan informed us the dog has raced 22 times since and had not been found by the Stewards to have failed to pursue.)

[23] The Informant submitted that there is nothing in r 55.1 that requires an Information to be filed by a Steward. The relevant part of r 55.1 that refers to a Steward provides for a Steward to impose various penalties of suspension in respect of a greyhound that has failed to pursue the lure.

[24] Mr Kaye submitted that the Board has the power under r 5.1(e) to file an Information under r 55.1 for the offence of failing to pursue the lure, and any such Information filed by the Board is to be considered by the Judicial Committee pursuant to r 66.5.

[25] Rule 66.5 is broadly worded, and we note that it confers jurisdiction upon a Committee to hear and determine all proceedings referred to it pursuant to the Rules.

[26] The respondent submitted that the Informant does not have the power to bring an Information in respect of an allegation under r 55.1. Failing to pursue the lure is not an offence under the Rules of Greyhound Racing; it is an “event” that the Stewards on the day have the power to investigate and impose various periods of suspension. The rule then gives the owner or trainer right to seek a review. The rule does not create an offence as defined in r 62.

[27] The respondent further submitted that it is clear from the structure of r 55.1, in the case of marring and failing to pursue, it is the Stewards on the day who are vested with the powers and obligation to assess whether or not a greyhound has breached 55.1(a) or (b). It is not a matter that is within the province of the Board.

[28] Rule 1 states: “Offence” means the offences pursuant to r 62. As Mr Brosnahan submitted, there is no offence listed in that rule that is applicable to the allegation contained in the Information against the respondent. This is because there is no reference in r 1 to r 55. However, as Mr Kaye highlighted in both his written and oral submissions, r 55.1(c), (d) and (e) refer to a dog’s first, second or third offence under this rule. This is the only reference in the Rules to a breach of r 55.1 being an offence.

[29] We sought to find some further assistance in the Rules, looking to see if there was a distinction being drawn in the Rules between “Offence” and “offence”, as we understand did Mr Kaye, but the capitalisation of the first letter of this word appears simply to be adopted in an inconsistent, random fashion.

[30] The difficulties with the wording of the Information and the meaning of “offence” arise primarily because of the manner in which GRNZ have chosen to bring the charge of failing to pursue.

[31] At a meeting of the GRNZ Board it was resolved to lay an Information that BLAZIN’ CARTER had failing to pursue the lure. This action was taken pursuant to r 5.1(e) which states:

The Board shall have the following Powers in relation to these Rules: To file an Information or Informations by lodging the Information sheet with a person appointed by the Judicial Control Authority from time to time

[32] Also relevant in this context is r 5.1(f) which provides:

The Board shall have the following Powers in relation to these Rules: To disqualify either permanently or temporarily any Greyhound which, in the opinion of the Board, has been used for, or in connection with an Offence, or which has been entered or Nominated to run, or allowed to run in a Race or Satisfactory Trial under a fraudulent description, or failed to pursue the Lure during the Race or Satisfactory Trial provided that this power may not be exercised to change the placings. An Owner or Trainer of a Greyhound may seek a review, by a Judicial Committee, of any decision made under this Rule in accordance with r 66.2.

[33] The Informant’s written reply to the respondent’s submissions states at [30] that the Board did not exercise the 5.1(f) power in the circumstances of this case as the objective was not to seek a disqualification of BLAZIN’ CARTER, but to seek a review of the Steward’s decision that BLAZIN’ CARTER had not failed to pursue the lure. The following paragraph further states that the power under r 5.1(f) was not exercised given that there was the disagreement between the Steward and the Board over the application of r 55.1, which made it more appropriate for the Board to file an Information under r 55.1 and for the Judicial Committee to consider whether there had been a failure to pursue the lure.

[34] We believe that the decision of the Board not to order the disqualification of BLAZIN’ CARTER has led to this matter appearing before this Committee in a manner that is not anticipated by the Rules in their current form.

[35] Simply put, the Rules do not readily permit this Committee to hear an Information alleging a failing to pursue the lure that is laid some days after the event.

[36] A major obstacle to our determining that there was a failing to pursue is r 55.2, which requires a veterinarian examination of the dog. This rule states:

Where a Greyhound fails to pursue the Lure as provided under r 55.1, the Greyhound shall be examined by the officiating Veterinarian or Authorised Person.

[37] This provision is mandatory. The word is “shall”.

[38] Mr Kaye, quite ingeniously, took us through a two-tier interpretation of r 55, that he had first identified in his written submissions, in order to overcome this difficulty. He emphasised that r 55.2 was for the benefit of the owner of a greyhound that had failed to pursue the lure and it only applied if the Stewards had made that decision. If it was established as a result of the veterinarian examination under r 55.2 (or a later examination under r 55.4) that the dog was “seriously injured” (an injury that will result in a period of 21 days or more incapacitation), the dog is only to be required to undergo a satisfactory trial. Mr Kaye submitted that r 55 should be given a wide interpretation. In his submission where a dog has failed to pursue the lure, for example, by easing up or stopping during a race, an examination by the officiating veterinarian will establish nothing. We question this, as in our view, these are the kinds of situations in which a veterinarian examination might indicate a serious injury.

[39] However, if the Stewards did not find there was failing to pursue then in Mr Kaye’s submission, r 55.2 does not apply. The obligation to comply with r 55.2 rests only with the Stewards.

[40] Applying this reasoning to the facts of the case, Mr Kaye submitted BLAZIN’ CARTER was clearly not injured during race 10 at Wanganui Greyhound Racing Club on 5 October 2018, and so there was no benefit to the respondent in submitting BLAZIN’ CARTER for an examination by the officiating veterinarian. BLAZIN’ CARTER proceeded to race successfully in a series of races shortly after 5 October 2018. There was thus no basis on which BLAZIN’ CARTER’s failure to pursue the lure was caused by an injury suffered by the dog during the race, and so there was no benefit to the respondent in submitting BLAZIN’ CARTER to an examination by the officiating veterinarian under r 55.2. Similarly, it would have been pointless for the Stewards or the Informant to have required BLAZIN’ CARTER to be submitted for examination when BLAZIN’ CARTER had clearly not suffered any injury during the race.

[41] Mr Kaye reiterated his submission that r 55.2 only applied where a Steward stood a dog down, and, as we were not Stewards, it had no application in this hearing.

[42] Mr Kaye further submitted that “where the Stewards consider that a greyhound has failed to pursue the lure but there is no suggestion the greyhound has been injured there is no point requiring the greyhound to be submitted for an examination as to whether the greyhound was seriously injured. The role of the Stewards is to ensure races are run fairly and in accordance with the Rules of Racing – it is not the role of the Stewards to help an owner avoid a suspension by submitting the owner’s greyhound for an examination under r 55.2 – that is an option for the owner to choose.”

[43] In our view this submission overlooks the wording of r 55.2. Whether or not the Stewards believe a dog has suffered an injury, where it has failed to pursue the “greyhound shall be examined by the officiating Veterinarian” It is a mandatory requirement. It is not “an option for the owner to choose”. Rule 55.2 is not worded in such a way as to apply only if the Stewards have made the decision that the greyhound has failed to pursue.

[44] The Informant further submitted that requiring all greyhounds that fail to pursue the lure to be examined by a veterinarian would prevent an Information for failing to pursue the lure being filed after a race based on an examination of race footage. We questioned the Stipendiary Stewards who appeared before the Committee as to what the practice was where a Steward later formed the view that a greyhound had failed to pursue. We were told their practice was to act pursuant to r 11.1(b) and to require a satisfactory trial, as provided in r 38.9. Mr Whiterod said this practice was adopted only occasionally for “one that got away”. The Stewards were of the view that a veterinarian examination was a mandatory requirement before a stand down could be ordered and therefore, if it was outside the 72-hour period, a stand down could not be ordered.

[45] We questioned Mr Kaye as to whether he was submitting this Committee had a power to stand down the greyhound or whether he believed we could rule that the Stewards stand down the greyhound. This issue was not addressed fully on the day and Mr Kaye later provided a written submission as to penalty in which he submitted that there were alternative approaches available to the Committee.

[46] Mr Brosnahan responded to this written submission stating that unless directed to the contrary by this Committee, he would file his response after the Committee delivered its decision as to whether or not there had been a breach. We have not required the respondent to file a response.

[47] The three alternative courses of action identified by the Informant in his written submission of 9 May as being available to the Committee are:

(1) this Committee could determine that BLAZIN’ CARTER has failed to pursue the lure and not make any decision as to penalty, leaving it up to the Board. He submitted that r 66.10 was sufficiently broad to permit this course of action. Mr Kaye said our determination that BLAZIN’ CARTER had failed to pursue the lure without a decision as to penalty would leave the Board in a position where it could exercise its powers under r 5.1(f) to consider and impose an appropriate penalty (which we note is either permanent or temporary disqualification). Somewhat perversely, this would place the Board in exactly the same position it was in prior to the laying of the Information under 5.1(e). In addition, were the Board to disqualify BLAZIN’ CARTER pursuant to r 5.1(f), Mrs Cole (and the owner) would have a right of review. This submission is not attractive to this Committee. A further relitigation of the matter is not in either party’s interests; or

(2) pursuant to r 66.11, a 12-month suspension of BLAZIN’ CARTER from the date of our decision (this was predicated on the fact that BLAZIN’ CARTER had two previous endorsements for marring — the Informant alleged that the Stewards did not have the power under r 55.7 to cancel the endorsements on BLAZIN’ CARTER’s certificate of registration as BLAZIN’ CARTER had not completed 10 races since the expiry of its previous suspension period for marring); or

(3) pursuant to r 66.11, a 28-day suspension from the date of our decision.

[48] With respect to our imposition of a suspension, Mr Kaye submitted that while r 55.1 provides for a period of suspension to be imposed by a Steward, the Judicial Committee’s powers to impose a penalty do not relate to the whole of r 55.1, but only the part of r 55.1 that provides for the penalty. Therefore, we have the power under r 66.11 to impose any penalty provided for in the rules, and the penalty in r 55.1 is one of the applicable periods of suspension. The complexity of this submission and the distinction that is being drawn between the various parts of this rule, in itself, points to the difficulties faced by this Committee where the Information has been laid pursuant to r 5.1(e). The issue of BLAZIN’ CARTER having had a number of starts since the race in question and having won a considerable amount of stake money in this time was not addressed by the Informant.

[49] Mr Kaye referred to r 86, the luring and baiting provision, as an example of an offence in the Rules that is not listed in r 62. However, r 86 reads as a stand-alone provision, and it has its own penalties in cls (4) and (5). Mr Brosnahan submitted it was encompassed by r 63.1. We do not believe this example assists us greatly in interpreting r 55.

[50] We accept there is force in the respondent’s submission that the power vested in the Board by r 5.1(e) relates to regulatory processes under the Rules and the offences set out in r 62.1. The offences set out in r 62.1 are of a completely different nature to an “offence” (breach of the Rules) committed by a greyhound during the course of a race, such as marring and failing to pursue. Rule 62.1 provides that a person may commit an offence against the Rules. There is no reference therein to a greyhound.

[51] If we adopt the two-tier interpretation of r 55 that is proposed by the Informant, we would be depriving an owner of the benefit of the dog undergoing a veterinarian examination. It is no answer to this to say BLAZIN’ CARTER was not injured as he started some days later and has competed in some 22 races, so therefore this interpretation is appropriate in this instance. That may be the case, but the point is, were we to so interpret s 55, it would deprive all dogs that may in the future be in the position of BLAZIN’ CARTER (ie the Board is of the view they have failed to pursue and an Information is laid for a determination some time later by a Judicial Committee), of the ability to avoid suspension (stand down) because of a serious injury. We do not so interpret r 55.1. As we have previously held, r 55.2 is a mandatory provision where a greyhound fails to pursue the lure.

[52] In so finding, we are not required to decide whether r 55 creates an offence for the purpose of the Rules.

[53] To summarise. We are satisfied that the correct approach where the Board was of the view that BLAZIN’ CARTER had failed to pursue, was for the Board to have disqualified BLAZIN’ CARTER under r 5.1(f). The matter would then have been before a Judicial Committee by way of a review, had Mrs Cole or the owner of the greyhound challenged the stand down. This is clearly envisaged by the Rules. The previously identified difficulties with the wording of both the Information and r 55 itself, and the definition of “offence”, do not arise.

Failing to pursue

[54] With respect to whether BLAZIN’ CARTER failed to pursue, we strictly speaking do not need to address this issue, but as we have heard from expert witnesses on behalf of both parties, we do so.

Informant’s case

[55] Mr S Mathieson, the Racing Manager of Greyhound Racing South Australia, gave evidence by way of AVL. He referred first to his signed statement, which was accepted as read. He stated that he had held the position of Racing Manager since 2010 and currently chaired the South Australian Racing Review Panel when a decision of the Stewards against a greyhound was appealed by an industry participant.

[56] Mr Mathieson stated he had reviewed the footage and, as the field entered the home straight on the final occasion and raced mid-way down the straight, in his opinion the #2 greyhound, BLAZIN’ CARTER, which was racing on level terms to the outside of the #7 greyhound, BIGTIME CALEB, has turned its head to the left and made contact with the neck / head area of the #7 greyhound, which had kept a straight course. He did not believe there were any contributing factors to the #2 greyhound turning its head and making contact. There had been shifting by the #7 dog in the run to the winning post but that had no bearing on the incident as it had already occurred.

[57] Mr Mathieson concluded his signed statement to the effect that: “In my opinion a charge of Marring or Failing to Pursue should have been issued in this instance based on the rules of racing that we are governed by.”

[58] Mr Mathieson stated that r 69A of the South Australian Rules was similar to r 55.1.

[59] We had the relevant rules before us. Rule 69A states: “[W]here in the opinion of the Stewards, a greyhound fails to pursue the lure with due commitment during an Event, the Stewards shall impose a period of suspension in respect of the greyhound….”

[60] “Failing to pursue” is defined as “when a greyhound turns its head or visibly eases during the running of an event.” We note there is no reference to interference or that the dog turns its head voluntarily in the South Australian rule, as there is in the New Zealand Rules.

[61] When questioned as to how he would grade the breach, he said it was “pretty clear” to him that the incident had occurred. It was “reasonably clear to see”. He said the head-on camera was helpful and he would have thought the South Australian Stewards would have “dealt with it”.

[62] When questioned as to whether there had been interference by the #6 dog, Mr Mathieson said the #2 was close to the rump of the #6 dog but although BLAZIN’ CARTER was cut-off, he did not believe the dog had suffered interference, as BLAZIN’ CARTER was balanced up turning for home. He also believed BLAZIN’ CARTER coming off the #6 dog did not adversely affect BLAZIN’ CARTER turning its head.

[63] Mr Mathieson accepted the fact that the dog to the inside of BLAZIN’ CARTER had moved from adjacent to the rail to 2 or 3 dog widths out could have a bearing on the incident. However, he could not see that the #7 dog had come into contact with the #2, despite the fact New Zealand’s two most experienced Stipendiary Stewards believed this to be the reason the head of the #2 dog was turned slightly in, as the respondent was alleging.

[64] Mr Mathieson reiterated he did not believe there was contact with the #7 dog prior to BLAZIN’ CARTER turning its head. However, he agreed if there was contact to the rear legs, the head would turn.

Respondent’s case

[65] The respondent called Mr Whiterod, Chief Stipendiary Steward, to give evidence in his capacity as an experienced reader of races. He stated he had been Chief Stipendiary Steward for Greyhound Racing for four years and had extensive experience as a Stipendiary Steward in both the greyhound and thoroughbred codes.

[66] Mr Whiterod said he would review on average some 30 to 42 races per week, primarily in the North Island. He had been working on the day in question and acknowledged there had been nothing in his report on the day concerning BLAZIN’ CARTER.

[67] Mr Whiterod said two days later GRNZ brought to his attention by way of an email from Mr Kerr, the issue of whether BLAZIN’ CARTER had failed to pursue. He said he viewed the videos and responded that he believed BLAZIN’ CARTER had no case to answer.

[68] Mr Whiterod reviewed the race. He said there was no problem until the home turn. The #7 dog, BIGTIME CALEB, was racing inside the #2 dog, BLAZIN’ CARTER, and was adjacent to the rail. He believed there was contact between the two dogs when the #7 dog shifted away from the rail. He said the video clearly showed there was contact with the hind quarters of BLAZIN’ CARTER. The rump of BLAZIN’ CARTER was turned out and the dog was unbalanced by that movement. The contact was not the result of the #2 dog leaning in on the #7. He believed the #7 dog had shifted out two dog widths from the rail and was still moving out. BLAZIN’ CARTER had been pushed off line and its rump was turned further out, which showed the dog was still unbalanced.

[69] Mr Whiterod said that without doubt BLAZIN’ CARTER had flicked its head once towards the inside dog, but this was because the dog was unbalanced and was trying to balance up. He said BLAZIN’ CARTER’s body angle changed. In his opinion the #7 dog kept boring out towards the #2 dog and, in so doing, interfered with the running line of BLAZIN’ CARTER.

[70] When questioned by the Committee, Mr Whiterod agreed the interference was quite a few strides before the turning of the head. He added in his view had BLAZIN’ CARTER not been interfered with the incident probably would not have happened. BLAZIN’ CARTER was still unbalanced, and the #7 dog was continuing to come into its ground.

[71] Mr Whiterod said he had no explanation for why he had not picked up the incident on the day. He had not seen anything untoward when looking at the race through his binoculars, but he added the flick of the head was very quick. He had missed it on reviewing the videos. He said he had had no concerns subsequently with the dog’s behaviour. It had had a stand down some time later due to injury and had trialled satisfactorily.

[72] When questioned by Mr Kaye, Mr Whiterod confirmed BLAZIN’ CARTER had turned its head, but it was a flick of the head only, and the dog was not free of interference. He reiterated that in his view, minus a veterinarian check, a dog could not be suspended. That was how r 55 had always been interpreted.

[73] Mr Whiterod concluded by stating there were some circumstances in the dog’s favour. There was movement by the other runner and bumping, with a consequential flick of the head. If there was any doubt whatsoever, it should be exercised in favour of the dog. He pointed out BLAZIN’ CARTER had had 22 starts since the incident with no problems.

[74] Mr Austin, Senior Stipendiary Steward Greyhounds, stated he had been a greyhound Steward for 12 years. He said Mr Whiterod had rung him saying there had been a complaint about race 10. He viewed the footage and formed the opinion that there was enough going on at the time, which he explained was prior to the turn and during the run to the line, for him to form the opinion the dog had not failed to pursue. He said he gave the benefit of doubt to the greyhound.

[75] Mr Austin said there had been contact from the #7 dog to the #2. The #6 dog had also moved out a lot prior to the turn. BLAZIN’ CARTER was unbalanced on the point of the turn for a couple of strides and on straightening up was still unbalanced.

[76] Mr Austin said there had been a flick of the head by BLAZIN’ CARTER as the #7 dog came out on to it. The #7 dog had kept coming out on to BLAZIN’ CARTER but there was no attempt by BLAZIN’ CARTER to mar or a failure to pursue.

[77] Mr Austin denied an allegation from the Informant that the RIU favoured the Cole dogs. He said there had been 7 or 8 times subsequent to this incident that a Cole dog had been stood down for failing to pursue. He agreed the Cole kennel would have had a large number of dogs racing over this time.

[78] When asked by the Committee what the difference was between a turn of the head and a flick of the head, Mr Austin said a flick was a quick turn of the head.

[79] Mr Austin concluded by stating that on reviewing the videos the Stipendiary Stewards could have ordered BLAZIN’ CARTER to complete a satisfactory trial. That was the “easy option”. However, the Stewards did not believe it was warranted in this instance.

Summing up

[80] Counsel were brief.

[81] Mr Kaye reiterated that r 55 did create an offence and the Committee should adopt a two-tier approach when interpreting this rule. When the Stewards were standing a dog down for failing to pursue, r 55.2 applied and a veterinarian examination was required. When a Committee was satisfied that a greyhound had failed to pursue, r 55.2 did not apply. We have previously dealt with this issue.

[82] Mr Kaye somewhat tentatively submitted the reference to interference in the New Zealand Rules applies only to a greyhound stopping during a race, citing the positioning of the commas in the wording of the rule.

[83] Mr Brosnahan emphasised the difference in the wording between the South Australian and the New Zealand definitions of failing to pursue. He disagreed with Mr Kaye’s submission that the placing of the commas in the definition meant that interference only applied to a greyhound stopping during a race.

[84] As we have said, Mr Kaye placed little weight on this submission, and we did not hear full and considered submissions with respect to this issue. While we are not initially attracted by it, it is not one that we believe we have to determine in the circumstances of this case. To be in breach of r 55.1(b) BLAZIN’ CARTER has to be found to have turned its head voluntarily away from the lure. The Stewards in their evidence have stated that in their view BLAZIN’ CARTER suffered interference prior to the dog turning its head inwards. In that circumstance we would be prepared to find that BLAZIN’ CARTER did not turn its head voluntarily.

[85] Mr Brosnahan concluded the respondent’s defence to the charge by stating that two experienced stewards on the day considered both then and in subsequent reviews that BLAZIN’ CARTER was interfered with in the course of the run around the final bend and down the final straight, and that its hindquarters were disturbed by an inside dog shifting out a number of dog widths towards the centre of the track thereby destabilising BLAZIN’ CARTER.

Decision as to failing to pursue

[86] We have viewed the videos of the incident at normal speed and in slow motion. It is our view that the #2 dog, BLAZIN’ CARTER, turned its head away from the lure. Both the respondent’s expert witnesses state that the turning of the greyhound’s head was momentary (they describe it as a “flick of the head”) and that this was due to the dog suffering interference. We believe the “flick” is a voluntary turn of the head for the purpose of the Rules. The Informant’s expert witness believes that BLAZIN’ CARTER has failed to pursue in that when racing on level terms to the outside of the #7 greyhound, BIGTIME CALEB, he believes BLAZIN’ CARTER has turned its head to the left and made contact with the neck / head area of the #7 greyhound. He did not believe there were any contributing factors to BLAZIN’ CARTER turning its head, in particular, that there had been prior contact with the #7 dog.

[87] However, we cannot discount the evidence of the Stewards, who were present on the day and who have reviewed the videos, that this turn of the head was due to the dog earlier receiving interference and that BLAZIN’ CARTER was still in the process of balancing itself at the time the head turned. We must say as experienced reviewers of greyhound videos ourselves, that although we would view the matter as finely balanced, on viewing the videos, we would have favoured a conclusion that the dog had failed to pursue.

[88] But applying the standard of balance of probabilities, as we must do, and having regard not only to the video evidence, which we accept is not conclusive, but also the expert evidence before us, we would conclude that the Informant has not established that BLAZIN’ CARTER has failed to pursue the lure in breach of r 55.1(b).

[89] Having regard both to the procedural difficulties arising out of the wording of the Rules and the evidence before us, the Information is dismissed.

[90] We require submissions as to costs from the respondent by 4 pm, 29 May and from the Informant by 4 pm, 5 June.

Dated at Dunedin this 22nd day of May 2019

Geoff Hall, Chairman

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