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Non-Raceday Inquiry - BJ Dyke



1001.1.p
1001.2
1001.1.v.i
1001.1
226.2.b

There were two informations laid against Mr Dyke. They are in the alternative. They are now set out in precisely the way that they were in the notice which was served upon Mr Dyke.

THAT on the 26th day of January 2008 at the Clubhouse Sports Bar at the Cambridge Raceway, you did commit a Serious Racing Offence

DECISION OF JUDICIAL COMMITTEE

____________________________________________________________________________________________

1.            The Informations and the Course of the Hearing

1.1          Mr Dyke is a licensed horse trainer under the New Zealand Thoroughbred Rules of Racing. He is domiciled in Cambridge. He was represented at the hearing by his counsel Mr Tony Ryan and Ms Robyn Parker.

The informant was represented by Mr Mike Colson.

 

1.2          There were two informations laid against Mr Dyke. They are in the alternative. They are now set out in precisely the way that they were in the notice which was served upon Mr Dyke.

THAT on the 26th day of January 2008 at the Clubhouse Sports Bar at the Cambridge Raceway, you did commit a Serious Racing Offence within the meaning of Rule 1001 (1) (p) of the New Zealand Rules of Racing IN THAT you did commit a dishonest act connected with racing or the off-course totalisator IN THAT you did verbally request to a totalisator betting terminal operator to place a bet being a percentage boxed trifecta bet having a total cost of $60 on race seven at the Wellington Racing Club meeting AND THAT the operator issued you with an incorrect boxed trifecta bet ticket on such race with a value of $16,320.00 but charged you only $60 AND THAT you became aware of this error prior to the race being run AND THAT you knowingly failed to alert the totalisator betting terminal operator, or any other agent or employee of the totalisator operator, to the situation and/or to have the incorrect bet cancelled prior to the payout of dividends on the said race which may have caused a financial loss to racing generally and did cause a financial loss to the totalisator operators of the Clubhouse Sports Bar totalling $16,260.00 AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1001 (2) of the New Zealand Rules of Racing.

and further

THAT on the 26th day of January 2008 at the Clubhouse Sports Bar at the Cambridge Raceway, you did commit a Serious Racing Offence within the meaning of Rule 1001 (1) (v) (i) of the New Zealand Rules of Racing IN THAT you did or permitted or suffered to be done an act deemed detrimental to the interests of racing IN THAT you did verbally request to a totalisator betting terminal operator to place a bet being a percentage boxed trifecta bet having a total cost of $60 on race seven at the Wellington Racing Club meeting AND THAT the operator issued you with an incorrect boxed trifecta bet ticket on such race with a value of $16,320.00 but charged you only $60 AND THAT you became aware of this error prior to the race being run AND THAT you knowingly failed to alert the totalisator betting  terminal operator, or any other agent or employee of the totalisator operator, to the situation and/or to have the incorrect bet cancelled prior to the payout of dividends on the said race which may have caused a financial loss to racing generally and did cause a financial loss to the totalisator operators of the Clubhouse Sports Bar totalling $16,260.00 AND THAT you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to Rule 1001 (2) of the New Zealand Rules of Racing.

               

1.3          The relevant rules are:

1001 (1) (p)         commits any dishonest or fraudulent act connected with racing or the on-course or off-course Totalisator; or

1001 (v) (i)           does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of racing.

 

1.4          The informations were sworn by the Informant Mr Bryan McKenzie, a Racecourse Inspector on the 7th May 2008. The events alleged to have occurred were said to have taken place on the 26th January of this year and involve a bet placed by Mr Dyke on the Wellington Cup run at Trentham. The reason for the long delay between the alleged events and the laying of the informations will be explained, in part at least, later in the decision.

 

1.5          The hearing extended over two days. There was CCTV coverage operating in the Clubhouse Sports Bar on the 26th January of this year and extended coverage of that was played at the hearing.

 

1.6          The Committee visited the bar and took “a view”. This was done in the company of counsel, the Informant Mr Bryan McKenzie and Mr Dyke. The operation of the terminal was explained and demonstrated.

 

2.            Standard of Proof

2.1          The Committee invited submissions on this issue. Both Messrs Colson & Ryan responded.

 

2.2          This Committee is a disciplinary body acting under the Rules of Racing and required to determine whether the allegations against Mr Dyke have been made out. A discrete issue may arise as to whether the events complained of, if proved, are sufficiently connected with racing to come within the ambit of the rule(s). In considering the standard of proof required the Committee is clear that in disciplinary proceedings before a domestic tribunal the standard of proof, in the absence of any statutory direction is the civil standard. It is the balance of probabilities. The leading authority is the Court of Appeal judgment in Z v The Complaints Assessment Committee 2008 1NZLR 65.

 

2.3          The Committee is mindful, as Mr Ryan rightly emphasised, that the more serious the allegation that is to be considered then the more compelling should be the evidence to prove the allegation. There was discussion between counsel and the Committee as to just how serious the allegations were in this case. Suffice to say that the Committee’s view is that the allegations are significantly serious. First because they allege actions which are said to be fraudulent or dishonest. Secondly because the penalties which could be imposed if the allegations are found to be proved can be serious, including suspension or disqualification.

 

3.            Summary of Facts Not Now in Dispute

3.1          On the afternoon of the 26th January 2008 Mr Dyke and his partner Julia Alton went to the Clubhouse Sports Bar at the Cambridge Raceway. The Wellington Cup meeting was in progress at Trentham.

 

3.2          Mr Dyke placed a number of bets in the course of the afternoon. One of those bets was a trifecta on the Cup. A sum of $60.00 was paid over with instructions to the terminal operator that it was to be a percentage bet anchoring the horse Mirkola Lass to win with the field to run second and third. The ticket which was printed out by the operator was not a percentage bet and the total sum which was recorded and which in consequence was placed in the TAB pool was $16,320.00.

 

3.3          The TAB terminal operator was Nicola Alton. This young woman is the daughter of Mr Dyke’s partner Julia Alton. It has not been suggested by either counsel that this circumstance was anything more than a unique and unfortunate coincidence.

 

3.4          The bet was not successful. The TAB operator did not become aware of the position until around 5p.m. that day. The TAB records demonstrate that the bet was laid at 1½ minutes past 4 and that the payment of dividends took place at 23 minutes past 4.

 

4.            The Case for the Informant

4.1          It is said that the CCTV coverage shows Mr Dyke going to the terminal – there is only one TAB terminal in the bar – and having the operator scan a number of tickets two of which were winning tickets. Mr Dyke then placed bets on the Wellington Cup. First was the subject bet and then a second bet that being $20.00 each way on the same horse No 2 Mirkola Lass. The money required to purchase the tickets can be seen from the overhead CCTV camera. It was not possible to see on the film either the screen viewed by the operator or any printing on the tickets which were handed to Mr Dyke. The operator appeared to have had some difficulty in generating the trifecta ticket. There was more than one attempt to activate the correct code. Nicola Alton gave evidence for Mr Dyke but curiously she said nothing about the placement of the subject bet.

 

4.2          Evidence was called from Mr Richard Bright, one of the co-owners and operators of the bar. Mr Bright explained that the betting terminal was set up to show a large bet alert for all bets over $100.00. This alert operates by a notice appearing on the screen immediately in front of the operator when such a bet is laid. It is then necessary for the operator to decide whether or not the bet is to proceed and in either event a further key must be pressed for the transaction to proceed.

 

4.3          Mr Neil Rutherford was in the bar on the afternoon of 26th January of this year. He told the Committee that he knew Bernard Dyke and that they had on occasions been in casual conversation. He said he was not a friend of Mr Dyke. Mr Rutherford related that he was standing near the sole betting terminal on the bar. Mr Rutherford’s hand can be seen in the CCTV coverage. He said he heard the bet being placed. The two words which in particular took his attention were $60 and the word percentage. Mr Rutherford said that soon after this he was standing by the bar close to the TAB terminal and that he and Mr Dyke began a conversation. He said he asked Mr Dyke to explain what sort of percentage he would receive for the $60 which had been outlaid. Mr Rutherford told the Committee that Mr Dyke then took tickets from his shirt pocket and put those on the bar where both could see them. Mr Rutherford told the Committee that he saw the trifecta ticket. He said that it was plainly not a percentage trifecta but a trifecta bet which totalled over $16,000.00.  He asserted that it was obvious. He maintained that it must also have been obvious to Mr Dyke and that he immediately said to him “shit Bernie you had better tell them”. Mr Rutherford told the Committee that Mr Dyke’s reply was “fuck them”. Mr Rutherford’s account was that this conversation took place some two minutes before the Wellington Cup was run. He said that after the race he said to Mr Dyke “go and see them now as the ticket is not a winner and they will never balance the books”. In response to this Mr Dyke said “stuff them”. Mr Rutherford said that he saw Mr Dyke disposing of some losing tickets in a rubbish bin.

 

4.4          It is submitted that the CCTV film supports Mr Rutherford’s account. The film shows conversation between the two men. Of particular significance is the close examination that both make of the papers taken from Mr Dyke’s shirt pocket. During the course of that conversation there are two occasions when the two men come close together and then stand back. One of these occasions occurs immediately after the close examination of the material that came from the pocket. The movement by both men is quite sudden and marked. This occasion is much more noticeable than the other. It is said for the Informant that this is the occasion when both men realise that the ticket is for $16,000.00 or thereabouts and the conversation related by Mr Rutherford then took place. It is said that the startled movement was consistent with the sudden realisation that something was very much out of the ordinary.

 

4.5          Mr Bright was not present on the day in question and thus can give no direct evidence. In his brief Mr Bright recounted (para.17) a conversation that he said took place with a man named Gary Brett. That person is said to have related to Mr Bright what was said to him by Mr Rutherford about the events of the afternoon. Clearly the evidence from Mr Bright of what Mr Brett told him concerning what he in turn had been told by Mr Rutherford is hearsay. Mr Bright went on to say however that Mr Rutherford had made a statement to him which was different. Something was made of this by Mr Ryan in his closing submissions and the Committee will return to this subject later in the decision.

 

4.6          Mr Paul Alpe gave evidence for the Informant. He is the manager of investigation and security for the New Zealand Racing Board and has been employed by the Board and its predecessor the TAB for more than 30 years. Mr Alpe’s evidence was helpful in understanding the operation of the totalisator. It is worth commenting that there is a large bet alert which was activated on 26th January. The notification of this in TAB Headquarters in Wellington is by a printout from an orthodox typing or email printer. There was no visual or audio alert. It follows that if no person looked at the printout at the relevant time the warning would go unheeded. Mr Alpe gave evidence about a number of changes which have been made in the notification and prohibition of large bets. The TAB limit for a single bet is now to be $9,999.00. Coincidentally that rule came into effect on the first day of the hearing, the 30th June.

 

4.7          Mr Kerry Wells gave evidence for the Informant. He is the general manager of the Cambridge Raceway. This evidence was to the general effect that that persons involved in racing were concerned by the allegations made against Mr Dyke. This evidence was anecdotal in character and of little assistance. It is for the Committee to determine whether the actions alleged constitute offences under the two nominated provisions of Rule 1001 (1). It is sufficient to observe at this time that the first information charging an offence under Rule 1001 (1) (p) speaks of a dishonest or fraudulent act connected with racing and then goes on to speak of the operation of the totalisator. The dishonest or fraudulent act need not be with reference to the totalisator. The word racing is immediately followed by the word or ... the on course or off-course totalisator. It is enough that there be a dishonest or fraudulent act connected with racing. Whether any particular activity is sufficiently connected with racing is for the Committee to determine. The authority is Carter v The Judicial Control Authority et el see Hamilton CIV 2006-419-841 7 December 2006 Harrision J.

 

4.8          The Informant was granted leave to file a brief in rebuttal by Mr John McKenzie the Chief Racecourse Inspector. This request arose from a passage in Mr Dyke’s evidence in which he recounted a discussion with Mr John McKenzie while the matters before the Committee were under investigation. There was some measure of agreement between Messrs Dyke and John McKenzie as to what was said. In one particular area however there was sharp disagreement. This had to do with the allegation by Mr Dyke that Mr McKenzie had allegedly said that for the payment of a specified sum he could make it go away. Mr McKenzie firmly denied having said that. He was vigorously cross-examined. He remained clear in his account of the discussion. Some suggestion arose that other persons who had been parties to the conversation might be called to give evidence. In the event they were not. Precisely what was said between Messrs Dyke and John McKenzie on the occasion of that telephone discussion is not material to the determination the Committee must make. The conversation was long after the events of the 26th January.

 

5.            The Position of Mr Dyke

5.1          Mr Dyke did not dispute that he was given the $16,320.00 trifecta ticket. The ticket was still in his possession the following day. The original was produced at the hearing. It is now rather battered and difficult to decipher. Mr Dyke said that he knew nothing of the contents of the ticket. He said he did not look at it.

 

5.2          Mr Dyke denied any conversations with Mr Rutherford about the ticket either before or after the race. He alleged in his written brief that Mr Rutherford was seriously effected by alcohol. He said that Mr Rutherford has concocted a story (the exact words in the brief) to fit the CCTV footage. He said that discussions with Mr Rutherford had to do only with the latter’s employment by NZ Bloodstock and had nothing whatsoever to do with the tickets purchased at the TAB terminal.

 

5.3          In answer to questions posed in cross examination Mr Dyke said that amongst the items in his shirt pocket were pieces of paper which recorded tips or picks which he had heard given out on the Trackside television channel on the Saturday morning. Further reference will be made to this evidence later.

 

5.4          When directly asked by the Committee what motive Mr Rutherford might have to give false testimony Mr Dyke asserted that Mr Rutherford was a friend of the owners and operators of the bar Mr Bright, to whom reference has already been made, and his business associate Mr Dickie. Further Mr Dyke said that Mr Rutherford might have been motivated by some financial gain or benefit. These answers will be discussed later in the decision.

 

5.5          Julia Alton is Mr Dyke’s partner and she was in the bar of the afternoon of the 26th January. She said that in her opinion Mr Rutherford was effected by alcohol. She took no part in the conversations between Mr Dyke and Mr Rutherford and does not appear in any relevant part of the CCTV footage.  Ms Alton gave an account of events on the following day when her daughter Nicola rang to tell her that the subject ticket had been sold to Mr Dyke. After that conversation the ticket was located in Mr Dyke’s clothing.

 

5.6          Nicola Alton gave evidence and told the Committee that Mr Rutherford had said nothing to her at the bar concerning the subject ticket.

 

5.7          Nicola Alton is no longer employed at the bar. The terms upon which she settled employment issues with the bar owners are confidential. They are, in any event, not relevant to this proceeding. Much of Nicola Alton’s evidence was concerned with the alleged drinking habits of Mr Rutherford and the claimed betting practices of her former employers. The latter subject is not relevant. In answer to a question from Mr Dyke’s counsel Nicola Alton said that while at the position where the drinks dispenser was situated in the bar she would not have been in the position to hear conversation between Messrs Rutherford and Dyke in the position which they occupied further along the bar in the direction of the TAB terminal.

 

5.8          By agreement the Committee was shown a printout of the breaches of the Rules of Racing committed by Mr Dyke. These are few in number and none are of any significance.

 

5.9          Briefs of evidence were tendered by a number of character witnesses. Evidence of good character serves two purposes. First to inform the Tribunal which must determine the facts that it improbable that a person of good character would have conducted themselves as is alleged. Secondly a person’s good character has relevance to that person’s credibility. Mr Colson did not seek to cross-examine any of the witnesses who spoke of Mr Dyke’s good character.

 

 

6.            Assessment of the Evidence

6.1          A complaint was made by Messrs Bright and Dickie to the Racecourse Inspector and the Informant in this proceeding Mr Bryan McKenzie. It is unclear from the evidence whether Mr McKenzie has ever spoken directly to Mr Dyke on this matter. It is plain however that on the 15th February Mr McKenzie spoke with Mr Ryan who had been engaged by Mr Dyke. The next day Mr McKenzie sent to Mr Ryan a letter addressed to Mr Dyke curiously dated two days ahead, the 18th February. Mr McKenzie reported on the state of his inquiries and required Mr Dyke to answer certain questions as laid down by Rule 226 (2) (b). Mr Ryan on behalf of Mr Dyke responded to Mr McKenzie by a letter dated 22nd February. This correspondence was put before the Committee by consent.

 

6.2          It is apparent from Mr McKenzie’s letter on the 18th February addressed to Mr Dyke that he (Mr McKenzie) had spoken with Mr Rutherford or at least had some understanding of Mr Rutherford’s account of the events of the 26th January. In para.10 of that letter it is explained that there was information from Mr Rutherford that he had indicated to Mr Dyke that the latter should inform the operator of the error.

 

6.3          Mr Rutherford’s statement which served as his brief of evidence is dated the 4th April. The charges were preferred against Mr Dyke by letter dated the 7th May.

 

6.4          It is clear that Mr McKenzie had seen the CCTV footage at the time of his letter to Mr Dyke on the 18th February. Mr Rutherford said in evidence that he had not seen the CCTV footage at the time that he made his statement on the 4th April. He had however seen the CCTV footage between that date and the hearing before this Committee.

 

6.5          Mr Rutherford gave his evidence in a straight forward way. He was strongly challenged in cross examination. In answer to questions his answers appeared spontaneous and were not calculated. He made admissions against his own interest. He acknowledged that he had a significant number of glasses of beer on the afternoon in question. He disputed that he was intoxicated. There is no evidence that he might not have been served by the bar staff. Mr Rutherford told the Committee that he was reluctant to be involved. He said he only became involved after he had been approached by an employee of the TAB. That person was not called to give evidence. Mr Rutherford said that this TAB employee had told him that his position as a race horse owner might be in jeopardy if he had information and did not come forward with it. Rutherford said he felt threatened. Nonetheless he chose to speak up and there is no suggestion that he was pressured by Mr Bryan McKenzie to make the statement of the 4th April.

 

6.6          There are essentially three events about which Mr Rutherford gave evidence. The first is the conversation when he heard Mr Dyke place the bet. It is hard to imagine that he could have made up what he said he heard. What he recounted was in fact what happened. The advice which Mr Dyke gave to the TAB operator was by his own account the same as Mr Rutherford said he heard. The CCTV establishes that about 1 minute after the ticket had been purchased Mr Dyke was close to Mr Rutherford. The latter was leaning against the bar. Mr Dyke placed the tickets in his top pocket. There does not appear to have been any conversation. 

 

6.7          The second event was about 2 minutes later when Mr Dyke approached Mr Rutherford at the bar and they began to talk. Mr Dyke moved to his right, ordered two drinks, and paid for these. He then came back to where Mr Rutherford had remained at the bar close to the TAB terminal. Discussion resumed. Mr Dyke took material from his shirt pocket and placed it on the bar. Mr Rutherford lent over and the two men were very close together. Mr Rutherford appears to have been pointing at the material that had been placed upon the bar. After a short time both men moved quite suddenly stepping back from the bar and away from each other. It is during this period of conversation at the bar that Mr Rutherford said that he saw the subject ticket and advised Mr Dyke to take it back. The Committee is persuaded that the sudden movement of the two men indicated that something unexpected had been seen or said. There was movement by both men. It happened very quickly. Mr Dyke then picked up the material from the bar and placed it in his left hand trouser pocket. The third event was post race: refer para.6.13 which follows.

 

6.8          Nowhere in his written brief of evidence does Mr Dyke acknowledge that he took material from his shirt pocket, place it on the bar and discuss it with Mr Rutherford. This is curious as Mr Dyke recounted in his brief that he had seen the CCTV footage before his written evidence was prepared.

 

6.9          The CCTV camera footage had a time clock. Unfortunately that clock and the TAB time clock were something more then two minutes apart. In the final analysis nothing turns upon that. By the CCTV clock the subject bet was placed at 3 minutes and 45 seconds past 4. Mr Dyke in cross-examination agreed that the footage showed him placing the relevant bet. The footage showed the two tickets that were purchased being placed in the shirt pocket. Dyke is then out of the CCTV coverage for some time and returns about 3½ minutes later. He ordered two drinks and at around 4.06.48 began a discussion with Mr Rutherford. Mr Dyke then went to the eftpos terminal and then returned to his position beside Mr Rutherford at the bar. Both men appear to then look towards the tele-text monitors. As earlier related Mr Dyke then took material from his shirt pocket, placed it on the bar and it is looked at by both he and Mr Rutherford. When questioned about this in cross-examination Mr Dyke said that the material placed on the bar were his tickets and the picks earlier referred to. This passage in cross-examination was the first time there had been any reference to picks being written down and being on a piece or pieces of paper in the shirt pocket. There was nothing about this in Mr Dyke’s brief of evidence. There was nothing about this in Mr Ryan’s letter to Mr McKenzie dated 22nd February 2008. Nor was anything whatever said to Mr Rutherford in cross-examination that gave any indication that this evidence about picks would be given by Mr Dyke.

 

6.10        Mr Dyke said in his evidence in chief that he did not believe he could have read the ticket because he did not have is glasses on. There was a letter from Mr Dyke’s optometrist. That did not support Mr Dyke’s assertion. The optometrist’s report made clear that Mr Dyke could, without glasses, read print smaller than that which appears on a TAB ticket. Moreover Mr Dyke when in discussion with Mr Rutherford was clearly looking at the material upon the bar. There must have been some ability to read that material for if it were otherwise Mr Dyke could not have taken any really meaningful part in the discussion. Further on this subject the evidence established that later in the day at around 28 minutes past 4 Mr Dyke cashed in the successful $20.00 each way ticket on Mirkola Lass and collected a box trifecta dividend. Mr Dyke or some other unidentified person must have established that these two winning tickets were held. The TAB records demonstrate that at 28 minutes past 4 these were the only two tickets presented at the terminal.

               

6.11        The successful box trifecta came about from a second set of bets placed by Mr Dyke at 10 minutes past 4 (CCTV time). The TAB records of bets placed shows that there were two bets at around this time, one a box trifecta with 6 horses costing $60.00 and the other an easy bet for $9.00. It was that trifecta bet which was successful and it was that ticket together with the ticket for the $20 each way bet upon Mirkola Lass that were presented by Mr Dyke for payment at around 28 minutes past 4.

 

6.12        In commenting on Mr Rutherford’s evidence Mr Dyke (para.53) contended that it was the second lot of tickets that the two men looked at. This is clearly wrong. The CCTV coverage established conclusively that the conversation involving the pointing at written material occurred before the second series of bets were laid.

 

6.13        The third event was post race. Mr Rutherford said that after the race and before the declaration of dividends he again spoke to Mr Dyke about returning the ticket. That was vigorously denied. Mr Dyke denied there was any conversation following the race. Mr Dyke said he could not recall putting any tickets in a waste bin. Clearly some tickets were retained and cashed in at around 28 minutes past 4 as explained in para.6.10 and 6.11. Mr Rutherford’s evidence was that some tickets were put in a rubbish bin immediately after the conversation following the cup race.

 

6.14        Mr Ryan criticised the evidence of Mr Rutherford in a number of respects. He pointed to the delay in obtaining the written statement. Such delay of itself does not detract from the credibility of the witness. Mr Rutherford explained quite frankly to the Committee that he did not wish to be involved. He felt that he could do no more than urge Mr Dyke to take back the ticket. He was criticised for not drawing the position to the attention of the TAB operator. Further he was criticised for doing nothing when he left the bar at around 5 o’clock. Mr Rutherford gave evidence that there was turmoil (his word) behind the bar and that he suspected this was because of the discovery of the incorrect bet. He chose to do nothing. For his part Mr Dyke who remained in the bar for some time after Mr Rutherford left said he saw no such turmoil. Mr Ryan then pointed to Mr Rutherford’s alcohol consumption. The Committee has noted the frankness of Mr Rutherford in that regard. It was a summer afternoon. The Committee does not believe that Mr Rutherford’s drinking detracted from the veracity of his evidence.

 

6.15        Mr Dyke asserted in his brief of evidence that Mr Rutherford concocted a story. He went on to say that this was done because he was good friends of the owners or because he was drunk. There is no credible evidence that there was a close friendship between Mr Rutherford and the owners and there is certainly no evidence of any sort to support the suggestion that Mr Rutherford and the owners have somehow conspired together to invent the allegation that Mr Dyke knew he had a TAB ticket of around $16,000.00. When the Chairman of the Committee asked Mr Dyke about motivation he (Mr Dyke) made the suggestion – this for the first time – that Mr Rutherford may have been motivated by some financial gain. There is no evidence to support that.

 

6.16        Mr Ryan put to Mr Rutherford that he was mistaken. This was firmly denied. It was not put to Mr Rutherford that he had concocted a story. It was not put to him that he had made the whole thing up in cahoots with the bar owners. Nor was it put to him that he might have been motivated by some improper monetary consideration.

 

6.17        In answers to questions in cross-examination Mr Dyke seemed uncertain. There were repeated delays in making a response to questions asked. Many of the answers lacked conviction. The Committee observed the demeanour of all witnesses very closely. For much of the time Mr Dyke appeared to be on edge and ill at ease. The Committee is conscious that giving evidence in hearings such as this was a new experience for Mr Dyke. Allowance has been made for any anxiousness or nervousness that he might understandably have felt.

 

6.18        The evidence given in cross-examination about the papers in the shirt pocket with the picks written out is wholly unconvincing. The failure to mention this at  any previous time has been noted. This evidence has all the appearances of recent invention. No piece or pieces of paper with picks written on them were produced to the Committee.  This evidence is not believable.

 

6.19        Mr Ryan pointed to a passage in the evidence of Mr Bright in which it is said that Mr Rutherford told him – that is Mr Bright – a different story. This passage in Mr Bright’s evidence it is said detracted from Mr Rutherford’s credibility. Mr Rutherford was not challenged about telling a different story to some other person or persons on another occasion. Nor was Mr Bright asked what he might have been told by Mr Rutherford. If anything was to be made of some claimed inconsistency in Mr Rutherford’s account of events then he and Mr Bright should have been challenged on that subject.

 

6.20        Mr Ryan contended that the investigation was luke warm. This criticism was allied to the delay in obtaining the written statement from Mr Rutherford. The submission  was also linked, in part, to observations concerning the discussions between Mr Dyke and Mr John McKenzie. The Committee is satisfied that there were valid reasons for the delay which occurred. The matter was not immediately placed in the hands of a Race Course Inspector. Mr Rutherford was reluctant to be involved. Mr Dyke appears to have immediately sought legal advice hence the formal correspondence between Mr Bryan McKenzie and Mr Ryan. The delay does not detract from the essential evidence upon which the Informant relies. That is the evidence of Mr Rutherford supported by the CCTV footage. Moreover nothing in the delay can explain the unsatisfactory responses made by Mr Dyke.

 

6.21        Reference was made earlier to the evidence of Mr John McKenzie, the Chief Racecourse Inspector. Some time after the investigation had got under way Mr McKenzie spoke with Mr Dyke about whether or not some arrangement might be arrived at between Mr Dyke and the owners of the bar. The evidence that Mr Dyke read before the Committee was, on this subject, not the same as the brief which had been tendered to the Committee and made available to counsel for the Informant. The relevant paragraph is 35. It became apparent that what Mr Dyke had read from was a draft brief of evidence and that much of the material about the conversation with Mr McKenzie had been added after that draft was prepared. It is not necessary for the Committee to determine exactly what was said between Mr Dyke and Mr McKenzie. The Committee does however wish to record that is sees nothing improper in the actions of Mr McKenzie. Any suggestion in the evidence or in the form of cross-examination which suggested impropriety by Mr McKenzie is rejected.

 

7.            Conclusion: Disputed Facts

7.1          The Committee is satisfied that Mr Dyke knew that he had been issued with an incorrect TAB ticket in respect of his trifecta bet on the Wellington Cup which he had intended to be a $60 percentage bet. He was issued with a ticket to the value of $16,320.00. If he did not know earlier the Committee is satisfied that Mr Dyke certainly knew of the mistake at the time of the conversation he had with Mr Rutherford at the bar when the latter was pointing at the written material. Contrary to the view advanced for Mr Dyke the Committee takes the clear view that the sudden movement of the two men indicated something of real significance had been seen or said.

 

7.2          The Committee is satisfied that Mr Rutherford did speak to Mr Dyke about the ticket both before and after the race and generally in the terms that Mr Rutherford has outlined.

 

7.3          The evidence that Mr Dyke gave about the picks is not accepted. The timing and circumstances in which that evidence came to be given detracts entirely from its believability. Explanation about the picks came only when Mr Dyke was pressed in cross-examination by counsel for the informant.

 

7.4          There is no evidential basis for the allegation made that Mr Rutherford and the bar owners conspired to give a wilfully untrue account of events. Similarly there is no evidence whatever to suggest that Mr Rutherford may have been motivated by some improper financial consideration.

 

7.5          While Mr Rutherford had been drinking the Committee is satisfied that his alcohol consumption does not materially detract from the worth of his evidence which the Committee accepts.

 

7.6          The Committee distinctly prefers the account of Mr Rutherford. In significant areas which the Committee has identified Mr Dyke was not a credible witness.

 

8.            Result

8.1          Having found that Mr Dyke knew he had been issued with an incorrect ticket and that he knew that what he had was a ticket for $16,320.00 the issue is then whether the decision to do nothing in those circumstances constitutes a breach of the Rules of Racing.

 

8.2          It was submitted by Mr Ryan that even if Mr Dyke did have the knowledge which the Committed has found to exist that his doing nothing did not constitute dishonesty in terms of Rule 1001 (1) (p). Similarly Mr Ryan contended that with reference to Rule 1001 (1) (v) (i) Mr Dyke’s inaction was not detrimental to the interests of racing.

 

8.3          The Committee first considers the charge under Rule 1001 (1) (p). It is appropriate to say at once that the Committee is satisfied that Mr Dyke did not set out to obtain a ticket which did not reflect the money he had paid. The printing out of the mistaken ticket appears to have arisen from a series of operator mistakes. Mr Colson made clear that it was the Informant’s position that the dishonesty contended for was in Mr Dyke failing to act when he knew the true position. To behave honestly means to behave in a way that is not false or misleading and is genuine. Honesty is said to be characterised by an absence of lying, cheating or stealing. In the Committee’s view it is not honest to retain a TAB ticket which has a value in excess of $16,000.00 when it is known that the ticket should only have a value of $60. Moreover Mr Dyke must have known from his long association with racing that there would be financial consequences for the TAB and/or its operators if he chose not to speak. The action is undoubtedly connected with racing. The expression connected with racing does not have reference simply to the conduct of race meetings or the behaviour of licensed persons at the race track. It has to do with the conduct of licensed persons and the conduct of betting upon horse races. Reference is again made to the judgment in the High Court in Carter (supra).

 

8.4          The Committee holds that Mr Dyke acted dishonestly in connection with racing. More precisely in terms of the rule he acted dishonestly with reference to the off-course totalisator. The relevant rule makes direct reference to the totalisator. This can only mean that licensed persons have an obligation to act with honesty where the totalisator is concerned. That did not happen here. The Committee finds that the allegation under Rule 1001 (1) (p) has been proved and so holds.

 

8.5          The information laid under Rule 1001 (1) (v) (i) is in the alternative. It follows from what has already been said that if it were necessary to consider this charge the Committee would find that the actions proved to have occurred were detrimental to the interests of racing. As observed in the judgement of the Judicial Committee in the case of D G Bradley 7 March 2008 the word detrimental means to act to the disadvantage or damage of the subject under discussion. Here the wider interests of racing are what is under discussion. The Co

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