You are here: Home / Race Days / Dummy Location - 1 January 2001 / Non Raceday Inquiry - NZTR v R Collett 17 September 2010 - Decision dated 8 Ocotber 2010

Non Raceday Inquiry - NZTR v R Collett 17 September 2010 - Decision dated 8 Ocotber 2010

— filed under: ,


Hearing before Non-Raceday Judicial Committee

Ellerslie Racecourse 17th September 2010


JUDICIAL COMMITTEE:   Mr Murray McKechnie Chairman and Mr Russell McKenzie


REGISTRAR:   Mr Matthew Williamson


PRESENT:   Mr Mike Colson Counsel for NZTR

                   Ms Erica Henshilwood Counsel assisting Mr Colson

               Mr Cameron George Chief Stipendiary Steward

                   Mr Doug Alderslade Counsel for Mr Collett

                   Mr Richard Collett Licensed Trainer



ALSO PRESENT:   Mrs Denise Jeffcoat Licensed Trainer

                              Mr Shayne Jeffcoat

                              Mr Clinton Hollis Licensed Trackwork Rider

                              Mr Peter Fearon Crossing Keeper Counties Racing Club

                              Mr John McKenzie Chief Racecourse Inspector

                              Mr Ross Neal Stipendiary Steward

                              Mrs Judy Collett

                              Mr Mike Dillon Racing Editor NZ Herald

                              Mr Barry Lichter Sunday Star Times

                              Members of the public




Reserved Decision of Judicial Committee

8th day of October 2010


1.            The charges

1.1          By an information sworn on the 4th August 2010 Mr George alleged a breach of Rule 801(1)(s)(i) by Mr Collett. That rule sets out what is known as a serious racing offence. It was said that on the morning of the 26th May 2010 at Pukekohe racecourse Mr Collett did or permitted or suffered to be done one or more of the following acts:

                (i)           Verbally abused licensed trainer Ms Denise Jeffcoat.

(ii)          Took hold of Ms Jeffcoat’s horse’s bridle without her consent in an attempt to make her dismount.


(iii)         Pushed and/or directed Ms Jeffcoat’s horse backwards and ultimately into a wash bay without her consent.

(iv)         Undid or attempting to undo, without her consent, the horse’s bridle straps while Ms Jeffcoat was mounted on her horse.

(v)          Attempted to remove Ms Jeffcoat from her horse in a forceful manner by grabbing Ms Jeffcoat and/or her clothing in the neck region.

(vi)         Endeavoured to strike Ms Jeffcoat.

(vii)        Endeavoured to strike registered track work rider Clinton Hollis.

Rule 801(1)(s)(i) is to this effect:

Any person commits a serious racing offence within the meaning of these rules who either by himself or in conjunction with any other person does or permits or suffers to be done any act which a Judicial Committee deems fraudulent, corrupt or detrimental to the interests of racing.

1.2          On the 15th September 2010 Mr George laid a further information. This alleged a breach of Rule 340. That is known as the misconduct rule. The charge was laid in the alternative to the serious racing offence charge set out above. The allegations in support of the breach of Rule 340 were identical to those laid in support of the allegation that there had been a serious racing offence.

                Rule 340 is in these terms:

                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.

2.            The racecourse incident on 26th May 2010

2.1          Mr Collett and Mrs Jeffcoat are both licensed trainers based at Pukekohe. The facilities at the Pukekohe track are owned and administered by the Counties Racing Club.

2.2          Mrs Jeffcoat is a Class ‘A’ trainer.  At about 6.15a.m. on the 26th May she was working a horse at Pukekohe in the company of a licensed track rider Mr Clinton Hollis. This was on the all weather sand track. It was Mrs Jeffcoat’s account that weather conditions were poor. It had been raining and there was limited visibility. She said it was difficult to hear because of the rain. In this she was supported by Mr Hollis. The horses began work at some three widths off the inside rail. The plan was to work the horses together from the 600 metre mark at three quarter pace. Mrs Jeffcoat and Mr Hollis recounted that at about the 400 metre mark two horses improved from behind. These two horses were ridden by Tasha and Aylisha Collett, daughters of Mr Collett. They came upon the horses ridden by Mrs Jeffcoat and Mr Hollis and had to take evasive action, one going on the inside and the other on the outside.


There was some difference in the accounts given to the Committee about whether a warning had been called out and if Mr Hollis had seen the approaching horse or horses. Mr Hollis said he did see a horse and that it was almost alongside before he became aware of it.  Neither Tasha or Aylisha Collett gave evidence before the Committee.


2.3          The events which have just been outlined were observed by Mr Collett. He told the Committee that when he first saw the two Jeffcoat trained horses they were rounding the bend into the back straight and were close to the running rail. It is accepted that the area which is closer to the rail should be used for fast work. It was Mr Collett’s account that the two horses entered the back straight and increased their speed to approximately three quarter pace and continued that until the end of the back straight but then immediately eased back their speed to pace work by the 600 metre mark. He said they were still on the inside at that time. Mr Collett said he observed his two horses in full gallop and getting closer to the two Jeffcoat horses. He said that at about the 400 metre mark Tasha had to angle her horse towards the inside and that Aylisha was forced to angle her mount to the outside. Mr Collett was observing this in the company of the crossing keeper Mr Peter Fearon and more will be said later of what Mr Fearon told the Committee.


2.4          Mr Collett, by his own account, was extremely upset that the two Jeffcoat ridden horses had created a dangerous situation for both his daughters and their horses. He said that he felt this had been done “seemingly intentionally”. When Mrs Jeffcoat and Mr Hollis left the track and entered the tie up area he approached them.


2.5          Mrs Jeffcoat said that Mr Collett started yelling at her about the events on the track. At that time Mrs Jeffcoat was mounted on her horse and in a concreted area close to where the horses were to be tied up. She said that Mr Collett was abusive. It was not necessary to recount the details of the abuse. She said she thought that Mr Collis was “losing it”. She said that he had the bridle of her horse and pulled it. He told her to get off. She did not do that and then he began to push the horse backwards. Mrs Jeffcoat said that the horse went some 30 paces backwards. This was still on a concrete surface. She recounted to the Committee that she was concerned both for her own safety and that of the horse. Mrs Jeffcoat went on to tell the Committee that Mr Collett tried to remove the horse’s bridle. This, she said, would have been disastrous as she would have lost control of the horse and would almost certainly have come off. The horse was pushed into the wash bay and Mrs Jeffcoat said that Mr Collett then leapt up and grabbed her clothing near the throat and tried to pull her off the horse. She said he took a “swing” at her and that this narrowly missed. Mr Hollis then intervened.


2.6          For his part Mr Collett gave a somewhat different account. He did acknowledge that he grabbed the reins of Mrs Jeffcoat’s horse. He further acknowledged that he pushed the horse backwards and told Mrs Jeffcoat to get off and he said “come and sort this out with the crossing keeper”. He said that Mrs Jeffcoat refused to dismount and he repeated his request. He said that he took hold of Mrs Jeffcoat’s heavy raincoat somewhere about halfway down the front and that he pulled her and gestured to her that she come and explain her actions to the crossing keeper. He said that while this was happening Mr Hollis lunged towards him and this forced him backwards. He said he reached out with his free hand and pushed Mr Hollis away. Mr Collett admitted using abusive language.


2.7          Mr Hollis for his part largely supported Mrs Jeffcoat’s account and said that when he intervened Mr Collett punched him. This punch hit his riding helmet and did not cause any injury. The Committee found Mr Hollis to be a straightforward and credible witness. He continues to ride track work at Pukekohe – apparently both for Mrs Jeffcoat and for Mr Collett.


2.8          Mr Collett’s wife Judy came upon the scene at about this time and it is accepted by all concerned that she calmed down the situation and brought an end to the confrontation.


2.9          Mr Peter Fearon is the crossing keeper at the Pukekohe Racecourse. He gave an explanation of the movement of the horses on the track on the morning of the 26th May. This largely supported the evidence given by Mr Collett. Interestingly Mr Fearon recounted that Mr Collett asked him what he was going to do about what he had seen and Mr Fearon replied that he would question the riders on their return. In the event it seems that he was not given any opportunity to do that.

3.            Events following the racecourse incident

3.1          Mrs Jeffcoat and Mr Hollis discussed what had occurred. The latter suggested that the police be contacted. Mrs Jeffcoat decided to speak with the Chief Racecourse Inspector Mr John McKenzie. She did so and related the events to him. Mr McKenzie advised that she should go to the police. Mrs Jeffcoat arranged for her husband Shayne to send a detailed email to Mr McKenzie which set out her account of events. Mrs Jeffcoat in consultation with her husband decided the police should be contacted. This was done the next day the 27th May 2010. A formal complaint was made and a statement taken from Mrs Jeffcoat.


3.2          On the following day Friday 28th Mrs Jeffcoat and Mr McKenzie spoke again. Mrs Jeffcoat had heard from the police that they would not be prosecuting Mr Collett. In fact a formal written warning was issued by the police to Mr Collett. That of course is a matter of record with the police. Mrs Jeffcoat went on to explain that Mr McKenzie had told her that there were two courses of action open. She could initiate a disciplinary hearing at the Counties Racing Club or take steps to have Mr Collett brought before a Judicial Committee. In her evidence Mrs Jeffcoat recounted that she had never had a matter before a Judicial Committee and she said (exact quote) “Mr McKenzie was edging towards the disciplinary hearing so I agreed with that”. Mrs Jeffcoat said that she again spoke with her husband. She said she wasn’t sure that she would get a fair chance at the Club’s disciplinary hearing as she knew that Mr Collett had trained horses for members of the Club’s committee and that she thought they were all very close. She explained that she therefore phoned Mr McKenzie back within some thirty minutes and said that she would prefer the hearing to be before a Judicial Committee. Mrs Jeffcoat recounted that Mr McKenzie said that it was too late.


3.3          On that same day the 28th May Mr McKenzie wrote, in his official capacity as Chief Racecourse Inspector, to Mr Collett. A copy of that letter was produced at the hearing. The letter advised that Mr McKenzie had requested the General Manager of the Counties Racing Club to appoint a Subcommittee to hear an allegation of a breach of the Club’s training bylaws. The letter explained that the allegation against Mr Collett was that he had physically and verbally abused Mrs Jeffcoat.


3.4          Mr McKenzie prepared a document which set out his proposal as to how the proceeding before the Club Subcommittee might proceed. That was made available to the General Manager of the Club Mr Greg Mitchell.


3.5          A hearing took place on 2nd June, presided over by Mr Russell Preston the Vice President of the Counties Racing Club. Mr Collett pleaded guilty. The detailed email which had been sent by Mrs Jeffcoat to Mr McKenzie on the 26th May was made available to the Committee. Mr McKenzie addressed the Committee. He indicated that he was surprised at the manner in which the police had dealt with the complaint and gave it as his opinion that normally an assault by a male on a female would finish up before the Courts. The police complaint had resulted in a warning being issued to Mr Collett. The police had written to Mrs Jeffcoat advising of this and a copy of that letter was read to the Sub-committee. Mr McKenzie then addressed the Subcommittee in these terms:

                Now I read that out gentlemen, because I think that it would be wrong for an ad hoc body such as a racing tribunal to be looking further into the issue of the assault which really is the most serious situation that has occurred in this incident. I just don’t want to be seen to be double jeopardy. The criticism of the Police is one that I think Mrs Jeffcoat is continuing to take up. It is not a matter that this Committee, in my view, should be specifically dealing with that they can take into consideration in mitigation of penalty. Perhaps having said that, I think Mr Collett should be given the opportunity to make an explanation in respect to the complaint.


3.6          Mr Collett was asked for his explanation and responded in some detail. Mrs Jeffcoat was then given the opportunity to comment upon that and did so.


3.7          The Subcommittee then adjourned and took some time to consider the position. When the hearing resumed the Chairman set out in some detail the nature of the incident and categorised Mr Collett’s behaviour as inexcusable. The Committee determined that the maximum fine under the bylaws be imposed namely the sum of $500.00. The Subcommittee went on to recommend that those monies be paid to the White Ribbon Trust which is a Trust established to deal with violence against women.


4.            The role of Mr John McKenzie

4.1          Mr McKenzie is the Chief Racecourse Inspector for New Zealand. He became an inspector in 1976 and the Chief Inspector in 1997. The position he holds is one of significant responsibility.


4.2          Throughout the events which have been related Mr McKenzie acted upon his own initiative. In answer to questions from the Committee he explained that he had dealt with similar incidents on a number of occasions. He said that he had considered the circumstances of each case in order to determine whether it was appropriate for the events to be dealt with by the Racing Club concerned or by NZTR under the Rules of Racing. He went on to explain with reference to Mr Collett’s conduct that he felt that the assault aspect of the incident was primarily a matter for the police.


4.3          The Committee understands that Mr McKenzie reports directly to the Chief Executive Officer of NZTR. In respect of the conduct of Mr Collett and the other similar incidents which Mr McKenzie spoke of he had not considered it necessary to consult with the Chief Executive Officer. At no stage during the hearing before the Committee was any evidence led or any submission made to suggest that Mr McKenzie ought to have consulted with the Chief Executive Officer before proceeding as he determined was appropriate.


4.4          It is clear from what he said that Mr McKenzie had no part in the decision to charge Mr Collett under the Rules of Racing.


4.5          Mr Collett told the Committee that following the hearing at Counties on 2nd June he was advised by Mr McKenzie that the matter was concluded. Mr Collett’s advice was confirmed by the evidence of Mr McKenzie. Mr Collett expressed surprise that he was visited on the 23rd July this year by Mr George and Mr Ross Neal and questioned about the events of the 26th May.

5              Events post 2nd June

5.1          Mrs Jeffcoat was unhappy with the outcome of the hearing before the Subcommittee of the Counties Racing Club. It is appropriate to note that Mr McKenzie had suggested during the hearing not only should there be the maximum fine paid but that Mr Collett should be barred from the racecourse for perhaps a period of two (2) weeks. That suggestion was not acted upon by the Subcommittee.


5.2          Mrs Jeffcoat sought legal advice. Her counsel wrote to Mr George on the 5th June. This letter which was produced at the hearing contended that the conduct of Mr Collett should have been dealt with by the JCA. The letter went on to assert that it should not have been dealt by the Racing Club “given that apparently that Mr Collett is a member of the Committee of the Club”. Evidence at the hearing was that Mr Collett is not a member of the Committee. He is apparently a Steward of the Club. The letter went on to record that Mrs Jeffcoat had referred the matter to the police on the advice of Mr McKenzie. The letter contended that there was a clear breach of Rule 341. That is plainly a mistake. The reference should have been to Rule 340 which has to do with misconduct. In conclusion the letter acknowledged the possibility of what is described as “double jeopardy” and made certain observations on that subject.


5.3          As earlier related on the 23rd July this year Mr Collett was visited by Mr George and Mr Neal. He was asked about the events of the 26th May. On the 4th August this year Mr George completed the information alleging the serious racing offence. Mr Collett immediately sought legal advice. By a letter dated 11th August this year to NZTR Mr Alderslade contended that charging Mr Collett after he had been dealt with by the Counties Racing Club in the circumstances which have been outlined here amounted to an abuse of process. Abuse of process is a legal doctrine which can arise in many varied circumstances. Broadly speaking the doctrine holds that persons should not be placed in a situation where they are subjected to legal processes by which they are required, in essence, to answer a second or successive time in respect of conduct which has already been examined by some judicial or quasi judicial body.


5.4          Correspondence between Mr Alderslade counsel for Mr Collett and Mr Colson counsel for NZTR continued for some time. NZTR declined to withdraw the information alleging a serious racing offence. A hearing was then timetabled before this Committee. On the 2nd September the Committee held a discussion with legal counsel. A hearing was scheduled for the 17th September.


5.5          At that preliminary hearing on the 4th September two legal issues were identified. These were:

§         Given the hearing before the Committee of the Counties Racing Club Mr Collett would raise a plea that the proceedings brought by NZTR constituted an abuse of process. The legal doctrine of abuse of process is sometimes, in circumstances of the kind that has arisen here, known in colloquial terms as “double jeopardy”.

§         Was the conduct alleged against Mr Collett, if proven, such as to constitute a breach of Rule 801(1)(s)(i) or was the charge under Rule 340 (misconduct) more appropriate.


5.6          As earlier explained NZTR filed a further information against Mr Collett on the 15th September – only two (2) days before the hearing. This alleged a breach of Rule 340. The Committee was told that this information was in the alternative to that alleging a breach of Rule 801 (1)(s)(i).


5.7          After hearing all of the evidence and a good part of the submissions being made for NZTR and Mr Collett the Committee indicated that it was of the view that the behaviour of Mr Collett (much of which he had admitted) was more appropriately dealt with under the misconduct rule No 340. Following that advice Mr Colson took instructions and then told to the Committee that NZTR sought to withdraw the serious misconduct charge under Rule 801(1)(s)(i). The Committee acceded to that request.  Mr Alderslade in turn took instructions. He then indicated to the Committee that Mr Collett acknowledged that his behaviour on the 26th May 2010 at Counties Racecourse constituted misconduct in terms of Rule 340. Mr Alderslade explained that if the abuse of process argument advanced for his client was not upheld then the Committee was to treat his advice as an entry of a plea of guilty to the charge under Rule 340.


5.8          It follows from what has just been explained that the Committee is not now required to make a formal determination that the conduct of Mr Collett falls under one or the other of the two rules to which reference has been made.

6.            Abuse of process

6.1          Counsel had cooperated to assemble a common bundle of legal authorities. There were no fewer than thirteen (13) reported judgments in the bundle. All have been considered.


6.2          The Committee has also had reference to the judgment of the High Court in Parsons et al v Attorney General CIV-2008-485-2611 (Wellington Registry) Clifford J 22nd May 2009.


6.3          The leading New Zealand case is Z v Dental Complaints Assessment Committee [2009] 1NZLR 1. That is a judgment of the Supreme Court. The Dental Disciplinary Body sought to prosecute Z for the same conduct for which he had been unsuccessfully prosecuted in the Criminal Courts. The Supreme Court held that whether or not a proceeding constituted an abuse of process required a broad merits-based judgement, in context, as to whether, in all the circumstances – including the public and private interests and all the facts of the case – a party was misusing or abusing the process of the Court. In so holding the Supreme Court was adopting the statement of Lord Bingham in the House of Lords in Johnson v Gore-Wood & Co (a firm)  [2000] 2AC 1 at 31.

                Further Lord Bingham had this to say – p31

                “As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rules to determine whether, on given facts, abuse is to be found or not”.

                Earlier the learned Judge had set out the underlying public interest in why abuse of process should not take place and said:

                “The underlying public interest is the same: that there should be finality in litigation and that the parties should not be twice vexed in the same manner. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the party and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without  more, amount to abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all ”.


6.4          In Z v Dental Complaints Assessment Committee the Supreme Court held (Anderson J dissenting) that it would be an abuse of process to bring disciplinary proceedings where the scope of that inquiry would simply replicate the exercise that the Criminal Court had earlier undertaken and which had led to an acquittal. The particulars relating to the incident before the Disciplinary Tribunal were identical to the criminal charges.


6.5          Here it is said by Mr Alderslade that Mr Collett has pleaded guilty to a misconduct allegation brought by the Counties Racing Club and that the allegation which he now faces (the breach of Rule 340 only) was in every respect exactly the same event and amounts, in effect, to his client being tried twice by different Tribunals, both associated with the administration of racing, for precisely the same offence. That precise commonality of circumstances is said to amount to an objectionable repetition of what is essentially the same procedure and thus an abuse of process.


6.6          For NZTR Mr Colson contended that there was a critical distinction between the proceedings before the Counties Racing Club and the proceedings before this Judicial Committee. The former was characterised as arising from a private law relationship. It was said that Mr Collett and the Racing Club were in a contractual relationship by which Mr Collett had bound himself to obey the rules of the Club. A copy of those rules were made available to the Committee. It is not in issue that Mr Collett signed up to them. With reference to the Rules of Racing Mr Colson pointed out that these are made under the powers set out in the Racing Act 2003. The Committee was referred to the various statutory powers in the Act. Further the powers of Judicial Committees are set out both in the statute and under the Rules of Racing. These provisions, contended Mr Colson, govern public law relationships. All people who involve themselves in the racing industry are subject to the provisions of the Racing Act and the rules made under that Act. The Committee accepts that the powers to regulate the conduct of persons involved in racing are to be found, in the first instance in the Racing Act and then in the rules made pursuant to that Act. The public law categorisation of the relationship is correct.


6.7          We are not however persuaded that the categorisation of the proceedings before the Counties Racing Club as a private law matter and the proceedings before this Committee as a public law matter provides any real assistance in determining whether an abuse of process has occurred. It is necessary, as Lord Bingham observed, to look at all the facts and all the circumstances. The private law or public law analysis is but one circumstance.


6.8          The Committee is struck by the similarities between the proceedings taken by NZTR and those before the Counties Racing Club. In particular the following:

·         The facts said to constitute the misconduct are precisely the same.

·         The response made by Mr Collett is precisely the same. As earlier related he has indicated that he would plead guilty to a charge under Rule 340 if the abuse of process argument were not upheld.

·         The Counties Racing Club imposed the maximum financial penalty permitted under its rules. NZTR also seeks a financial penalty but, it should be noted, at a much higher level. A figure of $5,000.00 was proposed.

The difference in the financial penalties which are sought is the only meaningful distinguishing feature between the proceedings before this Committee and those before the Counties Racing Club. It might be said that proceedings before this Judicial Committee are in a more public forum than those before the Counties Racing Club. While there is truth in that the public interest in this matter extends only to those persons who are involved with or who have an interest in thoroughbred racing. It follows that the Committee is not persuaded that there is a public interest consideration which points to the need for Mr Collett to be twice penalised for the same conduct.


6.9          While mindful of the private law/public law distinction the proceedings before the Counties Racing Club and the proceedings before this Judicial Committee are both, in reality, disciplinary proceedings being undertaken by bodies which have appropriate legal authority to conduct such proceedings. This Judicial Committee has the power to impose more serious penalties than did the Counties Racing Club but that, of itself, cannot be determinative in deciding whether Mr Collett should be tried a second time for precisely the same offending and when he has acknowledged the misconduct on both occasions.


6.10        In our judgment to have this charge proceed would be to twice try Mr Collett in the same matter. Both the public and private interests are best served by leaving this matter where it was on the 2nd June this year with the Counties Racing Club. It follows that we uphold the argument for Mr Collett that to allow this charge under Rule 340 of the Rules of Racing to proceed would be an abuse of process. The information is accordingly dismissed.


6.11        Nothing that is said here changes the fact that Mr Collett’s behaviour on 2nd June was inexcusable. The language adopted by the Chairman of the Counties Sub-committee was appropriate. That said, this Committee is satisfied that the behaviour of Mr Collett was not such that a charge under Rule 801(1)(s)(i) was ever appropriate. The charge under Rule 340 was laid very late in the piece and not in substitution but rather as an alternative.

7              COSTS

7.1          Mr Alderslade sought costs on behalf of his client. He pointed to his having raised the abuse of process argument in writing with NZTR. This within a few days of the first information being laid. The letter referred to Mr Collett’s acknowledgement of his conduct. Further the letter pointed out that Mr Collett believed post the 2nd June this year that the whole incident had come to an end only to find himself re-interviewed some seven (7) weeks later and then be faced with an allegation that he had committed a serious racing offence.


7.2          The Committee was given no explanation by NZTR as to why it was decided to charge Mr Collett so long after the events of the 26th May. Nor was it satisfactorily explained why the original charge was laid under Rule 801(1)(s)(i) or why the alternative charge under Rule 340 was not laid until a few days before the hearing. While there may be some validity in the concern which NZTR had about the level of fine imposed upon Mr Collett by the Counties Racing Club that, of itself, did not, in this Committee’s view, justify the course of action which was embarked upon.


7.3          The hearing occupied a full day on the 17th September. The Committee has, since the hearing, been advised of the actual costs incurred by each party. The JCA has incurred significant costs.


7.4          In the circumstances outlined the Committee considers that there should be a significant costs award in Mr Collett’s favour and an order that there be a contribution towards the costs of the JCA. NZTR will pay to Mr Collett the sum of $3,000.00 and to the JCA the sum of $2,000.00.


Dated this 8th day of October 2010




Murray McKechnie                             Russell McKenzie



Document Actions