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Non Raceday Inquiry - NZTR v TROY HARRIS

— filed under:


801(1)(m)
803(2)(b)(iii)

Hearing before Non-Raceday Judicial Committee

At Te Rapa Racecourse on Tuesday 30th March 2010

 

JUDICIAL COMMITTEE Mr Murray McKechnie and Mr Bruce Squire QC

 

PRESENT: Mr John McKenzie, Chief Racecourse Inspector

Mr Bryan McKenzie, Racecourse Inspector

Mr Troy Harris, Licensed Jockey

Mr Paul Kenny, Counsel for Mr Troy Harris

Mr Noel Harris Licensed Jockey

Ms Chris McIntosh

Mr Aidan Rodley, Journalist

 

Decision of Judicial Committee

 

1. The charges and the course of the hearing thus far.

1.1 Mr Harris faces two charges brought under the Rules of Racing. Both relate to events at Matamata on the 17th March of this year. The first charge is in respect of Rule 801(1)(m) of the Rules of Racing. It is alleged that Mr Harris did commit a dishonest act connected with racing in that having been required to supply a sample of his urine he supplied a sample of urine from some other person within a Berocca container which he had hidden in his clothing. The second charge is that on the same day at the same race meeting having been required by an NZTR investigator to supply a sample of his urine he did not do so and left the racecourse on that day having failed to comply with the requirement made of him. That charge is laid under Rule 803(2)(b)(iii).

1.2 Mr Harris is represented today by his legal counsel Mr Paul Kenny. At the commencement of the hearing Mr Kenny formerly entered pleas of guilty to both charges on behalf of Mr Harris having earlier indicated at a telephone conference that such pleas would be made.

1.3 Mr John McKenzie the Chief Racecourse Inspector has furnished a detailed summary of facts. That was earlier made available both to the Committee and to Mr Kenny.

 

2. Submissions for NZTR

2.1 In making penalty submissions Mr John McKenzie drew attention to a number of considerations which he submitted were of significance. These included the following:

(a) That Mr Harris had clearly planned the course of action which he followed. He took a Berocca tube to the racecourse filled with the urine of some other person. When questioned he refused to identify that person. At interview Mr Harris said that he had been following this practice for some three (3) weeks.

(b) When Mr Harris first presented to provide a sample at around 2.00p.m. on the afternoon of the 17th March he behaved in a suspicious way which drew the attention of the nurse who was supervising the procedure. He was asked to return later in the day. At around 2.30p.m. he returned and again his conduct aroused suspicion. The nurse summoned Mr Bryan McKenzie, Racecourse Inspector who was on duty at Matamata on the 17th March. Mr McKenzie arrived very soon afterwards and questioned Mr Harris.

(c) Mr Bryan McKenzie gave Mr Harris clear advice that he was required to provide a sample before he left the racecourse that day. At around 6.00p.m. Mr Harris indicated that he could not provide a sample. He was told that the facilities to take a sample would be available into the evening and that he should stay until the sample could be taken. He did not do that and left the racecourse in the company of his partner. This notwithstanding that Mr Bryan McKenzie had indicated that if his partner had to leave the racecourse then he Mr Bryan McKenzie would take Mr Harris to his home in South Auckland.

Mr John McKenzie said that these circumstances just outlined pointed to a high degree of premeditation. First because of the circumstances in which the sample was taken to the course and secondly because it was clear that Mr Harris was determined that no true sample would be provided.

2.2 The Committee questioned Mr John McKenzie and Mr Kenny as to why no sample was able to be provided between 2.00p.m. in the afternoon and sometime after 6.00p.m. that evening. Mr Kenny told the Committee that Mr Harris was physically unable to provide a urine sample in that period. The Committee treats that explanation with considerable scepticism. The reasons for that scepticism will be explained further.

2.3 Mr Harris told Mr Bryan McKenzie that he had been taking diuretics and had taken three (3) tablets on the morning of the 17th March. He said he had been following this practice for some weeks taking diuretics on the morning of each race day. The material provided by NZTR establishes that Mr Harris was given a notice requiring that he present himself for a urine sample before the running of the first race. When that notice was handed to Mr Harris he said nothing about having taken diuretics.

2.4 The advice given to the Committee and its own general knowledge informs it that the penalty for taking diuretics is almost always a financial penalty. Mr Harris has never appeared on a charge relating to diuretics.

2.5 Mr John McKenzie further pointed to Mr Harris having previously appeared before a Non-Raceday Judicial Committee having tested positive for cannabis. That occurred relatively recently in March 2009. There is another incident in 2006 where Mr Harris was suspended for misconduct. The Committee regards that of little relevance in fixing the appropriate penalty here. The disqualification imposed in March 2009 in relation to cannabis is however distinctly relevant.

2.6 In fixing the level of penalty Mr John McKenzie (all references hereafter to Mr McKenzie relate to Mr John) drew attention to the necessity for license holders to behave with integrity. The expression he used was “honesty is one of the cornerstones of racing”. Mr McKenzie submitted that Mr Harris set about a clear pattern of dishonest conduct which must have been planned well in advance of the 17th March.

2.7 With reference to the appropriate penalty Mr McKenzie drew attention to a number of leading decisions. These included NZTR v P [1994] and NZTR v C [2009]. Those judgments are well known to this Committee. In respect of the serious racing offence Mr McKenzie relied principally upon the decision in NZTR v H [2008]. That case is well known to the Committee as the Chairman on that occasion is the Chairman today. The jockey H arranged for another jockey to provide his urine when a request was made of him and that was then dishonestly put forward as the urine of the person to be tested. The circumstances were not discovered at the time and became known only some days later. Here in relation to Mr Harris his attempt to subvert the drug testing procedure was detected on the day. Mr McKenzie says however that in the case of the jockey Mr H the actions may have been impulsive whereas in this case they appear to have been carefully planned. Mr H was disqualified for fifteen (15) months. He had no relevant prior appearances.

2.8 In respect of the charge of failing to provide a sample Mr McKenzie pointed to the recent decision in NZTR v Y. That was a case of a stable hand who failed to attend for testing when required and thus no urine sample was obtained. In that case a penalty of eight (8) months disqualification was imposed.

2.9 In drawing all of these submissions together Mr McKenzie proposed a disqualification in the range of twenty four (24) to twenty eight (28) months.

3. The case for Mr Harris

3.1 Mr Kenny, a counsel very experienced in racing matters, put forward a number of submissions on behalf of Mr Harris. These included the following:

(a) The guilty pleas

(b) That Mr Harris clearly regretted the conduct which brought him before the Committee.

(c) His success as a jockey. In this regard Mr Kenny drew attention to the fact that Mr Harris comes from a well known and widely respected racing family and that these events have caused embarrassment. The Committee notes that Mr Harris’ father is here to support him today.

(d) Mr Kenny drew attention to Mr Harris’ youth and we were told Mr Harris has the ambition to continue as a jockey notwithstanding that he recognises a disqualification is inevitable.

3.2 Mr Kenny urged a penalty which to use his expression “left light at the end of the tunnel”. He acknowledged that Mr Harris will need to obtain employment outside the racing industry. He emphasised that Mr Harris has had problems controlling his weight. That of course was at the heart of the explanation which Mr Harris had for his conduct on the 17th March.

 

 

4. Discussion

4.1 The Committee is concerned by a number of aspects of this matter. Principally these are:

(a) On any view of things there was a good deal of premeditation by Mr Harris. Not just on the 17th March it would seem but on other occasions when he had attended race meetings carrying the urine of some other person against the possibility that he might be tested.

(b) The Committee finds it hard to accept that if Mr Harris had been taking diuretics he could not sometime after 2.00p.m. on the day in question have provided a urine sample. That scepticism on the part of the Committee is reinforced by the fact that he left the course when required to remain. If he had nothing worse in his system than diuretics then he ought to have been anxious to provide a sample in order to demonstrate that this was in fact the position. The Committee cannot speculate upon what drugs if any Mr Harris had in his system on the 17th March but the inferential conclusion can only be that there was something significant which he wished to hide.

4.2 The previous appearance in relation to cannabis is also of concern given that the experience before the Judicial Committee on that occasion must have made Mr Harris very conscious of the importance of licensed jockeys riding drug free.

4.3 This case does bear some worthwhile comparison with the case of NZTR v H. The jockey in that case was experienced, a much older man but without any prior relevant appearances. He may have acted on impulse although as noted earlier he too had gone to the racecourse with a Berocca tube. The evidence presented in that case was that the tube was not filled until after the jockey was on track. In those circumstances there is in this case a greater degree of planning and scheming than appeared to have occurred in that case. Further Mr Harris has the cannabis appearance earlier remarked upon.

4.4 Set against the considerations which the Committee has just mentioned we are conscious of the comparative youth of Mr Harris and we recognise that he has shown real skill as a jockey. Further (although no direct reference was made to this) he has in the past shown strength of character in recovering from serious race injuries.

4.5 It is a question of determining the appropriate period of disqualification. In respect of the more serious offence, that is the serious racing offence, we consider that a penalty of around eighteen (18) months disqualification is appropriate. In respect of the other charge of failing to provide a sample we note that the penalty imposed upon persons facing that charge alone is around eight (8) months. It would not, however, be appropriate to simply add eight (8) months to the period already spoken of. The Committee must look at the totality of the offending. These events all occurred on the same day and can be seen as part of the same incident notwithstanding that a significant period of time expired between early afternoon and early evening when Mr Harris left the race course. Approaching the two charges together the appropriate course in our view is to impose a period of eighteen (18) months disqualification on the serious racing offence and a period of six (6) months on the other charge of failing to provide a urine sample. That would take the total period of disqualification to twenty four (24) months. Against that we set the mitigating circumstances. None of these is especially compelling. We are conscious of the youth of Mr Harris and his avowed determination to return to racing. In those circumstances there is some discount available to him and the period earlier indicated of twenty four (24) months will be reduced by three (3) months and that three (3) months will come off the charge of failing to provide a sample so that the penalty there will be three (3) months. To summarize there is eighteen (18) months disqualification on the serious racing offence under Rule 801(1)(m) and a period of three (3) months disqualification on the charge of failing to provide a sample of urine under Rule 803(2)(b)(iii) and thus a total period of disqualification of twenty one (21) months. In accordance with the terms of the rule that disqualification starts immediately.

4.6 Mr McKenzie drew attention to the costs incurred by NZTR. The Committee is not minded to impose any punitive costs given the very significant period of disqualification and therefore the costs will be kept to a minimum. Those will be in favour of NZTR in the sum of $500.00 and in favour of the JCA in the same sum of $500.00.

4.7 The Committee thanks Mr John McKenzie and Mr Paul Kenny for their assistance. The conduct of this case demonstrates how things can best be done when there is co-operation between the prosecuting authority and the counsel engaged for the license holder.

 

 

Dated at Te Rapa this 30th day of March 2010

 

 

________________________________

Murray McKechnie

Chairman

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