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Non Raceday Inquiry - NZTR v R Black 20 July 2011 - Decision dated 28 July 2011

Created on 04 August 2011

Rules:
340
Information Number:
5561
Informant
Racing Integrity Unit
Repondent(s)/Other parties:
Ms Rebecca Black -Licensed Trainer
Name(s):
Mr K Tyler - Assisting Ms Black
Decision:

BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER
of the New Zealand Rules of Racing

BETWEEN RACING INTEGRITY UNIT

Informant

AND REBECCA BLACK
Licensed trainer
Defendant
Information No:
  5561
Judicial Committee:   Prof G Hall (Chairman), Mr N Skelt (Member)
Appearing: Mr M Davidson (for the informant) - The defendant in person, with the assistance of Mr K Tyler
Venue: Wingatui Racecourse
Date of Hearing: 20 July 2011
Date of Decision: 28 July 2011
_____________________________________________________________________
DECISION OF JUDICIAL COMMITTEE
_____________________________________________________________________
[1] Ms Black appears before this Judicial Committee on a charge of misconduct in breach of r 340.
The Rule reads as follows:

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

[2] Ms Black admitted the breach, which we thus find proved.

[3] The relevant penalties are to be found in r 803(1)(a), (b), and (c). These include disqualification and/or suspension for up to 12 months, and/or a fine not exceeding $20,000.

[4] We believe it is appropriate for us to state at the outset that we are in the difficult position of not having heard from the victim in this matter. There is no statement from him that has been placed before us. On the other hand, there are a number of statements tabled by the defendant that describe either concern as to the victim’s behaviour in general or, more particularly, his confrontational attitude when in the presence of the defendant.

[5] Thus we are concerned that we have principally heard only the defendant’s explanation of the events leading up to and at the time of the breach of r 340. But this is the basis on which we must impose penalty.

[6] We do not believe it is appropriate to identify the victim in this matter nor to identify the members of both the general public and the racing community who have written letters in support of the defendant. We will refer to these persons where necessary simply by the adoption of a letter of the alphabet. The victim we will call Mr X.

Facts
[7] Mr Davidson placed a summary of facts before us. This states:
The defendant is the holder of a Class B (Permit To Train) Trainers Licence and also the holder of a Class E (Amateur) rider’s licence.
Prior to the incident that led to this charge Miss Black trained some horses for Mr X.

On Monday the 18th of April 2011 both Miss Black and Mr X were in the stable area at Riverton racecourse when a verbal altercation took place between them. This resulted in Mr X taking his horses from Miss Black’s stable. He then arranged with the Riverton club to lease some paddocks and a shed to store his gear and feed.

On the afternoon of Tuesday the 19th of April 2011 Mr X and his teenage son were working in the shed the Riverton club had allocated him to use. This box had previously been used by Miss Black to store some gear in. In the box at the time were some electric fence standards as well as a few other items.

As Mr X placed the electric standards outside the box, Miss Black approached. An argument ensued. Miss Black then uplifted four or five of the electric fence standards. Without warning Miss Black swung the fence standards towards Mr X’s head. The blow made contact on his right arm as he shielded himself.

Miss Black then dropped some of the standards and tried to use the pointed end of one of the standards in a stabbing motion. One of these stabs pierced Mr X’s skin to the bone on an arm. Then Miss Black swung the standard like an axe at Mr X. He deflected each blow with his arm. The attack stopped momentarily whilst she received a brief cell phone call. The attack resumed but eventually Mr X managed to grab her and stop the incident and Miss Black was taken away by a friend.

Mr X went to a local doctor and was treated for cuts and abrasions. Five and a half weeks after the original incident when Mr X’s arm did not recover as well as expected an x-ray revealed a small fracture to a bone in his right arm. This resulted in Mr X having to wear a cast on his arm for a number of weeks.

Mr X did inform the local Police and the RIU after the incident but did not want to make any formal complaint to either party. Mr X was later interviewed by the RIU on the 12th of June in relation to this matter.

Miss Black was spoken to on the 14th of June and admitted that she had hit Mr X a number of times with the fence standard and in explanation stated she had been frustrated with his behaviour towards her. She also added she could not be sure how many times she had hit Mr X as she had been very upset at the time.

She further stated that she did not believe the fact that she had used the electric fence standard to stab Mr X with the sharp end. Miss Black also denied that she had been interrupted by a phone call during the incident.

She further added by way of explanation she was having some personal problems outside her racing life and was at a low time in her life.
Miss Black was fully cooperative with the RIU throughout the investigation.

[8] When questioned by this Committee, Mr Davidson explained that the electric fence standards were made of plastic but had a steel point.

[9] Mr Davidson produced a letter from New Zealand Police (exhibit B) that disclosed that because Mr X had chosen not to make a complaint to the police, they had elected to warn Ms Black for assault with a blunt instrument.

[10] With reference to the fact that the defendant’s blows had broken a small bone in the victim’s right arm, Mr Davidson produced a statement from Dr Morrison at Otago Radiology dated 27 May 2011 (exhibit D), which stated there was a clear impact injury to Mr X’s “distal third of the ulna”. This break was confirmed in a note from Dr Rouse, Orthopaedic Registrar, SDHB, dated 23 June 2011 (exhibit E).
11] Ms Black said the history to the matter lay in the simple fact that Mr X, who was some 20 years her senior and for whom she trained horses, had fallen in love with her. She said she had known him for 18 months and had first met him when she broke in a horse for him. He had offered her that horse and then another four horses to train. He began to make his feelings known to her, which she did not reciprocate, telling him she was seeing someone else. In the confines of the feeding area he would brush up against her and touch her. He often called into her house on the pretence, she thought, of checking up on the horses. He then began to take the horses to the tie-ups at a time that was not convenient for her. This upset her, as she believed he was trying to take over the stable.

[12] Because of the deterioration in Mr X’s behaviour and his continually interfering in the training of her horses, the defendant told him to take his horses away. She said since that time he had abused her, using foul language in front of her children and his own son. She said his continued shouting of abuse at her had led to her “losing it” and hitting him with the fence standards that she had been holding at the time. She had no memory of the number of times she had hit him but it was not with one standard because she was holding a number of standards in each hand.

[13] Ms Black elaborated further upon these events. On 18 April when she was at the tie-ups at the Riverton Racecourse Mr X had started to abuse her and her son. She said she contacted Mr Brown, the caretaker at Riverton, but he did not want anything to do with the matter. She said she did not know to whom to turn.

[14] Ms Black said that later that day Mr X had followed her to the paddock where her horses were and he had abused her. He did the same thing when she came back to feed her horses that night. She said she just ignored him on these occasions. She said she was so upset by his personal abuse that she did not sleep that night.

[15] The next day, the 19th, the defendant said she worked her horses at the Riverton Racecourse. She went to the shed where she had her gear stored and Mr X was there as he was also using the shed, having been allocated it by the Club. She was picking up things and, at one point, when she had electric fence standards in her hands, Mr X advanced towards her shouting abuse whilst also holding fence standards. She hit him across the head a number of times with the standards before falling to the ground sobbing. She then left.

[16] Ms Black said that after the incident Mr X continued to abuse and swear at her. He pulled up outside her house and he left only when she accused him of stealing her underwear. She eventually went to the police about this. She later saw Mr X in her horse paddock and he blew her a kiss. She complained to the Riverton Racecourse manager again and also to the racecourse detective.

[17] The defendant said she later became aware that the victim claimed she had broken his arm. She thought this was strange as after her attack upon him he had been riding work every day and had broken in a horse.

[18] Ms Black placed a number of signed statements before us.

[19] The first statement was from a former flatmate, Ms A (exhibit E). Ms A states that Mr X and the defendant were first on friendly terms and he would visit for coffee, which later progressed to sharing tea. She says Mr X eventually declared he had feelings for the defendant, who responded that she did not share these. On two occasions when Mr X had become angry with the defendant he had said he would take his horses away but on each occasion he later apologised. On 18 April Ms A says the defendant had had enough and had told Mr X that she ran the stables not him. He said he would take his horses away and the defendant had responded, “That’s fine.” Mr X had then spoken to people at the track about the defendant in derogatory terms. The defendant, she says, was a mess; she was not sleeping and was crying.

[20] Ms A says that on the 19th of April she was helping the defendant work the horses. The defendant’s son was helping and Mr X was continuing to use foul language towards the defendant. She said as she was attending to a horse some distance away from the defendant she heard shouting and turned around. She said she could see both the defendant and the victim had hold of standards. She said the defendant was very upset and that “she had hit him over the head with a plastic standard”. Mr X was standing there using foul language. The defendant was “broken” and her son was crying too. She did not believe that the defendant had broken the victim’s arm.

[21] Mr Tyler spoke on the defendant’s behalf. He said he was at the track on the 18th of April and heard someone “yelling some very distasteful verbal abuse”. When he got closer he saw it was Mr X and that he was “ranting and raving like a ten year-old”. He said he told Mr X to stop as there were other persons present, including children, but he took no notice. Mr Tyler then left the track. He said the defendant rang him that night and was very upset.

[22] Mr Tyler was at the track on the 19th but did not see the incident. However, he had witnessed Mr X continuing to abuse the defendant, this time in front of visiting trainers. Again Mr X took no notice of Mr Tyler telling him to desist. He said Mr X had told him many times that the defendant was an excellent horsewoman and that he was deeply in love with her. He believed the victim could not handle rejection. He concluded by saying in his view the victim’s behaviour had been totally out of control and was unacceptable.

[23] Mrs B, the wife of a South Island trainer, stated she had been in a hotel on the night of 7 April with her daughter and a jockey who was to ride the defendant’s horse the next day. She said Mr X became “quite nasty and rude about Rebecca and her children”. She said she had to return to her room even though it was only 7 o’clock to avoid the victim. She concluded her statement by saying “Mr X certainly has a violent temper, easily set off.”

[24] The defendant also produced a statement (exhibit K) from a person living in the area who was previously not known to her. She said this person had heard of her case and volunteered that she wished to express her concerns about Mr X’s behaviour. This woman, whom we will call Ms C, said she had come to know Mr X and soon he had begun calling around many times a day and had intruded on her personal space. Eventually he moved in a few doors down the road and he would frequently wave, text or email her, which she said she ignored. Ms C believed he was spying on her. She said she felt she had to do something to protect herself and she had approached the police and made a statement similar to the one she was making before us. Slowly over time Mr X’s presence declined, and he moved away. Ms C said she found Mr X to be “a very uncomfortable, intrusive and stressful person to have around”. She concluded her statement by saying he would not take “No” for an answer.

[25] Two further testimonials (exhibits H and I) from members of the industry attesting to the defendant’s hard-working and happy nature and her abilities as a horsewoman were also tabled.

Submissions as to penalty
[26] With respect to the background of the assault, Mr Davidson submitted that it was “clear that the defendant was most likely upset and annoyed after Mr X removed his horses from her care. However any feelings of anger or distress did not entitle her to launch upon him in such an aggressive and unprovoked way”. He described the defendant as having escalated matters to such a degree that violence became involved.

[27] Mr Davidson emphasised that the victim was merely going about his lawful business at the time of the assault and that he had to seek medical attention to his injuries. He emphasised that the victim had later been diagnosed with a fracture to a bone in his right arm.

[28] A significant aggravating factor, the informant said, was the use of “an outside object”. It was described in the following fashion at para 6 of the RIU’s written submissions:

[T]he defendant took it upon herself to pick up an object (the fencing standard) to undertake the attack upon Mr X. In essence she used the fencing standard as a weapon and applied it to Mr X in an attempt to inflict harm on him. It is submitted that the use of such an object as a weapon had the propensity to cause serious injury to Mr X. Much more injury than would a punch, kick or a slap.

[29] With respect to this submission, we interpose that the defendant denies that she picked up a standard. She states she had three in one hand and two in the other when Mr X abused her and she simply retaliated by swinging them all at him. We are unable to determine which version of events is correct, and simply impose penalty on the basis that the defendant’s use of one or more standards was not premeditated.

[30] The penalty imposed, the informant said, had to must reflect the fact that a weapon of sorts was used. It had to also reflect the fact that the victim received injuries as a result of the defendant’s assault.

[31] In justifying their submission that a penalty of 12 months’ disqualification is appropriate the informant stated that the defendant’s actions were “at the high end of a breach of the misconduct rule” and that clearly Miss Black’s behaviour was well below the accepted level or standards of a licence holder in the thoroughbred industry. The informant also emphasised: “Racing must maintain a clean image to keep the public perception of the racing industry as healthy and robust.”

[32] The defendant stated there was no proof that she had broken a bone in the victim’s arm. She reiterated that she had suffered ongoing verbal abuse from the victim until she finally cracked on the day in question.

[33] The defendant said she had held a trainer’s licence for about five years. She had previously worked as a jockey and had been involved with horses since she was 14. She was now aged in her mid 30s.

[34] She asked for a fine and that it be as low as possible as she was not in a strong financial position. She said she was a solo mother of three young children and was receiving the domestic purposes benefit.

Penalty:

Reasons for decision
[35] We deal first with the issue of the broken bone in the victim’s arm. This break was diagnosed on 27 May some five and a half weeks after the incident. The defendant has told us that during this time the victim was riding track-work. She said he may have fallen off a horse or suffered the injury due to another cause. Indeed, she alleged the victim was regularly getting into fights.

[36] We do not believe that speculation as to how the victim came to break a bone in his arm is either helpful or appropriate. Nor do we believe a finding by this Committee as to the cause of this injury is necessary. There is no disputing the victim received a deep gash to an arm as a result of the defendant’s actions and we propose to impose penalty on the basis that the defendant swung a plastic fence standard or a number of standards with steel points at the victim with some force and that contact was made with the victim’s body.

[37] The defendant’s actions are unacceptable. She acknowledged this frequently to this Committee. She became quite distraught at times and we adjourned the hearing on more than one occasion in order that she could compose herself. She was strongly of the view that although she had let herself down by her actions, she had been provoked by the continued abuse that she had suffered at the hands of Mr X. She portrayed herself as being equally the victim in this matter.

[38] The defendant sought advice from the caretaker at the Riverton racecourse as to how to cope with Mr X and, other than receiving a confirmation that he was difficult man to deal with, she received no further assistance. We find we have some sympathy for the plight of Ms Black. The confrontation would appear to have arisen as a consequence of the ongoing abuse of the defendant by Mr X, although as we were at pains to point out to the defendant, this does not excuse her actions.

[39] The informant has described the defendant’s assault on Mr X as unprovoked. We do not accept this description of the defendant’s actions and told Mr Davidson this at the hearing. He considered our comment and accepted there was “a history to the matter”.

[40] We also have difficulty in accepting the informant’s submission that the defendant’s actions were a response to Mr X removing his horses from her care. She tells us that she told him to take them away and Ms A’s statement supports this. Certainly on the evidence before us, there is a greater likelihood that the catalyst to the defendant’s actions was Mr X’s foul language and abusive behaviour in the 24 hours leading up to the incident.

[41] The informant relied upon the penalties imposed in Mc (11 months) and M (18 months) in submitting that a period of 12 months’ disqualification is appropriate. We believe these cases differ markedly from the facts before us. Closer parallels can be identified in the decisions of T and B, both of which involved physical confrontations between jockeys on raceday in the jockeys’ room. The penalties in these cases were two months’ and one month’s disqualification, respectively. Neither of these cases had the element of ongoing public abuse of the defendant, an allegation of which is supported by signed statements in this case. This we believe is a significant factor, which should mitigate penalty.

[42] The defendant has no previous breach of the rules. Her record is clear. She also admitted the breach immediately upon receipt of the summary of facts and fully cooperated with the RIU throughout the inquiry. These are significant mitigating factors. She is also clearly remorseful. This is demonstrated not only by her demeanour and statements at the hearing but also by the fact that after meeting with the victim in this matter, she used his cellphone to ring Mr Davidson to tell him that she had apologised to Mr X and that he had accepted her apology. Mr Davidson confirmed this.

[43] The integrity of racing demands that the defendant’s actions be denounced and that she be deterred from similar actions in the future. In their assessment of the gravity of the offending, the informant has emphasised that the defendant’s actions constitute assault with a weapon. But balanced against this is the fact that the defendant’s actions were clearly not premeditated and she responded to Mr X’s provocation with what she had at hand which, unfortunately for her, were the fence standards she was carrying. These were not her “weapon of choice”.

[44] In the most unusual, almost bizarre, circumstances of this case we do not believe that disqualification is an appropriate penalty. The defendant can be held accountable and her actions denounced by means of the imposition of a lesser penalty. The defendant tells us that she is in straightened financial circumstances. The removal of a significant portion of her livelihood by disqualification is a step we believe that we should only take if no other alternative and effective penalty is available to us. The defendant holds a permit to train and an amateur rider’s licence. She tells us she currently has six horses in work, that she has half shares in these and the co-owner is very supportive. A suspension will mean that she is unable to continue to train these horses. Alternative arrangements will have to be made. She will also be unable to ride any horse in any race or to enter the jockey’s room or weighing room on any racecourse on any race day. However, Ms Black says she also pre-trains and conditions horses, especially jumpers, for local trainers from time to time. We understand that, although suspended, she may, with the prior written consent of NZTR, continue to work or care for horses. The horses in which she has a half share will also be able to continue to race in her name, although, as we have emphasised, she will not be able to train them. However, she will have a form of income available to her in addition to her being in receipt of a benefit.

[45] The period of suspension of her trainer’s and amateur rider’s licence needs to be significant and we impose a period of six months, commencing on 10 August and ending on 31 January next. We believe a financial penalty is also appropriate, although we temper this due to the personal factors we have previously identified. The defendant is fined the sum of $500. She has indicated she believes she will be able to pay a fine of this magnitude by way of instalment.

Costs
[46] The informant does not seek costs but we believe a contribution towards the costs of the Judicial Control Authority is appropriate. Again we temper this award having regard to the defendant’s financial circumstances and order costs in the sum of $100.
 

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