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Non Raceday Inquiry - NZTR v R McAnulty heard 17 March 2011 - Decision dated 29 April 2011

Created on 02 May 2011

Information Number:
5382 and 5383
Informant
Mr R Neal
Repondent(s)/Other parties:
Mr R McAnulty
Name(s):
Mr John Billington QC - Counsel for NZTR, Mr Simativa Perese - Counsel for Mr McAnulty, Mr Matthew Williamson - Registrar, Mr Ross Neal - Stipendiary Steward, Mr Cameron George - Chief Stipendiary Steward
Decision:

NZTR v ROBERT McANULTY

Hearing before Non-Raceday Judicial Committee

Judicial Committee:  Mr Bruce Squire QC (Chairman), Mr Tim Gresson

Present:  Mr John Billington QC – Counsel for NZTR, Mr Simativa Perese – Counsel for Mr McAnulty, Mr Matthew Williamson – Registrar, Mr Ross Neal – Stipendiary Steward,Mr Cameron George – Stipendiary Steward

Date of Hearing:  17 March 2011

Venue:  Ellerslie Racecourse, Auckland


DECISION OF JUDICIAL COMMITTEE

1. Introduction:

1.1 On 22 February 2011 two Informations were laid against Mr McAnulty alleging breaches of the New Zealand Rules of Racing ("the Rules"). The Informations alleged:

(a) That you did misconduct yourself within the meaning of Rule 340 of the New Zealand Rules of Racing in that you, by way of voicemail messages and electronic mail on the 4th, 5th and 6th February 2011 used foul, insulting and offensive words directed to Mr Michael Stiassny, Chairman of the New Zealand Racing Board and that you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to Rule 803 of the said Rules.

Particulars:

(i) On Friday 4th February 2011 at 11:19 am you, in a voicemail message left on Michael Stiassny's phone, did say the following;

"Hey listen mate why don't you do something good for the industry and piss off You're not wanted, you're not needed, you're hated by the people in the industry and don't you do this..Why don't you start a bloody law suit against me like you normally do you cowardly bastard
I'll do something for the industry mate
I'll get rid of you.
So you can either have Michael a bloodless coup and walk away or you can have what's happening in Tunisia, Egypt Numan where grass roots people are bringing down dictatorships and you can run with this to Peter Vela because he is getting the same message
Come on grow some balls you weak p****
Come on, grow some balls and take me on
I'll finish you off you p****"

(ii) In a further voicemail communication at 11:32 am on the 4th of February did say:

"You can have a bloodless coup Michael and walk away or you can go with your reputation which is already in tatters, even in the Jewish community in Auckland you've divided them down the middle.
Now take your Zionist views and f*** off out of our industry
Do it you big Jew
Come on have a crack at me you c***".

(iii) On the 6th February 2011 at 8:30 am in a further voice message did say:

"We know you're a bullsh*****, we know that bloody having Andrew Brown and then these other two poms none of them could run a show
Individually have a crack at me you weak p****
Come on you coward
Come on Ms Stiassny
Come on, come on Ms Stiassny with the big nose"

(iv) In an email communication to Mr Stiassny on 4th February 2011 you said:

"So try and attack me that way Stazzer, oh you c*** because you now support the imposter, I wanted you Stazzer, Last thing please be assured the industry after the Mallard Duck outs you as a chicken, not a rooster that you haven't been feeding tit bits to Big Gay Al"

(v) In an email communication to Mr Stiassny on 5th February 2011 you said:

"I have advised Winston, to not stand again as without Nationals support he cant go anywhere, he doesn’t need to associate with p***** like you lot, something smells fishy don't you think ????????
Piss off imposter or come and fight me in court. Please if it is the later send your personal claim against me to Russell McVeagh for the attention of Richard McIlraith.
Hey bully and coward put up or shut up."

(vi) In an email communication to Mr Stiassny on 6th February 2011 you said:

"Stand aside Ms Stazzer, immediately whilst Andrea Brown, your trainee, is investigated. I mean if you so show, what's that word you stated publicly, or you integrity, then this will show whether your pa, has balls or as I suspect c****, what can cum out of this Ms I mean is AndrewB, a boy, or is he Andrea, your say he is a boy, I say he is a girl. Stop fu****** this industry Ms we will find out and you will Ms WILL BE GELDED OK".

(b) That on Sunday 6th and 7th February 2011 you did commit a Serious Racing Offence within the meaning of Rule 801(1)(s)(ii) of the New Zealand Rules of Racing in that you, by way of voicemail messages uttered foul, insulting and offensive words directed toward Chief Stipendiary Steward Cameron George and that you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to Rule 801(2) of the said Rules.

Particulars:

(i) On Sunday 6th February 2011 in a voicemail message left on Chief Stipendiary Steward Cameron George's phone did state:

"Cameron you bloody imposter ah for chief of the integrity unit you're not showing much
You are the Integrity man which you know you have f*****-none.
Have you ever stayed at the Hilton Hotel and asked the boys there ah and the ah concierge there ah that they should really have trackside on there
Of course you have. (Pause) you know – so that you can f***** lie there and w*** yourself and watch the shows
Ah mate go fu***** home to Australia we don't need you you cheating low life big cock. You are a cock I don't know whether it's big or not but you are a cock.
F****** go home, alright
Hey I've proved you right, hey I proved myself right yesterday with that f***** advantage that was given to f***** ahh…your mate Molloy, (pause) your former drinking mate. I've got it all documented. Now you f*** off home
I'm going to talk to Terry Bailey and Ray Murrihy on you (unclear) you low life c***
You're a f***** liar, there's no respect for anyone not even yourself you weak c***
Now do the decent thing and resign tomorrow or I'll run you out of town. OK. Bye".

(ii) On Monday 7th February 2011 you left a further voicemail message on Chief Steward George's phone as follows:

"Hey Cameron Rob McAnulty recall this call please. Hey listen I don't think you have any Integrity you cock
Now listen you cock you say you've got integrity you f***** give me a response tomorrow (unclear words)
To put the sky channel on for you, why, so you can lie there with your cock and watch it.
Now listen here you cock you f***** reply to me you weak pr**** Alright
You're gone, you know it. You show some f***** integrity which you have none of
Now come on take me on you weak bastard
I'm waiting for you to take me on under your own name so I can sue the arse off you and get back the four hundred and fifty thousand that you (unclear word) and you shouldn't f***** have
You c*** you ring me".

1.2 On the same day Mr McAnulty was notified of the charges by email and the following day, 23 February 2011, the charges and particulars were handed to him in person at the offices of the Racing Integrity Unit in Auckland.

1.3 On 2 March 2011 the Executive Officer of the Judicial Control Authority issued a Notice of Appointment confirming the hearing of the charges was to take place at Ellerslie Racecourse on Thursday 17 March 2011 at 10:30 am. That Notice was sent to Mr McAnulty's Counsel Mr Perese and followed earlier informal advice to him to the same effect.

1.4 On the afternoon of Thursday 15 March 2011 a Memorandum was received from Mr Perese seeking an adjournment of the hearing. Following receipt of the Memorandum a teleconference was convened with both Counsel on Wednesday 16 March 2011 at which Mr Perese was given the opportunity to expand upon the reasons set out in his Memorandum for seeking the adjournment. After both Counsel were heard the Application for the adjournment sought by Mr Perese was refused and the hearing scheduled for Thursday 17 March 2011 confirmed. The reasons for the refusal of the Application for adjournment are set out in a Minute issued by the Committee dated 16 March 2011.

1.5 At the commencement of the hearing on Thursday 17 March 2011 from which Mr McAnulty by his own election was absent, Mr Perese handed the Committee a document described as a Statement of Mr McAnulty dated 16 March 2011 and signed by him. In the Statement Mr McAnulty admitted the breaches of the Rules alleged in the Informations laid against him and acknowledged the words used in his telephone messages to Mr Stiassny and Mr George were insulting and abusive. It was pointed out to Mr Perese the charge relating to Mr Stiassny referred not only to voicemail messages but also to the content of electronic mail received by him on 4,5 and 6 February 2011. Mr Perese then confirmed to the Committee the admission of the charges by Mr McAnulty contained in his Statement extended to, and included, the contents of the emails encompassed within the charge relating to Mr Stiassny.

1.6 Following the admission of the charges by Mr McAnulty Mr Billington was given two weeks within which to provide submissions on penalty and costs and Mr Perese a further two weeks thereafter to respond. Subsequently Mr Billington filed further submissions principally to address what might be broadly described as jurisdictional issues raised for the first time by Mr Perese in his submissions in reply. The submissions have been considered and we are now in a position to give our decision.


2. Background:

2.1 Mr Michael Stiassny is a Partner in the national accounting practice of KordaMentha and Chairman of the New Zealand Racing Board. Mr Cameron George is the Chief Stipendiary Steward employed by the Racing Integrity Unit. It seems that for some time Mr McAnulty, who is an owner and lessee of thoroughbred horses registered with NZTR, has had issues with the racing industry in New Zealand and its administration. His dissatisfaction led to him communicating with persons within the racing industry and its management in terms which were regarded as inappropriate and offensive. Matters reached the point where Mr McAnulty was written to on 13 August 2010 by NZTR's lawyers concerning those communications. In the letter NZTR's lawyers drew attention to the unacceptability of the communications and warned Mr McAnulty any repetition would result in the NZTR Board warning him off racecourses in New Zealand. He was told the consequences of that would be he would be unable to attend a racecourse or own racehorses in New Zealand and that there might well be similar ramifications for him in overseas racing jurisdictions. In the letter NZTR's lawyers expressed the hope it would not be necessary to take such steps but indicated to Mr McAnulty the letter constituted a final warning.

2.2 As is obvious from the particulars of the charges earlier identified and admitted, Mr McAnulty did not heed the warning given to him and on the occasions of the voicemail messages and emails identified in the particulars made the comments recorded in relation to Mr Stiassny and Mr George.

2.3 In the Statement admitting the charges Mr McAnulty explained the voicemail and email messages which he sent to Mr Stiassny and Mr George grew out of what he called his extreme frustration about the conduct of racing in New Zealand and in particular the roles of Mr Stiassny and Mr George. He accepted the way in which he expressed his frustration was wrong and they may have undermined what he calls "proper legal avenues" available to challenge what he considered to be serious issues concerning the conduct of racing in this country. He said he had been involved in racing in New Zealand for a very long time and his concerns had only ever been about what he believed to be for the good of racing. He accepted the words he used in the communications referred to were "not good for racing" and stated that although he had been advised there were legal defences open to him, he did not believe it was in the interests of racing he contest the charges and subject the industry to unwelcome publicity. He said he was wrong and accepted he was wrong and apologised to Mr Stiassny and Mr George for having hurt their feelings.

 

3. Submissions:

3.1 On behalf of NZTR Mr Billington points to the separate penalties provided in the Rules for the breaches admitted by Mr McAnulty and submits both charges are serious warranting the imposition of a period of disqualification, a fine and an Order for costs. In amplification of that submission he draws attention to the fact each charge involves repetitive instances and use of insulting and offensive language couched in foul and threatening terms. He submits Stipendiary Stewards whose functions require them to maintain integrity within the racing industry by observance of the Rules and officials who occupy positions such as that of Mr Stiassny ought to be free to conduct their duties without fear of being subjected to unprovoked personal attacks of the kind made on them by Mr McAnulty He submits Mr McAnulty's conduct has tarnished the reputation of the racing industry in general and the penalty to be imposed on him should send a clear deterrent message conduct of the kind involved in the charges cannot and will not be tolerated.

3.2 By reference to a number of Australian racing disciplinary decisions including two of greyhound racing, which involve the use of foul and offensive language to Stewards, and taking account of what he has called the totality of the offending in this case Mr Billington has submitted a starting point of 12 months disqualification is appropriate. He accepts there should be a one third discount for Mr McAnulty having admitted the charges and at the hearing on 17 March last informed the Committee NZTR would be content with a 50% discount of the balance of the period of disqualification leaving a period of disqualification of 4 months to be imposed. This differs from Mr Billington's written submissions provided to the Committee prior to the commencement of the hearing on 17 March in which he sought on behalf of NZTR a total period of disqualification of 12 months being cumulative periods of 6 months disqualification on each charge which he then submitted was appropriate given the matters previously referred to but taking account of the imposition of a monetary penalty and the possibility disqualification of Mr McAnulty would likely apply in Australia where he is resident and works and which may have an effect on him and his ability to earn a livelihood in that country. As noted earlier, in addition to disqualification, NZTR also seeks the imposition of a fine and an Order for costs.

3.3 For his part Mr Perese on behalf of Mr McAnulty makes two preliminary points to his submissions on penalty. Firstly, he has submitted Rules 801(2) and 803(1) which respectively provide for penalties of disqualification for the two breaches of the Rules which Mr McAnulty has admitted, are ultra vires the Racing Act 2003. Secondly, in the event that submission is not accepted, he submits any periods of disqualification imposed under Rules 801(2) and 803(1) do not have the consequences prescribed in Rules 1101 and 1104 which set out the effect and prohibitions which follow the imposition of a disqualification under the Rules. Mr Perese's submissions then address the issue of penalty on the premise his submissions on the two preliminary points are not accepted. It is convenient to deal with the preliminary points first.

(a) Preliminary Points:

3.4 As noted above, Mr Perese's first preliminary point is that Rules 801(2) and 803(1) are ultra vires the Racing Act 2003. Rule 801(2) provides:

"A person who commits a Serious Racing Offence shall be liable to:

(a) be disqualified for any specific period or for life; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months; if a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $50,000.00"

Rule 803 (1) provides:

"A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules, shall be liable to:

(a) be disqualified for a period not exceeding 12 months; and/or
(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during the term of suspension then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $20,000.00"

The difference is clear. Rule 801(2) provides the penalty for breaches of the Rules which constitute Serious Racing Offences whilst Rule 803(1) provides the penalty for breaches of the Rules for which a penalty is not otherwise provided. Rule 340 falls within the latter category. As is implicit in the terminology the maximum penalty provided for a Serious Racing Offence is significantly greater than for breach of the Rules to which Rule 803(1) applies.

3.5 NZTR's Rules are made pursuant to s.29 Racing Act 2003 ("the Act") which requires it to make and maintain in force Rules regulating the conduct of racing by the Code. Section 29(2) of the Act specifically provides that the racing rules of a code made under that section may provide for punishments for breaches of the Rules and disqualifications and suspensions. There is a limitation imposed on NZTR's rule making ability by s.31(1) of the Act which provides:

"Any provision of any racing rules that is in conflict with any provision of this Act, any other Act, or the general law of New Zealand is invalid".

The essence of Mr Perese's argument is that while he accepts s.29 of the Act empowers NZTR to make Rules generally providing for a penalty of disqualification for breaches of its Rules, it is prevented from doing so by s.29 in cases involving the use and utterance of insulting and offensive language. Mr Perese submits that because the use of such language can be the subject of proceedings under the Defamation Act 1992, the Harassment Act 1997 and the Human Rights Act 1993, NZTR's Rules relating to the use of such language are required to "supplement and be consistent with" the remedies provided in those Statutes, which he submits constitutes the general law of New Zealand for the purposes of s.29. His submission proceeds that as the power to disqualify for the use of insulting and abusive language under NZTR's Rules is more "draconian" (as he puts it) than the remedies provided for in the Statutes, the power to disqualify in NZTR's Rules is accordingly ultra vires and invalid because it is in conflict with the general law of New Zealand.

3.6 We do not accept the submission. Assuming without deciding the three Statutes to which reference is made constitute the general law of New Zealand for the purposes of s.29 we do not see any conflict between NZTR's Rules as they provide for disqualification for breaches of its Rules relating to the use and utterance of insulting and offensive language and the legislation referred to. The three Statutes to which reference is made relate to and govern matters of defamation, harassment and human rights. The fact they may provide remedies or consequences for particular conduct which falls within their ambit does not mean NZTR's Rules, promulgated for an entirely different purpose, which penalise the same or similar conduct in a different setting and for different purposes with a different penalty are thereby in conflict with the general law of New Zealand. The fact such conduct may be penalised under those Statutes does not mean it is penalisable only in terms consistent with those Statutes.

3.7 Mr Perese's second point is that periods of disqualification imposed under Rules 801(2) and 803(1) do not have the consequences prescribed in Rules 1101 and 1104. Rule 1101 deals with the taking of effect of a period of disqualification imposed and Rule 1104 provides:

"A person who is disqualified in accordance with this Part XI, or whose name appears in the list of disqualifications of Another Racing Authority shall not during the period of that disqualification:

(a) enter or run any horse for any Race, either in his own name or in that of any other person and every entry theretofore made by him or of a horse in which he has any interest for a Race to be run shall be void as from the date of disqualification;

(b) train any horse or ride any horse in a Race or be employed in any capacity in connection with the training or racing of horses; and/or

(c) enter or go upon any Racecourse or any Training Facility or other place owned or controlled by any Club or by any consortium or other entry of which a Club is a member or in which it is a participant."

The effect of Mr Perese's submission is, if correct, that any disqualification imposed under Rules 801(2) and 803(1), despite their terms, will not apply as intended by Rule 1101 or carry the consequences identified in Rule 1104.

3.8 Without wishing to unduly truncate Mr Perese's submissions in this regard, his submission turns on the opening words of Rule 1104 which provide:

"A person who is disqualified in accordance with this Part XI…shall not during that period of disqualification…"

(the underlining is provided for emphasis)

He submits that as Rules 801(2) and 803(1) appear in Part VIII of the Rules, disqualifications under those Rules are not disqualifications in accordance with Part XI for the purposes of Rule 1104 and that breaches of Rules 340 and 801 only attract the sanctions contained in Rules 604(1)(a) and 301(3)(c), which it is not necessary to set out in detail here. Further, he submits a disqualification in accordance with Part XI only occurs when someone is disqualified under that Part, that is, when disqualification has been imposed under Rule 1104(3) for breach of Rule 1104 itself. It follows in his submission the effect of Rule 1101 must be similarly confined.

3.9 Rule 1101 in its terms applies to:

"Each disqualification imposed under these Rules…"

On its face the Rule extends to disqualifications imposed under Rules 801(2) and 803(1) unless there is a necessary limitation to its width of the kind and for the reasons submitted by Mr Perese. His submission is that limitation is to be necessarily inferred because of the reference to disqualification "…in accordance with this Part XI…" in Rule 1104 for the reasons detailed in paragraph 3.8 above. We do not accept that interpretation of Rule 1104. In our view there is no justification for treating disqualification "…in accordance with this Part XI…" in Rule 1104 as requiring Part XI to be source of the power to disqualify as seems implicit in Mr Perese's submission, particularly in terms of his reference to Rule 1104(3). The preferable interpretation is that the phrase "…in accordance with this part XI…" simply means a disqualification to which Part XI applies. Mr Perese's submission overlooks the point that Rule 1104(3) only applies where there is contravention of an existing disqualification. If Rule 1104 was to be interpreted and applied in the manner he submits there could be no scope for the operation of Rule 1104(3). The better and correct view, as we have indicated, is to interpret and apply the phrase "… in accordance with Part XI…" in Rule 1104(1) in a way which is consistent with the intended effect of Part XI as evidenced by its heading and which enables the Rules in that Part, Rule 1101 in particular, to be given effect according to their terms. The absence of the limitation which lies at the heart of Mr Perese's submission accordingly means Rule 1101 applies in its terms and Rule 1104 applies to disqualifications which fall within Rule 1101, that is each disqualification imposed under the Rules including disqualifications imposed under Rules 801(2) and 803(1). We are in no doubt such an interpretation is consistent with the scheme and intent of the Rules and what was intended by those responsible for framing them.

 

Penalty:

(b) Penalty:

3.10 In relation to the assessment of penalty Mr Perese made the following submissions which we summarise:

(i) he takes issue with the submission of NZTR that there has not been a comparable case in New Zealand and points to a number of cases between the early 1980's and 2008 involving abusive, insulting and offensive language to Stipendiary Stewards which were drawn to the attention of the Committee by a former Stipendiary Steward. In those cases, the precise details of which were not provided, fines of between $350.00 and $2,000.00 were imposed following guilty pleas. Mr Perese submits NZTR has not shown the language and comments made by Mr McAnulty in the present case were significantly more egregious than those in the previous cases referred to and that Mr McAnulty in pleading guilty to the charges is entitled to expect that broadly comparable penalties will be imposed on him;

(ii) the communications which contained the offensive language and comments were private communications to which, perhaps with the exception of the emails to Mr Stiassny, others did not have access. Mr Perese makes the point the offending communications have only become public because NZTR elected to lay the charges which Mr McAnulty has admitted and by reason of a radio interview allegedly given by Mr George on 3 April 2011. He submits the wider publication of the offending material has accordingly been the responsibility of NZTR and Mr George.

(iii) the offending telephone messages are likely to have been "completely ineffectual" in deriding persons of the standing and integrity of Messrs Stiassny and George;

(iv) while he accepts the offending abusive and insulting comments were made in a threatening context, he submits the threats cannot have been seriously taken by the recipients as no complaint was ever made to the Police;

(v) he submits the charges, misconduct in the case of Mr Stiassny as opposed to a Serious Racing Offence carrying a much more severe maximum penalty in the case of Mr George, suggests the intent of NZTR in laying the charges to protect the integrity of the offices held by those gentlemen is without foundation. In Mr Perese's submission if that were NZTR's intention, given the nature of the positions held by Messrs Stiassny and George within the racing industry, the charges would have been reversed.

(vi) any fine imposed should be no more than $2,000.00 within the range of fines imposed in the cases referred to in paragraph (i) above. He submits the present offending should be regarded as Mr McAnulty's first offence and no significance should be attached to NZTR's lawyers warning letter of 13 August 2010 which preceded this offending. Mr Perese submits the letter constitutes hearsay evidence and there is nothing before the Committee which indicates the nature or extent of the communications made by Mr McAnulty which led to the lawyers warning letter.

3.11 Finally Mr Perese challenges the costs sought by NZTR as inappropriate, pointing out there was never any issue as to jurisdiction and the prosecution of Mr McAnulty on the charges he has admitted involves no novel aspects. In addition he points out it would have been open to NZTR and Messrs Stiassny and George to bring proceedings against Mr McAnulty under the Harassment Act and in pursuing charges under the Rules instead NZTR was endeavouring to "reinvent the wheel", as he put it. On that basis Mr Perese submits the costs to which NZTR should properly be entitled are those that might have been awarded had proceedings been brought in the District Court under the Harassment Act. As to the costs of the Judicial Control Authority he submits they should be born equally between the parties. He concludes his submissions by contending the penalty the Committee ought properly impose on Mr McAnulty on the two charges he has admitted is a fine of $1,500.00, and an Order for costs to NZTR in the sum of $5,750.00 and to the Judicial Control Authority in the sum of $3,294.00.


4. Discussion:

4.1 The two breaches of the Rules admitted by Mr McAnulty occurred over a period of four days between 4 February 2011 and 7 February 2011, both days inclusive. Although the breaches occurred within a relatively short period of time and there is an overlap between the dates of their occurrence, it is nonetheless appropriate they be considered separately for the purposes of assessing penalty.

4.2 At least in terms of the maximum penalty provided for each breach, the charge relating to Mr Stiassny under Rule 340 is the least serious. That characterisation however is not borne out by the substance of the charge as identified in its particulars. Even making allowance for the fact officials in positions such as that held by Mr Stiassny must be prepared to accept robust criticism on occasions, it is plain that by any measure the language and comments used and made by Mr McAnulty which form the basis of the charge went far beyond what can be considered acceptable. The descriptions of Mr Stiassny by Mr McAnulty in the voicemail messages and emails, including those involving the use of foul language, couched in threatening terms with racist overtones self evidently amount to a serious case of misconduct under Rule 340. The fact they were sustained over a period of four days between 4 and 7 February 2011 is a relevant aggravating factor. The use of intemperate and foul language on an isolated occasion in which emotions are running high, though unacceptable, is one thing. A sustained series of attacks of the kind made by Mr McAnulty on Mr Stiassny over a period of four days, indicative of a degree of premeditation and forethought, is quite another. If as he has claimed, Mr McAnulty was frustrated about the conduct of racing in New Zealand and Mr Stiassny's role within it, there were and are, avenues properly available to him to address those concerns. Mounting an offensive and abusive personal attack of the kind he did on Mr Stiassny is not one of them. While we take account of the explanation Mr McAnulty has given for his actions we do not regard it as a mitigating factor of any great significance.

4.3 The charge relating to Mr George under Rule 801 is a Serious Racing Offence and thus more serious than the charge relating to Mr Stiassny. The charge concerns two voicemail messages left on 6 and 7 February 2011 couched in language no less offensive or abusive than the voicemail messages and emails Mr McAnulty left and sent to Mr Stiassny, absent the presence of racial overtones. As in the case of Mr Stiassny the messages are self evidently insulting and offensive and similarly couched in foul language. In addition they involve a clear attack on Mr George's integrity and carry the same threatening overtones as the messages left for Mr Stiassny. Again, for the same reasons, we do not regard the explanation Mr McAnulty has provided for this conduct as a mitigating factor of any significance.

4.4 In his submissions Mr Perese has made the point that if the laying of the charges by NZTR was to protect the integrity of Messrs Stiassny and George as claimed, the charges would have been reversed. The simple answer to that submission is that the utterance of insulting or abusive words with reference to a Stipendiary Steward is a Serious Racing Offence under Rule 801(1)(s)(ii) of the Rules. It is not a Serious Racing Offence under the Rules to utter similar words with reference to persons other than those specifically referred to in Rule 801(1)(s)(ii). Mr Stiassny is not a person to whom that Rule applies, hence the charge in relation to him is brought under the general misconduct Rule, Rule 340. Beyond that and the fact different maximum penalties are provided for breaches of the Rules, the point made by Mr Perese is of no significance. Nor do we see any significance in the fact no complaints were made to the Police about the threatening context in which the offensive communications were made. The threatening context we see as a relevant aggravating factor in the sense the offensive and insulting words were conveyed within that context but beyond that the context and how the communications were perceived and acted upon by their recipients is not a matter of moment. The same applies to the submissions the voicemail messages were likely to have been ineffective in deriding Messrs Stiassny and George and to the point made about the radio interview given by Mr George on 3 April 2011. The charges relate to the use of insulting and offensive words used in the voicemail messages and emails directed to Messrs Stiassny and George on the dates referred to. In a sense specific to proof of the charges, wider publication of the insulting and offensive language is not relevant although conceivably there are circumstances where it could be an aggravating factor for the purposes of penalty. In this case however, particulars of the charges were made available to the news media at the hearing on 17 March 2011 without objection from Counsel and it is doubtful anything said in the course of Mr George's radio interview on 3 April 2011 is likely to have exacerbated public reaction beyond that arising from the offending words themselves. NZTR has not submitted that anything arising from publicity surrounding the charges or the conduct of Mr McAnulty to which they relate is a factor to be weighed in the balance for the purpose of assessing penalty, and for that reason we attach no significance to the issue raised by Mr Perese in that regard or whether the conduct of Mr McAnulty was effective in "deriding" (as Mr Perese put it) Messrs Stiassny and George.

4.5 In the result, given the seriousness of the breaches involved we think the penalty required to be imposed needs to give proper emphasis to accountability and denunciation of the conduct concerned, which will in turn operate as a deterrent to others from breaching the Rules in a similar way. Given those factors we think a period of disqualification together with a fine is required to be imposed. In reaching that conclusion we have not overlooked Mr Perese's submission based on the cases referred to the Committee by a former Stipendiary Steward, that a monetary penalty only will be sufficient in the circumstances. We think the facts and circumstances of the cases referred to are quite distinctly different from the present case and we do not find much assistance in those cases in fixing an appropriate penalty in this case, which, in this country appears to be without precedent.

4.6 We take as our starting point in relation to the charge concerning Mr Stiassny, disqualification for a period of five months together with a fine of $2,500.00. In relation to the Serious Racing Offence concerning Mr George, recognising it as a more serious offence under the Rules but giving effect to the differences between it and the offence relating to Mr Stiassny, we take as our starting point nine months disqualification together with a fine of $5,000.00. Cumulatively that amounts to disqualification for a period of fourteen months and a fine of $7,500.00 which, standing back, we are satisfied represents an appropriate penalty applying what is commonly known as the totality principle. We consider some discount should be allowed for the fact Mr McAnulty admitted the breaches, albeit the admission was effectively at the last moment and only after he had been refused an adjournment of the hearing on 17 March 2011. We think some discount should also be allowed for his explanation for the breaches and for the apology to Messrs Stiassny and George contained in a statement produced at the hearing on 17 March 2011, but as indicated, we think that discount should be relatively minimal. Giving effect to those matters as best we can we think a 20% discount should be allowed, even if it errs slightly on the lenient side, reducing the period of disqualification to what we round off at eleven months together with a fine of $6,000.00.


5. Costs:

5.1 NZTR seeks costs of $13,970.50 being a proportion of its Counsel's fees and $1,023.00 for airfares for the attendance of a Stipendiary Steward at the hearing on 17 March 2011 and for earlier investigations and attendances in relation to the charges brought against Mr McAnulty. The Judicial Control Authority also seeks costs of $6,558.51 being expenses incurred in connection with the hearing on 17 March 2011 and the estimated fees of members of the Judicial Committee. Details of these expenses have been provided to the parties.

5.2 Rule 920(3) provides that the Judicial Committee may order that all or any of the costs and expenses of the NZTR and/or any employee thereof and the Judicial Control Authority and the Judicial Committee be paid by such person as it thinks fit. The discretion to award costs under the Rule is on its face unqualified but obviously is required to be exercised on a principled basis. In New Zealand bodies such as NZTR and the Judicial Control Authority are funded by allocations from the New Zealand Racing Board, and in the case of NZTR, partly from fees and levies. Those funds are utilised to meet expenses incurred whenever it becomes necessary to take proceedings against those bound by the Rules who breach them. Unless adequate and effective steps are taken to recover those expenses, the utilisation of funds for disciplinary purposes is inevitably at the expense of the Judicial Control Authority's and NZTR's other activities in relation to the racing industry. On the face of it there seems no compelling reason in principle why those whose conduct has led to the institution of disciplinary procedures should not, within limits, bear the expense of those procedures if they are ultimately found to have breached the Rules as charged. Obviously given the nature and intended width of the discretion conferred by Rule 920(3) that factor will not necessarily be the only consideration to be brought to account in deciding to award costs and fixing the quantum in any case, but there seems no reason why that should not be the starting point for the exercise of the discretion in any given instance.

5.3 Approaching the matter in that way the total costs sought amount to $20,530.00 in round figures. Mr Perese has submitted the costs of NZTR should be limited to the costs it would have received in the District Court in proceedings taken under the Harassment Act in the sum of $5,750.00 and the Judicial Control Authority's costs should be divided equally between the parties in the sum of $3,294.00 each. For the reasons outlined earlier, we do not see any necessary parallels between proceedings under the Harassment Act and the breaches of the Rules faced by Mr McAnulty which would justify or support the discretion the Committee has under Rule 920(3) being exercised in the manner submitted by Mr Perese. Nor for the reasons outlined in the preceding paragraph do we think a simple division of the Judicial Control Authority's costs between the parties is an appropriate way to exercise our discretion in that respect. Mr Perese has not submitted that Mr McAnulty does not have the financial means to meet an Order for Costs of the magnitude sought, nor except for what is recorded above, has he submitted costs should be assessed and awarded on any other basis. Nonetheless we think some reduction of the amounts sought by NZTR and the Judicial Control Authority is justified in recognition of the contingent aspects of the costs sought by the Judicial Control Authority and the fact that the initial submissions of NZTR addressed in some detail matters which did not become issues requiring determination as the case preceded. We note the costs sought by NZTR already represent a reduction of its actual costs, in part for that reason.
 

6. Result:

6.1 In the result for the reasons outlined:

(a) Mr McAnulty will be disqualified for a period of eleven months commencing from the date of this decision. No application has been made on his behalf for deferral of the date on which the disqualification is to take effect under Rule 1101(1).

(b) He is to pay a fine of $6,000.00

(c) he is to pay costs to NZTR in the sum of $12,000.00;

(d) he is to pay costs to the Judicial Control Authority in the sum of $5,500.00
 

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