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Non Raceday Inquiry RIU v G Dixon - Reserved Written Decision dated 22 March 2019 - Chair, Prof G Hall

Created on 25 March 2019

BEFORE A JUDICIAL COMMITTEE OF

THE JCA AT HAMILTON

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR GARETH DIXON

Open Horseman/ Licensed Public Trainer

Respondent

Informations: A8709

Judicial Committee: Prof G Hall, Chairman

Mr D Jackson, Member

Appearing: Mr S Symon and Ms E Smith, for the Informant

Mr M Branch, for the Respondent

RESERVED DECISION OF THE JUDICIAL COMMITTEE

[1] The informant, the RIU, has laid an information with respect to the respondent, Mr G Dixon.

[2] Information No A8709 alleges “On Friday the 25 May, 2018, at the Pukekohe TAB in Auckland, did aid and/or abet in the commission of a serious racing offence, by assisting licensed open horseman Simon Lawson to commit a breach of Rule 505(1) & (2) of Harness Racing New Zealand Rules by placing a futures bet on a horse for Simon Lawson, namely “Mr Natural” in a race, namely Race 10, the “Book An ATC Bus to The Jewels” Mobile Trot, in which he knew Simon Lawson was driving the horse “My Royal Roxy”, and by doing so therefore committed a breach of Rule 1001 (1) (y) and/or (z) and therefore liable to the penalties which may be imposed in accordance with Rule 1001(2)(a)(b) and (c) of the New Zealand Rules of Harness Racing.”

[3] Rule 1001(1) provides:

Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:

(y) does or omits any act for the purpose of aiding any person to commit a serious racing offence; or

(z) abets any person in the commission of a serious racing offence.

[4] Rule 1001(2) provides:

Every person who commits a serious racing offence shall be liable to the following penalties:

(a) a fine not exceeding $30,000; and/or

(b) suspension from holding or obtaining a licence, for any specific period or for life; and/or

(c) disqualification for a specific period or for life.

[5] Authorisation from Mr N McIntyre, General Manager of Stewards, dated 14 January 2019, to lodge the information was before us.

[6] The matter was heard at Hamilton on 25 February 2019.

[7] The following facts were not disputed and were admitted by consent of all parties.

1 Background

1.1 Gareth Dixon is a licensed public trainer and trials horseman under the New Zealand Rules of Harness Racing.

1.2 Mr Dixon was at all material times aware of the rules that relate to betting by harness racing drivers.

1.3 Mr Dixon was aware that Simon Lawson was a harness racing driver at all material times.

2 Racing Integrity Unit investigation

1.4 At the end of 2018 the RIU commenced an investigation into Race 10 at the Auckland Trotting Club meeting at Alexandra Park on 25 May 2018.

1.5 The New Zealand Racing Board (NZRB) provided the RIU with the following material relating to betting on that race

(a) NZRB betting records detailing:

(i) the bets placed and corresponding winning dividends;

(ii) the date and time the winnings were redeemed; and

(iii) how the bets were paid for and how the winnings were collected, including transactions from the Pukekohe TAB and Patumahoe Hotel;

(b) Photographs of the two men who placed the bets queried and the man who collected the winning dividends at Pukekohe TAB on 5 June 2018; and

(c) CCTV footage from the Pukekohe TAB regarding bets placed on 25 May 2018. The footage is produced as Exhibit 1.

2.3 This material was provided to Basil Payn, a Betting Analyst employed by the RIU, to examine. Mr Payn's examination established that:

(a) On 25 May 2018 Mr Lawson placed a number of bets himself, as did Mr Dixon:

(i) At about 1pm at the TAB in Pukekohe Mr Lawson entered a bet in a self-service betting terminal and created a voucher for $744.70 (the voucher)

(ii) At 1.04.43 pm Mr Dixon used the voucher to place a bet for $40, using a self-service betting terminal, on the horse "Mr Natural" in Race 10 at Alexandra Park.

(iii) Mr Lawson then used the voucher at 1.05.55 pm in a self-service betting terminal to place a $200 bet.

(iv) Mr Dixon then used $50 cash in a self-service betting terminal to place bets on “Mr Natural” in Race 10 at Alexandra Park.

(v) Using the same voucher, at the TAB in Patumahoe, at 3.57 pm Mr Dixon placed a bet on the horse "Mr Natural" in Race 10 at Alexandra Park.

(b) Various other bets were placed using the voucher between 25 May and 5 June 2018.

(c) On 5 June 2018 Mr Lawson collected $2,559.20 from the voucher, of which he gave a half-share to Mr Dixon.

2.4 A representative of the RIU, Neil Grimstone, interviewed Mr Dixon in relation to the above events on 18 December 2018. The recording (and transcript) of that interview is produced as Exhibit 2.

3 Self-service betting terminal

3.1 When a bet is placed using the self-service betting terminal, the information displayed is as per Exhibit 3.

4 Race betting offences by Simon Lawson

4.1 Mr Lawson was interviewed by Police and the RIU in relation to suspected race betting offences. The recordings (and transcripts) of those interviews are produced as Exhibits 4 and 5.

4.2 An information was laid alleging that he had breached the New Zealand Rules of Harness Racing by betting on a horse in a race in which he was driving.

4.3 Mr Lawson admitted the charge and accepted that he had bet on the horse "Mr Natural", and that he had cashed the TAB voucher for $2,559.20, which he then split evenly with Mr Dixon. He accepted that he was driving another horse in that race, "My Royal Roxy", and that had “My Royal Roxy” won the race he would have won approximately $450.

[8] Mr Symon stated there were two issues for the Committee to determine: whether the respondent knew Mr Lawson was driving in the race; and whether he placed the bet for Mr Lawson.

[9] The informant stated it would prove its case by calling Mr Lawson, who had been summonsed to attend the hearing, and by showing CCTV of the respondent and Mr Lawson in the Pukekohe TAB.

[10] Mr Lawson answered his summons and gave evidence. He stated that he had known the respondent for some four or five years. They both trained horses and they were friends. They were “quite tight”. They had been betting together over that time. He said he would bet at Pukekohe but at other places as well. He did not have a TAB account.

[11] Mr Lawson agreed he was driving in the race on which Mr Dixon had placed the bets on MR NATURAL. He could not remember whether he had told Mr Dixon this. He did not believe he had told Mr Dixon to bet on the race. Mr Symon alleged that Mr Lawson was trying to cover up for Mr Dixon. Over the objection of Mr Branch, we allowed Mr Symon to – in effect – cross-examine Mr Lawson but on a limited basis, namely to put certain propositions to him (along the lines of the aforementioned allegation of a cover up) or otherwise to have him comment on the accuracy or otherwise of his previous statements to the RIU and to the police. We determined that the witness ought to be confronted on these issues, even if he was answering the RIU’s summons as Mr Symon’s witness. Mr Branch observed in his objection that Mr Lawson had failed to come up to brief (ie to give evidence consistent with his earlier statements) and submitted that Mr Symon should not be permitted to treat him, in effect, as a hostile witness.

[12] Mr Symon said he would take Mr Lawson through his statements in his interview with the RIU and with the police and ask him to comment. He said he also wanted Mr Lawson to comment on what was going on at various times in the CCTV footage.

[13] Mr Branch said the respondent was prepared to concede – in order to truncate that process — that the statements recorded in Mr Lawson’s interview with the RIU and the police were made and were accurately recorded in the transcripts.

[14] With respect to the police interview, Mr Lawson said he was confused as to what he was asked by the interviewer. He had just assumed that Mr Dixon knew he had a drive in the race in question. He said he had had a bet on the horse. He was the one in the wrong.

[15] Mr Symon pointed out that the police and RIU interviews were two weeks apart. Mr Lawson agreed he had talked to Mr Dixon in that time. He was not sure if he had discussed the police interview with Mr Dixon.

[16] When asked why he had assumed that Mr Dixon knew he had a drive in the race, Mr Lawson replied, “I don’t know.” He said they had been talking about other bets but not the one on MR NATURAL. He denied he was forgetful because he now realised he would get Mr Dixon into trouble. He said he did not know what Mr Dixon was thinking when Mr Dixon placed the bet.

[17] Mr Lawson agreed he had asked Mr Habraken to place a bet for him, but he said he had not told Mr Habraken that he was involved in the race. Mr Branch objected and said any evidence regarding Mr Habraken should be disregarded as he had no discovery regarding that man.

[18] The footage of Mr Lawson and Mr Dixon at the Pukekohe TAB was shown. Mr Lawson said was not sure what he could be seen to be writing. And while he agreed there was a degree of interaction with Mr Dixon, he did not recall what was being discussed. Nor was he sure who had completed the slip for the bet on MR NATURAL. He was not sure if it was Mr Dixon providing him with the betting slip or the voucher. Whilst they were exchanging tickets, these could have been any tickets.

[19] Mr Lawson said he left the TAB and went back to work and then to the track. He said he could have discussed with Mr Dixon where he was going. He did not know if he had told Mr Dixon he was driving that day, but he assumed Mr Dixon would have known he was going to the track.

[20] When Mr Symon asked him why he had given the voucher to the respondent, he said he did not know why he had done so. He added it was a friendly thing to do to let Mr Dixon use the voucher. It was not because he was driving in that race.

[21] When asked why it was a number of reasonably small bets on MR NATURAL and did he think that this was likely to attract less attention, he said, “No -he had no idea if one big bet would draw more attention”.

[22] Mr Lawson said he knew nothing about the respondent going to the Patumahoe Hotel to place a further bet. He said they split the voucher evenly later that week. He could not remember why. He said he would have given the respondent half because they were friends. When asked directly if he had given Mr Dixon half because he had bet on the race for him, he replied quite adamantly, “No”. 

[23] Mr Lawson did not know if Mr Dixon had watched the race and after the race there was no discussion about his driving in MR NATURAL’s race nor was there when they were collecting the winnings.

[24] Mr Branch questioned Mr Lawson as to whether he and the respondent had half shares in the voucher. Mr Lawson replied, “Yes.” He confirmed he did not believe he had told Mr Dixon he was driving in MR NATURAL’s race. When asked if his response to the police questioning was based on an assumption that Mr Dixon knew he was driving in the race, he said, “Yes.”

[25] Mr Lawson said he did not have a formal business partnership with the respondent. They operated out of separate barns.

[26] Mr Lawson said he was filling out forms for Mr Dixon because Mr Dixon required reading glasses and he did not have them at the time. Mr Dixon had never said anything to him about Mr Dixon backing MR NATURAL.

[27] Mr Lawson said he never discussed his drives with Mr Dixon. He stated that they bet together and on other occasions he had let him use his voucher. He was not sure whether he owed Mr Dixon money when the voucher in question was started. He thought he may have owed him $100. He was also not sure why he gave Mr Dixon a half share in the $2,559.20 but he later confirmed to Mr Branch that Mr Dixon’s entitlement to share in the voucher – by halves – was a result of his owing Mr Dixon $100. The voucher, and Mr Dixon’s interest in it and its proceeds, as a pool, were 50/50.

[28] Mr Branch called Mr Dixon to give evidence in his defence. The respondent confirmed he did not have his reading glasses with him on the day in question, so he had asked Mr Lawson to fill out the betting slip for him. He said it was not his practice to put bets on for other people.

[29] Mr Dixon said he had had 30 to 35 years in the industry and agreed, when questioned, that he was familiar with the rules concerning driving in a race. He understood he was not able to help another driver put bets on in a race in which he or she was driving.

[30] Mr Dixon said he and Mr Lawson had known each other for about four or five years. They had separate barns and would work horses in company, but that was all. They were mates and would spend time together, such as playing golf.

[31] Mr Dixon said they did not bet together all the time. A bet slip with them “both in” did not happen very often. Mr Lawson owed him money. He had an agreement with Mr Lawson but there was no record of this. He knew Mr Lawson was driving that day and had asked him to fill out the slip because he had no glasses. He believed it was a multi bet. It was his decision to put MR NATURAL in the multi bet. He was confident that MR NATURAL was a good bet.

[32] Mr Dixon said he had checked the fields when they came out. It was an average looking field. He had checked the field on Monday, and he had no idea who the drivers were as these were not out until Wednesday. He said he normally never checked the drivers. He would base his selections on watching videos. He bet on horses not drivers. He knew Mr B Butcher was driving MR NATURAL. He had spoken to the blacksmith about the horse, but the fact Mr Lawson was driving in the race did not come up in conversation.

[33] Mr Dixon was adamant he did not know Mr Lawson was driving in the race. When asked did he not see Mr Lawson’s name on the TAB betting screen, Mr Dixon replied that without his glasses the screen was blurry. He could not see the screen “well”.

[34] When questioned as to what he and Mr Lawson were discussing at the TAB, he said he did not know. He was given the betting slip by Mr Lawson because it was his bet. He said Mr Lawson’s bet on MR NATURAL was Mr Lawson’s bet. He did it. As to his second bet on MR NATURAL at the Pukekohe TAB, he said it was a cash bet for himself. It was not shared with Mr Lawson. The share arrangement was with the voucher only. It was a joint investment. He did not think Mr Lawson would be silly enough to bet on a race in which he was driving.

[35] Mr Dixon agreed he had later used the voucher a second time to put a bet on MR NATURAL. He said he still did not have his glasses.

[36] Mr Dixon said he was disappointed when he later found out that Mr Lawson had had a drive in the race. He knew it was a serious racing offence. He said he had not told the RIU or the TAB. He had simply distanced himself from the bet. He agreed with Mr Symon that he had punted using the voucher the next day and had had no objection to taking half of the money.

[37] With respect to the origin of the voucher, he said instead of Mr Lawson paying him money that Mr Lawson owed him, Mr Lawson had had a bet at Palmerston North, which had been successful.

[38] Mr Dixon said he did not believe he had done anything wrong. He had no idea he was implicated. He had thought it was all to do with Mr Lawson.

[39] With respect to the bet at Patumahoe, he said he had punched the numbers into the machine and not filled in a betting slip. The screen was blurry as he did not have his glasses, but he had “got around it”.

Closing submissions

[40] Mr Symon said the key issue was whether Mr Dixon knew Mr Lawson was driving another horse in race 10 at the time he placed the relevant bet. He pointed to the documentary evidence, the video footage, and Mr Dixon’s experience and knowledge of the rules. 

[41] Mr Symon said the Committee should put to one side Mr Lawson’s and Mr Dixon’s accounts, as these were both self-serving. Mr Lawson was endeavouring to assist a friend. Mr Dixon’s explanation was implausible and Mr Lawson’s explanation had shifted. He had told the police, when questioned, that Mr Dixon was involved. It was only after he realised that he would get Mr Dixon into trouble that he had changed his account both in the RIU interview and at the hearing by saying Mr Dixon did not know, and that he did not know what Mr Dixon was thinking.

[42] Mr Symon stated Mr Lawson was not a credible and reliable witness.

[43] Mr Dixon’s account, Mr Symon said, was implausible. He had had 35 years’ experience in the industry, and he knew the rules relating to betting and assisting drivers to place bets. He knew it was wrong to bet on a race if Mr Lawson was driving in it when they were friends who were betting together.

[44] Mr Symon said Mr Dixon knew Mr Lawson was driving that day and thus he was on notice that with any bets he placed that day it was likely Mr Lawson would be involved in the race. The video footage showed Mr Lawson was on the phone and had then filled out a slip which he gave to Mr Dixon with a voucher. There was no plausible reason for him to do this other than to avoid placing the bet himself. The Committee could infer that Mr Dixon knew he was placing the bet because Mr Lawson was involved in driving in the race because Mr Lawson could otherwise have placed the bet himself. Mr Dixon’s statement that it was his recommendation to place the bet was implausible. He said Mr Dixon had to say it was his suggestion to back MR NATURAL otherwise he could not explain why he was placing the bet.

[45] Mr Symon said Mr Dixon’s account that he was asking Mr Lawson to fill out the slip for MR NATURAL was implausible, as was his evidence that he did not consider who the other drivers in the race were, especially when it was a not an insignificant sum that was being placed on the horse. His statement that he considers the horse and not the drivers was self-serving. Mr Symon said the information on the screen would show horses and drivers. It would have been clear to Mr Dixon that Mr Lawson was driving a horse in the race. His evidence as to not being able to read without his glasses was also self-serving. This was the first time Mr Dixon had raised this issue. Mr Symon also alleged it was implausible that when Mr Dixon placed the cash bet for himself that he could not see who the other drivers were.

[46] Mr Symon submitted there were multiple small bets in order to conceal the offending because Mr Dixon knew it was improper. The voucher was joint property so why not make it a larger bet on the horse. The purpose was to disguise the level of betting on the horse. Mr Dixon had then had a further bet on the horse at a different venue. Again, he was using the voucher and it was implausible to say he could not see that Mr Lawson was in the race. It was fortunate, was it not, that he could see just enough to know which race and which horse to bet on, but not the other drivers in the race.

[47] Mr Dixon’s response, Mr Symon said, was consistent with his knowing the betting was wrong and his wanting to distance himself from it, but to collect the winnings. Again, it was implausible in these circumstances for Mr Dixon to carry on betting by using the voucher and to be present with Mr Lawson when it was cashed out.

[48] Mr Symon concluded by stating Mr Dixon’s actions were consistent with his role in the enterprise which was to place bets when he knew Mr Lawson could not. It was reasonable for the Committee to infer that he knew Mr Lawson was driving in the race.

[49] Mr Branch said what happened after the bets were placed was not relevant to the charge. There was no obligation upon Mr Dixon to go to the RIU.

[50] Mr Dixon did not think he had done anything wrong. The cash bet was not part of the charge. Even with the fullest of knowledge, this was not an offence. The charge did not relate to the Patumahoe bet. As to Mr Dixon comments being self-serving, that was true of any defence.

[51] The issue for the Committee was whether the RIU had established to the required standard that the respondent had breached the rule. He said they had not. Their case was based on inferences and actions being implausible.

[52] Mr Branch submitted that the RIU had never given up questioning Mr Lawson on whether he told Mr Dixon he was driving in the race. At this hearing he had said, “No”; the rest had to be inference. He said Mr Lawson was not New Zealand’s leading driver; he was not driving in every race on the card. It was a reasonable inference that Mr Lawson was driving at that meeting but not in that particular race.

[53] There was no requirement for a licence holder to report a breach of the rules and it was not aiding and abetting not to do so.

[54] Mr Dixon was part of a betting syndicate. Mr Branch said, “When it’s your bet it’s your bet; it’s not a bet by committee”. Mr Dixon’s bet was his; Mr Lawson’s bet was his. The $200 bet was made by Mr Lawson on his own.

[55] Mr Branch said what was implausible was that there was a betting conspiracy. He said if there was, Mr Dixon and Mr Lawson would not be in the TAB at the same time using a betting voucher.

[56] Mr Branch submitted it was not unusual to back a horse not knowing who was driving every horse in a race. That was Mr Dixon’s practice as disclosed during evidence. What was more important was the horse and it was more plausible that the respondent had looked at the field and thought there was one very good horse and that the rest were very poor.

[57] Mr Branch observed the RIU interviewer had never asked Mr Dixon why he did not fill out the form for himself. Mr Lawson when interviewed had said that he owed Mr Dixon $100 and the Palmerston North winnings became their fund.

[58] Mr Branch concluded his closing by saying there was little detail in the informant’s case as to the actual assistance Mr Dixon had given Mr Lawson. There was no obligation upon Mr Dixon to step in and stop Mr Lawson breaching the rule. He believed the RIU had failed to establish the elements of the offence. A point he emphasised in his written closing submissions which we have had regard to and have carefully considered.

[59] Mr Symon disputed this stating the RIU had been clear as to what Mr Dixon’s role was and the allegation was in the charge. The respondent had aided and abetted Mr Lawson by placing bets for him. It was reasonable in the circumstances to infer that the respondent knew what Mr Lawson was doing and to infer that Mr Lawson knew he had been aided and abetted.

[60] Mr Branch replied the core question was whether Mr Dixon knew Mr Lawson was driving in the race. And this was denied. The authorities emphasised there has to be actual assistance or encouragement and an intention to provide same. Causation has to be more than mere presence. That was absent from the RIU case he submitted. Nothing was gained by Mr Dixon rather than Mr Lawson putting the bet on. It provided no protection or assistance to Mr Lawson. Both men were present in the TAB betting with the same voucher. Mr Branch submitted it would have been an entirely different matter if Mr Lawson had stayed outside the TAB and Mr Dixon, with full knowledge of the offence, had placed the bet. That did not happen. There was no intent of subterfuge or any disguise of the fact that Mr Lawson was placing bets on a race when he should not have been doing so.

[61] Mr Branch concluded his written submission by stating there was no evidence whatsoever of any encouragement, any intention to encourage, or that Mr Lawson had any knowledge that he was being encouraged by Mr Dixon. The RIU had therefore failed to prove to the required standard the elements of either charge.

Decision

[62] We believe the informant has correctly identified the two key issues in this case, although we would word them a little differently. We see the first question as being whether the respondent placed a bet on MR NATURAL for Mr Lawson; and secondly, if he did, whether at the time he placed the bet he had knowledge that Mr Lawson was driving in MR NATURAL’s s race. We would add a third issue, which is were there to be an affirmative finding with respect to issues one and two, whether Mr Dixon aided or abetted Mr Lawson to breach r 505(1).

[63] The informant’s case is based on the interviews of Mr Lawson and Mr Dixon with the RIU, Mr Lawson’s statement to the police and his evidence before us at the hearing, and the video footage.

[64] We start with the video footage. Both Mr Dixon and Mr Lawson placed bets using a voucher for $774.70 created by Mr Lawson. Despite being able to synchronise the placing of the various bets with the footage, there is no way of knowing what was being discussed by Mr Dixon and Mr Lawson at the relevant times. Mr Dixon is handed the voucher and the betting slip, which had been filled in by Mr Lawson. The explanation is that Mr Dixon did not have his reading glasses and could not see to fill out the slip. It was his bet with the voucher and Mr Lawson was simply filling in the slip for him. Mr Dixon has said in his evidence before us that it was his decision to back MR NATURAL, not Mr Lawson’s.

[65] In the RIU interview conducted by Mr Grimstone, Mr Dixon said, “We had a bet on the horse and as Simon said, it was, he obviously had a drive in the race as you know, but that was never discussed, there was no, it was, I don’t even know if I knew he had a drive in the race.” Later he stated, “We put the bet on, it was a stupid thing to do.”

[66] It is evident that the voucher was being shared by Mr Dixon and Mr Lawson. As we have noted, they both used the voucher to place bets. These bets were of varying amounts on MR NATURAL. Mr Lawson used the voucher on one occasion to place bets to the value of $200, while Mr Dixon placed two voucher bets on MR NATURAL, only one of which, a $40 multi-bet at the Pukekohe TAB, is the subject of the charge. Mr Dixon also placed a $50 cash bet on the horse.

[67] We are told that Mr Lawson owed money to Mr Dixon and the voucher had its origins in a winning bet that was placed on a meeting at Palmerston North. When cashed, the voucher had a value of $2,559.20, which was collected by Mr Lawson and shared 50/50 with Mr Dixon.

[68] Mr Lawson, when interviewed by the police, acknowledged that Mr Dixon was placing bets for him. We accept it is common when sharing a voucher or when in a betting syndicate that each person has his or her own bet, or as Mr Branch put it, betting is not by committee. With the voucher being shared by Mr Dixon and Mr Lawson, each stood to gain from the other’s bet. That being the case, we conclude that Mr Dixon did place a bet on MR NATURAL from which Mr Lawson stood to gain financially. Despite Mr Dixon’s assertions to the contrary, and in particular that he had selected MR NATURAL himself, and it was his decision to bet on the horse, we conclude on all the evidence before us that Mr Dixon did place a bet for Mr Lawson, that being the $40 fixed odds bet at the Pukekohe TAB. We add that we do not accept that two persons betting together would discuss horses but not the one each placed a bet on, using the same voucher, within just over a minute of each other, especially when Mr Lawson was the person who filled out the betting slip for the first bet and then Mr Dixon followed it up with a cash bet of his own on the horse. We also note that in the RIU interview Mr Lawson states that he and Mr Dixon discussed the fact that MR NATURAL was a good bet and that they would use the voucher.

[69] We turn next to the vexed question of whether Mr Dixon had knowledge that Mr Lawson was driving in MR NATURAL’s race at the time he placed the bet in question (the $40 voucher bet at the Pukekohe TAB).

[70] When Mr Grimstone said to Mr Dixon in the RIU interview, “You’ve acknowledged that you knew Simon was driving”, he responds, “No, no I didn’t acknowledge that. I said I don’t even know if I was sure if he had a drive in the race. You know, I said he put the bet on is all I acknowledged.” Later in the interview he again refutes that he knew Mr Lawson was driving in the race, saying, “I can’t recall whether I knew or not…. I would have probably said something if I did know, but I didn’t even think about it so.” Thus, there is no admission by the respondent to Mr Grimstone that he knew Mr Lawson was driving in the race. This is despite the issue being raised repeatedly with him in the interview.

[71] Mr Lawson was a far from convincing witness. He could not recall what he said to Mr Dixon at the relevant times other than the fact he had never told Mr Dixon he had a drive in MR NATURAL’s race. Mr Symon accused him of simply wishing to protect his friend after he realised that he had implicated Mr Dixon when he was questioned by the police.

[72] Despite repeated questions from Mr Symon as to Mr Dixon’s knowledge, Mr Lawson, as we have said, did not flinch in his evidence that he did not know whether Mr Dixon knew he was driving in the race. On other issues he simply could not remember the conversation he had with Mr Dixon on the day.

[73] Mr Lawson has explained his statements to the police on the basis that he had simply assumed that Mr Dixon had knowledge he was driving in the race.

[74] Mr Lawson stated in his interview with the police, “Gareth’s (Mr Dixon’s) put money on for me, yeah.” And, when questioned about the CCTV footage showing Mr Dixon betting, that “it’s quite clear that Gareth knew all about what was going on there didn’t he”, he replies “Yeah”. And when asked what did Mr Dixon say to you about backing the horse in your race, “Nothing, I don’t think.” The informant has submitted we should conclude that “all about what was going on there” is a reference to the fact that Mr Lawson was driving and when asked what did he say “about backing the horse in your race” that “Nothing” infers it was discussed but he did not demur from the placing the bet. Significantly, these are inferences we are being asked to draw from this evidence. Neither the wording of the questions nor the responses thereto, amount to a statement to the effect Mr Dixon knew Mr Lawson was driving in the race.

[75] The questioning of Mr Lawson by the RIU Investigators, whilst comprehensive, again did not pin Mr Lawson down with respect to whether Mr Dixon knew he was driving in MR NATURAL’s race. When he was asked whether Mr Dixon discussed using the voucher, he replied, “Not really, like I mean, oh obviously yeah, um you know I said I think he’d be hard to beat and so we’ll just back that and just use the voucher and I was like, oh yeah okay where I should have been like, yeah no it’s not okay, I’m driving in the race obviously.”

[76] Then when asked, “He knew you were driving in the race too?”, Mr Lawson responded, “Yeah. Um yeah, these ones are obviously with the voucher, they were, he’s having a bet with it because I don’t bet like that.” Mr Lawson’s response, as Mr Branch has submitted, suggests that his mind is turned principally to the use of the voucher and not to whether Mr Dixon knew he was driving.

[77] The follow up question was to ask Mr Lawson “How does Mr Dixon rationalise it in his mind?” Mr Lawson said, “I’m not sure but yeah I mean it’s my mistake, I should be. I should have just been I can’t do that, or no.” Again “it” could have been taken by Mr Lawson to be a reference to Mr Dixon betting on Mr Lawson’s behalf or his betting in the knowledge he was driving. Either conclusion is available.

[78] The questioning continued with Mr Cruickshank stating “But he, okay so you, it’s your mistake as far as you placing the bets. But him placing bets for you on a race he knows you’re driving in, how does, so that’s his mistake, is that what you’re saying?” Mr Lawson responds, “I suppose it’s, yeah. It’s not his problem I guess it’s fine isn’t it.” When told “no” because Mr Dixon is aiding and abetting in the commission of a serious racing offence, Mr Lawson says, “Oh well, I don’t know. I don’t know. I don’t know what he’s thinking, yeah you’ll have to ask him.”

[79] Again, these answers are not definitive with respect to whether Mr Dixon knew Mr Lawson was driving in the race. We are required to infer from Mr Lawson’s answers that Mr Dixon knew he was driving. It is implicit that Mr Lawson assumed he did, but at no time does he state that he and Mr Dixon discussed the fact that he was driving in race 10 or even the fact that he was driving that evening.

[80] Mr Dixon has given explanations for his actions that are exculpatory. Like Mr Symon we are surprised that he had no knowledge of who was driving in the race in question other than it was Mr B Butcher driving MR NATURAL.

[81] Mr Dixon’s evidence as to his not having his reading glasses on the day was raised for the first time at the hearing. Other than submitting that Mr Dixon’s evidence was self-serving, it was not challenged by the informant.

[82] The non-disputed facts that were before us do not state that the voucher bet or the cash bet were fixed odd bets, although the informant’s case has proceeded on the basis that they were and this has not been challenged by the respondent, and we note he stated he believed one of the bets was a multi bet. The informant has produced photos that are screen shots of what Mr Dixon would have seen when he placed a fixed odds bet (although not the actual bet in question). These demonstrate that the names of the drivers of each horse in the race are prominently displayed. Mr Dixon said in evidence that without his glasses the screen was blurry and as a consequence he could not see the screen “well”.

[83] Of concern to us is the CCTV footage that shows Mr Lawson had filled out a bet slip which he gave to Mr Dixon with the voucher. This was the $40 bet on MR NATURAL. Mr Symon submitted there was no plausible reason for Mr Lawson to do this other than to avoid placing the bet himself. Yet 70 seconds later Mr Lawson places a much larger ($200) bet on the horse. Mr Symon has asked us to infer that Mr Dixon knew he was placing the bet because Mr Lawson was involved in driving in the race, otherwise Mr Lawson could have placed the bet himself. Mr Dixon has said it was his suggestion to back MR NATURAL and that he did not have his reading glasses and thus could not fill in the betting slip. Later when he placed a bet at Patumahoe, he explained he had just punched the bet into the machine rather than use a slip.

[84] Mr Branch is correct when he has submitted that the informant’s case is based on implausibility and inference. The standard is on the balance of probabilities (r 1008A). We do not need to consider the effect of Z v Dental Complaints Assessment Committee [2008] NZSC 55 (consideration being given to the seriousness of the charge) in the context of this rule, given our decision as to the outcome of this case.

[85] We find that there is insufficient evidence before us upon which we can reach the conclusion that Mr Dixon at the time he placed the $40 bet for Mr Lawson had the requisite knowledge, ie that Mr Lawson was driving in race 10 at the Auckland Trotting Club’s meeting on 25 May 2018.

[86] That finding means that it is not strictly necessary for us to deal with the third issue we have identified, but for completeness we do so, assuming for this purpose that Mr Dixon did have the requisite knowledge. Mr Branch’s submission is that for a charge of assisting or abetting Mr Lawson to breach r 505(1) to be proved there has to be actual assistance or encouragement, an intention to provide same, and an awareness by Mr Lawson that he is being assisted, although the last matter is not contentious on the facts of this case. Other than Mr Symon emphasising that the placing of a number of different size bets on MR NATURAL might have the effect of deflecting an investigation into betting activity, there was nothing to be gained by Mr Dixon rather than Mr Lawson putting the bet on in the circumstances that prevailed on that day. The placing of a $40 bet, when both men were present in the TAB betting with the same voucher, and in circumstances where Mr Lawson himself placed a much larger ($200) bet on the horse some 70 seconds later, is not clear evidence of Mr Dixon intending to and in fact assisting (aiding) Mr Lawson to breach the betting rule, nor is it evidence of encouragement. Rather, it is evidence of two men betting together and sharing a betting voucher. Thus, we do not find Mr Dixon’s actions were intended to aid Mr Lawson by disguising the fact that he was placing bets on a race when he should not have been doing so or to encourage him to so bet. Mr Branch is quite correct when he submitted it would have been an entirely different matter if Mr Lawson had stayed outside the TAB and Mr Dixon, with full knowledge of the offence, had placed the bet. That did not happen.

[87] We thus do not view Mr Dixon’s placing of the $40 multi-bet on MR NATURAL in race 10 at the Auckland Trotting Club’s meeting on 25 May 2018 as being an act done for the purpose of aiding or to abet (encourage) Mr Lawson to commit a serious racing offence. 

[88] The RIU has failed to prove to the required standard the elements of either charge. The charges under r 1001(1)(y) and (z) are dismissed.

Costs

[89] We require the parties to submit written submissions as to costs. The respondent’s submissions are to be with the Executive Officer of the JCA by 4 pm Friday 29 March 2019 and the informant’s by 4 pm Friday 5 April 2019.

Dated at Dunedin this 22nd day of March 2019.

Geoff Hall, Chairman

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