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Non Raceday Inquiry RIU v S A Dolan - Reserved Decision dated 15 January 2020 - Chair, Mr R G McKenzie

Created on 16 January 2020

BEFORE A JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A12351

BETWEEN N M YDGREN, Chief Stipendiary Steward (Harness) for the Racing Integrity Unit

Informant

AND STEPHEN ANTHONY DOLAN of Christchurch, Licensed Public Trainer

Respondent

Judicial Committee: Mr R G McKenzie (Chair)

Ms O K Jarvis ( Member)

Mr S C Ching (Member)

Venue: Addington Raceway, Christchurch

Present: Mr N M Ydgren, the Informant

Mr S P Dolan, the Respondent

Date of Hearing: 20 December 2019

Date of Decision: 15 January 2020

RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A12351 alleges that at a race meeting conducted by Timaru Harness Racing Club at Timaru on Sunday, 24 November 2019, when questioned regarding the horse TALL POPPY, trained by him, Mr Dolan did wilfully provide information to the Stipendiary Stewards that was false or misleading in breach of rule 1001(1)(k) of the New Zealand Rules of Harness Racing.

The Rules

[2] Rule 1001 of the Rules of Harness Racing provides as follows:

(1) Every person commits a serious racing offence within the meaning of these Rules, who, in New Zealand or in any other country:-
(k) wilfully supplies any false or misleading information, or makes any false or misleading declaration or statement, respecting any matter concerned with racing or otherwise under these Rules to a Judicial Committee, an Appeals Tribunal, the Chairman, the Board the Stewards or Committee of a Club, a Stipendiary Steward, a Racecourse Inspector or any other Body, tribunal or person . . .

[3] The penalty Rule is Rule 1004 (7) which provides as follows:

(1) Every person who commits a breach of sub-Rule (2) or (3) shall be liable to:

(a) a fine not exceeding $30,000.00; and/or

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

(c) disqualification for a specific or for life.

[4] Mr Ydgren presented a letter dated 5 December 2019 signed by Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 1108 (2) authorising the filing of the information.

The Plea

[5] Mr Dolan had signed the Statement by the Respondent on the Information form indicating that he admitted the breach of the Rule.

[6] Mr Dolan was present at the hearing of the Information. The charge and relevant Rules were read to him, after which he confirmed that he admitted the breach.

Summary of Facts

[7] Mr Ydgren presented the following Summary of Facts:

1. Mr Dolan is charged with a Serious Racing Offence under Rule 1001(k) in that he wilfully supplied false or misleading information to Stipendiary Steward, Mr S P Renault, at the Timaru HRC meeting on Sunday, 24 November 2019, in relation to the horse “Tall Poppy” that raced in, and won, Race 9, the “Laser Electrical Timaru Fillies and Mares Mobile Pace 2000m”.

2. Mr Dolan has admitted the breach of the Rule and, after receiving a copy of this Summary of Facts, has confirmed that he agrees with the contents. The Summary of Facts is based on three interviews conducted with Mr Dolan the details of which are below.

3. Following the running of Race 9 at the Timaru HRC meeting on 24 November 2019, which “Tall Poppy” won by 12 lengths in a time of 2mins 25.0 secs, Mr Dolan was called to the Stewards’ Room and asked by Mr Renault to comment on the form reversal shown by “Tall Poppy”. In its previous three starts, the horse had run 5th of 13 at Ashburton on 14 November 2019, had fallen at Addington on 25 October 2019 and run 7th of 9 at Invercargill on 5 October 2019. This interview lasted 2.5 minutes and key points from it are detailed below.

4. Mr Dolan said “Tall Poppy” was a complicated horse and capable of choking down. She had performed up to expectations in a trial at Rangiora but did not perform well at Invercargill after travelling poorly. He felt she would win at Addington on 25 October, but was badly driven and fell as a result of the driver grabbing hold of her. He said she paced terribly at Ashburton after which the blacksmith removed a corn from her foot and fitted an eggbar on her shoe. Mr Dolan said that she had a good draw today, the field was weak and she was able to get to the front and show her true ability.

5. Mr Renault then asked if she had been training good at home and Mr Dolan replied – “real good since we cut the corn out and put the egg bar on”. Mr Renault further asked if Mr Dolan had trained her any differently and Mr Dolan said no other than taking away the pain she was experiencing.

6. Later that afternoon at Timaru, Mr Dolan was spoken to again by Mr Renault about the training regime for “Tall Poppy” This interview lasted 5.5 minutes and key points from it are detailed below.

7. Mr Renault opened the conversation by asking Mr Dolan if the horse was being trained by Mitchell Kerr at Rangiora. Mr Dolan replied, “absolutely not”. He said he had taken the horse to Rangiora to change things around and had gone there a couple of times for fast work with Mr Kerr’s horses. He said the horse did remain overnight at Mr Kerr’s following its trial at Rangiora prior to Cup week, but he had then taken it home the next day.

8. To questions from Mr Renault, Mr Dolan said he would take the horse to Rangiora in the morning, work it and then return home with the horse later that day. He said at no stage has it ever stayed at Mr Kerr’s, other than the night of the trial prior to Cup week. Mr Dolan also confirmed that his existing arrangement in going to Rangiora for occasional fast work would continue.

9. Mr Renault then asked if the horse had been stabled at Mr Kerr’s property more than the allowable 7 days (after which HRNZ must be formally notified) and Mr Dolan repeated that it had been taken home each night and adding he wasn’t aware of the notification requirements should the horse had been there more than 7 days.

10. The following day (Monday 25 November 2019), Mr Ydgren visited Mr Dolan at his property at 59 Russley Road and interviewed him about matters concerning the improved performance and training of “Tall Poppy” and the conversations with Mr Renault at the Timaru races the day before. This interview lasted 11.5 minutes and key points from it are detailed below.

11. Mr Dolan reiterated what he had told Mr Renault that the improved performance was because a corn had been cut out of one of the horse’s feet. Mr Ydgren asked him about the recent training of the horse and referenced the comments made to Mr Renault about the horse working at Rangiora but then being taken back to his property. Mr Dolan said that he has possibly misled Mr Renault by saying that the horse had only been at Mr Kerr’s for a short period of time and confirmed that it had been at Mr Kerr’s property for about 14 days. He confirmed that Mr Kerr floated the horse to the Timaru races the day before and picked Mr Dolan up from his property on the way.

12. When asked why the horse had been staying at Mr Kerr’s, Mr Dolan said that, prior to Cup week, the horse had issues following its fall at Addington so he took it to Rangiora prior to the trials there as he thought it might improve the horse. Because the horse did not initially work any good, it did not race on Show Day at Addington and he decided to leave it with Mr Kerr. Mr Dolan said he went out two or three times during Cup week to work the horse and even though the horse improved it did not perform well at Ashburton on 14 November. Mr Dolan added that after that race he again went out to Mr Kerr’s property and worked the horse.

13. Mr Ydgren asked Mr Dolan if he had any concerns about the swabbing of the horse after the race yesterday and he said he had none.

14. In answering a question from Mr Ydgren about his obligations to notify a horse movement if relocated for more than 7 days, Mr Dolan said he “totally understood” the requirement. When he asked why he had not made such a notification Mr Dolan could offer no reason. He said he just didn’t bother and gave it no thought as he was still heavily involved with the horse adding – “what no one knows, won’t hurt them”.

15. Mr Ydgren asked Mr Dolan if he accepted that telling Mr Renault that the horse had only been at Mr Kerr’s for one night was not truthful and Mr Dolan replied – “it was stupid thing to say”. He said he felt he had a good rapport with the Stewards and admitted he did mislead Mr Renault and didn’t feel good about it.

16. When asked why he said what he said, Mr Dolan said he felt flustered, being in the room was daunting and he was on the back foot and felt uneasy and backed into a corner. He conceded he should have asked for a brief break and then come back and started the interview all over again.

17. Mr Dolan said he understood the position the Stewards had been placed by in by publishing misleading information in their report for the Timaru meeting about “Tall Poppy”. He added that he admitted he was not following the (horse movement) rules and understood that he had not done things correctly. He confirmed he did not back his horse and did not believe he had had any discussions with anybody else about backing it and did not know how much the owner of the horse had put on it.

18. At this point the interview was concluded.

Informant’s Penalty Submissions

[8] Mr Ydgren presented the following written submissions in relation to penalty

1. Honesty in dealing with the Stewards is a cornerstone of harness racing. It is imperative that, to ensure the efficient running of harness racing and to ensure the integrity of racing is not compromised, licenceholders are honest and cooperate with the Stewards at all times.

2. Mr Dolan has admitted making a false or misleading statement to Mr Renault on Sunday 24 November 2019 at the Timaru HRC meeting. In fact, Mr Dolan had two opportunities that afternoon to advise Mr Renault of the true situation regarding the recent training of “Tall Poppy” but chose not to do so. Whilst Mr Dolan might have felt under pressure in the Stewards’ Room, he is a very experienced licenceholder having been working in the industry for a number of years and, by his own admission, he believes he has a “good rapport” with Mr Renault. Yet, he still was not truthful when talking to Mr Renault, which means he knew what he was doing and was committed to it, which shows considerable lack of judgement by Mr Dolan.

3. It was only when Mr Ydgren interviewed Mr Dolan the day after the Timaru meeting and questioned him further on his training regime for “Tall Poppy” that he admitted he had lied to Mr Renault and that the horse had been domiciled, and was being trained at, Mr Kerr’s property. Whilst Mr Dolan was remorseful during that interview, that cannot be allowed to deflect from the fact that he lied on two occasions the previous day to Mr Renault when asked about the training of “Tall Poppy”.

4. Had he not lied to Mr Renault, Mr Dolan would still have been charged with failing to comply with the Horse Movement Regulations and, in all probability, had a small fine imposed. That now cannot be the case. The misleading information provided by Mr Dolan was included in the Stewards’ report for the meeting and published on the HRNZ website, thereby placing the Racing Integrity Unit in the position of not providing correct information to those reading the report.

5. There have been five cases in the last 8 years where Harness Code licenceholders have been charged with a breach of Rule 1001(k). All of them are different and provide little assistance to the RIU in determining what might be an appropriate penalty in this case. The fines imposed for three of those breaches ranged from $300 to $450 and were in addition to suspensions of either 3 or 4 days – all were drivers. In the other 2 cases a period of 6 months disqualification was imposed on one - an Amateur Driver - and a 4 months suspension on the other – a trainer.

6. Committee members will also be aware that the JCA Penalty Guidelines do not state a starting point penalty for a breach of this Rule as each case is fact-dependent. The penalty to be imposed must be seen to hold Mr Dolan accountable for his very deliberate actions and deter others from similarly breaching the Rule.

7. Mr Dolan has not previously breached this Rule. Whilst it might be argued that Mr Dolan should be given some credit for finally admitting the breach of the Rule, the RIU believe this mitigating factor should be given little weight, given there is the aggravating factor that he deliberately lied twice to Mr Renault within the space of a couple of hours at the Timaru races. It should also be noted that Mr Dolan admitted to Mr Ydgren that he was aware of the Horse Movement Regulations but had chosen to ignore them saying in a rather cavalier fashion – “what no one knows, won’t hurt them”. It can also be strongly argued that, had Mr Ydgren not visited Mr Dolan the day after the races, it is highly likely Mr Dolan would not have approached Mr Renault to amend his story from the day before.

8. The RIU believe this breach of the Rule by Mr Dolan justifies a fine greater than that imposed on the three drivers mentioned above. However, we also believe the imposition of a suspension or disqualification is not justified although in saying that we are not underestimating the serious nature of Mr Dolan’s actions. The maximum fine for a breach of the Rule is $10,000 [sic]. Mr Dolan has advised me of the difficulties he would be placed in if a significant fine were to be imposed. Taking that factor into account in conjunction with all the information above, it is submitted a fine of not less than $1,000 be imposed on Mr Dolan.

Respondent’s Submissions

[9] Mr Dolan said it was a combination of statements that has led him to his present position of facing this charge. It was a matter of covering up previous misleading statements rather than just one misleading statement. He had been trying to cover up his original misleading statement, he said.

[10] He explained that he does not have a lot of horse movements and only has a small team of horses racing. He accepted that he ought to have understood the Rule better. Had he made himself more aware of the requirement to notify a horse movement for longer than 7 days, he would not find himself in the position he now finds himself. He would have accepted his fault as there was nothing “skulldugerous” involved, he said, and hence his comment to Mr Ydgren that “what no one knows won’t hurt them”. He was unaware that the failure to notify involved a $50 fine and it was “no big deal”, he said. He had believed that it was a “big deal” and hence his attempts to cover it up.

[11] He admitted that he does not feel good about what he has done, because he believes that he has a good relationship with Stewards. He wants to put this matter behind him and restore that good relationship with the Stewards.

[12] He accepted that he was facing a fine but he made a plea for leniency. He is well aware of his wrongdoing, he said, and he submitted that he does not need that to be hit home with a large fine.

Reasons for Decision

[13] The Horse Movement Regulation provides as follows:

Trainers who intend campaigning their horses away from their registered stable for a period of 7 consecutive or more days must complete a Horse Movement Notification Form and send to HRNZ prior to the date of departure.

[14] A breach of that requirement is deemed to be a “minor infringement” for which a fine of $50 is prescribed under the minor infringement scheme.

[15] Mr Dolan, he tells us, was not aware of the requirement of the regulation or of the minor nature of a breach of it so, when confronted by Mr Renault at the race meeting at Timaru, he denied that TALL POPPY had been at Mr Kerr’s property for more than the maximum 7 days. Had he not denied that, he would have been fined $50 under the Minor Infringement Scheme and that would have been an end of the matter.

[16] However, for whatever reason or reasons, Mr Dolan chose to give false or misleading information to Mr Renault, when first questioned, concerning the stabling arrangements for TALL POPPY. From that point, he became committed to maintain his original position, until confronted by Mr Ydgren at his property the following day. He then confirmed to Mr Ydgren that the horse had been at Mr Kerr’s property for about 14 days.

[17] Mr Dolan admitted to Mr Ydgren that it was “stupid” on his part to tell Mr Renault that TALL POPPY had only been at Mr Kerr’s for one night.

[18] As a consequence of his original lie and then perpetuating it, Mr Dolan now finds himself charged with a serious racing offence.

[19] The concern with this particular breach is that, in reliance on Mr Dolan’s advice, Mr Renault had reported, in the Stewards’ Report for the meeting, that Mr Dolan had been transporting the mare to Rangiora Racecourse in recent weeks for fast work on a better surface in company which had helped the mare.

[20] The significance of this is clear. Members of the betting public are entitled to and do rely on information provided by the Stewards. Stewards accept the information provided by industry participants in good faith and report it, where appropriate, so that the betting public can weigh up and assess the significance of it.

[21] In this case, the Committee believes that the information which was concealed by Mr Dolan may well have been of interest to the betting public at large, to enable them to consider any benefit that may have accrued to TALL POPPY as a result of it being stabled at Mr Kerr’s for almost a fortnight. The Committee notes that TALL POPPY won the race at Timaru by a margin of 12 lengths, so it is reasonable to deduce that the mare derived some benefit from it.

[22] Notwithstanding Mr Dolan’s self-confessed naivety and his view that “what no one knows won’t hurt them”, his conduct on this occasion constitutes a serious racing offence and, indeed, wilfully supplying any false or misleading information to Stewards is always a serious matter. The integrity of harness racing demands that industry participants be “up front” at all times with Stewards and other officials.

[23] There is no evidence that Mr Dolan had any sinister motive in concealing the true situation from Mr Renault. On the one hand, it was probably a silly error of judgement on his part but, on the other hand, there could be a perception that there may have been an ulterior motive for concealing important information concerning TALL POPPY’s training regime, information that Mr Dolan was required under the Rules to report to Harness Racing New Zealand.

[24] Serious racing offences can take many forms as is apparent from rule 1001 and, obviously, some offences are more serious than others. The Committee agrees that a suspension/disqualification is not appropriate in this case and rule 1004 (7) provides for a maximum fine of $30,000. That maximum fine is, clearly, reserved for the most serious of serious racing offences, of which the present case is not one.

[25] The Penalty Guide for Judicial Committees, for the above reasons, does not provide any suggested starting point for penalty.

[26] In deciding a penalty, the Committee needs to weigh up the aggravating and mitigating factors. The relevant aggravating factor is highlighted in the Informant’s penalty submissions – Mr Dolan deliberately lied to Mr Renault on two occasions on the raceday and only admitted the deception when confronted by Mr Ydgren the following day. Against that, the only mitigating factors are Mr Dolan’s previous good record and his eventual admission of the breach.

[27] Having regard to the facts of this case, the reasons for penalty as set out above, weighing up the aggravating and mitigating factors and having regard to the need to uphold and maintain the high standards expected of those participating in the industry to ensure its integrity, it is the decision of the Committee that Mr Dolan will be fined the sum of $1,500.

Penalty

[28] Mr Dolan is fined the sum of $1,500.

Costs

[29] No order for costs was sought by the Informant and, since the hearing of the information took place on a raceday, there will be no order for costs in favour of the JCA.

R G McKenzie

Chair

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