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Non Raceday Inquiry HRNZ v B 11 March 2010 - decision



1001.1.v.i
1103.4.c
1101.3

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER     of the New Zealand Rules of Harness Racing

AND 

IN THE MATTER  of Information No. 67390

BETWEEN BARRY ALEXANDER KITTO, Racecourse Inspector for Harness Racing New Zealand,

   Informant

AND B

   Defendant

DATE OF HEARING: Thursday, 4 March 2010

VENUE: Judicial Room, Addington Raceway, Christchurch

JUDICIAL COMMITTEE: R G McKenzie (Chairman),  P J Rosanowski

DATE OF DECISION:  11 March 2010
 

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY


The Charge
[1] Information No. 67390 was filed by Racecourse Inspector, Mr B A Kitto, against B alleging a breach of Rule 1001 (1) (v) (i) of the New Zealand Rules of Harness Racing in that B:
 “On the 10th day of November 2009, at Christchurch, did an act, namely, throw a “Biro Pen” onto the race track into the field of Race 10, The Christchurch Casino New Zealand Trotting Cup, at a race meeting held by the New Zealand Metropolitan Trotting Club at Addington Raceway, which a Judicial Committee deems detrimental to the interests of Harness Racing”.

 



BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER     of the New Zealand Rules              of Harness Racing

AND 

IN THE MATTER  of Information No. 67390

BETWEEN BARRY ALEXANDER KITTO, Racecourse Inspector for Harness Racing New Zealand,

   Informant

AND B

   Defendant

DATE OF HEARING: Thursday, 4 March 2010

VENUE: Judicial Room, Addington Raceway, Christchurch

JUDICIAL COMMITTEE: R G McKenzie (Chairman),  P J Rosanowski

DATE OF DECISION:  11 March 2010
 

RESERVED DECISION OF JUDICIAL COMMITTEE ON PENALTY


The Charge
[1] Information No. 67390 was filed by Racecourse Inspector, Mr B A Kitto, against B alleging a breach of Rule 1001 (1) (v) (i) of the New Zealand Rules of Harness Racing in that B:
 “On the 10th day of November 2009, at Christchurch, did an act, namely, throw a “Biro Pen” onto the race track into the field of Race 10, The Christchurch Casino New Zealand Trotting Cup, at a race meeting held by the New Zealand Metropolitan Trotting Club at Addington Raceway, which a Judicial Committee deems detrimental to the interests of Harness Racing”.

[2] Mr Kitto produced a letter from Mr Edward Rennell, General Manager of Harness Racing New Zealand, giving his permission, pursuant to Rule 1103 (4) (c), to the filing of the information.

[3] The Defendant was present at the hearing of the information and he indicated that he admitted the breach.

[4] On that basis, the charge was found proved and the hearing proceeded in relation to penalty.

The Rule
[5] Rule 1001 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:
 (v)    either by himself or in conjunction with any person: 
                (i)    does or permits or suffers to be done any act which a Judicial Committee deems 
                       fraudulent, corrupt or detrimental to the interests of harness racing.

The Penalty Provision
[6] The penalty provision is contained in Rule 1001 which provides as follows:
(2) Every person who commits a serious racing offence shall be liable to the following penalties:
        (a)    a fine not exceeding $25,000; 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.  

The Facts
[7] Mr Kitto presented a Statement of Facts, which may be summarised as follows:
(1) B attended Cup Day at Addington Raceway on 10 November 2009. He was in a corporate area on the inside of the track near the finishing post.
(2) He watched the running of the New Zealand Cup, with a friend, from a location in front of the semaphore board, inside the greyhound track, about 40 metres from the finishing post.
(3) He was holding a silver/gold ball point pen in his right hand. Near the end of the race, he was waving his arm vigorously in the air, in the excitement of the moment, encouraging the horses on. He threw the pen over and into the field of horses as they travelled past him.
(4) The pen landed about 12 metres from the pylons on to the track, approximately 25 metres from the finishing post.
(5) It was by good luck that the pen did not strike any horseman, horse or sulky. The pen weighed 17-18 grams. A standard “Bic” ballpoint pen weighs 8 grams.
(6) In explanation, B said that he intended to drop the pen behind his shoulder on to the ground. He explained to the friend with whom he watched the race that he did not intend to do it and it was a total accident.
(7) Mr Kitto had video replays of the closing stages of the Race shown to the Committee in all of which the flight of the pen was visible. In addition, its final resting place on the track could be seen.
(8) B was spoken to by a security guard and was escorted back to the corporate area.  

[8] Mr Kitto told the Committee that, as far as could be established, the pen had landed on the track amongst the runners, somewhere behind the first six horses home.

The Defendant’s Statement
[8] B made a statement to Mr Kitto, regarding the incident, on 17 November 2009. A transcript of that interview was produced to the Committee.

[9] In his statement, B said that he had travelled to the course by bus and had spent the day in a corporate tent. He admitted to having consumed approximately 10 330 mls bottles of “Steinlager”. He described his condition as “merry but not intoxicated”.

[10] He was excited as the horses came past for the final time. He went on to say:
 As they went past me I was basically jokingly making out I had lost money on the race and foolishly drew a gold/silver colour pen from my right hand pocket with my right hand. I meant to pretend to throw the pen by raising my hand behind my back in a throwing motion. I intended to drop the pen behind my back, but insinuating a throw. I had absolutely no intention of throwing the pen at the horses or on the track. It was not supposed to go past my head. I did make a full throwing motion but failed to release the pen. The pen went towards the horses, I immediately turned to my friend and did not see where the pen landed.  

Penalty Submissions by the Informant
[11] Mr Kitto said that B did not own any standardbred horse and was not a licence holder.

[12] The Christchurch Casino New Zealand Trotting Cup is the most prestigious race on the harness racing calendar.

[13] The consequential effect if the pen had struck a horse, sulky or horseman could have been “profound”. Even if accidental, it was reckless and such behaviour does not maintain integrity or public confidence in harness racing. B’s actions could have had “catastrophic” consequences.

[14] The consumption of alcohol on the day clearly affected B’s ability to avoid such reckless or accidental actions from occurring.

[15] It is accepted that B deeply regrets what happened and that his actions were not intentional but reckless in nature.

[16] B’s actions attracted widespread publicity which was detrimental and negative to harness racing and had the effect of detracting from what was, otherwise, a great race.

[17] It was a mitigating factor that B had contacted the authorities and had made himself available to be interviewed the same day. He admitted the breach of the Rule at the first available opportunity.

[18] He has been cooperative at all times and has not denied his responsibility. The incident had had a profound effect on him and, when interviewed, he was genuinely “mortified” at what he had done.

[19] Mr Kitto stated that Harness Racing New Zealand was seeking a penalty of 2 years’ disqualification.

Penalty Submissions by the Defendant
[20] B presented a written statement to the Committee (set out in full hereunder).

[21] “I would like to stress that there was no malice or intent to cause damage to any individual,  animal or property during the running of the New Zealand Trotting Club on Tuesday 10th day of November 2009.

 As a consequence of a prank that went horribly wrong, I have suffered considerable remorse, guilt and fear of losing my job due to this act of drunken stupidity. The incident has caused me a great amount of stress.

 Since the day of this unfortunate incident, I have had to dig deep and ask myself questions as to why did this happen. The result is that alcohol was the main contributing factor, and I have put measures in place in my life in the hope that I will never be in this position again.

 I would apologise to Harness Racing New Zealand for any inconvenience and bad publicity this may have caused them, and I am truly sorry for my actions.”

[22] B also produced a reference from his employer.

Application for Non-Publication of Name
[23] The South Island Manager of B’s employer was present at the hearing and made application to the Committee that the name of the Defendant’s employer be not published. He also made a similar application in respect of the Defendant on the grounds that, if the Defendant’s name were to be published, he would almost inevitably be connected to this employer.

[24] The Committee is aware that the discretion to suppress or not publish a Defendant’s name is used sparingly in the Courts and suppression or non-publication is almost without precedent in racing jurisdictions.

[25] The New Zealand Rules of Harness Racing do not contain a specific provision empowering a Judicial Committee to order non-publication of a Defendant’s name. However, pursuant to Rule 1101 (3), a Judicial Committee may determine its procedure as it thinks fit.

[26] In the present case, the Committee is satisfied that publication of the Defendant’s name may result in undue hardship to the Defendant’s employer. It is of significance that the Defendant is not a licence-holder and has no direct connection with or involvement in harness racing. Mr Kitto did not oppose the application that the Defendant’s name be not published.

Decision on Penalty
[27] The Penalty Guide published by the Judicial Control Authority for Racing for the guidance of Judicial Committees suggests a penalty of a 12 months’ suspension as a starting point for a breach of the Rule, but goes on to state that “the penalty range for this breach is wide given the potential scope of circumstances that might be found to be detrimental to the interests of harness racing”.

[28] The facts of the present case are a good example of the scope of circumstances that might be detrimental to the interests of harness racing. B’s actions were clearly so detrimental, as was evidenced by the media coverage which followed, including coverage on television news bulletins. Such exposure is, without doubt, detrimental to the interests of harness racing.     

[29] The Committee is unaware of any similar fact circumstances to the present case that have been the subject of a charge under the Rule. Therefore, there is no previous case that can assist it in determining an appropriate penalty. The facts situation of the present case is a true “one-off”.

[30] In arriving at penalty, the Committee has taken into account the following as mitigating factors.

[31] The fact that the Defendant owned up to the authorities upon realising the controversy that had followed his actions. Further, he readily admitted the stupidity of his actions and admitted the charge that followed at the first opportunity.

[32] It was apparent to the Committee that the Defendant was very remorseful and he has apologised for his actions which, he admitted, were the result of his having consumed an excessive amount of alcohol during the day. The Committee accepts that alcohol was the likely explanation for his behaviour which, it seems, was entirely out of character for him.

[33] While the Committee finds parts of the Defendant’s explanation to be not entirely credible, there is nothing to suggest that his actions were deliberate or that he intended to inflict any harm on any horse or horseman. Had that been the case, then the Defendant would be facing a much harsher penalty. The Committee does not wish to minimise the Defendant’s conduct but takes into account that no actual harm ensued. 

[34] The Committee is satisfied that the appropriate penalty is a period of disqualification.

[35] The full effect of a disqualification is set out fully in the Rules but, generally speaking, disqualification not only prevents the Defendant from undertaking any licensed activities but (more importantly in this case) also prohibits entry to racecourses and prohibits participation in the harness racing industry for the term of the disqualification.

[36] The Defendant will be disqualified for a period of two (2) years from the date of this decision.

Costs
[37] Mr Kitto did not seek costs in favour of Harness Racing New Zealand. However, the Defendant is ordered to pay costs in the sum of $350 to the Judicial Control Authority for Racing, being the hearing costs of that body.
    


R G McKenzie                  P J Rosanowski
CHAIRMAN                      PANELLIST
 

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