REQUEST FOR RULINGS RIU V MR X AND MR Y - DECISION OF JUDICIAL COMMITTEE RULINGS SOUGHT BY INFORMANT - CHAIR, HON L L STEVENS QC
Created on 19 February 2019
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND X
Open Horseman
First Respondent
AND Y
Open Horseman
Second Respondent
Informations: A7517 & A7518
Judicial Committee: Hon LL Stevens QC, Chairman
Prof G Hall, Member
Appearing: Mr B Dickey and Ms E Smith for the Informant
Mr P Dale QC and Mr J Eaton QC for the First and
Second Respondents
Request for Rulings: 21 December 2018
Submissions: Informant’s submissions filed 22 January 2019, submissions by First and Second Respondents filed 5 February 2019 and Informant’s reply submissions filed 8 February 2019
Decision: 15 February 2019
DECISION OF THE JUDICIAL COMMITTEE ON RULINGS SOUGHT BY THE INFORMANT REGARDING REQUEST BY RACECOURSE INSPECTOR TO SUPPLY INFORMATION
[1] The respondents, Messrs X and Y are open horsemen in the harness racing code and have been charged together with a number of other persons, with criminal match-fixing offences. In September 2018 the Racing Integrity Unit (RIU) excluded the respondents from participating in harness racing events where betting is available. The Judicial Committee subsequently quashed the exclusions on the ground of proportionality. (Racing Integrity Unit v X and Y informations A7167 & A1716, decisions of the Judicial Committee dated 26 October 2018 (results decision) and 1 November 2018 (reasons decision). A significant aspect of the decision to quash was that, at the time of hearing, limited information was available concerning the evidence in support of the match-fixing allegations.
[2] As a consequence the Judicial Committee stated as follows:
(i) In the Results decision at [6]:
The decisions of the Racecourse Inspector were made on the basis of the fact that open horsemen [Mr X] and [Mr Y] have been charged with criminal offences and the limited information contained in the Police Summary of Facts in each case. Disclosure by the Police under the Criminal Disclosure Act 2008 is yet to be provided. Accordingly, should further relevant information become available, or if there is a material change of circumstances, the Racing Integrity Unit is granted leave to bring the application for a ruling back before the Judicial Committee for further consideration.
(ii) In the Reasons decision at [55]:
We have already noted that the criminal proceedings are at an early stage. It is possible that information may come to light during the course of criminal disclosure that might impact on the proportionality issue. Moreover, more information may come into the possession of the Racecourse Inspector which, likewise, would be relevant to proportionality.
[3] The RIU has been informed by the NZ Police involved in Operation INCA that so far two significant bundles of disclosure have been provided to both respondents and other licensed persons who have also been criminally charged. The RIU has made a formal request (the request) to the respondents pursuant to Rule 226(2)(b) of the New Zealand Rules of Harness Racing (Harness Racing Rules) seeking to be provided with copies of the information now within the knowledge or possession of the respondents arising from this disclosure.
[4] The request was declined on the basis inter alia the RIU has no “entitlement to the information requested” (Mr X) and that this is an “unusual request” (Mr Y). In each case the RIU was invited to provide legal authority to support the request.
[5] By informations A7517 and A7518, dated 21 December 2018, the RIU has sought a ruling from the Judicial Committee as to whether the respondents, Messrs X and Y, are required to comply with the requests made by a Racecourse Inspector to supply information within their knowledge or possession concerning the ongoing Police and RIU investigation into race fixing and other charges in harness racing known as Operation INCA.
[6] Given the obvious urgency in making a ruling the Judicial Committee issued a tight timetable for submissions. We are grateful to all counsel for providing comprehensive and helpful submissions within the timetable. The Judicial Committee also sought the views of counsel on whether a hearing was considered necessary. Counsel for Mr X and counsel for the RIU did not see the need for a further hearing. Counsel for Mr Y has no views either way. We are satisfied that this is an appropriate case to determine the rulings sought on the papers. Rules 4 to 7 (inclusive) of Schedule 5 of the Harness Racing Rules permit such a course.
The issue to be determined
[7] The precise rulings sought by the RIU concern whether the respondents are required to comply with a request made by a Racecourse Inspector to supply information that was provided to them as part of criminal disclosure. In the course of submissions counsel for the RIU refined the request more specifically. Counsel emphasised that receipt of such information by the Racecourse Inspector was important to enable the Racecourse Inspector to perform his duties, including undertaking a full assessment of the proportionality of any potential action he might seek to take.
[8] We record that in its Request for a Ruling the RIU sought a further ruling, namely in the event the Committee rules that the respondents are not required to comply with the RIU’s request, reviewing the decision to quash the exclusion notices. However, having considered its position further, counsel for the RIU accepted that it would not, at this stage, seek that further ruling. Rather it will consider its position following the Committee’s ruling on the first issue.
The case in favour of the provision of information
[9] Counsel for the RIU submitted that the starting point was that the respondents are required under the Harness Racing Rules to comply with a request by a Racecourse Inspector to supply any information within their knowledge or possession. As disclosure has only been made by the New Zealand Police to both X and Y under the Criminal Disclosure Act 2008, the information received by each respondent should be provided to the Racecourse Inspector in response to the request.
[10] Elaborating on this key proposition, counsel submitted that the Harness Racing Rules require the respondents both of whom are licensed open drivers, to comply with Harness Racing Rules and to comply with requests from a Racecourse Inspector. (Under Part III "General as to Licensed Persons", R 303(2): "No person or body who holds a permit or licence under these Rules ... shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter".) Rule 226(2)(b) provides that every Racecourse Inspector has the power to require any person to supply information within their knowledge or possession, in respect of any matter connected with harness racing or otherwise being investigation by the Racing Inspector. Pursuant to Rule 1001(1)(i) it is an offence not to supply any information required by a Racecourse Inspector.
[11] Counsel submitted that the request made by the Racecourse Inspector was lawfully made and was reasonable. Moreover, the Racecourse Inspector had a proper interest in receiving information in the respondents’ possession, once it had been provided to them under criminal disclosure. This is because the RIU is the body charged with managing integrity issues within harness racing.
[12] Counsel for the RIU confirmed that the RIU would not further disclose the documents or their contents to any other person, except for use in proceedings before a Judicial Committee alleging breaches of the Rules of Racing. Informations for breaches of the Harness Racing Rules have been filed against the respondents.
[13] In terms of other categories of information requested, counsel accepted that the RIU obviously is not aware of the precise nature of the material that has been provided to the respondents by way of criminal disclosure. The RIU also accepted it understands that some of the disclosure may comprise intercepted communications and as such is subject to restrictions under the Search and Surveillance Act and that there are restrictions on dealing with such information. However, counsel submitted each respondent is able lawfully to provide copies of any recordings or transcript to which he is party to the Inspector, subject to any limitations in the underlying warrant or application. Given a respondent is a party to an intercepted communication, he may consent to its release.
[14] Counsel for the RIU further accepted there may be persons involved in the communications other than Mr X and Mr Y. However counsel submitted there can be no reasonable expectation of privacy in information that is evidence of offending in this context, where an Inspector is entitled to require information from licensed horsemen. The RIU has sent requests to all Operation INCA defendants to provide copies of their criminal disclosure and considers they are required to comply with the requests, so the privacy interests of those defendants cannot be a barrier to the respondents providing the information to the Inspector. Each respondent would be free to relay comments made by another person to them (and defendants in criminal proceedings where a large number of persons are implicated often do so).
[15] Importantly counsel for the RIU referred to the situation where criminal disclosure contained intercepted communications that do not include the respondents (but have been disclosed to one or both of them because they are in some way implicated by the communications). Counsel acknowledged that the respondents may not be able lawfully to provide those communications to it as they are not parties and cannot consent to the provision of another person’s communications.
[16] Finally, counsel for the RIU submitted that any information not obtained pursuant to a surveillance device warrant may be disclosed to the Inspector without limitation. This would include, for example, any other statements made by the respondents or interviews conducted between the respondents and police, witness statements, and betting information.
The responses by Mr X and Mr Y
[17] The requests by the Racecourse Inspector were opposed by Mr X and Mr Y. Because the submissions on behalf of Mr Y (made by Mr Eaton QC) were adopted by Mr Dale QC on behalf of Mr X, we will deal first with the response by Mr Y.
[18] In summary Mr Y submitted that the disclosure request is unreasonable and accordingly the respondents are not obliged to comply. The unreasonableness argument advanced on the basis of s 21 of the New Zealand Bill of Rights Act 1990, as a result of which the respondents are protected against unreasonable search and seizure. A secondary submission was made relying on s 179 of the Search and Surveillance Act 2012. The submission was that information obtained through a surveillance device warrant is not disclosable. It is said that it is an offence to disclose information obtained through a surveillance device warrant.
[19] Counsel for Mr Y submitted the request of the Racecourse Inspector has been expressed in the very broadest of terms. Such a broad-based request is simply not reasonable. Accordingly the power invested in a Racecourse Inspector by Rule 226(2)(b) is being abused. The Racecourse Inspector is seeking to use that power to compel a defendant in a criminal proceeding to provide an unedited copy of all disclosure received by the police. Counsel submitted much material received by a defendant in the context of a criminal investigation is not necessarily evidence in support of any charges but rather information collated during the course of a criminal investigation. This would conflate the process of disclosure in a criminal prosecution with evidence.
[20] Counsel also submitted that the request for information amounts to an unlawful fishing expedition. The Racecourse Inspector must be obliged to identify particular information sought and to justify that specific request by reference to the Harness Racing Rules.
[21] Finally, counsel for Mr Y submitted that the Racecourse Inspector did not have a proper interest in receiving the disclosure requested. This proposition applied particularly where, as the major submission argues, the request is unreasonable.
[22] Counsel for Mr X emphasised that the first respondent objected to any disclosure being provided to the Racecourse Inspector. Mr Dale also raised concerns as to how the matter had been brought back to the Judicial Committee and, inferentially, challenged the scope of the issue provision on which the RIU relied. Finally Mr Dale referred to certain “concerns” and impacts on the criminal proceedings and on the part of Mr X if disclosure were required.
Our analysis
[23] We deal first with Mr Dale’s procedural point that the RIU’s request for a Ruling is outside the grant of leave. There is nothing in it. In our Results Decision cited at [2] above we expressly granted leave “should further relevant information become available, or if there is a material change in circumstances”.
[24] Important contextually is the fact that when the Rulings on the driving suspensions of Mr X and Mr Y were heard in October 2018 the criminal prosecutions were at a very early stage. There was considerable discussion at the hearing at the paucity of information available at that stage of the criminal investigations. Criminal charges had only recently before that been filed and criminal disclosure had not been given by the NZ Police under the Criminal Disclosure Act. We heard preliminary submissions from counsel for all parties on the absence of information of the type that would, inevitably, become available under criminal disclosure. It was submitted by all parties that a ruling on the suspension issue should be made without delay, despite the fact that limited information about the criminal charges was then available, and despite the fact that greater information about the criminal charges against both respondents could be highly relevant to the proportionality issue.
[25] It was for that reason that leave was granted in broad terms in both the Results Decision and the Reasons Decision. We accept that the advent of the provision of information to both respondents under criminal disclosure is a material change of circumstances, as is the fact that further criminal charges have been laid by the NZ Police against Mr X and Mr Y. In our Reasons Decision we addressed the possibility of more information becoming available that may impact on the proportionality assessment.
[26] Even if we had not granted leave, it would still have been open to the Racecourse Inspector to consider exercising his powers under Rule 226(2)(b) to request information from the respondents concerning the ongoing investigation under the Harness Racing Rules. Had such a course been followed, as a separate and stand-alone step, and had one or more of the respondents refused to reply, it would still have been open to the RIU to file an Information seeking a ruling – irrespective of the grant of leave, or its scope. The RIU has ongoing responsibilities to investigate and deal with integrity issues.
[27] We accept, as does the RIU, that the New Zealand Bill of Rights Act applies and that requests for information made pursuant to Rule 226(2)(b) of the Harness Racing Rules must be reasonable. We conclude that, in the particular circumstances of this case, the request by the Racecourse Inspector was reasonable. Neither has the Racecourse Inspector embarked on an “unlawful fishing expedition”. The requests were specifically related to criminal disclosure and on the criminal charges against Mr X and Mr Y.
[28] We do not accept that the request for information by the Racecourse Inspector was too broad. Nor do we accept that the request was bound to identify specific information from within the information made available in criminal disclosure in order to be reasonable. Reference to particular documents by the Racecourse Inspector would not have been possible because the RIU says (and we accept) that it is not aware of the material that has been disclosed to the respondents. We are satisfied that the Racecourse Inspector’s request was confined as far as it could be, to information relevant to the suspected race-fixing offences. Criminal disclosure must, by definition, be relevant to the allegations. The Criminal Disclosure Act provides that only “relevant” information need be disclosed. Moreover the Courts have consistently interpreted relevance in the light of s 7(3) if the Evidence Act 2006, which provides that evidence “is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.
[29] We do not accept that the submissions on behalf of Mr X and Mr Y that they are not required to provide any of the criminal disclosure information to the Racecourse Inspector pursuant to his request under Rule 226(2)(b). We consider the information requested is plainly relevant to suspected race-fixing and therefore to the RIU’s core functions of managing integrity issues within harness racing and of investigating and prosecuting breaches of the Harness Racing Rules.
[30] The provisions of s 179 of the Search and Surveillance Act do not assist the respondents. The terms of this section apply to the persons who acquire information through a search and surveillance power. If such information about the person(s) the subject of a power is made available to the person who has themselves been the subject of the search and surveillance power (for example as part of criminal disclosure) it cannot lie within the mouth of such person to seek to use the limitation to restrict the provision about himself to a person with a legitimate interest. We are satisfied that a Racecourse Inspector investigating matters under the Racing Act and the Harness Racing Rules has such a legitimate interest. The RIU is responsible for investigating and prosecuting breaches under the Harness Racing Rules. It has a genuine interest in receiving the disclosure, in order to perform those functions. Without access to this type of information, the RIU’s ability to investigate will be impeded. Given the seriousness of the charged allegations, that would be detrimental to the interests of racing and at odds with the objectives of the sections of the Racing act 2003.
[31] A practical matter raised by Mr Dale for Mr X is that it would be too difficult to identify which parts of the disclosure relate to him and which parts relate to other persons. We are satisfied that if there are relevant communications or other documents that involve the respondents, they should provide copies to the RIU. We fully anticipate that counsel for both respondents will have reviewed or will soon carefully review the disclosure, and would therefore be in a position to organise it so as to provide only the appropriate parts. As counsel for the RIU has accepted, we agree that in respect of information or communications that do not involve the respondents there may be privacy interests that would prevent the disclosure being provided to it.
[32] We deal with two final points. The first is that requiring the respondents to provide copies of the criminal disclosure to the RIU may affect their rights in the criminal proceedings. For example, Mr X suggested that provision of disclosure may have the effect of requiring him to respond to the allegations or possible inferences to be drawn, which could in turn jeopardise his right to silence in respect of the criminal proceeding. A second related point is that the RIU should conduct its own investigation, rather than seeking the Police disclosure, or await the conclusion of the criminal proceedings against them before proceeding with its own disciplinary action.
[33] We agree with counsel for the RIU that, while it is often the case that disciplinary proceedings will occur after a finding of criminal responsibility, there is no rule requiring that approach. We consider that the potential impact on the integrity of the harness racing industry make it unrealistic for the RIU to take no action until the criminal proceeding, which the respondents have indicated may be lengthy, has been disposed of. We accept that this is not a case where the RIU or the NZ Police would gain some unfair tactical advantage by the RIU proceeding with disciplinary action prior to disposal of the criminal matters. The RIU merely requires the respondents’ disclosure in order to perform its functions and to meet the objectives of the Racing Act.
Rulings
[34] We are satisfied that the requests made by the Racecourse Inspector to the respondents to provide information emanating from criminal disclosure are both lawful and reasonable. Any disclosure by the respondents should take into account the limitations expressed in the above reasons, for example, regarding any information that does not relate to the respondents themselves but concerns purely third parties, as discussed at [31] above.
Hon LL Stevens QC Professor G Hall
Chair Member
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