http://www.jca.org.nz/non-race-day-hearings/non-raceday-inquiry-riu-v-n-r-mcgrath-decision-dated-10-february-2020-chair-hon-j-w-gendall-qc
Non Raceday Inquiry RIU v N R McGrath - Decision dated 10 February 2020 - Chair, Hon J W Gendall QC
Created on 12 February 2020
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
Information Numbers: A7519 and A7520
In the matter of the New Zealand Rules of
Harness Racing
BETWEEN
RACING INTEGRITY UNIT
Informant
AND
NIGEL RAYMOND MCGRATH
Licensed Driver and Trainer
Respondent
Inquiry held at Addington Raceway, Christchurch on 16 December 2019 and 29 January 2020
Judicial Committee:
Hon J W Gendall QC -Chair
Mr D Anderson - Member
Present:
Mr N Grimstone as Informant
Mr B H Dickie and Ms E Smith - Counsel for the Informant
Mr N R McGrath as Respondent
Mr P B H Hall and Mr Cooke - Counsel for the Respondent
There were present on 16 December 2019 11 other persons from the Harness Racing Industry in various capacities whether as members of the RIU, witnesses, supporters of the Respondent, press representatives.
At the conclusion of the two day hearing we reserved our decision and now deliver it in writing.
(1) Mr McGrath who held a Public Trainers Licence and an Open Horseman’s Licence under the Rules of Harness Racing. The RIU brought two charges against him, the second being in the alternative.
He was charged:
(a) First, by Information A7519 that on 31st March 2018 in Christchurch, at Addington Raceway, in race 11 committed an act detrimental to the interests of Harness Racing in that he planned and did drive his horse, STAR COMMANDER, deliberately in a manner which would assist or favour another runner in that race, namely, SHERIFF. (rule 1001(1)(V)(I)).
Rule 1001(1)(v)(i) provides that:
Every person commits a serious racing offence within the meaning of these Rules, who in New Zealand or in any other country .
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.
(b) ALTERNATIVELY, by information A7520 that on 31st March 2018 in Christchurch at Addington Raceway in Race 11 drove STAR COMMANDER improperly, in that he planned to assist another runner in that race, namely SHERIFF, and did deliberately assist or favour that runner.
Rule 869(3)(f) provides that: No horseman in any race shall drive improperly
The penalty provisions for each charge are contained in Rule 1001(2), for serious racing offences, and Rule 1003(1) for improper driving, but it is not necessary to set these out now.
(2) After the first full day’s hearing of the charges Mr McGrath changed his plea to the alternative charge of improper driving to one of guilty and the RIU elected to accept that plea. As a consequence, the already lengthy hearing and inquiry ended and the Committee after deliberations imposed a penalty to which we return at para (22).
BACKGROUND AND PRELIMINARY ISSUES
(3) Because of the nature and length of the proceedings it is helpful if we summarise some matters.
(4) The Respondent trained several horses for the connections of the talented horse SHERIFF. One of those was a limited liability company of which “A” (and we suppress his actual identity) was manager and he was regarded by the Respondent and treated by him as an owner. Mr McGrath also trained the horse STAR COMMANDER of which his family were primary owners. Both horses were to compete in Race 11 at Addington on 31st March 2018, which was won easily by SHERIFF with STAR COMMANDER being unplaced, driven by Mr McGrath. The raceday Stipendiary Stewards were concerned over the manner in which the he drove STAR COMMANDER, and he was interviewed shortly after the race and asked to explain the reasons why his horse, STAR COMMANDER, shifted ground outwards on the final bend in what appeared to be an attempt to give SHERIFF, running just behind him, an easier passage in the home straight. The Respondent said his horse shifted out under pressure but said that he had not intended this to happen. The Inquiry was adjourned until the next week and it was elected that no charges follow but Mr McGrath was advised that in future it was expected that he drive in a more competitive and controlled manner than he had done in this race.
(5) Unbeknown at that time to the Stewards or Inspectors of Harness Racing and the RIU, a police operation pursuant to an Interception Warrant issued by a High Court Judge, had, amongst other things, revealed telephone conversations between Mr McGrath and “A” on 29 March 2018 (first from “A” to the Respondent) and on 30 March 2018 (from the Respondent to “A") and 31 March 2018 (from the Respondent to “A”). The Respondent then faced a criminal charge in the Christchurch District Court – we are told with others - which eventually was resolved by acceptance by the prosecution and with the consent of Mr McGrath and his lawyer, that the tapes and transcripts of such conversations be given to the Harness Racing Authority so that it might deal with any professional conduct matters within the Code/Industry. So, as a result the police offered no evidence against Mr McGrath in Court. For completeness we add that he and his lawyers already had those transcripts and tapes.
Preliminary Arguments
(6) We record some of the extensive arguments presented to illustrate the time that the RIU spent in the early stages of the hearings before us, and in deference to Counsels “full arguments”.
(7) Mr Hall QC on behalf of Mr McGrath submitted that the audio and transcript of the conversation s between “A” and Mr McGrath could not be admitted in evidence in the disciplinary proceedings. He said the Search and Surveillance Act 2012 prevented such material as being used and it was unlawful to do so. Very detailed written submissions were received be the Committee in advance of the hearing arguing, in summary, including the contention that the consent of the Respondent to the material being given to the RIU was an "unlawful bargain to stifle prosecution": the 2012 Act prevented the intercepted material being used in the JCA proceedings; the Act required that the material be destroyed and that had not occurred. Detailed submissions in reply came from Counsel for the RIU. We accepted those submissions as valid and prevailed.
(8) Mr McGrath was lawfully able to release the communications, to which he was a party, to the RIU. That has been recognised in the RIU v X & Y proceedings, the decision of the Chair Justice LL Stevens QC to which we were referred. Other judicial authorities were cited to us, but detailed discussion is not necessary, as in our view the position was clear, and they were distinguishable.
(9) The consent of Mr McGrath and his lawyer, followed in tandem with his agreeing with the Crown to end the criminal proceedings that had commenced, in our view meant that it is disingenuous and opportunistic to later claim his agreement was unlawful, so as to seek a benefit of exclusion of the material, when knowingly taking the benefit from it (ending of prosecution) as a party.
(10) It was not dissimilar to some situations where professional persons (eg lawyers, doctors) may face (and often do face) prosecution for misconduct but the law enforcement agency determines that it is preferable for the disciplinary mechanism of the profession to deal with the matter and accordingly the information held by the police, SFO, tax, state funding agencies enquiries etc is given to the professional body.
(11) The destruction of the material is only required of the law enforcement agency, and Mr McGrath and his lawyer held it and did not and had not destroyed it.
The Respondent has the material himself. He could have been required by summons issued under the Rules to attend on the Committee and produce the documents he has and would have committed an offence against the rules if he refused. But he has not done so – rather he consented to it being given. So for Counsel to intricately argue that under the Rules of Harness Racing to which he has agreed to be bound that he does not have to obey some Rules to which he now does not agree, is opportunistic and misinformed.
(12) For completeness we make it clear that the Respondent’s position is that there was nothing untoward in the conversations. We then concluded, in addition, that it was later open to him to give evidence of what he and “A” said at times and use the transcript as an aid to his memory, and elaborate on its meaning, or what was his meaning. Given that he later pleaded guilty to the alternative charge and did not give evidence this did not occur.
(13) We ruled that the audio tape and transcripts were admissible and could be used by the Informant as well as Mr McGrath in the proceedings.
(14) Lastly Mr Hall QC also signalled his objection to witnesses who were to give "expert opinion" evidence. In particular he referred to Mr Basil Payne described as a betting analyst, and Mr Nigel McIntyre, General Manager of Stewards. He argued that both are employed by RIU and could not be seen to be objective. and could not give opinions as to another’s (that is, Mr McGrath’s) intent.
(15) As is well known by in judicial proceedings in the Courts, an expert may give opinion evidence on relevant issues provided it is with the ambit or area of the witness’s expertise, provided the witness is qualified as an expert in that particular area. As with the evidence of any witness the Tribunal of fact can accept or not or reject all or some part, of that evidence. The expert naturally cannot, or should not, express an opinion as to the intent of another as this is purely for the trier of fact to decide based upon reasonable and logical inferences, if any, that it can draw from the proven facts. We ruled that the two witnesses, if they are properly qualified as experts in their particular field, may give evidence of the opinion in that field, but not as to opinion of another’s intent. We also ruled that the same qualification applied to any witnesses called by the Respondent. As it developed, we received on behalf of the Respondent a considerable number of written statements from drivers and trainers as to the opinion on factual matters, but after the guilty plea no formal evidence was necessary. But we did hear evidence from RIU personnel with extensive expertise as Stipendiary Stewards, who were subject to lengthy cross examination by Mr Hall.
(16) Prior to the evidence commencing we made Orders excluding attendance of any witness, except Mr N Grimstone, RIU Inspector in charge of case. We further ordered that, as a member of the media was present, there be no publication of any evidence or submission other than the nature of the charges, the name of Mr McGrath and that he was defending the charges. This suppression order is now varied as a result of this decision. There can be publication of the name of Mr McGrath, the charges he faced, the evidence already given, the plea, the penalty and costs orders and this reasoning decision. Publication of the name of “A” remains prohibited (and we were told the Court ordered this anyway).
THE FACTS UPON WHICH PENALTY WAS IMPOSED
(17) Often when a Defendant enters a guilty plea a Tribunal or Court sentences on the basis of the Prosecution Summary of Facts unless some particular fact is disputed in which case a “disputed facts” hearing is held. In this inquiry we have had the advantage of hearing evidence from RIU witnesses, Mr N Ydgren, Chief Stipendiary Steward, Mr N McIntyre, General Manager of Stewards for RIU, as well as seeing the detailed films from various angles of the race, the intercepted audio tapes and transcripts, and the wagering records of Mr “A” on the horse SHERIFF. And Mr Hall QC did not submit to us that he needed to have a disputed facts hearing, although of course he did not accept certain opinions and conclusions witnesses sought to draw from those facts.
(18) A summary of the essential facts, as we find them to be, follows:
(a) The Race: STAR COMMANDER drew barrier 3 and SHERIFF barrier 5. Shortly after the start, when the horse from the outside gate, EAMON MAGUIRE, began very quickly and crossed the field, Mr McGrath was seen to be looking to his outside and we accepted the evidence that he was only concentrating on the runner SHERIFF and not as suggested other runners. He then encourages STAR COMMANDER to go forward whilst looking around so as to be placed “facing the breeze” and afford SHERIFF to move from a 3 wide line to the favourable 1x1 position with perfect cover during the race. Racing around the first bend Mr McGrath looks behind him on two occasions in the direction of SHERIFF which had settled perfectly behind. We do not accept the suggestion made by Counsel that it was permissible to look behind for “safety reasons before crossing another horse” as STAR COMMANDER was not crossing but racing outside the leader. Mr McGrath is seen to look behind at the 1500 metre point and again approaching the home turn, in total about three times. The total number of times he looked behind was 11 times and the compelling inference we draw that this was to see SHERIFF.
(b) At about the 300 metre point Mc McGrath allows STAR COMMANDER to shift out and drift so as to become 3 wide allowing a clear gap or channel for SHERIFF to gain the benefit or take advantage of. When asked after the race to explain this “unusual movement” he said to Stewards at the time that his movement was because the horse was tiring but we accepted the evidence of Mr McIntyre that there was no effort shown by Mr McGrath to keep the horse running straight, and apply any pressure to its inside.
(c) As it happened SHERIFF did not to make use of the running line presented to it because it was able to avail itself of another gap created by a tiring horse on the inside. Clearly SHERIFF was the superior horse and won easily, but that fact and the fact that its driver did not have to avail himself of the clear passage created by Mr McGrath’s moving out, is not material to whether the charge of improper driving was established and to which the guilty plea was entered.
(19) We have had to ask ourselves why would Mr McGrath drive his horse in an improper manner in breach the rules? He is a very experienced trainer and driver (although has less drive now than in the past) and cannot be regarded as a learner, or incompetent, or careless. Mr Hall QC in his submissions on penalty said he changed his plea to guilty because the offence of improper driving was one of “Strict Liability” so as not to require any intention on the driver’s part. We do not accept that as correct. There does not have to be corrupt intent but if the improper driving is not deliberate or intentional, or just mistaken, then it is incompetent driving. “Improper” means incorrect and not in accordance with accepted norms of behaviour and established recognised expectations of how a person should act in like circumstances. An act of driving becomes improper (rather can negligent, incompetent, careless) when the act of driving is intentional, and all the evidence and his plea satisfies us that the cumulative and total circumstances of all his actions comprised improper driving. His actions provided significant benefits to SHERIFF, and that it may not have mattered as it was the very hot favourite and superior horse in the race, it does not lessen the offence of Mr McGrath of improper driving. Those punters who may have wagered on STAR COMMANDER for a place or in an exotic bet such as place 6 were entitled to see it properly driven.
(20) We do not need to dwell at any length on the intercepted conversations between Mr McGrath and Mr “A” given how the matter has been resolved, but we make some brief observations. Of course, as is common practice, it is very usual for a trainer to discuss with an owner how his horse may be driven and race tactics and chances before a race. But this does not permit a driver trainer to advise or discuss how his other horse in the race, which he will be driving, will likely to be driven or its tactics. That is especially where the owner is told, as here “don’t worry about STAR COMMANDER” and then “STAR COMMANDER won’t get in SHERIFF’s way”. It is abundantly clear the Mr “A” believed that STAR COMMANDER was unlikely to finish in a place, because as a huge punter he invested overall $27,252on bets on that race to receive winnings of $37,057, with every one of the 19 bets in the race (win, multies, quaddies, trebles, double) on SHERIFF, and none it appears from the betting figures mention STAR COMMANDER, although it may have been included in a first 4 bet for a small ½ unit to run a place). An illustration of a punter’s perception of the drive might be seen from Mr “A”s call to Mr McGrath after the race on 31 March 2018 where he recounts the view of his betting associate “B” who is reported to have said the impressive thing was “getting the one-one” and “Nigel burning other horse”. Whether others, including “B” may have agreed that is a view or perception that many big punters may have shared.
(21) We can attribute the actions of improper driving on this occasion to complete stupidity and very unwise actions as the admitted charge does not involve deliberate dishonesty. But, generally speaking, if there is driving in races, where a stable or trainer has more than one horse, and the true competition required of each horse is SEEN to be compromised by the manner of driving to secure or result an advantage to another, then the integrity of the sport is harmed, and it is detrimental to its image and confidence the community ought have in the code. (There is an oblique reference by Mr McGrath in one intercepted call that some practice said to be team driving might require a (legitimate) typical drive of SHERIFF in a later race so as to “stop X ruling the roost”). We would expect Stipendiary Stewards to vigilantly police improper driving, whilst still recognising that all competitors are driven to their best advantage.
PENALTY
(22) After hearing submissions on behalf of the RIU and Mr McGrath following the guilty plea, we imposed a suspension of Mr McGrath’s Drivers Licence for a period of six months to end at the completion of racing on 31 July 2020. As he now only has limited drives this does not provide the same sting it would if he drove regularly. But other drivers must be deterred from improper driving and if it occurs, suspensions of some length are on the cards. We have taken into account Mr McGrath’s good record apart from a prohibited substance breach (as a trainer, long years ago), his personal circumstances, as mitigating factors. We would have imposed, in addition a significant fine, but we have been mindful of the financial impact the costs orders – which had to follow will have on him as the proceedings have been, from inception of the charge, protracted and expensive to him and the RIU.
COSTS
(23) We invited submissions as to costs and these have now been received in writing for which we thank Counsel. Counsel for the RIU have advised that, not including travel costs from Auckland or the costs of the RIU internal investigation, witness expenses, travel and hearing expenses, the costs incurred (which the RIU will need to pay) total $19,911.25 inclusive of GST. Counsel referred to a general guide as 60% of actual costs being usually awarded. But costs orders are always discretionary as is the level.
(24) Mr Hall QC has submitted that the claim is “massive” and 70 hours work appears he says “excessive”, queries the need for two Counsel; emphasises that costs ought not be a “de facto fine”; and says any costs orders fall on his family. He submits that 30% of what is claimed is sufficient.
(25) Given the length of time from commencement of the investigation after referral from Crown Counsel, the vigorous challenge mounted to the proceedings, the extensive preliminary legal arguments, the detailed preparation undertaken and a two day attendance in Christchurch by Senior Counsel (and accept that Junior was appropriate) an assessment of 70 hours is not unreasonable. Nor is the figure of $19,911.25 excessive as an indemnity figure. The guilty plea could have come at the very beginning of the process and saved a huge amount. We do not see a costs award in this case as being a de facto fine and do not make an award with that in mind. But as we have said, we did not impose a fine because we were cognisant of the impact a costs order would likely have.
(26) We have reached the view that an order that represents 50 % of the RIU claimed costs, is just and required to recompense in some way the burden that falls on the code and industry as a whole. Accordingly, we order pursuant to Rule 29 of the 5th Schedule to the Rules of Harness Racing, that Mr McGrath pay to the RIU the sum of $9,500 by way of costs. In addition, he is ordered to pay to the JCA a nominal sum of $2,000 costs (towards some of the costs actually incurred). The total is therefore $11,500.
SUMMARY OF OUTCOME
(a) Mr McGrath, in accordance with his plea is guilty of improper driving on Information A7520 in breach of Rule 869(3)(f).
(b) He is suspended from holding or obtaining a Drivers Licence pursuant to Rule 1003(1) for a period of six months to end after racing on 31 July 2020.
(c) He is ordered to pay the sums of $9,500 to the RIU and $2,000 to the JCA towards the costs of the proceedings.
Dated at Wellington this 10th day of February 2020
Hon J W Gendall QC
Chair
