Appeal – Decision dated 14 September 2021 – Daniel Laing
Outcome: Appeal Upheld
Penalty: Starter Daniel Laing's period of disqualification has been reduced from two years to 15 months
DECISION OF APPEALS TRIBUNAL
Dated this 14th day of September 2021
1.1 Mr Laing has appealed the decision of the Adjudicative Committee dated 26 July 2021. That decision disqualified Mr Laing for a period of two years and was to take effect on 4 August 2021.
1.2 The decision under appeal is comprehensive.
1.3 Mr Laing applied for a stay of the disqualification until the determination of his Appeal. By a Ruling of the Tribunal dated 4 August 2021 a partial stay was granted permitting Mr Laing to continue with the ownership and training of greyhounds and to attend greyhound racing meetings but not to act in any role as a starter or be involved in the conduct of those meetings.
1.4 It was agreed that the Appeal would be conducted on the papers. This largely in consequence of the Covid lockdowns.
1.5 Detailed and helpful submissions have now been filed by both Counsel.
1.6 This Appeal is by way of re-hearing. It is a disciplinary proceeding. The Tribunal is familiar with the leading authorities in relation to how to approach an Appeal by way of re-hearing and is conscious that the purpose of disciplinary proceedings is to maintain the standards and reputation of the Industry. The purpose of such disciplinary proceedings is not to punish although it is acknowledged that such proceedings may have that consequence. The leading authorities in relation to what has just been said are the following:
a. Kacem v Bashir  NZSC 112 at -
b. Austin, Nichols & Co Inc v Stichting Lodestay  NZSC 103 at 
c. Z v Complaints Assessment Committee  1 NZLR 1. This is a judgment of the Supreme Court and is of particular relevance and assistance in relation to disciplinary proceedings. It was with reference to disciplinary proceedings involving a dental practitioner.
2. Position taken for Mr Laing
2.1 Ms Gilby-Todd, Counsel for Mr Laing advances three grounds of Appeal. These are as follows:
a. The Committee incorrectly relied upon precedents which are distinguishable from the present case;
b. Failed to take into account the effect of disqualification on the Appellant’s livelihood (and failed to weigh the proportion of the offending against the penalty ordered); and
c. Erred in deciding to order disqualification instead of the penalty of 12 months’ suspension which was sought by the RIB.
We take each of these grounds in turn
2.2 The submission that the Adjudicative Committee relied upon precedents distinguishable from the circumstances of this case have principal reference to two New Zealand cases. The first of these was RIU v S Lawson 13 May 2019. The second was RIU v D Quirke 5 February 2016. This Tribunal is very familiar with each of those cases and indeed this Tribunal was the Non-Raceday Judicial Committee which presided at RIU v D Quirke.
2.3 In the Tribunal’s view the offending in Lawson was significantly more serious than is the position here. Lawson was a Licensed Harness Reinsman. He bet upon horses in races in which he was a Driver. Not the horse he was driving. He was plainly in a position where he could influence the outcome of the races. Moreover he worked with others in a calculated way to place the bets. In the Tribunal’s view the position here is not analogous to the Lawson case.
2.4 In RIU v Quirke the evidence established that Mr Quirke as the Chief Handicapper for Thoroughbred Racing in New Zealand had been placing bets. He was in a position of significant responsibility. He plainly knew that he was not permitted to bet on races where he had fixed the handicap. The number of bets placed and the sums involved were not as significant as is the case here.
2.5 In the Committee’s view the circumstances here where Mr Laing was employed as the Starter of Greyhound races bears a closer comparison to Quirke than the circumstances of the offending by Lawson.
2.6 The submissions for Mr Laing drew attention to the decision of the Appeals Tribunal in RIU v Pilcher 13 May 2011. That was a case from Greyhound Racing. Mr Pilcher was a Lure Driver who had placed two bets on races where he was officiating. A comparatively short period of disqualification was imposed. That decision in Pilcher significantly pre-dates the detailed decisions in Quirke and Lawson. Those decisions are of more assistance to this Tribunal than Pilcher.
2.7 The Tribunal considers that cases outside New Zealand are of little assistance.
2.8 At the hearing before the Adjudicative Committee the RIB had sought a period of suspension and not disqualification. The penalty imposed by the Committee was thus significantly more significant than sought by the prosecuting authority. While an Adjudicative Committee or indeed any Adjudicative Tribunal is not bound to adopt the penalty submissions sought by the prosecutor, it is unusual for the judicial body to impose a penalty significantly greater than what has been sought by the prosecutor. In the Tribunal’s judgment the Committee was correct to carefully examine the decisions in Quirke and Lawson but as noted above the circumstances of those two cases were significantly different and in the Tribunal’s view the circumstances here bear closer comparison to the offending in Quirke than in the Lawson case.
2.9 It is said in support of Mr Laing’s position that the Adjudicative Committee failed to take into account the effect of disqualification upon Mr Laing’s livelihood. This submission is founded upon the circumstance that Mr Laing is employed by the Cambridge Jockey Club. Under the provisions of the Racing Industry Act 2020 and the Rules made pursuant to that Act, a person disqualified under any one of the three Codes is excluded absolutely from entering any racecourse whether that be Thoroughbred, Harness Racing or Greyhound Racing. It follows that a disqualification under the Greyhound Racing Rules will prevent Mr Laing from attending the Cambridge Racecourse where he works at the training facilities. While it is clear that the Committee was aware that disqualification would result in Mr Laing having to give up his training of greyhounds, it is unclear from the Committee’s decision whether it was fully appreciated that disqualification would also result in Mr Laing being unable to visit any racecourse under all three Codes.
2.10 Ms Gilby-Todd’s third principal submission is that the Committee should have imposed a 12-month suspension rather than disqualification. Reference has already been made to the penalty which the RIU sought before the Committee. In paragraph 4 which follows there will be consideration as to whether the appropriate penalty be disqualification or suspension.
3. Position taken for the RIB
3.1 Ms Smith seeks to uphold the decision of the Committee. This notwithstanding, as earlier explained, that the RIB did not seek the penalty of disqualification.
3.2 It is said that the Committee was fully aware of the impact of disqualification upon Mr Laing’s employment at the Cambridge Jockey Club. This is referenced by paragraph 34 of the decision of the Committee. That paragraph makes reference to Mr Laing’s material put before the Committee. The paragraph 34 does not fully explain the consequences of disqualification in as much as such prohibits Mr Laing from entering any racecourse of whatever Code.
3.3 The submissions for the RIB point to the seriousness of the offending and place particular reliance upon the decision in Lawson. As observed earlier the Tribunal considers that the offending in that case was at a more serious level than is the case here. It is acknowledged for the RIB that there is no suggestion that Mr Laing used his position to endeavour to influence the outcome of any of the races where he had placed bets.
3.4 The RIB submits that the position in Quirke is directly analogous to the present case. There is, for reasons already spoken of, significant force in that submission.
4.1 The first issue and perhaps the most important for determination is whether there should have been a suspension or disqualification. In the Tribunal’s view this was serious offending. Many bets were placed over an extended period of time. The Starter in Greyhound Races plays a significant role making sure that each dog has an equal opportunity. While it is not suggested that Mr Laing interfered with the conduct of the races the issue of public perception is significant. Unlike the position in Lawson Mr Laing did not involve other Licence Holders in his offending.
4.2 It is the view of the Tribunal that the Committee was correct to characterise Mr Laing’s offending as serious. Further, the Tribunal is of the view for the reasons explained that offending at the level of seriousness by Mr Laing can only be adequately met by a period of disqualification.
4.3 The next question for determination by the Tribunal is whether the period of disqualification was appropriate. For Mr Laing it is argued by reference to Quirke that the penalty of two years disqualification was manifestly excessive. It seems clear to the Tribunal that in fixing both the starting point for the period of disqualification and determining the final period of disqualification of two years the Committee was significantly influenced by the decision in Lawson. For reasons already explained it is the Tribunal’s view that the offending by Lawson was at a more serious level than the offending by Mr Laing. While it is not appropriate for an Appeals Tribunal to tinker with or make minor adjustments to penalties imposed the Tribunal has reached the view that both the starting point and the final period of disqualification arrived at by the Committee were in error and to an extent that requires a significant reset.
4.4 An appropriate starting point would have been a period of two years. Account must then be taken of mitigating circumstances. There was recognition of these in the decision of the Committee. They were principally the guilty early pleas, Mr Laing’s co-operation with the Stewards, his good record and the character reference and testimonials put forward on his employment. Mr Laing is comparatively youthful, aged 24 years. Reference might appropriately have been to that circumstance.
4.5 Giving Mr Laing full credit for all of the mitigating circumstances the Tribunal has reached the view that the period of disqualification should be 15 months. As to when the disqualification is to commence and the effect of that disqualification such will be addressed in the next paragraph.
5. Commencement of disqualification and effect of disqualification
5.1 Under the provisions of the Racing Industry Act 2020 and the Rules made thereunder, a disqualified person can make application to an Exemptions Committee to be exempted wholly or in part from the prohibition from entering Racecourses which follows from the disqualification.
5.2 The Exemptions Committee is made up of the Chief Executive or General Manager of each of the Racing Codes. It is for that Committee and not this Tribunal to determine whether an exemption should be made. However, the Tribunal does consider that there would appear to be compelling grounds for an exemption to be granted to Mr Laing to permit him to attend the Cambridge Jockey Club premises – racecourse and training track – and if necessary Thoroughbred Race meeting. No such exemption need be sought in respective of Harness Racing and necessarily the disqualification in relation to Greyhound Racing – ownership, training or involvement in the conduct of race meetings will be in place throughout the period of disqualification.
5.3 The provisions just spoken of were set out in some detail in the submissions for the RIB. It was said the RIB if asked by an Exemptions Committee for its view would take a neutral position. It is rightly observed that there is nothing in the prohibition provisions that would require the RIB’s view to be sought or taken into account in the making of the decision on any such application which is entirely in the hands of the Exemptions Committee.
5.4 It is clear that Mr Laing is a valued employee of the Cambridge Jockey Club and has the support of his employer and other persons prominent in Thoroughbred Racing in the Waikato.
5.5 There is currently a stay of disqualification in place. That relates to the ownership and training of greyhounds but made clear that Mr Laing was to have no part in the conduct of Greyhound Race meetings. That stay will remain in place until the period of disqualification of 15 months takes effect.
5.6 In order to give Mr Laing time to make arrangements for the sale of greyhounds, the transfer of dogs to other trainers and to prepare an application for exemption in relation to his employment, should he choose to do so, the period of disqualification of 15 months will commence on the 18th day of October 2021. If Mr Laing makes an application to the Exemptions Committee, a copy of this decision should be provided to the Committee.
6.1 Counsel for both Mr Laing and the RIB are invited to file submissions in relation to costs. These submissions not to exceed three pages and to be lodged with the Executive Officer of the Racing Integrity Board by 3pm on Thursday 23 September 2021. Adopting that date should enable any costs decision to issue before the commencement of disqualification on 18 October.
6.2 The Tribunal’s entirely preliminary view is that each party has had a measure of success in this Appeal and that in those circumstances the position in relation to costs inter partes might be neutral. Some contribution from each party might well be appropriate with reference to the costs incurred by the Racing Integrity Board. Those costs in this case have been significantly less than would have been incurred had there been a hearing face to face rather than the procedure adopted of determination upon the papers.
DATED this 14th day of September 2021
Signed pursuant to Rule 73 of the NZ Greyhound Rules of Racing
Decision Date: 14/09/2021
Publish Date: 16/09/2021