Appeal – Decision dated 26 July 2022 – Paul Harris
On the papers
Outcome: Appeal Dismissed
1.1 Mr Harris and Ms Rae have been charged under Rule 801(1)(s)(i) of the New Zealand Thoroughbred Rules of Racing. The rule provides: Does or permits or suffers to be done an act which an Adjudicative Committee deems fraudulent, corrupt or detrimental to the interests of racing.
It is alleged as follows:
Between 6 June and 12 October 2021, Mr Harris and Ms Rae failed to take all reasonable steps to ensure the physical health needs of the horse Riverfalls were met, resulting in the horse’s condition deteriorating to such a state that it was required to be euthanised, an act detrimental to the interests of racing (contrary to Rule 801(1)(s)(i) the New Zealand Rules of Thoroughbred Racing).
1.2 There was an extended hearing before the Adjudicative Committee. There were three days of evidence and half a day of submissions. Mr Harris is represented by Ms Grieve. Ms Rae is self-represented. In her closing submissions Ms Grieve submitted that the Informations against Mr Harris and necessarily also Ms Rae should be dismissed because it was said that the Informations did not provide details as to what Mr Harris and Ms Rae had failed to do in support of the charge that ‘Mr Harris and Ms Rae failed to take all reasonable steps to ensure the physical health needs of the horse were met’.
1.3 In response to the submissions by counsel for Mr Harris the Adjudicative Committee issued a Ruling on the 24th of May 2022. That Ruling amended the charge. The Ruling is annexed to this decision – three pages. Mr Harris has appealed against that Ruling. Ms Rae has not appealed. The grounds of appeal advanced by Mr Harris are as follows:
“The decision of the Adjudicative Committee to, after hearing four days of evidence and closing submissions, amend the charge to include seven particulars and to direct a new hearing with further evidence of the amended charge:
a. Has caused prejudice to the Respondents to such an extent that is has prevented them from effectively defending the charge, such prejudice being:
i. Requiring them, having presented their full, substantive defence of the charge by calling witnesses and presenting legal submissions, to answer a materially different charge based on further evidence which the Informant may choose to call.
ii. Requiring the consequent incurrence of significant further cost associated with the above, as well as further, ongoing stress.
b. Is procedurally unfair and a breach of natural justice;
c. Is wrong in law; and
d. Has resulted in a miscarriage of justice.”
1.4 This Tribunal issued a Minute on the 16th of June this year dealing with certain procedural matters and in consequence it was determined that the Appeal could be heard ‘on the papers’ and a timetable was set for the filing of submissions.
1.5 Comprehensive submissions have now been received from Ms Grieve and from Ms Palsenbarg on behalf of the Racing Integrity Board (RIB).
2.1 An issue which we have addressed is whether this Tribunal has jurisdiction to hear an Appeal from the Ruling of the Adjudicative Committee of the 24th of May 2022. Rule 1001(1) of the New Zealand Thoroughbred Racing (NZTR) Rules provides
“An Appeal may lie against any decision (emphasis added) of the Adjudicative Committee”.
We also considered Rule 1001(3)(a) which refers to an Appeal against “an Order” of the Adjudicative Committee. However that Rule is expressed as being subject to Rule (1) hereof. It has been submitted by the Appellant that Rule 1001(3) is not intended to limit the right of Appeal that is provided under Rule 1001(1).
2.2 The Rule 1001(1) speaks of ‘any decision made by an Adjudicative Committee’. The term ‘decision is not defined in the NZTR Rules. Ms Grieve points out that there is a definition of ‘Notice of Appeal’. The definition of Notice of Appeal is as follows:
‘Notice of Appeal means a prescribed Notice of Appeal in the appropriate form required by NZTR which is filed with the Appeals Tribunal to Appeal a Ruling or decision made by an Adjudicative Committee’.
2.3 Counsel for Mr Harris point to section 44(f) of the Racing Industry Act 2020 as supporting broad rights of Appeal.
2.4 The Ruling of the Adjudicative Committee which is appealed was not determinative of the charges brought against Mr Harris and Ms Rae. The Adjudicative Committee was exercising the power under Rule 915(4). That Rule provides “the Adjudicative Committee may at any time before it gives it decision in respect of the information, amend the information in such respect or respects as it thinks fit.” The use of the word ‘decision’ in Rule 915(4) clearly references the final determination of the matter that is before the Adjudicative Committee. That wording is consistent with the language in Rule 1001(1). However the definition of Notice of Appeal set out above would indicate that Rulings or decisions may be the subject of an Appeal.
2.5 The amended charge set out in para 6 of the Ruling of the 24th of May is significantly detailed. In consequence of those amendments the Adjudicative Committee gave further directions in paragraphs 7, 8 and 9 of its Ruling as to how the hearing was to proceed.
2.6 Given the extensive nature of the amendments made in the Ruling of the 24th of May and how the proceedings might then advance the Tribunal is persuaded that it does have jurisdiction to hear the Appeal. The merits of the Appeal will be addressed later in this decision following consideration of a further jurisdiction issue which is addressed in the next paragraph.
3. MEMBERSHIP OF APPEALS TRIBUNAL
3.1 It is said for Mr Harris that the Appeals Tribunal does not have jurisdiction because it is not independent of the Adjudicative Committee. This submission is based around section 44 of the Racing Industry Act 2020. The same issue came before an Appeals Tribunal in the case of RIB v Sheryl Wigg. In those proceedings the Appeals Tribunal ruled that there was not a breach of the statutory provisions which govern the appointment of Adjudicative Committees and Appeals Tribunals. That decision of the Appeals Tribunal in RIB v Wigg is as recent as 10 May this year.
3.2 The decision of the Appeal Tribunal in Wigg is under challenge by way of Judicial Review in the High Court. Unless and until the High Court might rule otherwise the position the Tribunal takes here is the position that was taken in Wigg, is the correct legal interpretation. That is there is no objectionable lack of independence in the composition of this Tribunal.
4. WILL MR HARRIS BE PREJUDICED BY THE AMENDED CHARGE
4.1 In the submissions filed from Mr Harris there is extensive reference to the evidence called before the Adjudicative Committee. Necessarily this Tribunal is not able to comment upon the weight that should be attached to the evidence of witnesses that it has not seen or heard.
4.2 In the Ruling under Appeal it is clear that the Adjudicative Committee first has reservations that the Informations were deficient and secondly made clear that it did not concur with the claim that the claimed deficiency and the consequential claimed inability of Mr Harris to fully understand the case which he faced were well founded.
4.3 The submissions for the RIB contend that no prejudice has resulted from the amendment. The charge which Mr Harris faces remains the same. The elements of the offence remain the same. The submissions point out that Mr Harris has not indicated that he would have conducted his defence in some different manner had the particulars now provided by the Ruling of the 24th of May been made known earlier.
4.4 The Tribunal finds it curious that the complaint about want of particulars was not made until the closing for Mr Harris before the Adjudicative Committee. If counsel consider that there are insufficient particulars then the conventional practice both in the civil and criminal divisions of our Courts is to raise that issue with the judicial officer presiding at the commencement of the hearing.
4.5 The Adjudicative Committee was both very senior and experienced.
4.6 It is the view of the Tribunal that the amended charge with the particulars set out in paragraph 6(a) to (g) were put in place in order to assist Mr Harris and his counsel. Further Mr Harris and Ms Rae were given the opportunity to adduce further evidence from themselves or other witnesses. Whether or not the RIB might choose to call further evidence in response to any further evidence advanced for Mr Harris or Ms Rae is a matter for determination by the Adjudicative Committee. It is quite impossible for this Tribunal to know what further evidence, if any, might be offered for Mr Harris and Ms Rae and what might then be offered for the RIB in response.
5.1 The rationale for the Ruling of the Adjudicative Committee which is under Appeal was to assist Mr Harris and Ms Rae. The particulars set out in paragraph 6(a) to (g) specify precisely what was allegedly done or not done to give rise to a breach of the relevant Rule. It is difficult to know how Mr Harris and Ms Rae could have not had an understanding of the steps they were alleged to have failed to take when there had been three days of evidence before the Adjudicative Committee much of it from veterinary practitioners.
5.2 If Mr Harris or Ms Rae wish to adduce further evidence that may extend the hearing time. That does not amount to prejudice: rather it gives Mr Harris and Ms Rae a further opportunity to respond to the alleged breach of the NZTR Rules.
5.3 The submissions for Mr Harris invite the Tribunal to not only disallow the Adjudicative Committee’s Ruling but also to dismiss the charge against both the Respondents. This on the basis that there is said to be no power to amend or allow further evidence. The Adjudicative Committee for reasons explained earlier in this decision does have the power to amend the Information and invite further evidence. This Tribunal cannot consider the submission to dismiss the charge against Mr Harris and Ms Rae as it is not constituted to determine the Information which each of them faces: rather to determine whether the Ruling of the 24th of May 2022 can be successfully challenged. For these reasons, the application to dismiss the Informations against Mr Harris and Ms Rae is rejected.
5.4 For the reasons set out the Tribunal has reached the conclusion that the Ruling of the 24th of May 2022 is upheld and the Appeal by Mr Harris is dismissed.
6.1 Counsel are requested to file submissions on the issue of costs not later than 3pm on the 5th day of August 2022. These submissions are to address two questions:
a. Should the costs issue in relation to this Appeal await the determination of the Adjudicative Committee?;
b. If the answer to question a above is no, then what is an appropriate figure for a costs award?
DATED this 26th day of July 2022
Signed pursuant to rule 1007(5)
Decision Date: 26/07/2022
Publish Date: 29/07/2022