Appeal – Written Decision dated 21 July 2023 – Alysha Waretini

INTRODUCTION

1.1 The Appellant was charged with a breach of Rule 61.3 of the Regulations of NZ Greyhound Racing (the Rules). That Rule is as follows:

61.3 Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of and Offence.

1.2 In a Written Reserved Decision dated the 10th of March 2023, the Adjudicative Committee held that the Appellant as the person in charge of the Greyhound Opawa Pip, which ran in Race 8 at the Christchurch Greyhound Meeting at Addington Raceway on the 21st of April 2022, had failed to produce that Greyhound free of the Category 2 Prohibited Substances Methamphetamine and Amphetamine.

1.3 The Adjudicative Committee issued a Penalty Decision dated the 19th of April 2023, by which the Appellant was disqualified for a period of 15 months commencing from the date of that Decision and was ordered to pay costs in the sum of $7,090.00.

1.4 The Appellant filed a Notice of Appeal on 4 May 2023, challenging both the finding and the penalty. That Notice of Appeal also sought a stay of penalty.

1.5 By a Minute No.2 of this Tribunal dated the 30th of May 2023, the application for stay was declined.

1.6 It had been proposed to hold an in person hearing in Christchurch. Following a number of conferences with Counsel, it was agreed that the hearing would proceed on the papers.

1.7 Both Counsel have filed a statement of position and detailed submissions in support of those statements.

2. THE GROUNDS OF APPEAL

2.1 The Appellant submits that the Rules do not allow the charging of both the Appellant and the Trainer Lisa Waretini, in respect of the events which led to the charge being laid. It is said that the use of the word ‘or’ in Rule 61.3 in the phrase ‘the Owner and Trainer or person for the time being in charge’ was intentional and forbid both classes of people being charged under Rule 61.3. That submission had been made to the Adjudicative Committee. The Adjudicative Committee stated in its Penalty Decision:

‘The Adjudicative Committee has interpreted that Rule as not preventing charges being laid against both the Trainer and the person in charge of the Greyhound in respect of the same offence’.

The Adjudicative Committee in the Minute dated the 7th of November 2022 directly addressed this submission as follows:

The submission of Counsel for the Respondent, Alysha Waretini, that on an interpretation of Rule 61.3, a charge may only be filed against either the Owner and Trainer or the person for the time being in charge of the Greyhound, is rejected. To interpret the Rule to force an election between the Owner and Trainer or the person in charge of the Greyhound would have the effect of one party, in this case, being immune from her wrongdoing. That cannot have been the intent of those drafting the Rule and, as submitted by Counsel for the Informant, “has potential to produce absurd results”.

2.2 It is said that this case is unique. These unique features were acknowledged by the Adjudicative Committee in its Penalty Decision. Unique features are as follows:

• It is the first time in which a person in charge of a Greyhound has been charged with a presentation breach in addition to the Trainer: and
• the first time in the Greyhound Racing Code’s history that a second individual has been sentenced in relation to the same incident of presenting an animal with a Prohibited Substance in its system.

2.3 It is said for the Appellant, that the decision of the RIB to charge both the Appellant and the Trainer Lisa Waretini under Rule 61.3 for the same incident, has significant consequences for the Greyhound Racing Code.

2.4 For the Appellant, it is said that the use of the term ‘wrongdoing’ is problematic in the circumstances of a strict liability offence. The wrongdoing or actus reus in this offending, was the failure to ensure that the Greyhound was presented free from a Prohibited Substance, and it is contended that this is effectively an offence of being negligent, and not an administrative offence.

2.5 The Tribunal now sets out Rule 61:

61. PROHIBITED SUBSTANCES
61.1 The Owner, Trainer or Person in charge of a Greyhound Nominated to compete in a Race, shall produce the Greyhound for the Race free of any Prohibited Substance.
61.2 Any Person who administers, attempts to administer or causes to be administered, aids or abets any person to administer, or has any prior knowledge of a Prohibited Substance being administered to a Greyhound for the purpose of affecting its performance or behaviour in any Race or preventing it from starting in a Race shall be guilty of an Offence.
61.3 Without limiting any of the provisions of these Rules, the Owner and Trainer or person for the time being in charge of any Greyhound brought onto the Racecourse of any Club for the purposes of engaging in any Race which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Prohibited Substance shall be severally guilty of an Offence.
61.4 Any Greyhound which competes in a Race and is found to be the recipient of a Prohibited Substance shall be Disqualified from that Race.
61.5 Without limiting any of the provisions of these Rules, the Owner and Trainer and person for the time being in charge of any Greyhound which is found on testing, examination or analysis conducted pursuant to these Rules to have received a Permanently Banned Prohibited Substance shall be severally guilty of an Offence.
61.6 When a Sample taken from a Greyhound has been found to contain a Permanently Banned Prohibited Substance the Greyhound shall be disqualified from any Race or any benefit derived from a Trial or test for which it was nominated at the time the Sample was taken.

2.6 For the Appellant, it is contended that the use of differing conjunctions in the drafting of Rule 61 was intentional and that such drafting should not be overlooked or ignored. In support of this submission, it is said that Rule 61.1 of the Rules provides the Owner, Trainer or (emphasis added in submissions) person in charge shall produce the Greyhound free of Prohibited Substances (i.e., when the Greyhound is brought to the racetrack and presented). Further that Rule 61.3 refers to the owner and Trainer or (emphasis added in submissions) person in charge being severally guilty of an offence. Further, that Rule 61.5 refers to the Owner and (emphasis added in submissions) Trainer and person in charge being severally guilty of an offence (non-racecourse).

2.7 It is said that the wording of this Rule 61 can be contrasted with New Zealand Thoroughbred Racing Rule 804(2) and NZ Harness Racing Rule 1004A(5) which refer to the Trainer and person in charge committing a breach of the Rules.

2.8 For the Appellant, it is contended that the construction of ‘the Owner and Trainer or person for the time being in charge’ the or (emphasis added in submissions) functions as an exclusive disjunction. It is said that the Owner and the Trainer may be charged or the person for the time being in charge may be charged, but not both individuals and that a distinction has been made for Rule 61.5 where the word and (emphasis added) has been included. Rule 61.5 of the Rules is set out above in para 2.5 and it is said that the Rule makes specific use of the word and whereas Rule 61.3 uses the word or. It is contended that the drafting of the Rules in this matter was intentional and the use of the word or under Rule 61.3 forbids both the Owner and the Trainer or the person for the time being in charge, both being charged under the section.

2.9 Further, it is submitted that Rule 61.3 is an or (emphasis added in submissions) provision and not an and/or (emphasis added in submissions) provision and that only one person can be charged with the offence producing a dog not drug free. It is said that the Trainer nominates the Greyhound and is responsible and that under the Rules, only the Trainer can nominate a dog to race, which establishes that the Trainer is the responsible person on race days. It is acknowledged that the Rules contemplate that the Trainer may nominate another person to be in charge and that person shall be the authorised person. No such nomination took place in this instance.

3. PENALTY SUBMISSIONS FOR APPELLANT

3.1 Rule 63.1 is as follows:
Any Person found guilty of an Offence under these Rules shall be liable to:
(a) a fine not exceeding $10,000.00 for any one (1) Offence except a luring/baiting Offence under Rule 86; and/or
(b) Suspension; and/or
(c) Disqualification; and/or
(d) Warning Off.

3.2 The Appellant was disqualified for a period of 15 months and ordered to pay costs in the sum of $7,090.00. The Adjudicative Committee concluded that the Appellant was as equally culpable as the Trainer in failing to present Opawa Pip free of the Prohibited Substance Methamphetamine. It is contended for the Appellant, that the finding that both she and the Trainer were equally culpable, is illogical and resulted in the manifestly excessive penalty. It is pointed out that the Adjudicative Committee noted that the Trainer had the ultimate responsibility for ensuring the animal was drug free and did not have contact with Prohibited Substances. It is pointed out that there are no precedents for sentencing in a case where two persons have been charged, and the RIB’s penalty submissions are critiqued for relying upon the approval given by the Board of Greyhound NZ to penalty standards, pointing out that those penalties do not differentiate between presentation offences and administration offences.

3.3 It is said that if convictions for presenting a Greyhound are to be treated in the same way as administering a Prohibited Substance, then it would be impossible for the decision maker to come to findings of blameworthiness, which is relevant in determining an appropriate penalty. In summary, it is said for the Appellant:

• The Guidelines referred to by the RIB are not accepted as relevant or binding.
• That not making a distinction between culpability between administration and presenting offences is contrary to accepted sentencing principles.

3.4 The Appellant makes reference to the well-known Decision in RIU v L (May 2019), where there is a detailed analysis of sentencing principles by the Appeals Tribunal. It is submitted that with reference to the public interest, there is a distinction to be made to the culpability of a Trainer who knowingly administers a Prohibited Substance and a situation where an animal has become contaminated by accident at a low level.

3.5 The Appellant’s detailed submissions contain reference not only to RIU v L, but also RIB v O’Regan (December 2022), RIU v L Waretini (February 2023), RIU v Alford (May 2021) and RIU v Donaghue. These Decisions have been carefully considered by the Tribunal.

3.6 It is contended for the Appellant, that the only way that she could have ensured that the dog that she was going to take to the races did not come in contact with Methamphetamine, would be to have placed the dog in what is described as ’24 hour quarantine’, and that such would be an impossible task. It is said that as a consequence, there is no possibility of defending a presentation charge in any Code. It is pointed out that presenting an animal with a Prohibited Substance is not an intentional act – rather it is a failure to ensure that steps were taken so that the animal did not come in contact with the Prohibited Substance. It is pointed out that the Appellant has been 20 years in the industry without any previous offences of this kind.

3.7 As to the seriousness of the offending, the submissions draw attention to the fact that in sentencing Lisa Waretini, the Adjudicative Committee drew attention to her having ultimate responsibility for ensuring that the dog was drug free and it is in consequence submitted that the Appellant was not the person who had ultimate responsibility and that her blameworthiness was thus at a lower level and that this should have reflected in the penalty. Further, it is pointed out reference the Decision in RIU v Turnwald (2021), that the detected level of the Prohibited Substance was considered relevant and, in this case, it was at a low level.

3.8 As to aggravating factors, it is contended that the nature of the substance is not relevant, and that the Informant was mistaken to rely upon the fact that the Prohibited Substance was Methamphetamine. In summary, it is said that the seriousness of the offending was less than that of Lisa Waretini and that there were no relevant aggravating factors. As to mitigation, it is said that this is the Appellant’s first offence of this kind. Further, that there are no comparable cases where a Handler of a Greyhound was sentenced for presentation of an animal after the Trainer had been disqualified.

3.9 In support of the Appeal against penalty, Counsel for the Appellant points to the Decisions in RIB v Gowan (October 2022), RIB v Prangley (September 2022) and RIB v E Toomer (August 2022). Those Decisions have been considered. None bear any meaningful comparison with the present circumstances.

3.10 It is said that there are cases involving presentation which have led to penalties less than disqualification. Further, that this is the first time that the RIB has laid dual charges and that this involves a significant change of approach, which should have been taken into account by the Adjudicative Committee. It is said that it would be unfair for the Appellant to face removal from the industry when she could not have contemplated a charge being laid, as there had never previously been charges brought against both Trainers and Handlers. Finally, it is said that disqualification was not a fair outcome, and it is pointed out that there have been cases of presentation which have not resulted in disqualification.

4. APPEAL AGAINST COSTS AWARD

4.1 The Appellant was ordered to pay costs of $7,090.00.

4.2 The RIB advised that its legal costs amounted to $15,847.70 and it sought from the Adjudicative Committee, 60 per cent of that sum, being $9,508.62.

4.3 It is said for the Appellant, that the RIB’s breakdown of that sum of $15,847.70 was rudimentary and that the Adjudicative Committee should have required the RIB to submit invoices and supporting time records, in order to assess the costs. A request was made of the RIB, but that was declined. It is then said that the Adjudicative Committee’s failure to require a detailed breakdown of the costs was an error.

4.4 The sum ultimately awarded by the Adjudicative Committee was 40 per cent of the amount claimed by the RIB, namely $6,340.00. Further, the Appellant was required to make a contribution towards the costs of the Adjudicative Committee of $750.00, resulting in the total figure of $7,090.00. The Adjudicative Committee noted that while there was not detailed breakdown of the costs of the RIB, nor was there any information as to the financial circumstances of the Appellant.

5. THE POSITION OF THE RESPONDENT

5.1 It is submitted that the purpose of Rule 61 is to ensure that no Greyhound is produced for racing with a Prohibited Substance in its system and that this purpose is fundamental to the integrity of Racing. Further, that there is a high public interest in ensuring this integrity in order to maintain confidence of both the industry and the betting public. It is said the high public interest is reflected in the strict liability nature of offences under Rule 61 and that an interpretation of that Rule, which empowers the RIB to charge any person who failed to take all reasonable steps, is consistent with the purpose of the Rule.

5.2 It is the RIB’s position, that there is nothing in the Rules which prevents two persons being charged with a breach of the Rules arising out of the same positive result. It is said that there is no basis for the Appellant’s submission that the use of the connector or in Rule 61.3, should be interpreted as an exclusive, rather than an inclusive or.

5.3 Rule 61.3 starts with the wording ‘without limiting any provision of these Rules …’ this, it is said, suggests that a charge under Rule 61.3 does not limit the ability of the RIB to bring a separate charge against an individual under Rule 61.1. That happened in the present case, where a charge was laid against the Trainer Lisa Waretini.

5.4 The interpretation advanced for the RIB is said to be supported by the phrase in Rule 61.3, that a Respondent ‘shall be severally guilty of an offence’. The several is said to arise where two or more persons are held liable for their separate roles. In the present case, the Trainer Lisa Waretini, was held liable for her role as the Trainer of Opawa Pip, while the Appellant was held responsible for her role as the person being in charge of Opawa Pip. It is pointed out that each person performed different functions in handling the Greyhound prior to the race.

5.5 The RIB contends that the interpretation of the Rule advocated for the Appellant has the potential to produce absurd results. It is said that upon receiving a positive test for a Prohibited Substance, the RIB will often not know how or when the Greyhound received that Prohibited Substance and that as a result, the following circumstances could arise:

• It should not be the case that one person can escape liability for their failure to take all reasonable steps because someone else has accepted that they have failed to do so.
• Nor should liability in all cases depend on a subjective decision made by an Investigator regarding who to charge in circumstances where it is not clear or known how the Greyhound received the Prohibited Substance.
• It would be unfair for the person who first admits the offence, to be held responsible, whilst another person who maintains denial of the offence, can avoid liability simply by virtue of holding out for longer. This, it is said, would create a clearly improper incentive for persons to maintain denial of an offence in circumstances such as is the case here.

5.6 It is said for the RIB, that to charge both the Trainer and the person who is in charge of the Greyhound when it is taken to the races, does not create any unfairness. It is said that the defence of total absence of fault is still available. In cases where two individuals are charged, both would be able to advance such a defence if they could establish that they took all reasonable steps to ensure that the Greyhound was not exposed to a Prohibited Substance. It they were not able to do so, then it is contended that it is appropriate that they be held liable for that failure, whether or not someone else might also have a role in that failure.

5.7 Further, the RIB contends that the Appellant has not pointed to any basis reference Rule 61, which supports an argument that Rule 61.3 should be read as containing an exclusive or.

6. PENALTY SUBMISSIONS FOR RESPONDENT

6.1 The submissions of the RIB point to the Decision of the Adjudicative Committee, where it is said that both parties (Lisa and Alysha Waretini), share blame for the offence and that there was no evidence to apportion blame on anything other than an equal basis.

6.2 The submissions for the RIB point to the Decision in RIB v Gowan (6 October 2022) and RIB v Toomer (3 November 2020) and it is said that the period of disqualification of 15 months is consistent with those Decisions.

7. COSTS SUBMISSIONS FOR RESPONDENT

7.1 The Respondent submits that the costs award of $7,090.00 was reasonable or even modest. It is pointed out that there were 7 teleconferences, a half day defended hearing in Christchurch and the preparation of submissions in relation to penalty and costs.

7.2 The RIB’s submissions on costs point to the Decision of the Appeals Tribunal in P McKenzie v RIB (27 June 2022), where the Appeals Tribunal on that occasion, pointed to various considerations which might be taken into account in assessing the reasonableness of costs.

7.3 The costs awarded by the Adjudicative Committee was 40 per cent of the total costs incurred, rather than the 60 per cent which has been sought, and which is the so-called ‘Rule of thumb’ set out in the Judicial Control Authority practice note on costs and filing fees as at September 2015.

7.4 In summary, on this issue the Respondent contends that the costs awarded against the Appellant were reasonable, if not generous.

8. DISCUSSION

8.1 The determination of this Appeal turns upon the interpretation of Rule 61.3 set out in paragraph 2.5 above.

8.2 In establishing the correct meaning of a statute or a Rule, it is conventional jurisprudence to ask what the relevant provision is seeking to achieve. Here there can be no doubt that the purpose of the Rule is to ensure that a person or persons in charge of a Greyhound, shall be held responsible in the event that the animal tests positive for a Prohibited Substance. That purpose is referenced in the opening words of Rule 61.3 ‘without limiting any provisions of these Rules’.

8.3 The wording of Rule 61.3 ‘shall be severally guilty of an offence’ is significant. The word several is defined in the Oxford Dictionary as being ‘separate, diverse, distinct, individual, respective’. In the Tribunal’s view, the severally word in Rule 61.3 contemplates that more than one person may be responsible for a breach of the relevant Rule.

8.4 The Appellant submits that the word or in the opening line of Rule 61.3 functions as to what the submissions describe as an exclusive disjunction. It is said that this means that either the Owner and Trainer may be charged, or the person in charge of the Greyhound, but not both individuals. The submissions reference Rule 61.5 where the word and has been included. It is said that the use of the word and in Rule 61.5 as contrasted with the word or in 61.3, demonstrates that the Rule 61.3 is not an ‘and/or’ provision. Further, it is submitted that the drafting of Rule 61.3 and 61.5 was intentional so as to forbid both the Owner and Trainer or the person being in charge, from both being charged under the Rule.

8.5 The submissions for the Appellant do not address the significance of the word severally in Rule 61.3. In the Tribunal’s view, that word clearly contemplates that more than one individual may be responsible for a breach of the Rules and that more than one individual may be charged. The wording of Rule 61.5 does not detract from that. Rule 61.5 was not intended to modify what is set out in Rule 61.3.

8.6 It follows from what has been said, that the Tribunal considers that the interpretation of Rule 61.3 by the Adjudicative Committee was correct, and the Appeal must fail.

8.7 The Tribunal now turns to penalty. A period of disqualification was entirely consistent with previous Decisions. The circumstance that this is the first occasion upon which two persons have been charged under the relevant Rule, is not a consideration which should have led to a reduction of penalty. However, the Tribunal is of the view that there should have been some distinction made between the position of the Trainer Lisa Waretini and this Appellant. The Trainer has primary responsibility. That was recognised by the Adjudicative Committee in its Decision: see para 26. The Appellant was in charge of the dog on the relevant raceday. The Tribunal therefore considers that it is appropriate for a starting point to be adopted in her circumstances that is slightly less than was adopted for Lisa Waretini. The Adjudicative Committee acknowledged that there were no aggravating factors and that there was a mitigating factor in that the Appellant had a previous good record. In these circumstances, the Tribunal believes that some distinction should have been made between the disqualification imposed upon the Trainer and the disqualification imposed upon this Appellant and accordingly, the disqualification will be reduced from 15 months to 12 months. That, to commence from the date of the Adjudicative Committee Decision on 19 April 2023.

8.8 With reference the Appeal against the costs award, the Tribunal does not consider that there have been any grounds advanced to disturb the costs award made by the Adjudicative Committee. The sum was comparatively modest. Nor was the Adjudicative Committee in error in not requiring Counsel for the RIB to submit statements and timesheets. There have been a number of cases where the costs award has been greater than the 40 per cent figure arrived at in this case. The Appeal against the costs award is dismissed.

8.9 At an early stage in these proceedings, the Appellant, by her Counsel, sought a transcript of the hearing before the Adjudicative Committee. That was typed up and made available to the parties. The Appellant must bear the costs of that. The figure is $696.66 plus GST.

9. COSTS ON THIS APPEAL

9.1 The Appeal raised an issue which had not previously been determined, namely whether two persons could be charged under Rule 61.3. Both parties filed detailed and helpful submissions. As between the Appellant and the RIB, it is not considered appropriate for there to be a costs award, the more so when the Appeal has been partly successful reference the term of disqualification.

9.2 The Tribunal has incurred significant costs with reference to the repeated telephone conferences, consideration of submissions and preparation of this Decision. Some contribution towards the costs of the Tribunal is appropriate and the figure to be paid by the Appellant is fixed at $750.00. This modest proportion of the Tribunal’s costs recognises that the Appeal against the conviction was not successful. In addition, the Appellant will pay the costs of the transcript of the hearing before the Adjudicative Committee. As noted above, that figure is $696.66 plus GST.