Appeal – Written Reasons of Appeals Tribunal dated 10 May 2022 – Sheryl Wigg

1. INTRODUCTION

1.1  Ms Wigg’s Appeal was heard at Alexandra Park on Friday 6 May 2022.

1.2  At the conclusion of the hearing the Appeals Tribunal took an adjournment and when the hearing resumed, announced the decision which it had reached. The Appeal was dismissed. It was explained to those present that given the nature of the matters raised in the appeal, the Tribunal would require some time to issue what is known as a reasons decision.

2. BACKGROUND

2.1  At the hearing before the Adjudicative Committee, Ms Wigg admitted three charges of administering a substance (a mixture) to three harness racing horses on the afternoon of the 16 July 2021. The three horses were to race that day. The three admitted charges were as follows:

a. Charge A15915: She administered to the harness horse Getn Wiggy Withit which was entered in Race 4 at the Auckland Trotting Club meeting at Alexandra Park that evening, a substance by way of oral syringe;

b. Charge A15916: She administered to the harness horse Saint Michel which was entered in Race 6 at the Auckland Trotting Club meeting at Alexandra Park that evening, a substance by way of oral syringe;

c. Charge A15917: She administered to the harness horse Happy Place which was entered in Race 7 at the Auckland Trotting Club meeting at Alexandra Park that evening, a substance by way of oral syringe;

2.2  Each administration was a breach of Rule 1004(c)(1)(b) which provides:

“No person shall administer to a horse entered in a race in the period one day before racing (except under direction or supervision of the Club Veterinarian, Racing Investigator, or Stipendiary Steward, any substance by:

a. …..
b. Injection, hypodermic need or oral syringe
c. …..
d. …..

2.3  Rule 1004(d) sets out the penalties that a person may face who breaches Rule 1004(c). These are:

a. A fine not exceeding $20,000 and/or

b. Be disqualified or suspended from holding or obtaining a licence for a period not exceeding 5 years.

2.4  The Adjudicative Committee emphasised that the Rule makes no reference to the substance being or having to be “performance enhancing” (or a “prohibited substance”).

2.5  The experienced and senior Adjudicative Committee issued a comprehensive decision. In the result, Ms Wigg was disqualified for a period of 1 year and seven months commencing on 17 February 2022 and to end on 17 September 2023 with respect to each information, those periods of disqualification to be served concurrently. Further, Ms Wigg was ordered to pay costs in the sum of $6,000 to the RIB as a contribution towards its costs and a sum of $4,000 to the RIB Adjudicative Committee as a contribution towards its costs.

2.6  When originally charged Ms Wigg engaged a lay advocate. The advocate proposed that Ms Wigg would plead guilty to one information and indicated that the other two would be defended. Upon the engagement of Mr Dale and following discussion with counsel for the RIB, Ms Wigg indicated that she would plead guilty to all three charges.

2.7  The Tribunal has been furnished with a Summary of Facts. At the hearing before the Adjudicative Committee no issue was taken with that summary.

2.8  Ms Wigg, through her counsel furnished a written statement to the Adjudicative Committee. Further, she presented herself for questioning by Mr Symon, counsel for the RIB and the Adjudicative Committee. It is appropriate to record the answers she made to questions from Mr Symon and the Committee. These are set out at paragraph 26 of the Committee’s decision as follows:

• She knew of the “one clear day” Rule and that she should not have administered the mixture to the three horses.
• She said she did it for animal health reasons and thought it was only a feed supplement.
• She lied on the day to the Investigators because she was in a state of panic when they arrived.
• Another person told her to on this afternoon as she said she had forgotten to provide it in the feed of the horses earlier. She named that person but it is not necessary for us to record that in these reasons.
• She did not then think her actions were especially serious.
• She had not taken advice from her Vet.

3. JURISDICTION

3.1  Mr Dale challenged the jurisdiction of the Appeals panel, contending that it was not properly constituted. He submitted that the Appeals panel’s jurisdiction comes from s44 of the Racing Industry Act 2020. It was submitted that s44(i)(e) governs the appointment of an Adjudicative Committee to hear matters relating to the Rules of Racing and to determine penalties. It was said that s44(i)(f) requires the board of Harness Racing New Zealand to appoint an Appeals Tribunal to hear and adjudicate on Appeals. It was Mr Dale’s position that because Appeal panel members sit regularly on Adjudicative Committees there is not a separate and distinct panel of persons to make up Appeals Tribunals. It was said that this position is contrary to a correct interpretation of s44 of the Racing Act 2020. Mr Dale pointed to s44(2) of the Act which requires that compliance functions and adjudicative functions are performed independently. He acknowledged that the provision does not bear directly upon the relationship between Adjudicative Committees and Appeals Tribunals.

3.2  The rules of practice and procedure to be followed are set out in the second schedule to the Act. These rules make no reference to the appointment of members of an Appeal panel from persons who may have sat on adjudicative panels. This Tribunal points out that nothing in those rules of practice and procedure say anything to indicate that Appeal panel members should not be persons who have sat on adjudicative panels.

3.3  Mr Dale submitted that s27 of the New Zealand Bill of Rights Act was relevant in that the appointment of Appeals Tribunal members from amongst those who had sat on Adjudicative Committees could be seen as a breach of the principles of natural justice by “any Tribunal or other public authority”.

3.4  Mr Dale then turned to the fifth schedule of Harness Racing New Zealand Rules which sets out the practice and procedure for Adjudicative Committees and Appeals Tribunals. The structure of an Appeal Tribunal is set out in Rules 32, 33 and 34. Mr Dale contended that there was an underlying assumption that the Appeals Tribunal would be different from the Adjudicative Committee and that this he contended was consistent with s44 of the Racing Act 2020.

3.5  Mr Dale emphasised that his submission was not intended to impugn the panel’s independence or integrity. Rather he said he was challenging the jurisdiction of an Appeals Tribunal where members of that Tribunal have previously sat on Adjudicative Committees and may have sat with those persons whose decision was under Appeal.

3.6  It was said for Ms Wigg that this jurisdiction was relevant because the penalties for this offence are too severe. Mr Dale submitted that there should be the opportunity for what he described as “independent Appeal Panel” to determine whether as a matter of principle that submission as to severity was appropriate.

3.7  Mr Dale acknowledged that judicial review would be available.

3.8  With reference to the criminal jurisdiction of the High Court of New Zealand and the Court of Appeal of New Zealand, Mr Dale acknowledged that High Court Judges regularly sit on the Court of Appeal but sought to distinguish that circumstance from the situation which contended had application here.

4. THE RIB POSITION ON JURISDICTION

4.1 It was first said by Mr Symon that the challenge to the jurisdiction of the Appeals Tribunal on the grounds that it was not properly constituted as being drawn from the same pool as Adjudicative Committee members amounted to an application for Appeals Tribunal members to recuse themselves on the basis of actual or apparent bias. It was noted that the submissions for Ms Wigg said it was not intended to impugn the panel’s independence or integrity so the RIB position is that the application for recusal must have been advanced on the basis of apparent bias.

4.2  The RIB submitted that it was not aware of any circumstances giving rise to which the Tribunal members ought to recuse themselves.

4.3  It was pointed out that s44 of the Racing Industry Act 2020 gives no guidance as to how the Adjudicative Committees or Appeals Tribunals are to be made up – that is to say from where members will be drawn.

4.4  As to schedule 2 of the Act relating to Adjudicative Committees and Appeals Tribunal there is said to be no guidance as to the composition of the Adjudicative Committees and the Appeals Tribunal.

4.5  It was further said for the RIB that the predecessor to the Racing Industry Act 2020 was framed in the same terms and did not set out any mandate as to how the two panels should be constituted or importantly, that they had to be comprised of different persons.

4.6  The submissions for the RIB are set out in considerable detail the process by which both Adjudicative Committees and Appeals Tribunals are constituted. In the event that this matter of jurisdiction might be taken further or be the subject of some future challenge, it is appropriate to set out those submissions for the RIB verbatim. They are as follows:

a. In practice, the process by which both Adjudicative Committees and Appeals Tribunals are constituted is to draw persons from the following three separate and distinct groups of persons:

i. A group of persons who are appointed only to Adjudicative Committees. In general, this group tends to be laypersons with expertise about and experience in the racing industry, but no legal training.

ii. A group of persons who are appointed only to Appeals Tribunals. In general, this group tends to be lawyers who obviously have legal expertise, many of whom also have an interest in the racing industry.

iii. A group of persons who are appointed to both Adjudicative Committees and Appeals Tribunals. This group is comprised of both lawyers and laypersons with expertise about and experience in the racing industry.

b. At present, the composition of the three groups is as follows:

i. There are 10 persons in the first group, that is, those who are appointed only to Adjudicative Committees

ii. There are 10 persons in the second group, that is, those who are appointed only to Appeals Tribunals.

iii. There are 9 persons in the third group, that is, those who are appointed to both Adjudicative Committees and Appeals Tribunals.

c. The practical process of constitution of Adjudicative Committees and Appeals Tribunals is done by the Executive Officer of the RIB once an Appeal has been filed. Executive Officer Catherine Hutton has advised that when constituting Appeals Tribunals, she will do so by selecting one person from group 2 above (that is, those who only sit on Appeals Tribunals) who will usually be designated as chairperson, and one person from group 3 above (that is, those who sit on both Adjudicative Committees and Appeals Tribunals) who will be designated as a member.

d. Once the Executive Officer has proposed the members to be appointed to the respective panel, the proposal is considered and approved. That was formerly done by a member of the RIB Board who was authorised by the chair of the RIB Board to undertake that consideration and approval process. Counsel has been advised that this is what occurred in respect of the members of the Appeals Tribunal in this matter. Since March 2022, that role has passed onto the Director Corporate Services of the RIB. There is therefore a level of oversight of the selection and appointment of every panel constituted under the Act.

e. The Appellant draws a distinction with the constitution of benches in the Court of Appeal, which regularly involves one permanent Court of Appeal Judge and two sitting High Court Judges. Considering the process outlined above, it is clear that there is an analogy, rather than a distinction, to be drawn between the Appeals Tribunal and the Court of Appeal in that Judges (or adjudicators) who sit both at first instance and on Appeal are always accompanied by a Judge (or adjudicator) who sits only on Appeal.

f. The reason for the third group of persons outlined above, that is, those who sit on both Adjudicative Committees and Appeals Tribunals, is one of pragmatism. It reflects the reality that in an industry such as racing, when dealing with busy legal practitioners and busy participants in the industry, it can be difficult to find persons to constitute panels to deal with all matters that arise. The persons who sit on both panels are generally those with the greatest availability. Allowing persons to sit on both panels widens the pool available for each panel and is effectively required to ensure that the RIB can perform its adjudicative function without undue delay.

g. Having two entirely separate and distinct pools of persons might be regarded as best practice. However, it is simply not realistic for the expeditious functioning of a body such as the RIB. Nor is it necessarily required. As noted above, the process adopted by the RIB is consistent with that used by the Courts of New Zealand when constituting the Court of Appeal. This does not give rise to any suggestion of apparent bias in those courts, so it is difficult to see how such an argument can be sustained in the present context.

4.7  Mr Dale filed reply submissions late on the afternoon of 5 May 2022. These submissions drew attention to the approach to be taken to decisions at first instance as set out in the judgment of the Supreme Court in  Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 41.

4.8 The reply submissions make clear that it was not accepted that the proposition of the RIB that “it can be difficult to find persons who can constitute panels to deal with matters that arise” was valid. It was pointed out that professional bodies called upon experienced lawyers, retired Judges and other suitably qualified persons and it was contended that this could be done in the present circumstances. Further, it was submitted that the obligations to have separate bodies was statutory by reference to the Racing Act and could not be waived as a matter of convenience.

4.9  It was said in support of the need for an Appeals Tribunal to have membership entirely separate from persons who had sat on Adjudicative Committees was required for these reasons:

a. The need in appropriate cases to challenge policy or guideline decisions made by an Adjudicative Committee.

b. The ability to argue that an Adjudicative Committee has made errors of judgment or principle.

c. The need to assure an Appellant that the Appeal by way of rehearing is in truth a rehearing rather than what Mr Dale described as a “rerun in front of a Tribunal which is compromised in part by members of the Adjudicative Committee the subject of criticism”.

5. RULING ON JURISDICTION

5.1 The Tribunal has carefully considered the submissions from both parties. The statute governing the issue is the Racing Industry Act 2020. It is the relationship between s44(1)(e) and s44(1)(f) which requires careful examination. These provisions which reflect the previous legislation have governed the position for many decades. It is the Tribunal’s view that if the lawmakers had intended that persons who sat on Adjudicative Committees could not sit upon Appeals Tribunals and that there were thus two separate bodies required, then the legislation would have made that plain. There is nothing in the wording of s44 which demonstrates the need for two separate unrelated bodies to be in place. Mr Dale seeks to support his position by reference to s44(2) of the Act which requires the compliance functions of the Board of NZ Harness Racing to be performed independently from the adjudicative functions. Such a provision is unsurprising. It does not advance the Appellant’s argument. If it had been intended to separate the adjudicative functions between Adjudicative Committees and Appeals Tribunals then s44(1)(e) and s44(1)(f) could have clearly spelt out that distinction.

5.2  Mr Dale sought support for his position by reference to the rules of practice and procedure for Adjudicative Committees and Appeals Tribunals. These came into effect on 27 August 2015. Mr Dale pointed to rules 32, 33 and 34. Nothing in those rules demonstrates that there must be or indeed that there should be, separate panels from which members of Adjudicative Committees are drawn and a separate panel from which Tribunal members are drawn.

5.3  As noted earlier with reference to the Appellant submissions Mr Dale sought to draw support from the New Zealand Bill of Rights. That with reference to the principles of natural justice. The Tribunal can see no breach of the rules of natural justice in the procedure which has been followed over many years for the appointment of Adjudicative Committees and Appeal Tribunals.

5.4  In the Tribunal’s view it is the wording of s44 of the Racing Industry Act 2020 which is determinative of this issue. In that section there is no language which could credibly lead to a construction of the statute which required the two separate bodies for which the Appellant argues.

5.5  For all the reasons set out above the jurisdiction argument must fail.

6. APPEAL AGAINST PENALTY

6.1  At the forefront of the submissions advanced by Mr Dale which the proposition that the “guidelines” were too severe. The Tribunal knows of its own knowledge that the guidelines were put in place following consultation throughout the harness racing community. As the Committee at first instance observed they are truly “only guidelines”. Those guidelines provide for a disqualification of 18 months for a first breach of Rule 1004(c)(1)(b). There were three breaches of the Rule. They all took place on the same day over a short period of time. Ms Wigg was being observed by investigators. Clearly, they must have had some grounds for believing that a breach of the Rules might occur.

6.2  The Tribunal believes that upon a careful reading of the decision of the Adjudicative Committee, it is plain that the Committee saw the offending as a single incident notwithstanding that three horses were involved. Given that there were three Rule breaches the Adjudicative Committee might well have been justified in taking the view that it might start the penalty assessment at a level somewhat beyond the guidelines for a first breach; that is to say for a period greater than 18 months.

6.3  Earlier in this decision the Tribunal set out the answers given by Ms Wigg to questions asked of her at the hearing. At paragraphs 30 and following of the Adjudicative Committee’s decision conclusions are set out in relation to Ms Wigg’s evidence. There is an unequivocal finding that the Committee did not accept as credible her assertion that she lied to the Investigators because she had panicked. Further, the Committee concluded that while Ms Wigg did not believe that the mixture administered was “performance enhancing” it was nonetheless clearly her intention to provide some benefit to the three horses for “animal health”. Further and importantly, the Committee found that there was a deliberate breach of the Rule of which Ms Wigg was well aware.

6.4  In assessing penalty the Committee referred to the Appeal Tribunal decision in RIU v L 13 May 2019. That is a very comprehensive decision which sets out the appropriate sentencing principles and how each is to be determined in relation to the other.

6.5  Mr Dale put forward a number of decided cases. Several were from Australia. The Tribunal, with respect, found those decisions to be of little assistance.

6.6  The Committee pointed out that for a second administration offence, the penalty guide proposed three years and five years for a second or third offence. Further, the Committee observed that Appeals Tribunals have indicated in particularly serious cases that penalties significantly higher than set out in the penalty guide might be adopted.

6.7  For reasons explained the Tribunal believes that a starting point of 18 months disqualification was appropriate; perhaps even generous to Ms Wigg given that there were three Rule breaches.

6.8  The Committee having set the starting point then considered aggravating and mitigating circumstances. Reference has been made to the number of the aggravating circumstances. It is the Tribunal’s view that the most significant of those was that there were administrations to three horses. It is plain from paragraph 34 of the Committee’s decision that they were not attracted to Ms Wigg’s claim that what she did was “not a big deal”. The Committee concluded that her intention was plainly to flout the Rule of which she was well aware. The Tribunal can find no fault in the reasoning of the Committee which led to an uplift on account of aggravating circumstances for a period of five months. That took the disqualification to a period of 23 months.

6.9  The Committee then turned to mitigating circumstances. There were a number of these. They included health issues, Ms Wigg’s difficult financial circumstances and the loss of income that would follow from not being able to train. There was reference to Ms Wigg having been invited to the world amateur drivers’ championship in Italy in September this year. That was an issue upon which Mr Dale placed considerable significance. What is clear from the decision under Appeal was that this issue was given consideration.

6.10  Mr Dale put before the Tribunal a witness statement from a Mr Frank Cooney. He is a well known and respected former trainer/driver. Mr Dale advised when filing that document that Mr Cooney would appear before the Tribunal but Mr Cooney did not appear to give evidence.

6.11  The Committee was plainly conscious of the effect of significant disqualification upon Ms Wigg: refer paragraph 46 of the decision. Ms Wigg’s previously unblemished record was another consideration in her favour.

6.12  The Tribunal concludes that a discount of four months for mitigating circumstances was appropriate. It is clear that those mitigating circumstances were given proper attention notwithstanding the number of aggravating circumstances pointing in the other direction and spoken of above.

7. CONCLUSION

7.1  For the reasons set out above the challenge to jurisdiction is rejected.

7.2  With reference to the Appeal against the term of disqualification that Appeal is also dismissed.

8. COSTS

8.1  The RIB indicated that costs would be sought and that advice in relation to that would be provided once the costs of the Appeal hearing were brought to account.

8.2  Mr Dale did not address the Tribunal on the issue of costs.

8.3  Both parties are requested to file with the Executive Officer of the RIB submissions on the costs issue. Such submissions to be filed not later than 3pm on Thursday 26 May 2022.

DATED this 10th day of May 2022

Murray McKechnie
Chairman