Appeal – Written Reserved Decision dated 22 May 2024 – Nigel McGrath

1.  THE APPLICATION

1.1  Mr Nigel McGrath has made application under Rule 1205 of the New Zealand Rules of Harness Racing for the cancellation of an order for disqualification of his Trainer’s License which was made by a Judicial Committee on the 3rd of July 2020.

Rule 1205 is in the following terms:

Cancellation of Disqualification

1205 (1) A person who has been disqualified for more than 12 months or who owns a horse which has been disqualified for more than 3 months may apply in writing to the Appeals Tribunal for a cancellation of the remainder of the disqualification.

(2)  An application under sub-rule (1) shall not be considered by the Appeals Tribunal until the expiration of:

(a)  5 years from the date the disqualification was imposed where the person was disqualified for life;

(b)  12 months from the date the disqualification was imposed where the person was disqualified for more than 12 months; and

(c)  3 months from the date the disqualification was imposed where the horse was disqualified for more than 3 months.

(3)  Where an application to cancel the remainder of disqualification has been dismissed by the Appeals Tribunal a subsequent application may not be made for a period of 12 months from the date the preceding application was dismissed.

(4)  The Appeals Tribunal or its Chairperson may direct that any application under this Rule be served on any body or person and every body or person served shall be entitled to appear and be heard on the hearing of the application.

(5)  On hearing any application under this rule the Appeals Tribunal may order that all or any of the reasonable costs and expenses of:

(a)  any party to the hearing;

(b)  any person served with the application or appearing at the hearing;

(c)  HRNZ, the Racing Integrity Board, and the Appeals Tribunal be paid by such person or body as it thinks fit.

(6)  If a costs order made under sub-rule (5) is unpaid within 28 days after the date on which that amount was ordered to be paid, it shall be deemed to be Arrears and may be placed on the Unpaid Forfeit List.

1.2  Mr McGrath was disqualified for a period of 8 years commencing upon the date of the Decision of the Judicial Committee being 3rd July 2020.

The charges upon which Mr McGrath was disqualified were as follows:

(a)  Attempts to administer – Information A11684 (Rules 1004(1) on 13 March 2020 at Christchurch together with Robert George Burrows did attempt to administer to “Steel The Show” which was entered in Race 8 at the NZ Metropolitan Trotting Club’s meeting at Addington that evening, a Prohibited Substance by way of nasal gastric tube.

(b)  Refuses to make a statement Information A11685 (Rules 1001(l)(i) on 13 March 2020 at Christchurch refused to supply information by answering the questions of a Racecourse Investigator regarding the tubing equipment located in his possession and the attempted race day administration of the horse “Steel The Show.”

(c)  Obstructing a Racecourse Investigator – Information A11686 (Rule 1001(l)(j)) on 13 March 2020 at Christchurch obstructed a Racecourse Investigator by preventing him from seizing tubing equipment as evidence in the course of an investigation into a race day administration and ordering Racecourse Investigators to leave his property.

2.  THE GROUNDS UPON WHICH THE APPLICATION IS ADVANCED

2.1  The grounds advanced by Mr McGrath can be summarised as follows:

a)  He has complied with the terms of his disqualification and has taken all reasonable steps to rehabilitate himself.

b)  He has not trained any horses since the 5th of March 2020 when he handed in his Licence. It is said that he has therefore effectively served four years of the disqualification as at 4th March 2024.

c)  That the period of disqualification imposed was manifestly excessive and/or clearly inappropriate.

2.2  The RIB opposes the application.

2.3  Both parties filed comprehensive submissions and made available, a significant number of Decisions said to be relevant. Further, a number of affidavits were filed in support of the application. Mr McGrath made an extensive affidavit and in the course of the hearing, answered questions directed to him by the Tribunal. Reference will be made to those questions and answers later in this Decision.

3.  THE HEARING

3.1  The hearing of this application took place at the Commodore Hotel in Christchurch on Friday the 17th of May. Mr Alan Harper is domiciled in Queenstown. His flight from Queenstown to Christchurch was cancelled. Arrangements were then put in place for Mr Harper to attend the hearing on screen and it was therefore possible for the proceeding to go ahead as scheduled.

4.  THE CASE FOR MR McGRATH

4.1  Reference has earlier been made to Mr McGrath’s affidavit. Attached to that document is a reference from Mr Robert Dunn. He is a prominent figure in Harness Racing. There is a reference from Mr Andrew McKerrow, the Racetrack Chaplain for the Salvation Army. Mrs Alex McGrath, the wife of Mr Nigel McGrath, has made a three-page letter which is attached to the affidavit of Mr McGrath. There is then a letter attached to the affidavit from Mr Rod and Mrs Glenys Gardner. That reference speaks to Mr McGrath’s character and his genuine remorse.

4.2  There was filed an affidavit from Mr Kenneth Noel Spicer. He is a company manager with a long acquaintance with Mr McGrath. He speaks to Mr McGrath’s character and believes that Mr McGrath is genuinely remorseful. There is an affidavit from Mr Rolan David McConnell. He is a counsellor based in Christchurch with extensive experience. He has been in regular contact with Mr McGrath and continues to meet with him on a regular basis. He is of the opinion that Mr McGrath’s risk of reoffending is negligible.

4.3  Mr Hall KC, Counsel for Mr McGrath, referenced the Decision of the Appeals Tribunal in S L v RIU 18 June 2021, that being an application under Rule 1205. Mr Hall drew attention to para 11 of that Decision. Mr Hall then made reference to the judgment of the Supreme Court in NZLS v Stanley 2020 [NZSC 83]. Those proceedings had reference to an application by Mr Stanley to join the legal profession. Mr Hall, in reliance upon the L and Stanley Decisions and making what he described as editing to align with the Racing Industry Act 2020 and New Zealand Harness Racing Rules, advanced the following propositions:

a)  The purpose of the fit and proper person standard is to ensure that those licensed in the profession are persons who can be entrusted to meet the duties and obligations imposed on those licensees.

b)  Reflecting the statutory scheme of the Racing Industry Act and HRNZ Rule the assessment focusses on the need to protect the public and to maintain public confidence in the profession.

c)  The evaluation of whether an applicant meets the standard is a forward-looking exercise. The Court must assess at the time of the application the risk of future misconduct or of harm to the profession. The evaluation is accordingly a protective one. Punishment for past conduct has no place.

d)  The concept of a fit and proper person or person of good character involves consideration of whether the applicant is honest, trustworthy and a person of integrity.

e)  When assessing past convictions the Appeals Tribunal must consider whether that past conduct remains relevant. The enquiry is a fact-specific one and the Tribunal must look at all of the evidence in the round and make a judgment as to the present ability of the applicant to meet his or her duties and obligations as a potential licensee.

f)  The fit and proper person standard of person of good character is necessarily a high one, although the Tribunal should not lightly deprive someone who is otherwise qualified from the opportunity to become a Licensed Trainer.

g)  Finally, the onus of showing that the standard is met on the applicant. Applications are unlikely to turn on fine questions of onus.

The L Decision is of direct relevance. It related to Harness Racing. The Stanley judgment of the Supreme Court was concerned with conduct not directly related to the legal profession.

4.4  Mr Hall made reference to the Sentencing Act 2002. That has application to the criminal law. In the judgment of the Court of Appeal in Moses v R [2020] NZCA296, the Court of Appeal discussed the framework for calculating an appropriate sentence. It was Mr Hall’s submission that the approach adopted by the Court of Appeal, was consistent with the provisions of the JCA Penalty Guidelines. In his criticism of the decision to disqualify for 8 years, Mr Hall referenced the Appeals Tribunal Decision in Orange v The RIU 8 March 2021, where the Tribunal accepted that the Penalty Guide was exactly that, but referenced the passage in the Decision where it was said that the Guide emphasises the need for consistency. These submissions were made in support of the submission that the disqualification for 8 years was, to quote Mr Hall’s submissions, clearly disproportionate. It was submitted with reference to the Decision of the Judicial Committee that there was, to quote, the mammoth departure from the guidelines is not readily ascertainable nor transparent.

4.5  There was discussion of the Decision in RIU v Lynch 16 October 2015. There, a penalty of 5 years disqualification was imposed by the Judicial Committee. That Decision had not been drawn to the attention of the Judicial Committee in hearing the case against Mr McGrath. It was contended that the disqualification of Mr McGrath for 8 years was inconsistent with the approach which had been taken in Lynch. Mr Hall was critical of the Judicial Committee’s referencing the Decisions in Racing Integrity Unit v Morgenrood 9 June 2020 and the Decision in RWWA Stewards v Hall 25 May 2020. It was Mr Hall’s submission that neither of those Decisions bore valid comparison with the circumstances of Mr McGrath’s offending.

4.6  Mr Hall rightly pointed out that the cancellation of a period of disqualification does not automatically reinstate the Training or Drivers Licence, which has been the subject of disqualification. The person whose disqualification has been reduced, is still required to prove to the Licensing Committee of Harness Racing New Zealand, that he or she is a fit and proper person to be re-admitted to the Licensed Training or Driving ranks. That is a decision for Harness Racing NZ and is not something for determination by this Tribunal. Cancellation of the disqualification would not lead to Mr McGrath recommencing his horse training immediately. He would need to make application to the Licensing Committee of HRNZ, which would doubtless undertake its own inquiry.

5.  THE CASE FOR THE RIB

5.1  It is contended that a proper penalty was imposed by the Judicial Committee. It is emphasised by the RIB that the application for cancellation is not an appeal. Attention was drawn to what was said by the Tribunal in L v RIU, that an application for cancellation under Rule 1205 ‘cannot be used in a roundabout way to appeal the penalty imposed’.

5.2  It is submitted for the RIB, that the penalty imposed upon Mr McGrath was not in error and that it properly reflected the very high level of serious offending. The RIB’s submissions reference the Decision of the Judicial Committee where it said:

a)  The first serious racing offence involved an attempted administration of a Prohibited Substance by way of nasal gastric tube. That is a clear attempt to cheat. Contrary to the submission for Mr McGrath, this is not an instance of “minimal” dishonesty. An attempt to administer a Prohibited Substance to a horse for the purposes of enhancing its performance three hours before a race, involves significant dishonesty. The penalty for this breach must be designed to deter Mr McGrath and others from such conduct, which is unacceptable in the Racing Industry.

b)  Mr McGrath’s motivation for doing so, can only have been financial. There was no other reason to administer a performance enhancing substance to a horse in these circumstances. The Applicant argues that the Tribunal should take into account the comparatively low stakes associated with a victory in the particular race, but this is irrelevant. This just happened to be the occasion on which Mr McGrath was caught attempting to administer. Much greater financial benefits might have been available in other instances. In any event, this submission disregards the wider and less tangible benefits to Trainers of better results obtained through administration of performance enhancing substances.

c)  This attempt to cheat occurred in the following context:

(i)  It was followed by a series of actions by Mr McGrath designed to obfuscate his offending. Having been caught red-handed, he refused to comply with and actively and aggressively obstructed Racing Investigators who were attempting to carry out lawful functions under the Rules, conducting himself in a manner that is unacceptable in the industry. Mr McGrath also withheld and destroyed evidence, preventing investigation of his breach.

(ii)  At the time of this incident, Mr McGrath was subject to a period of six months’ suspension, having admitted a charge of improper driving. This elevates the seriousness of his conduct.

(iii)  In 2004–2005, Mr McGrath was disqualified for 18 months following administration of Propantheline Bromide, a performance enhancing substance, to two horses. This was therefore the second time Mr McGrath has been caught attempting to cheat. Contrary to the submission for the Applicant, these breaches are not “spent”. While they occurred 15 years prior to the current breaches, they are indicative of how Mr McGrath conducts himself. It is irrelevant that it was not afforded weight as an aggravating factor for an unrelated offence of improper driving – it is highly relevant in respect of similar conduct involving another instance of administration.

5.3  It is further said for the RIB, that the distinction made between an attempted administration and a completed administration has no validity. The attempt was stopped as a result of the involvement of the Racing Investigators and not in consequence of a decision made by Mr McGrath.

5.4  The RIB does not accept that the analogy with the Sentencing Act is valid. The Sentencing Act makes reference to the absence of harm and here it is said for the RIB, that the paramount consideration is the need to uphold the integrity of the industry.

5.5  It is further said for the RIB, that the conduct in question is relevant to the industry’s reputation for animal welfare. The issue of animal welfare has become increasingly significant in recent years.

5.6  The RIB’s submissions canvassed a number of authorities with reference to the administration or attempted administration of a Prohibited Substance. These were HRNZ v Smolenski 16 January 2012, RIU v Luxton 30 January 2020 and Wigg v Racing Integrity Board 21 June 2023.

5.7  With reference to the Decision in Racing Integrity Board v Burrows and Anderson 18 May 2023, the RIB’s position is that the disqualification of 9 years imposed upon Mr Burrows, supports the penalty that was imposed upon Mr McGrath.

5.8  As to the obstruction offending, reference was made to the Decisions in RIU v White 14 October 2011, Small v HRNZ 29 January 2010. The RIB’s submissions reference the Decision in RIU v Morgenrood 9 June 2020. The offending in that case had little similarity to the position here, but the RIB contends that the Decision demonstrated the need for a stern response to serious offending. That submission was further advanced by reference to the Decision in RWWA v Hall 25 May 2020.

5.9  In summary, the RIB’s submissions conclude that the starting point of 10 years disqualification was not excessive and was comparable with the Decisions in RIU v Alford 10 May 2020 and Burrows v RIB 31 March 2022. It is said that the end sentence of 8 years was appropriate.

5.10  As to the mitigating considerations considered by the Judicial Committee, it is submitted that the discount of 2 years was appropriate.

5.11  Mr McGrath did not appeal the period of disqualification. The RIB’s submissions emphasise that Mr McGrath still has 4 years and 2 months of his disqualification, being more than half still in place. It is said that this weighs heavily against granting the application.

5.12  The RIB provided an affidavit from a License Holder Mr Michael House. This opposed the application. Mr House uses emotive and at times extravagant language. He speaks simply as an individual. The Tribunal attaches no weight to the affidavit.

5.13  New Zealand Harness Trainers and Drivers Association did not provide any evidence.

5.14  The submissions acknowledge Mr McGrath’s expressions of remorse. It is said for the RIB, that these expressions of remorse must be considered alongside what is said to be Mr McGrath’s downplaying of the offending. It is acknowledged that Mr McGrath has taken steps to rehabilitate himself and deal with some of the issues which were said to have contributed to the offending. Those circumstances are said not to be a sufficient basis for what is contended to have been a proper penalty. The RIB’s submissions draw strength from what was said in L as follows:

the removal of a proper disqualification does not automatically follow as a reward for a period of good behaviour, which is a little over 2 years. Rehabilitation from past wrongful behaviour is seen as the restoring of oneself to a normal life and reputation and remedying or overcoming past afflictions or dishonest proclivities.

5.15  In his oral submissions, Mr Dow acknowledged that Harness Racing NZ had agreed to Mr McGrath having spelling horses and broodmares on his property. Further, that they had agreed to his breaking and gaiting horses. Evidence given at the hearing, demonstrated that Mr McGrath had not taken up the breaking and gaiting proposal. In answer to questions from the Tribunal, Mr McGrath said that there was adverse publicity in relation to that and he became very upset and decided not to proceed with that breaking and gaiting on his property. Mr Grimstone advised the Tribunal that the RIB would have opposed the application for the breaking and gaiting. It became clear at the hearing, that NZ Harness Racing had not consulted with the RIB before granting approval to Mr McGrath for the breaking and gaiting proposal.

5.16  The submissions for the RIB, while emphasising that this hearing is not an appeal against the penalty imposed by the Judicial Committee, summarised the position taken in the following passage from Mr Dow’s written submissions:

The impacts on Mr McGrath reputationally, financially and personally are the ordinary consequences of a significant term of disqualification for serious racing offences. There is no doubt that those consequences are painful and difficult for Mr McGrath. But that must cede to the importance of upholding the integrity of the industry. These consequences are not such as to provide a compelling reason for cancellation of the remaining disqualification.

6.  DISCUSSION

6.1  Mr McGrath did not appeal the Decision of the Judicial Committee. He and his Counsel were questioned about this at the hearing. Mr McGrath became emotional and was upset and tearful. He advised that he had discussed an appeal with Mr Hall. He said that he was so upset at the time, that a decision was taken not to appeal. Mr Hall was Counsel for Mr McGrath at the hearing before the Judicial Committee.

6.2  In his submissions in reply, Mr Hall was strongly critical of the submissions filed for the RIB. He said that the submissions (quote) amount to a diatribe of condemnation of the applicant. Further in those submissions in reply, he said (quote) the Respondent vilifies Mr McGrath. Those descriptions of the RIB’s submissions were not accurate and were unhelpful.

6.3  Mr McGrath has served less than half the period of disqualification. The disqualification applies from the date of the Decision of the Judicial Committee. The Tribunal does not believe that it is relevant that Mr McGrath had earlier handed in his Licence.

6.4  The Tribunal acknowledges the efforts of Mr McGrath to rehabilitate. He provided compelling evidence of this and so too, evidence from persons acquainted with him and from his counsellor. Clearly Mr McGrath has recognised the seriousness of this situation and the need to take steps to address the issues which led to his offending.

6.5  Rule 1205(3) provides that where a Licence Holder’s application to cancel the disqualification has been declined, a further application may be made after 12 months.

6.6  This Tribunal should not and cannot review the unchallenged Decision of the Judicial Committee. Much of the material filed for Mr McGrath was critical of that Decision. The only way that Decision could be challenged was to formally appeal. As noted in 6.1 above, that was not done.

7.  RESULT

7.1  For the reasons set out above, the application is dismissed, and the disqualification remains in place.

8.  COSTS

8.1  If costs are sought, submissions in support of any such application is to be made by 5.00pm on the 29th day of May 2024 – not exceeding 4 pages. Those submissions to be lodged with the Executive Officer of the RIB.