Non Raceday Inquiry – Decision dated 17 December 2021 – Allen Christiansen

1. Mr Christiansen faces three Informations. These are as follows:

A 16403: On Thursday the 22nd of July 2021 at the Waikato BOP Harness race meeting in Cambridge, Allen James Christiansen being a Licenced Greyhound Trainer and Registered Harness Horse Owner did misconduct himself when he assaulted Kyle Marshall, a Licensed Public Trainer/Open Driver in breach of the New Zealand Rules of Harness Racing – Rule 303(2) and subject to the penalties pursuant to Rule 1003(1).

A 16404: On Thursday the 22nd of July 2021 at the Waikato BOP Harness race meeting in Cambridge, Allen James Christiansen being a Licenced Greyhound Trainer and Registered Harness Horse Owner did misconduct himself when he assaulted Fergus Schumacher, a Licenced Open Driver in breach of the New Zealand Rules of Harness Racing – Rule 303(2) and subject to the penalties pursuant to Rule 1003(1).

A 16405:  On Thursday the 22nd of July 2021 at the Waikato BOP Harness race meeting in Cambridge, Allen James Christiansen being a Licenced Greyhound Trainer and Registered Harness Horse Owner did misconduct himself when he assaulted Taylor Pereira, a Licensed Stable hand/RIB Swabbing Official in breach of the New Zealand Rules of Harness Racing – Rule 303(2) and subject to the penalties pursuant to Rule 1003(1).

2. The Proceedings Thus Far

2.1 The events which resulted in the Informations being laid against Mr Christiansen occurred at the Cambridge Raceway on 22 July 2021. There has been a significant delay in bringing this matter to a hearing. That has largely been a consequence of the Covid restrictions and the limitations upon travel.

2.2 There has been meaningful cooperation between Ms Smith, counsel for the RIU and Ms Gilby-Todd, counsel for Mr Christiansen in relation to preparing for this hearing. Agreed facts have been arrived at and a Memorandum filed in that regard. Further, as shall be recounted in more detail later there have been detailed submissions filed in relation to penalty.

2.3 When the Informations were first laid Mr Christiansen pleaded guilty to all three. Subsequently he was granted leave to vacate the plea in relation to Information A 16405 which alleged an assault against Taylor Pereira. Throughout, Mr Christiansen by his counsel, has made clear that there were difficulties in relation to the facts alleged in support of Information A 16404 which alleged the assault on Fergus Schumacher. Counsel was unable to come to agreed facts in relation to the assault upon Mr Schumacher and accordingly there have essentially been two hearings today. The first to determine whether there was an assault upon Ms Pereira and secondly, what is the correct factual position in relation to the assault upon Mr Schumacher and how those findings have been arrived at. This is known as a disputed facts hearing.

2.4 Mr Christiansen is a Licensed Trainer and Owner under the Greyhound Racing Rules. He is a duly registered owner of several standard bred horses under the Rules of NZR Harness Racing. On the day in question, the 22nd of July this year, one of his horses named Imeldamay was entered in a race at Cambridge Raceway. The horse was trained by Mr Kyle Marshall who is the person spoken of in the first Information A 16403. The meeting at Cambridge was a dual greyhound/harness meeting with the harness racing following the conclusion of the greyhound racing. It is not disputed that Imeldamay ran disappointingly and finished last in a field of nine. Mr Christiansen was plainly upset by the outcome, and it was this upset and concern which led to his argument with Mr Marshall later that evening. It is not disputed that there was foul language used. Mr Christiansen has acknowledged that he was affected by alcohol. A witness called on behalf of Mr Christiansen, Nikita Old, who is employed at the Cambridge Raceway as the restaurant manager gave evidence that, in her view, Mr Christiansen was not compromised by alcohol. That is at odds with Mr Christiansen’s own acknowledgement that he was affected by alcohol.

3. The Burden of Proof

3.1 All three charges allege assault. If criminal charges had been laid, proof would be required beyond reasonable doubt. The Police were not advised of the events that occurred on 22 July and no criminal charges have been preferred. This is a disciplinary hearing under the Rules of NZ Harness Racing. Those Rules provide that the standard of proof is the balance of probabilities. That is generally known as the civil standard of proof. The Committee is however well aware that there is authority at the highest level that when the standard of proof is on the balance of probabilities the standard that must be met should have regard to the nature of the allegations. To put it rather differently the more serious the allegation the more compelling the evidence must be before that allegation is found to be proved. The leading authority is Z v Dental Complaints Assessment Committee, a judgment of the Supreme Court of New Zealand [2009] 1 NZLR 1.

4. Hearing Today

4.1 The hearing today proceeded on the basis that both the matters at issue would be the subject of evidence from firstly Mr Schumacher and thereafter from Ms Pereira. For want of a better expression, that was evidence for the prosecution or the informant and thereafter Mr Christiansen gave evidence and witnesses were called in support of his position.

4.2  All persons who gave evidence were invited to do so on oath and all agreed to that course.

5. Determination of Information A 16405

5.1 This is the Information that alleges assault upon Taylor Pereira. As noted above Mr Christiansen originally pleaded guilty to this Information but was later granted leave to vacate that plea.

5.2 Ms Pereira impressed the Committee as a credible witness. She explained that when she went to the car where Mr Marshall was seated and where an argument was going on between Mr Marshall and Mr Christiansen, she sought to calm the situation. It was her evidence that Mr Christiansen abused her, telling her in effect that it was none of her f business. She said that Mr Christiansen, with an open hand, pushed her away by placing that hand on her right shoulder. Mr Christiansen denied that he had done that. It was said for him by his partner, Ms Chantelle Cassidy, that she had seen Ms Pereira with her hand on Mr Christiansen’s arm and that she saw him lift his arm to try and remove her hand. Ms Pereira denied that she had at any time placed her hand upon Mr Christiansen. In weighing the evidence, the Committee finds Ms Pereira’s account perfectly credible. Moreover, she did not suggest that what Mr Christiansen did was intended to hurt or damage her in any way. It was, on her account, no more than a minor push to put some gap between them. The Committee does not accept that the contact between Ms Pereira and Mr Christiansen was accidental. It is persuaded that what Mr Christiansen did was intentional, but it was not done with any malice or intention to inflict injury or harm. It did however have the character of an intentional act of touching and thus technically meets the definition of assault. As will be seen from what has been said, it is the Committee’s view that while this assault charge is proved it is at the very lowest level of culpability.

6. The disputed facts hearing in respect of Information A 16404

6.1 Mr Fergus Schumacher was the first witness called today. A written statement had been prepared and he read this to the Committee under oath. He was then cross-examined at some length and in some detail by Ms Gilby-Todd, counsel for Mr Christiansen. Mr Schumacher’s recollection was clearly vague at times. Moreover, his answers in cross-examination on a number of occasions, seemed a deal less convincing than the written statement which he read as his evidence in chief. That statement was dated 30 November 2021.

6.2 When questioned in cross-examination Mr Schumacher said that he was given a slight push on the right shoulder. He further said in answer to a question that it was “not hard”. It was his account that he was held by the collar and part of the hoodie he was wearing. He gave evidence that he said, “I can’t breathe, put me down”. He could not recall what response Mr Christiansen made, other than to say that he (Mr Schumacher) was then put down and that there was an apology. When questioned further Mr Schumacher said that he thought the apology was to the affect “I am very sorry. I didn’t mean to do that”.

6.3 The essential matter at issue in respect of this Information is the injury that Mr Schumacher suffered to the back of his head. This hit the wall which was behind where he was standing and a small injury with some minor bleeding resulted. Mr Schumacher said this resulted from his being pushed against the wall by Mr Christiansen. For his part, Mr Christiansen denies that Mr Schumacher was pushed against the wall. The explanation advanced for Mr Christiansen as to how Mr Schumacher came by the head injury is that Mr Schumacher, sometime after he had been released by Mr Christiansen, lost his footing and the back of his head came in contact with the wall. The only witness who testified to that was the witness Chantelle Cassidy who is Mr Christiansen’s partner. It was her evidence that at the time she saw this happen Mr Christiansen had gone to the toilet and she was the only person who was in a position to see what happened.

6.4 Mr Schumacher for his part, denied slipping. He explained that where he was standing in relation to the wall was only some six inches from the wall that was behind him. In the Committee’s view it is most improbable that if he had slipped backwards from such a close distance that he could have suffered a head injury giving rise to bleeding. The question therefore is was he pushed against the wall or did he slip and bang his head.

6.5 Notwithstanding the observations made above about Mr Schumacher’s oral evidence in cross-examination being somewhat less certain than the written statement which he read in evidence, the Committee is persuaded that it is much more probable that he was bumped against the wall during the admitted assault than that he sometime later slipped and banged his head. Ms Cassidy’s account of how he came to slip was not convincing. The head injury was minor. It did not require any medical treatment.

6.6 It follows from what has been said that in relation to the disputed hearing around Information A 16404 the Committee finds as a fact that Mr Schumacher’s head injury did result from the admitted assault by Mr Christiansen. Having said that, it is important to emphasise that the head injury was very minor. When this matter was first presented to the Committee it appeared that the injury was a good deal more serious than the evidence has now established.

7. Result on culpability

i. Information A 16403, the assault upon Mr Marshall. There are no disputed facts here and the Committee will proceed on the Summary of Facts put forward in relation to that assault allegation.

ii. Information A 16404. The Committee will proceed on the basis that this Information will be dealt with on the basis explained above: namely that the minor head injury suffered by Mr Schumacher resulted from the assault by Mr Christiansen.

iii. Information A 16405. The Committee finds the allegation of assault against Taylor Pereira to have been proved.

8. Penalty & Costs

8.1 Both counsel filed detailed submissions in relation to penalty. Those submissions were filed in advance of the determination made in relation to the defended Information with reference to the assault upon Ms Pereira and before the determination of the disputed facts hearing in relation to the assault upon Mr Schumacher.

Following those determinations just spoken of both counsel have made helpful oral submissions in support of the penalty which they submit is appropriate.

8.2 The penalty Rule provides for a fine, a suspension or disqualification.

8.3 The position can be summarised as follows:

For the RIB a penalty of disqualification is sought.

For Mr Christiansen, Ms Gilby-Todd submitted that a financial penalty was appropriate.

The RIB points to the decisions in RIU v Thornton, a two-month disqualification for an assault. Reference Gately v RIU as recent as February 2019. A four-month disqualification was upheld by an Appeals Tribunal. That was a case where a senior employee behaved inappropriately towards a person under his supervision. The RIB has also referred to the decision in RIU v Bothamley, 30 September 2008.

8.4 It was said for the RIB that there were here three persons assaulted over an extended period on the evening of 22 July this year. It is said further for the RIB that someone in Mr Christiansen’s position must accept the consequences of the conduct which occurred notwithstanding the acknowledgement that he apologised to both Mr Marshall and Mr Schumacher.

8.5 The RIB seeks costs. It has indicated that it has expended around $6,000 and would seek a contribution of around a third of that sum.

8.6 For Mr Christiansen Ms Gilby-Todd points to a number of considerations. These include the following:

i. The severe consequences of disqualification. Mr Christiansen currently has some 14 dogs in training.

ii. The early guilty plea. It is appropriate to note in that regard that the guilty plea in relation to the alleged assault upon Ms Pereira was subsequently withdrawn.

iii. Mr Christiansen’s apology to the victims, Messrs Marshall and Schumacher.

iv. Mr Christiansen gave in evidence that he had subsequent to these events sought formal counselling in relation to anger management. There was no documentation put forward from a counsellor.

v. There were a number of references put forward on Mr Christiansen’s behalf. Those have been carefully considered. They do indicate that the behaviour on the day in question was out of character.

vi. Mr Christiansen has not ever previously appeared on a charge of this kind or indeed on any charge of breaching the Rules of Harness Racing.

8.7 The Committee approaches the question of penalty by viewing the events of 22 July as a single episode albeit that there were three separate assaults. The fact that there were three victims is an aggravating consideration. So too is the fact that this occurred over some period of time on that evening. The Committee is persuaded that Mr Christiansen was compromised by the consumption of alcohol.

8.8 Having regard to the penalties imposed in those cases to which the RIB made reference and which are set out above, the Committee is of the view that a period of disqualification must be imposed to acknowledge the seriousness of this episode and the fact that as noted above there were three victims. It is acknowledged by the Committee that none of these persons were seriously hurt. It is however relevant to note that the level of anger that Mr Christiansen exhibited was demonstrated not only by the assaults but also by smashing closed the door of Mr Marshall’s vehicle and breaking the window by so doing.

8.9 Having determined that disqualification is the appropriate penalty it is then a question of determining the duration of that period of disqualification. The Committee is conscious of the consequences of disqualification in as much as it will impact upon Mr Christiansen’s training operation. Of those cases which were put before the Committee the most severe penalty was in the Gately case where the penalty was a disqualification of four months. It is the view of the Committee that a disqualification for that period of four months is not required here. However, given that there were three assaults over a period of time a significant disqualification must follow. That will be for a period of three months.

8.10 There will be a costs award in favour of the Racing Integrity Board of $3,500. The Racing Integrity Board has incurred significant expense. This in part because of the delays caused by Covid and Mr Christiansen should not be penalised on that account. Nonetheless the conventional practice is that a person found guilty of a breach or breaches of the rules in any of the three codes must make some meaningful contribution towards the costs of the Racing Integrity Board or the JCA as it was formally known. An appropriate figure in this case is the sum of $2,200 and that sum will be paid to the Racing Integrity Board.

8.11 We now turn to the question of when the period of disqualification will take effect. Advice was sought from counsel. The RIB sought a short period of two weeks. That is unrealistic. Ms Gilby-Todd for Mr Christiansen sought a period of 60 days. That is equally unrealistic from the other side of the equation. The Committee is conscious that the holiday season is about to begin and that over Christmas and New Year people would not be able to attend to business as they might ordinarily do. With that in mind we have adopted a date of Friday 21 January 2022 as the date when the three-month period of disqualification will commence.

9. Conduct of Hearing

9.1 This has been an extended hearing today. There were a number of teleconferences leading up to this hearing. Ms Smith, as counsel for the RIB and Ms Gilby-Todd as counsel for Mr Christiansen have worked cooperatively and sensibly in identifying the issues and putting forward balanced submissions. The Committee thanks them for that.

9.2 The Committee thanks Mr Christiansen for his courtesy throughout the hearing today.

DATED this 17th day of December 2021

Murray McKechnie – Chairman