Non Raceday Inquiry – Decision dated 18 October 2021 – Paul Scott

BACKGROUND:

[1]   The Information alleges that the Respondent, Paul Raymond Brian Scott, an Official, used improper and insulting language towards Steward, David Wadley, at a race meeting conducted by Christchurch Greyhound Racing Club at Addington Raceway on 22nd June 2021.

[2]   Mr Irving produced an Authority to Charge dated 9th July 2021, pursuant to Rule 66.2 (a) signed by Mr Mike Clement, Chief Executive of the Racing Integrity Board.

[3]   Rule 62.1 provides;

“Any person (including an Official) commits an offence if he/she:

(f)   uses improper, insulting and offensive language in either written or spoken form towards, or in relation to:

(i)   a Steward.”

[4]   The charge and Rule were read to Mr Scott who confirmed that he understood them both and that he denied the charge.

EVIDENCE FOR THE APPLICANT:

1.  After a number of preliminary matters were discussed, Mr Irving read to the hearing the definitions from the Oxford English Dictionary of “improper language” (the use of profane, indecent or obscene language) and  “insulting language” (rude, offensive, showing a lack of respect, insulting remarks/attitude). He submitted that those definitions were relevant, given the wording of the rule and charge.

2.  Mr Irving then called Mr David Wadley Stipendiary Steward, the complainant, to read a brief of evidence.

Evidence of David Wadley

3.  Much of Mr Wadley’s evidence related to an incident on the track involving himself and the respondent after Race 6 at the race meeting, when Mr Wadley was driving the “golf cart” for Mr Dave Robbie who was on the track taking penetrometer readings, and the respondent was on the track driving the water cart. This incident will be referred to in more detail later in this decision.

4.  Mr Wadley then gave evidence, relevant to this charge, as to his version of what took place subsequent to that incident.

5.  Mr Wadley said that, following the incident, he spoke to Tony Music, the Club Manager, and explained that Mr Scott had tried to run him over and asking to meet him in the Stewards’ Room.

6.  Mr Wadley then said that he parked the golf cart in its usual parking place and, walking away, he heard the respondent call out to him “Hey David”, whereupon Mr Wadley turned and walked back, as the respondent approached him. He said that he could tell from the respondent’s body language that he was not going to be friendly.

7.  He alleged that the respondent then said: “David. What’s up?” to which he responded “What were you trying to do to me”? He alleged that the respondent then approached him, to some two feet away, was aggressive in his tone and his voice was raised. Mr Wadley accused the respondent that what he had done (referring to the incident on the track) was dangerous. He said that he then explained to the respondent his actions on the track.

8.  Mr Wadley said that the respondent then said “F*** you. Go an’ get f*****.” Mr Wadley said that he tried to reason with the respondent for a short time, attempting to explain his actions on the track. He then began walking away, he said, and heard the respondent say: “Yeah, go on. F*** off and go do what you’ve got to do. I’m sick of f****** working here anyway”. This was said when the respondent was only a metre or so away from him and was said in a raised voice. As he continued to walk away, he could hear the respondent continue to “rant” about something inaudible.

9.  Mr Wadley said that he then went to the Stewards’ Room and, on the way, called his manager, Chief Greyhound Steward, Scott Wallis, and told him what had happened on the track and exactly what the respondent had said to him. Mr Wallis said that he would deal with it.

10.  He then entered the Stewards’ Room to find Mr Music and Rick Quirk, Chairman of Stewards for the day. He told them what had happened and what the respondent had said to him. He told Mr Music that he was “real hot”, said that the respondent had abused him and that he would be opening an investigation. Mr Music’s response was supportive and said that, if Mr Scott had done that, there were no excuses and it was totally unacceptable.

11.  A couple of races later, he said, he had gone to the respondent and asked him to attend the Stewards’ Room concerning what had happened. Mr Scott replied that he was too busy and would not be coming. Mr Wadley said: OK, we’ll take it from there” and left.

12.  Mr Irving then put it to Mr Wadley that, in his interview with the respondent, the respondent had claimed that all he had said “that’s f***** that anyway”, referring to that being the last time that Mr Wadley would be going round in the golf cart to do penetrometer readings. Mr Wadley confirmed that what was said was as per the evidence given by him.

13.  Mr Wadley said that, in his five years working as a greyhound Steward, he had never had to suffer abuse as he had on this occasion or make a formal complaint against any person. He has known the respondent for all the time he has worked as a greyhound Steward and has never had a problem with him previously.

14.  Asked by the Committee, Mr Wadley said that no other person was within earshot of the alleged conversation with the respondent.

15.  Mr Blake Scott cross-examined Mr Wadley at length concerning the incident on the track. The Committee will address that incident later in this decision.

16.  Mr Wadley was then asked why he had thanked the respondent after allegedly being told to go and get f*****. Mr Wadley said that he had been trying to reason with the respondent, but when the respondent used those words he said “thank you” and walked away. He was asked if he had possibly misheard the respondent’s words, Mr Wadley said that he had heard the words very clearly.

17.  Mr Wadley was asked what he meant when he told Mr Music that he was “really hot on this”, Mr Wadley responded that he was upset about being abused out on the track and was not prepared to stand for it. He denied that an incident involving a trainer earlier in the race day had been playing on his mind.

Evidence of Scott Wallis

18.  Mr Wallis is employed by the Racing Integrity Board as the Chief Greyhound Steward.

19.  He said that he was off-duty on 22nd June when he received a phone call from Mr Wadley. He is Mr Wadley’s manager. Mr Wadley told him that the respondent had just told him to “go f*** yourself” and then told me to “get f*****” and to “f*** off”. Mr Wadley then explained to him the incident on the track. Mr Wadley was quite worked up, the most worked up he had heard him.

20.  Mr Wallis then asked Mr Wadley to relax and to tell him what had happened. Mr Wadley told him that, after parking the vehicle, the respondent had called out his name, walked over to him and said Mr Wadley could “go f*** himself” and, after attempting to calm the respondent down, the respondent said  “f*** you” and, as he  walked away, the respondent said “that’s right, f*** off and go do what you have to do” and “I’ve had a gutsful of working at this place anyway”.

21.  Mr Wallis said he then told Mr Wadley to get the respondent to go up to the Stewards’ Room before the end of the day and have Mr Quirk tell him that an investigation would be opened and adjourned into the matter.

22.  Mr Irving asked Mr Wallis if Mr Wadley had previously made any complaint concerning being abused by a licenceholder or official. Mr Wallis answered that he had not.

23.  When he answered the phone that day, Mr Wallis said, he could tell from Mr Wadley’s demeanour that he was very “worked up”. He is normally a very relaxed person and it was apparent that something had really rattled him. It must have for him to have phoned, Mr Wallis said. He was surprised at the language allegedly used towards Mr Wadley, as that would have been out of character for the respondent.

24.  Under cross-examination, Mr Wallis said that he was not aware of any previous incident similar to that which had taken place after Race 6. He said that the investigation was out of his hands, but he had said to the respondent, with whom he had always had a good relationship, that as far as he was concerned there were no hard feelings.

25.  Mr Wallis said that he did not believe that Mr Wadley would have been affected by the earlier incident in the race day involving an injured greyhound as similar incidents had not affected him in the past.

Evidence of Tony Music (by way of written statement with consent of the respondent)

26.  Mr Music has been Manager of the Christchurch Greyhound Racing Club for approximately 17 years. He has been the respondent’s employer for approximately 14 years. The respondent is the Track Curator for the Club. During the Club’s race meeting on 22nd June, he was in his office and received a phone call from Mr Wadley to inform him of an incident on the track involving the respondent. He said Mr Wadley was not very happy because the respondent had almost run him over, and he did not like the way he had been spoken to by the respondent.

27.  Mr Music said that he immediately phoned the respondent. The respondent had said that Mr Wadley and Mr Robbie should know better. He was doing the water cart and they were doing the track measurements and their golf cart was in the way. They were on the outside of the track and he was waving at them. They either did not see him or they just ignored him, he said to Mr Music.

28.  Mr Music told him that he had just received a phone call from Mr Wadley to attend in the Stewards’ Room because of what had happened and about the way he had spoken to Mr Wadley.

29.  The respondent said that that was ridiculous and that Mr Wadley was on his way over to where he was and he would speak to Mr Wadley about it. The respondent later told Mr Music about the “altercation” and, when Mr Wadley came over, he had asked him what the matter was and told Mr Wadley that he’d “had another piece of him”. Mr Wadley had blown up because he was in his way, the respondent told Mr Music. He said he had had a go at Mr Wadley and said something along the lines of “it’s f*****”. Mr Music told him he could not swear at a stipe. He was not sure where the respondent was when he told him that he had sworn at Mr Wadley, Mr Music said.

30.  Mr Music had then attended at the Stewards Room to see Mr Quirk. Mr Wadley had then entered and said that the respondent had told him to basically get f***** in an aggressive tone.

Evidence of Simon Andrew Irving (accepted with consent of respondent)

31.  Mr Irving said that he is employed by the Racing Integrity Board as a Racing Investigator and has been appointed under the New Zealand Rules of Greyhound Racing since 2014. His role is to investigate matters under the Rules.

32.  On 23rd June 2021, he spoke to Messrs Wallis and Wadley concerning the incident that had occurred involving Mr Wadley and the track curator, Mr Paul Scott the previous day. He later obtained statements from both. He was later provided with a statement from Mr Dave Robbie (which he produced) and he interviewed the respondent on 2nd July in the presence of his employer, Mr Tony Music. He produced a transcript of that interview. On 9th July, he again spoke to Mr Tony Music. Finally, he produced an Authority to Charge dated 9th July 2021 signed by Mr Mike Clement, Chief Executive of the RIB.

Evidence of the Respondent

33.  Mr Blake Scott then indicated to the hearing that the respondent did not intend to give evidence to the hearing. He said that the respondent would rely on the transcript of the interview by Mr Irving on 2nd July.

34. Much of the interview concerned the incident on the track that led to the alleged offence but set out verbatim hereunder is an extract from the interview relevant to the charge:

Simon: Just to go back to out the front here. I’ve spoken to David obviously, and I’ll let you know what he’s saying that you said to him which is pretty much what you’ve already said other than a couple of other words. He said that you then said, “F*** you and go and get f*****”. Then you tried some more conversation and as he walked away from you, that you said to him “Yeah, go on, f*** off. Do what you’ve gotta do, I’m sick of working here anyway”.

Paul: No, there’s no way I said that

Simon: If we go to the first bit. Would you have said to him, “F*** you, go and get f*****”?

Paul:  No, I said “That’s f***** that”. What I was referring to is the last time you’re going round in the cart otherwise you’re going to have to walk.

Simon: As in to say, “We’ll stop the process of you going out there to do your penetrometer in the cart”?

Paul:  Yeah.

Simon: Have you said to him, “F*** you,  go and get f*****” at any stage?

Paul: No

Simon: Then as he started to walk away, can you recall anything being said?

Paul: He just walked away.

Simon: You didn’t say to him “Go on, f*** off”?

Paul: I never said those words at all.

Simon: “Do what you’ve gotta do”?

Paul: Yeah, and what was the last bit?

Simon: He said as he’s walked away, he’s saying you said to him “Yeah, go, f*** off. Do what you’ve gotta do, I’m sick of working here anyway”.

Paul: That’s an invention of words there. There’s no way I said that.

Simon: You’re not sick of working here?

Paul: No, it’s my job. Well, everyone’s sick of working.

Simon: Then a few races later David said that he came to speak to you to say “Can you go upstairs?”

Paul: [Indistinct}

Simon: Recount what you recall of that part of the conversation.

Paul: When he came out to me and said, “Paul, we need to see you upstairs”, I said “I can’t, I’m too busy”. We were in the middle of racing, how the hell was I gonna walk away from here?

Tony Music: Trials to do as well.

Paul: And trials but there was no mention of  saying “Come afterwards” or anything like that which wouldn’t have happened anyway because when we were doing the trials they were up there walking away.

Simon: Did you know what he was meaning and why he wanted you to come up to the room?

Paul: I presume because we had this altercation. I’m just presuming.

Simon: Anything else you wanna say?

Paul: Nah

Closing Submissions of the Applicant

35. Mr Irving said that the RIB was not disputing that the incident, the subject of this charge, was sparked by Mr Wadley parking where he did. Common sense says that he and Mr Robbie were in the wrong. The water truck on the track takes priority and they were in the wrong position and it was understandable why the respondent had got angry. It explains the subsequent incident.

36.  The case on the charge is not a complicated one. The sole issue for the Committee is whether the respondent said the words alleged to Mr Wadley. The difficulty is that there were no independent witnesses to attest to which version of the words spoken was correct. The accounts of Mr Wadley and the respondent are “polar opposites”.  The respective accounts are so different that there cannot have been a misunderstanding of what was said, and only one of them can be telling the truth. He submitted that the evidence was clear.

37. Mr Wadley’s evidence was quite clear and direct. He has no motive to have made anything up and his actions on the day were consistent with his account of events as he believed them to be. His immediate response had been to contact Mr Music and, more importantly, contacting Mr Wallis to inform him, as his manager, and these actions are indicative of the fact that the extent of the respondent’s language was more than the simple words “well that’s f***** that anyway”. The use of the f-word as an adjective as in that context is commonplace in today’s society, including amongst racing participants. The use of the word in that context would not have resulted in Mr Wadley making a complaint. He has not previously made a complaint of abuse in his five years in this role. The Committee has heard evidence that it is out of character for Mr Wadley to complain or get “hot” on any previous occasion.  Mr Wallis had testified that he had not heard Mr Wadley so upset in a work setting.

38. If the respondent had only said the words “well, that’s f***** that anyway”, would Mr Wadley have phoned his manager straight away? The answer has to be “No”. Similarly, would Mr Wadley have told Mr Music, in Mr Quirk’s presence, about what had happened, not the “near miss” on the track, but rather the words that the respondent had used to Mr Wadley. Those words were improper and insulting enough to Mr Wadley as they would be to any “normal person” in society given time, place and circumstance.

39. The respondent’s lay advocate picked up a a discrepancy around the exact words – “go f*** yourself” or “go and get f*****. Those expressions are relatively similar. When two witnesses are asked for an account, it would be unusual if they exactly corresponded. Otherwise, some form of collaboration might be suspected.

40. When interviewed some 10 days later, Mr Scott “watered down” his version  of events and minimised the words he had used towards Mr Wadley.

41. As for the standard of proof, the civil standard of the balance of probabilities applies and not the criminal standard of beyond reasonable doubt. So the Committee needs to be satisfied that it is more  probable than not that Mr Scott has used improper language towards Mr Wadley. The more serious the allegation against a respondent, the more compelling the evidence needs to be.

42.  In terms of a scale of seriousness, recent penalties in cases of behavioural offences against an official range between $400 to $750 as opposed to a serious racing offence. This case is low on a scale of seriousness and, therefore, the standard of proof is lower than that for a serious racing offence.

Closing Submissions of the Respondent

43.  On the day of the incident, the respondent was doing his job – driving the water cart between races – as he had done thousands of times. On this occasion, he was forced to stop because Mr Wadley had stopped a golf cart in his path. After completing the job, the respondent approached Mr Wadley to ask why he had forced the water truck to stop and put the track in danger. Both men then exchanged words and Mr Scott did not use offensive language directed at Mr Wadley.

44.  Mr Wadley made a mistake on the track because he was under pressure following an incident in Race 2. Mr Wadley was having “a bad day” and blaming Mr Scott is a way of diverting having to take responsibility for his mistakes. Mr Wadley was in the wrong to stop on the track and force the water truck to stop. He then needed to exaggerate the conversation to justify his previous false accusation to Mr Music that the respondent had tried to run him over.

45.  The fear of being under the spotlight for another incident on that day was the “straw that broke the camel’s back” and the respondent became his scapegoat. The first thing that Mr Wadley claimed to have heard, minutes after the incident, were “go f*** yourself”. He had then exaggerated his story even further before speaking to Mr Irving, so he either did not hear clearly the first time or he has had to make it up. Mr Wadley acknowledged that both he and the respondent were under pressure with the short intervals between races. Mistakes are made when people are under pressure and, instead of taking responsibility for these mistakes, Mr Wadley has looked for someone else to blame. There are no independent witnesses to corroborate Mr Wadley’s version and the evidence needs to be compelling for a charge to be found proved.

[5] REASONS FOR DECISION:

1. The evidence in this case amounts to a classic “He said . . . He said”. Mr Wadley has averred that the Respondent used language towards him – “f*** you, go an’ get f*****”  and then “Yeah, go on, f***off, go and do what you’ve got to do. I’m sick of f*****g working here anyway”. The alleged use of such language has led to this charge of using improper and insulting language. The alleged language was not overheard by a third party.

2.  On the other hand, it has been argued for the Respondent that he did not use such language, but only the “throwaway” line – “Well, that’s f***** that then anyway!” It was argued that, on their own, those words were innocuous.

3.  At the hearing, Mr Wadley gave quite detailed and lengthy evidence concerning an incident on the track following Race 6 at the race meeting and he was cross-examined at some length by Mr Blake Scott.

4.  The facts, as we find them, concerning that incident are as follows. Mr Wadley was the driver of the “golf cart” that had taken Mr Dave Robbie on to the track after Race 6 to carry out penetrometer readings. The vehicle was parked on the outside part of the track, facing south towards the top of the straight. Mr Wadley was sitting in the vehicle while Mr Robbie was on the track taking the reading. The water truck, driven by the Respondent, was approaching on the outside of the track from the direction in which Mr Wadley was looking. The Respondent had already watered the inside part of the track. According to Mr Wadley, it was raining but this was disputed by the Respondent. Mr Wadley claimed that visibility was poor as the golf cart had no windscreen wipers. This is not a critical point.

5.  The Respondent approached the parked vehicle at which point Mr Wadley drove the golf cart down towards the inside of the track, as he feared that the water truck was not going to stop. At this point, the water truck may or may not have stopped completely. The Respondent was concerned that stopping the water truck was problematic, as that would have involved turning off the water as the overflow of water makes big, round holes in the track surface, he said. He was unable to drive to the inside, as he had already watered there.

6.  The Committee finds that the incident could probably have been handled better by both parties, but we tend to the view the Respondent was entitled to the “right of way” in order to be able to perform his job without hindrance.

7.  This incident on the track needs to be considered, only as it provides context for what ensued and led to this charge being brought.

8.  The Committee needs to make a finding on the matter of credibility as to what happened post that incident. Relevant matters to which the Committee has had regard in making a finding are:

(i)   Mr Wadley at the first opportunity phoned his manager, Mr Wallis, to tell him what the Respondent had said to him;

(ii)   Mr Wadley then went to the Stewards’ Room, where Messrs Quirk and Music were present and he told them;

(iii)  Mr Wadley had no apparent motive for making what would have been a false complaint;

(iv)   Mr Wadley had not made any previous similar complaint against any person in his 5 years working as a Greyhound Racing Steward;

(v)   There was no evidence of any previous “history” between Mr Wadley and the Respondent;

(vi)  Mr Wallis gave evidence as to Mr Wadley’s state of mind – “the most worked up I’ve ever heard him sound”

9.  Having regard to those matters, the evidence of Mr Wadley is credible and compelling and the Committee prefers his evidence to the Respondent’s denial, which is self-serving. It makes no sense to consider that Mr Wadley would make the allegation falsely against the Respondent.

10.  It was suggested by the Respondent’s advocate, Mr Blake Scott, that Mr Wadley has attempted to make the Respondent the “scapegoat” to divert attention from his having some feelings of guilt or responsibility for a situation involving the Greyhound, BELFAST DEMO, from Race 2 earlier in the day. There was no evidence that this had or may have had any effect on Mr Wadley and the Committee has disregarded it.

11.  The Committee finds that the Respondent did use the words alleged to Mr Wadley, a Steward. We do not believe the Respondent.

12.  We need to now address the matter of whether that language used toward Mr Wadley was “improper and insulting” in terms of the Rule. Mr Irving referred us to definitions of those words. Another definition of “improper” is “not in accordance with propriety of behaviour, manners, unsuitable or inappropriate , as for the purpose or occasion”. “Insulting” can also be defined as “giving or causing insult; characterised by affronting rudeness, insolence”.

13.  We accept that the Respondent may have felt affronted by what had just happened on the track, but that in no way justifies, and can never, justify  the  response and the language that he used towards Mr Wadley, which the Committee is satisfied was both “improper” and “insulting” by any definition. While such language may, nowadays, be commonplace, it can never be acceptable language to use toward a Steward in the performance of his duties.

DECISION:

[6] The charge is found proved.

PENALTY:

[7] The parties are to file written penalty submissions with the Executive Officer of the Racing Integrity Board. The Applicant’s submissions are to be filed by not later than Friday, 22nd October 2021. The Respondent will have 5 working days after receipt of the Applicant’s submissions to file submissions in reply.