Decision Setting Aside Non Raceday Inquiry Decision dated 3 June 2022 – Ricki L Herbert and David A Marshall

Decision pursuant to Rule 1114 of New Zealand Rules of Racing Setting Aside Non Raceday Inquiry Decision dated 3 June 2022

[1]  The Adjudicative Committee has received the Informant’s Memorandum dated 20 June 2022 regarding an error in the Informant’s submissions on penalty in respect of the Adjudicative Committee’s Non Raceday Inquiry Decision dated 3 June 2022.

[2]  Rule 1114 of the New Zealand Rules of Harness Racing provides:

No information, penalty, decision or order or other document and no process or proceeding shall be quashed, set aside, or held invalid by an Adjudicative Committee or Appeals Tribunal by reason only of any defect, irregularity, omission, or want of form unless the Adjudicative Committee or Appeals Tribunal is satisfied there has been a miscarriage of justice.

[3]  David Marshall and Ricki Herbert (the respondents) each faced one Information alleging that they breached the New Zealand Rules of Harness Racing (Rules):

(a)  In respect of Mr Marshall, on 24 December 2021 at the Waikato BOP Harness race meeting at Cambridge Raceway, being a licenced stablehand and a Registered Harness Horse Owner, Mr Marshall misconducted himself by verbally abusing and acting in an intimidating manner towards Allen Christiansen, in breach of rule 303(2) of the Rules.

(b)  In respect of Mr Herbert, on 24 December 2021 at the Waikato BOP Harness race meeting at Cambridge Raceway, being a licenced amateur driver and a Registered Harness Horse Owner, Mr Herbert misconducted himself by verbally abusing and acting in an intimidating manner towards Allen Christiansen, in breach of rule 303(2) of the Rules.

[4]  Mr Marshall and Mr Herbert each pleaded guilty to the Informations. The matter was determined on the papers. A penalty of a $1,000 fine was imposed on each of Mr Marshall and Mr Herbert.

[5]  The Informant’s penalty submissions included the following comments:

“The second part of incident (following Mr Herbert’s involvement) was captured by a CCTV camera operated by TAB at the Raceway. The incident was therefore broadcast live, in real time, to the nation on the Trackside TV channel.

The behaviour was particularly aggravated by the context in which it occurred. It unfolded in a highly public area in front of a number of patrons who were present to watch the harness & greyhound racing events. It was also broadcast live to the nation on Trackside. It had the ability to seriously bring the racing industry into disrepute.”

[6]  This error was adopted by the Adjudicative Committee in its penalty decision dated 3 June 2022, in paragraph [7(i)] as follows:

“The second part of incident (following Mr Herbert’s involvement) was captured by a CCTV camera operated by TAB at the Raceway. The incident was therefore broadcast live, in real time, to the nation on the Trackside TV channel.”

[7]  The Informant’s Memorandum advised that the RIB had obtained this footage directly from the TAB on 29 December 2021. At the time, RIB was of the understanding that the footage had been broadcast live to the nation via Trackside.

[8]  On 10 June 2022, the TAB Trackside manager advised the RIB that no part of this incident actually went to air on Trackside.  Immediately after the race was run, there was some footage of the handlers and dogs walking back to the track, then the live broadcast switched to a race at the Western Australia harness meeting at Albany.  This occurred prior to the incident involving Mr Marshall and Mr Herbert.

[9]  The Informant’s position is that this error does not materially affect the end sentence imposed, such that there has not been a miscarriage of justice. The incident still occurred in view of the public and had the potential to bring the racing industry into disrepute.  The penalty of $1,000 imposed was appropriate in all of the circumstances, notwithstanding this error.

[10]  The Adjudicative Committee rejects this submission.  In the Decision dated 3 June 2022, the Adjudicative Committee accepted the RIB submissions as to the aggravating factors of this offending which included the erroneous factor that the behaviour of the Respondents was particularly aggravated because it was broadcast live to the nation on Trackside and had the ability to bring the Racing Industry into disrepute.

In fixing the penalty, the Adjudicative Committee took this error into account.

[11]  For these reasons, the Adjudicative Committee is satisfied that there has been a miscarriage of justice and the decision of the Adjudicative Committee dated 3 June 2022 is set aside.

JH Lovell-Smith (Chair)