Non Raceday Inquiry – Written Decision as to Penalty and Costs dated 22 May 2025 – Derek Balle

INTRODUCTION

[1]  In its Reserved Decision, the Adjudicative Committee found that the Respondent Mr D Balle breached Rule 512(2)(a) in that he failed to comply with a request from a Racing Investigator to supply a sample at a time and place nominated by that Racing Investigator.  This is the resultant Penalty Decision, which should be read in conjunction with the Adjudicative Committee’s Reserved Decision, which can be accessed via the Racing Integrity Board (RIB) Decision Site, at reference – Non Raceday Inquiry – Written Reserved Decision dated 24 April 2025 – Derek Balle.

PENALTY AND COSTS

[2]  After considering the evidence and submissions from the RIB and Respondent, the Adjudicative Committee determined that the Drivers Licence of the Respondent is suspended for a period of 4 and a half months, which equates to 18 weeks, commencing from the date he was stood down, namely 10 February 2025 and concluding on 16 June 2025 inclusive.

[3]  The Adjudicative Committee has awarded costs of $8,600 (60% of actual costs) to the RIB. In addition, costs associated with the hearing have also been incurred by the Adjudicative Committee, on this occasion a contribution towards these costs of $2,000 (30% of actual costs) is awarded.

[4]  Accordingly, the Adjudicative Committee makes an order for costs totalling $10,600, payable to the RIB.

THE RELEVANT PENALTY PROVISIONS

[5]  The following penalty provisions are relevant to the charge.

Rule 1003(1) provides that:

A person who commits a breach of any Rule shall (subject to the provisions of Rule 111(1)113(5), 451(3), 507(3), 1001 or 1004 hereof) shall be liable to the following penalties:

(a)  A fine not exceeding $10,000.00; and/or

(b)  Suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or

(c)  Disqualification for a period not exceeding 12 months.

PENALTY SUBMISSIONS

[6]  The Adjudicative Committee received comprehensive penalty submissions from both parties. They are summarised as follows.

SUBMISSIONS – APPLICANT (RIB)

[7]  In summary, the RIB’s Penalty Submissions include:

• A starting point of a 6-month suspension of the Drivers Licence as per the Harness Racing Penalty Guide.
• Mitigating Factors: Balle’s prior good character, potentially justifying a moderate discount from the starting point to around a 5 month suspension.
• An order for costs is sought, equating to 60% of the RIB’s costs, which amount to $14,440.

[8]  The RIB noted that the relevant purposes and considerations are helpfully stated in the Appeals Tribunal’s decision in RIU v L:

“Proceedings under the Rules of Harness Racing, as is the position in all cases involving professional disciplines, are designed not simply to punish the transgressor, but crucially are to protect the profession/public/industry/and those who are to deal with the profession…

A common thread in cases involving serious misconduct is for the regulatory tribunal generally to focus on the interests and reputation of the profession as being more important than the fortunes of the individual offending member. The Tribunal must endeavour to reach a proportionate balance between:

• the public interest
• the interests of the offending member
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors. “

[9]  The RIB referred to the relevant purposes relating to drug testing, which were reiterated by the Adjudicative Committee in the recent Decision RIB v Meredith:

“HRNZ commenced drug testing industry participants in 1998 and since then, there has been growing awareness that there is an absolute obligation on participants to present themselves free from the influences of drugs.

All Harness Drivers are aware that routine testing is conducted regularly and for two reasons: the need to maintain a healthy and safe workplace; and secondly to maintain the integrity of the industry.

 All Drivers should be aware of the policy and the consequences should they not comply.”

RIB’s Position as to Penalty

[10]  The RIB’s position is that a starting point of a 6 month suspension, as per the Penalty Guide, is appropriate as they considered that there is nothing in the circumstances of this case that would justify an uplift to, or a reduction from, this as a starting point.

[11]  The RIB submitted that while Balle provided a clean urine sample three days later, this did not conclusively prove he was drug-free at the time of the failed test. It was seen as a neutral factor.

[12]  The RIB identified no aggravating circumstances. Unlike a number of other cases, Balle did attend the testing van.

[13]  Mr Balle’s clear record and good character were seen as mitigating factors.

Comparable Cases:

[14]  The RIB identified previous cases involving similar breaches including those of Meredith, McCaffrey and Kennett, which resulted in penalties of 6 to 10 months, depending on circumstances. Australian cases identified, resulted in penalties of 3 to 6 months.

Final Penalty Recommendation:

[15]  The RIB recommended a suspension of around 5 months, considering the mitigating factor of good character and the absence of aggravating circumstances.

Costs Sought:

[16]  The RIB requested a costs order of approximately $8,600, which represents 60% of the total costs incurred ($14,440).

PENALTY SUBMISSIONS – RESPONDENT

[17]  In summary, the Respondent considered a penalty of 3 months suspension to be appropriate and submitted that the level of costs requested by the RIB was excessive and submitted that a fair figure would be $2,500.

[18]  The Respondent submitted that Mr Balle, having been tested for drugs on some five occasions and having misjudged his ability to provide a sample, he then “did the right thing and got tested by the sample provider”. These factors support the view that the underlying purpose of the drug testing regime (ensure safe driving) was not infringed. Therefore, Mr Balle’s position on this fact is not neutral, as the RIB submits.

[19]  The Respondent submitted that while it was found that a drug testing protocol by HRNZ was not being unreasonable, it was nevertheless unhelpful.

[20]  It was further submitted that the fact a participant had a right to request a tester of their gender, when testers of both genders were available, is not published anywhere and therefore this right is unknown. Mr Balle was not aware that this option was available, which negatively impacted on him on his ability to provide a sample.

[21]  The Respondent did not, as asserted by the RIB, blame Ms Fox for the lack of time. While the Respondent accepted that Mr Balle did misjudge his ability to provide a sample, it is suggested that the error of judgement would not have occurred, had Mr Balle been presented with a notice at the earliest opportunity.

[22]  The Respondent suggested that this case has a unique set of circumstances and other cases that the RIB relies on, are of minimal assistance. The Respondent submits that a penalty of three months suspension of Mr Balle’s Drivers Licence is appropriate and noted that if this penalty was imposed, it has already been served, as Mr Balle’s Licence has been suspended since his stand down on 10 February 2025.

[23]  The Respondent disagreed with the RIB’s submission as to costs. The Respondent considered the quantum sought by the RIB was unreasonable and at that level, most participants involved in the industry could not afford to defend a charge.

[24]  The Respondent submitted a reasonable allocation of costs to be $2,500.

DECISION AND REASONS

[25]  In considering penalty, the Adjudicative Committee has taken into account the following factors:

1. The factual circumstances of the charge. These are set out in the Adjudicative Committee’s  Reserved Decision, which it has referred to in paragraph [1].
2. The penalty submissions lodged by the RIB. These are summarised at paragraphs [7] to [16].
3. The penalty submissions lodged by and on behalf of the Respondent, including mitigating and aggravating factors and his personal circumstances. These are summarised at paragraphs [17] to [24].
4. The Respondent’s unblemished record for any breaches of this nature throughout many years in the industry, are noteworthy and have been taken into consideration.
5. Finally, the Adjudicative Committee was acutely aware that its decision must denounce offending of this nature and serve as a deterrent to others, so as to ensure that the reputation and integrity of racing is maintained. In that regard, it was foremost in the Adjudicative Committee’s thinking, that participants must adhere to their obligation to meet the requirements of the drug the testing regime, as mandated by the Harness Racing Code of Conduct.

Starting Point Penalty

[26]  The RIB Harness Penalty Guide, which was reviewed and reissued on 1 October 2024, serves as a key reference for regulatory measures within the Harness Racing community. This most recent edition was formulated following extensive consultation with various stakeholders, including Harness Racing New Zealand (HRNZ), Drivers, Trainers, the RIB and Adjudicators.

[27]  The HRNZ Penalty Guide sets the starting point for penalty for this charge to be a six-month suspension of the Respondent’s Drivers Licence.

[28]  Whereas the RIB submits the HRNZ Penalty Guide starting point of a 6 month suspension of the Respondent’s Drivers Licence is appropriate, the Respondent made no specific submission as to a starting point, but did highlight the fact that there are unique factors applying in this case.

[29]  Having considered all the evidence, submissions, and precedent Decisions, the Adjudicative Committee determined the starting point penalty as set out in the Penalty Guide, to be appropriate. Accordingly, a six-month suspension of the Respondent’s Drivers Licence was adopted as the starting point for this charge. This is consistent with the position taken by the Adjudicative Committee in McCaffrey (2024) and Meredith (2025).

Comparable Cases

[30]  The Respondent submitted that because of the unique circumstances applying to this case, comparable cases are of marginal benefit. The Adjudicative Committee take a contrary view and considered there were comparable cases that were helpful in calibrating an appropriate penalty.

[31]  The three New Zealand Harness cases the Adjudicative Committee considered to be of relevance were McCaffrey (2024), Meredith (2025) and the historical case of Kennett (2011).  That said, it is noted by the Adjudicative Committee, that although there are relative similarities, there are also points of differences between the comparable cases.

RIB v S McCaffrey (2024)

[32]  Mr McCaffrey failed to provide a sample when requested by an Investigator on the night of the testing, he then did not turn up for a test the following morning, citing that he was too busy to attend.  The RIB in that case, sought a starting point for penalty that was in parity with Thoroughbred Racing (a 12 month disqualification), but the Adjudicative Committee preferred to accept the 6 months suspension starting point as outlined in the RIB Harness Penalty Guide. The Adjudicative Committee in McCaffrey, noted Mr McCaffrey’s refusal to attend to the retest the following day and his belligerent attitude to RIB staff following the attempted testing, as aggravating circumstances, which offset mitigating circumstances.

[33]  After considering the aggravating and mitigating circumstances, the Adjudicative Committee settled on a penalty of a 6 month suspension of his Drivers Licence.

RIB v Z Meredith (2025)

[34]  Mr Meredith refused to provide a sample, as he considered it would test positive to Cannabis, and he did not want a further positive result on his record. The RIB sought parity with Thoroughbred penalties for cases of refusal (starting point of 12 months disqualification). The Adjudicative Committee, after considering all the evidence, concluded that it was more likely than not, that Mr Meredith would have tested positive to Cannabis and not a Class A Drug and so set the starting point at 6 months suspension, in line with the Harness Racing Penalty Guide. Adjustments were then made to reflect the specific mitigating and aggravating factors, before arriving at an end penalty result of 8 months suspension of Mr Meredith’s Drivers Licence.

RIB v C Kennett (2011)

[35]  In the Kennett case, Harness Driver Mr C Kennett was charged with refusing to provide a urine sample; this was on the basis that he objected to a female tester.

[36]  The Adjudicative Committee in that case, considered that “the requirements of the drug-testing regime are not negotiable as far as horsemen are concerned. It is obviously a serious matter for a horseman to refuse to comply with the drug-testing requirements and the consequences of a refusal must reflect that.

In this case, Mr Kennett put forward the explanation that, in effect, he was shy to give a urine sample in the presence of a female nurse. That explanation is petty and, quite simply, not acceptable. The seriousness of Mr Kennett’s refusal, which he frankly admitted, cannot be overstated.

Mr Kennett also holds a trainer’s licence issued by Harness Racing New Zealand. The effect of a disqualification on him would be quite dire. The Committee takes the view that the breach arises from his position as a licensed horseman and that, therefore, any penalty should impact on the latter licence only. So, the Committee did not consider a disqualification in this case.

However, a term of suspension is certainly called for and, in the Committee’s view, an additional monetary penalty is also appropriate. The term of suspension imposed takes into account the fact that Mr Kennett drives only very infrequently.”

[37]  There were a number of Australian cases under the Australian Harness Racing Rules (AHRR). Rule 250(1)(b) governs these decisions, which stipulates:

“A driver commits an offence if:  (b) he refuses or fails to deliver a sample as directed by the Stewards..”

[38]  The Meredith Decision highlighted a number of penalties that have been imposed under this Rule in Australia.  These ranged from 3 to 6 months suspension.

Conclusion on Comparable Cases

[39]  It was noted that the cases of Meredith, McCaffrey and Kennett, all contained aggravating factors, which are absent in this case. Whereas, Meredith and Kennett had refused to provide samples, and McCaffrey, while he had provided an inadequate sample on the night, had then refused to attend to provide a retest the next day, the Respondent on the other hand, did attend at the van for testing, but had been unable to provide a sample.

Aggravating Factors

[40]  There are no aggravating factors.  Although Mr Balle attempted to provide a sample, he was simply unable to do so. Therefore, in the absence of any aggravating factors, an uplift from the starting point is not necessary.

Mitigating Factors

[41]  Mr Balle defended the charge, as is his right. Whilst he cannot be disadvantaged in having defended the charge, Mr Balle cannot receive any penalty discount, that may otherwise have been applied to the starting point for a guilty plea.

[42]  He has had a 40 plus year involvement in the industry and has had an unblemished record under the Rule, having previously provided 5 clear tests, when requested to do so.  In addition, on his own volition, he was tested three days later and returned a negative result.

[43]  On the night of testing and during the investigation and the hearing, Mr Balle has acted in a professional manner.

Result of the Aggravating and Mitigating Factors

[44]  After considering all the circumstances, the Adjudicative Committee considered a 20% reduction on the 6 month starting point to be appropriate.

PENALTY

[45]  The Respondent’s Drivers Licence is suspended for a period of 4 and a half months, which equates to 18 weeks.

COSTS

[46]  The RIB has sought costs of 60% of their expenses of $14,440. The costs are recorded as including:

• Correspondence with Mr Balle’s Counsel and the Adjudicative Committee.
• Preparation for and attendance at the hearing.
• Preparation of penalty submissions.

[47]  The Respondent considered the level of costs requested by the RIB to be excessive. The Respondent submitted that in any Civil case, the costs have to be reasonable. If the starting point is unreasonable, then regardless of the percentage approved, the costs awarded will be excessive and punitive. It was suggested that at the level proposed by the RIB, most people in the industry could not afford to defend a case.

[48]  The Respondent therefore suggested a fair figure that is not punitive, would be $2,500.

[49]  The Adjudicative Committee has power to order a Respondent found guilty to pay all, or part of the costs incurred by the Informant (RIB) – that is to say, costs of preparing and prosecuting the matter before the Adjudicative Committee. In addition, the Adjudicative Committee may award costs in its own favour in conducting the hearing.

[50]  Clause 29.1 of the Fifth Schedule to the New Zealand Rules of Harness Racing provides, in relation to costs:

An Adjudicative Committee, at the time of or after its decision . . . may order any person or body as it thinks fit to pay all or any of the reasonable costs and expenses of:
(e) the Racing Integrity Board; and
(f) the Adjudicative Committee.

[51]  The procedural guide for Adjudicative Committees (page 29 refers) sets out the general principles to be considered when awarding costs. The procedural guide notes that:

• Costs are usually awarded against a Respondent, where the charges have been proved.
• It is desirable to recover costs incurred as a result of a Respondent’s conduct from the defendant rather than passing those costs on to the racing industry.
• Costs can apply where there is a public interest in bringing charges in order to better promote and protect the interests of consumers and the integrity of the racing industry.
• The amount of any costs awarded must be reasonable in all the circumstances of the case.
• The amount of costs will usually be a proportion of the actual costs incurred by the party claiming costs. In general, where costs are awarded to a party a good rule of thumb is an award of 60% of the actual costs reasonably incurred by that party.

[52]  Costs are discretionary and must be just and reasonable. As noted in para [51], where a case is defended but proved, it is normal for the Adjudicative Committee to award costs, and these are usually set at the Court level of 60% of the costs incurred. While this percentage is a rule of thumb, it is the norm. At the same time, the level of costs awarded in a particular case, should not be such as to deter others from defending a charge. Neither should an award of costs be in the nature of a penalty.

[53]  After considering all the circumstances of the case, the Adjudicative Committee sees no reason to depart from this practice. Accordingly, costs of $8,600 (60%) are awarded to the RIB.

[54]  In addition, costs associated with the hearing have also been incurred by the Adjudicative Committee; on this occasion, a contribution towards these costs of $2,000 (30% of actual costs) is awarded.

CONCLUSION

[55]  The Respondent’s Drivers Licence is suspended for a period of 4 and a half months, which equates to 18 weeks, commencing from the date he was stood down, namely 10 February 2025 and concluding on 16 June 2025 inclusive.

[56]  Costs of $8,600 are awarded to the RIB as a contribution to its costs.

[57]  Costs of $2,000 are awarded towards the costs of the Adjudicative Committee.