Non Raceday Inquiry – Written Decision dated 16 February 2022 – Trudy Keegan

1. Ms Keegan is a Licensed Class A Trainer residing and operating at Stratford and presently has 22 horses under her care.

2. She was charged with a breach of Rule 802(1)(a) of the Rules of Racing in that:

(a) On 13 January 2022 she attended the NZTR race meeting at Otaki as a Licensed Trainer and failed to comply with a NZTR Directive (in line with the government “COVID-19 Public Health Response Act 2020”) and was therefore in breach of Rule 802(1)(a).

(b) That Directive was provided to all Licencees and persons entering a racecourse that they must have a “My Vaccine Pass” scanned or sighted to prove double vaccination.

(c) Ms Keegan did not have such a pass and produced a fake or fraudulent pass that she had earlier obtained.

3. Rule 802(1)(a) provides that: a person commits a breach who acts in contravention of or fails to comply with any provisions of the Rules ….. or any policy, notice, direction, instructions, …… restrictions, requirement or condition given, made or imposed under the Rules.

4. Following upon Ms Keegan’s guilty plea we received extensive submissions in writing, as well as oral representations, from Counsel on behalf of the Informant and Ms Keegan. After deliberating following the conclusion of the hearing the Adjudicative Committee imposed the penalties recorded hereafter in paragraph 33 – we now record the reasons for that decision.

Essential Facts

5. Ms Keegan was the Trainer of two horses entered to compete at the Otaki-Maori Racing Club meeting held at Otaki Racecourse on 13 January 2022. That meeting was subject to the policy and Directions issued on 26 November 2021 to Licensed Trainers, which followed upon restrictions required by the NZ Government agency aimed to protect persons who were engaged at raceday meetings (and otherwise). They were to enable race meetings to take place, and protect people from possible consequences of the COVID-19 pandemic.

6. The Directive issued by the NZTR Board on 26 November 2021 provided:

“This Directive outlines the following:

2.1(f) All persons admitted to a racecourse for a Meeting must:

(i) Allow their “My Vaccine Pass” to be scanned or sighted as proof that they are double vaccinated. Any attempt to falsify proof of a person’s vaccination status (“My Vaccine Pass” or in another form) will be reported to the NZ Police and will also be treated as a Serious Racing Offence. A false statement regarding vaccination status to the NZTR, the RIB or a racing club will also be regarded as a Serious Racing Offence.

7. For completeness we record that the Directive also recorded the Government announcement that “workers” in a business where vaccine mandates applied had a short term exemption until 17 January 2022 but to qualify they had to:

“have their first vaccination [by] 13 December 2021” and have documentary proof of having such first dose and evidence of a second vaccination booking. Ms Keegan had neither.

8. Ms Keegan chose, for personal reasons, not to have any vaccination so did not qualify for any exemption – assuming she was a “worker”. As at the day of the Otaki Races she was totally unvaccinated. That was her entitlement. But it did not entitle her to enter that racecourse – as her guilty plea acknowledges. Consequently, she did not have a “My Vaccine Pass” or any other documentation to authorise her entry. She knew this and had obtained a fake or fraudulent forged pass – which was entered on her cellphone. In answer to a question put to her by the Adjudicative Committee she said that she obtained the fake document from another person about 7 days before the Otaki meeting. Unquestionably her intention was to use it if necessary, of proof of vaccination when none had taken place.

9. After travelling from Stratford on 13 January 2022 with two staff members and two horses, Ms Keegan entered the racecourse at the gate as her “passport” was not sighted there. However, whilst on the racecourse she was approached by the RIB Investigator and asked to show her COVID-19 Vaccination Passport. The Investigator endeavoured to scan the passport using the Ministry of Health pass verifier, but was unable to do so as a “failed” response arose because the passport was invalid. Ms Keegan had earlier endeavoured to deflect the Investigator’s questions by stating that she had earlier that day been able to scan the passport at a takeaway restaurant. But then the enquiries revealed that the “passport” was not able to be scanned.

10. Ms Keegan was then confronted by the Investigator as to this. She then admitted that the passport was false. The Investigator understood from what Ms Keegan said, that she was “opposed to vaccination requirements”, and subsequent NZTR Directives and that she had had pressure placed upon her by others (owners) to attend at racecourses so as to continue to be able to train for them. She then became tearful and apologetic. We record that Ms Keegan now says that she did not assert that she was “opposed to vaccinations” but rather that her decision not to be vaccinated arose because of personal concerns about possible alleged health side effects that might impact on her, so she would not submit to such procedure.

11. The presentation of the fake passport was a “Serious Racing Offence”.

12. Ms Keegan has had a long involvement with thoroughbred racing with no previous breaches of the Rules of Racing. She has held a Trainer’s Licence for 14 years.

Submissions as to Penalty

The Informant’s Submissions

13. Counsel contended that this offending was serious involving planned and deliberate dishonest actions to flout the NZTR Mandatory Directive. It was more than trying to enter a racecourse without having the passport, but actively obtaining and using a fake in order to deceive Racing Club Officials, authorities and the RIB. She obtained and used it and intended to later use if she had not been caught, a document to which she was not entitled.

14. Counsel acknowledged that there is no jurisdiction of the NZTR and RIB to “police” non racing matters outside the NZTR Rules (which of course is correct) but contended that the properly issued Directive was to enable race meetings to take place and to promote the safety and welfare of all who go onto racecourses to participate in the racing profession (jockeys, trainers, owners, strappers, staff).

15. Counsel referred to some other cases within this framework in Australia and Ireland where very substantial fines and/or suspensions have been handed down. He referred to two other cases in New Zealand where penalties were imposed for what was said to be “breaches of COVID-19 “protocols”, and offences against Rule 802(1)(a). These attracted fines of $2,400 (RIB v Hewetson) and $2,700 (RIB v Harvey). They involved somewhat different circumstances to the present, being only the unauthorised crossing of domestic territorial boundary restrictions then temporarily in place. Counsel contended that they did not fall into a different category.

16. Counsel for the RIB referred us to two cases where forged documents were obtained, and used, to seek an advantage by thwarting Stipendiary Stewards in their enquiries into wrongdoing. They were RIU v Cameron (18.12.07) and RIU v Scott (22.2.05). In both cases orders for disqualification (4 and 6 months) and not just suspension, followed. There a jockey and a trainer presented altered (forged) documents in order to deceive. In Mr Cameron’s case, the Committee said:

“the production of a document…. for the purpose of obtaining some pecuniary advantage or avoiding some penalty that might otherwise be imposed, could lead to the charge of forgery …. or fraudulently using a document for the purposes of obtaining an advantage”.

17. That is, such behaviour is the offence of “uttering” (using) a forged document under the Crimes Act 1961.

18. Counsel for the RIB submitted that because it was a Serious Racing Offence, the Adjudicative Committee “ought to give serious consideration to a period of suspension or disqualification”. He contended that if that did not follow a substantial fine from a starting point of $6,000, with a discount for Ms Keegan’s good record, to a fine of something between $4,800 and $5,400.

Submissions of Counsel for Ms Keegan

19. We received comprehensive and able submissions from Mr Wano.  They can be distilled, or summarised as follows.

• The decisions – or outcomes – in the Hewetson and Harvey cases, were analogue to the present offence, and resulted only in fines, so that – at most only a modest fine was necessary in this case.
• She genuinely believed she had health reasons for not being vaccinated.
• Ms Keegan made an error of judgment arising out of stress, mental or emotional pressures.
• She is remorseful and regrets her error of judgment.
• She has an unblemished history with a successful business and strong support of her owners and others in the profession.
• She has suffered from adverse publicity attracting blame upon her.
• Any restriction of her ability to act as a Licensed Trainer will impact adversely upon her owners, staff and business.
• She thought that she had until 17 January 2022 to produce a double vaccination passport.

Outcome

20. We first deal with the last assertion as to her claimed belief. We reject it is a later manufactured or created that belief could not have existed at the time nor did it exist. She knew of the terms of the Directive and must have known that she could not fall into any transitory exemption. Indeed that required at least to have vaccination by 13 December 2021 was something she did not meet. She was determined not to do so. Any such (now) claimed belief cannot stand with the action of securing and using the fake passport. The Investigator was not told of that claim, because it could not have existed. And she pleaded guilty to what she did – that is go onto the racecourse and present the fake passport as alleged. Her claim now defies commonsense when viewed against the clear facts.

21. Where a crucial document has been falsified and presented (used or “uttered”) to achieve an advantage and intended to breach the Rules of Racing and to deceive those charged with administering the Rules, such behaviour clearly falls into the category of serious misconduct.

22. Ms Keegan, as with all Trainers, enjoys the privilege of a Trainer’s Licence. With that privilege goes the duty to comply with the Rules of the profession. Those who wish to participate in the profession/code are required to adhere to and comply with the Rules. If they do not wish to do so that is their choice but they cannot expect to have the privilege of participating in the profession. Ms Keegan has always adhered to the Rules until now which is to her credit. But as a licence holder she chose to deliberately, not mistakenly, breach a Rule so as to commit a “serious racing offence”. Whatever reason may exist for her personal belief or concern – and she is quite entitled to hold any beliefs she has – that belief cannot justify her deliberate and conscious actions. She did not have any exemption, medical or otherwise.

23. Counsel for the Informant has referred to remarks of the Appeal Tribunal in RIU v Lawson – which are well known for this Adjudicative Committee – as to some criteria to consider, where appropriate, in the “sentencing” process.  These include:

• The need to punish a deliberate transgression of the Rules of Racing and to mark Tribunal’s condemnation of such behaviour.
• The need to protect the profession and the public, and to promote confidence in the integrity of the profession.
• To deter not only the offender, but others in the profession who might be tempted to breach the Rule.

24. To these we add that there is a vital consideration in this case, that is that Racing only has been able to take place, in some form, if Government conditions are met and honoured by participants.  Any betrayal of the NZTR requirements which is manifestly damaging the whole industry is especially egregious

25. There were some aggravating features accompanying Ms Keegan’s breach of this Rule.  They include:

• Her obtaining of the fake passport intending to use it so as to deceive others in the code.
• The actual fraudulent use of it on 13 January 2022 to secure for her a fraudulent advantage.
• Her initial attempts to deflect the inquiries of the Investigator, where it was not a mistake or error of judgment.
• She admitted to the Adjudicative Committee’s question that she had attended the race meeting at Awapuni and New Plymouth on 26 and 27 December 2021 (when the Directive was in force) and although she did not then have the fake passport, those actions also breached the Rule, but naturally she was not charge with this.

26. There is balanced against those features, strong mitigating factors for which credit is to be extended to Ms Keegan.  These include:

• Her unblemished record of compliance with the Rules.
• Her lengthy involvement in the profession/sport.
• Her reputation as to past honesty.
• Impressive character references from many in the profession (we received five of these).
• Her personal circumstances.
• The opprobrium (public criticism) from media comment – although this will inevitably usually follow where any defendant is before a Court or disciplinary Tribunals.

27. A guilty plea and expression of remorse is not always to be regarded as requiring a discount in sentencing, as it will all depend on many circumstances.  There was no prospect of defending the charge and, as commented on by the Supreme Court in  Hessell v R (SC (02)/2009), “Remorse is not necessarily shown by simply pleading guilty.  Sentencing Judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be skeptical about unsubstantial claims that an offender is genuinely remorseful.  But a proper and robust evaluation of the circumstances may demonstrate a defendant’s remorse.”

28. In this case any attempt to defend would have been futile.  Ms Keegan’s tearful response to the Investigator when eventually confronted, may have been genuine contrition or sorrow, but may well have been anguish that her fraud had been unveiled.  Having made that observation, the Adjudicative Committee still incorporates into the discounting mitigating percentage, some consideration of her now expressed remorse.

Conclusion

29. We gave anxious consideration as to whether, as Mr Wano argued, this offence could be dealt with by a modest monetary penalty.  But in the end we had to conclude that a Serious Racing Offence such as this requires a stern sanction.  We do not think disqualification is necessary in this case.  But the interests of the profession of Racing and its continued protection, together with the need to deter other Licencees from ignoring NZTR Directives and policy, and employing a fraudulent practice, requires an order for suspension.  The community and all who are licensed to participate in Racing should know that such behaviour cannot be minimised nor will it be tolerated.  A period of suspension plus a fine is necessary.

30. In fixing a suspension we take as a starting point a term of 5 months suspension.  We allow a concession of 20% (1 month) to reflect mitigating features.  A fine is considered necessary but moderated from the $6,000 sought by Counsel for the RIB, because of the suspension order, and adopt a starting point at $4,000 with a concession allowance of 25% so as to fix the fine as $3,000.

31. The RIB do not seek an order for contribution to its costs.  The Adjudicative Committee of the RIB has incurred significant expense in dealing with the Information.  It is proper that Ms Keegan be ordered to pay some contribution to these costs.

32. We defer the commencement of the suspension for 2 weeks to enable Ms Keegan, if she chooses, to make any arrangement for another with a Trainer’s Licence to take over training her horses.  We have also referred her and Counsel to Rule 1106(1)(a) of the Rules of Racing.

33. Accordingly, we order that:

(a) Ms Keegan’s Trainer’s Licence is suspended for 4 months commencing at 5pm on 25 February 2022 and to conclude at 5pm on 25 June 2022.

(b) Ms Keegan is fined $3,000.

(c) Ms Keegan is to pay $750 costs to the RIB Adjudicative Committee as a contribution to expenses incurred.

Hon J W Gendall QC (Chair)