Non Raceday Inquiry – Written Decision dated 21 June 2024 – Mark Jones

1.  Mr Renault presented an Information dated 4 June 2024 charging Licensed Trainer and Driver Mr M Jones with Misconduct in breach of Rule 303(2)(a) of the Rules of Harness Racing. He alleged that Mr Jones used “insulting and inappropriate language towards the Adjudicative Committee Chairman when called as a witness in relationship to a driving charge against another Driver on 30 May 2024 at Addington Raceway.

2.  Mr Jones admitted the charge.

3.  The Adjudicative Committee called for and has received written submissions from both Mr Renault and Mr Jones. It has a transcript of the hearing at which Mr Jones made the offending statements.  It has listened to the audio recording of the relevant portions of that hearing.

The Facts

4.  The background is that Mr Renault had charged another Harness Driver with a breach of Rule 868(3) of failing to drive his horse out to the end of Race 8 at the NZ Metropolitan Trotting Club Meeting on 23 May 2024. The hearing on racenight was adjourned until being heard at the meeting at Addington on 30 May 2024.

5.  The transcript records Mr Jones telling the Chair of the Adjudicative Committee that he was “here to help”. He was advised by the Chair that whilst he could be called by the then Respondent as a witness to give evidence but “if you want to wait outside and he call you as a witness or you can sit [here] without saying anything other than your evidence.”  It seems that Mr Jones was not content with that.

6.  The hearing proceeded and after the Informant’s evidence, the Respondent Driver stated in evidence to why he could not “drive out” his horse because of its gait. The Chair of the Adjudicative Committee then advised that Respondent to call and question Mr Jones as “he’s your witness.”  His evidence was to the effect that in his opinion, his colleague had not offended against the Rule.

7.  But Mr Jones then took it upon himself to proceed to address questions of Mr Renault as though he was Counsel involved in cross-examination. He then proceeded to question the Chair in a debating manner – rather than giving evidence as a witness – as an advocate.  He was out of line and he should not have done so.  He transgressed from being an opinion witness, to advocate presenting challenges to the Chair and Mr Renault.

8.  There then followed these exchanges:

Mr Jones: “I’ve driven for 25 years.”

Chair: “I’m not disputing your qualification …”

A debate between Mr Jones and Mr Renault followed, as to the horse possibly changing gait.  The Chair then said to Mr Jones that “… in determining the facts, I’m satisfied there’s no hint of a change of gait, sorry I just don’t accept that.”

9.  This displeased Mr Jones. We set out in full the following exchange as recorded in the transcript:

Jones: I’d say that would show your total lack of experience in harness racing.

Chair: Well lack of driving Mr Jones but I have been doing this job for 28 years.

Jones: And that’s why we’re probably in a position that we are when your making decisions like (inaudible).

Chair: No I’m sorry you’re crossing a line there.

Renault: Stop.

Jones: No I’m not.

Renault: Mr Jones.

Jones: I’m telling the truth.

Chair: You’re questioning my qualifications and you just better be very careful.

Jones: I’m actually questioning your integrity Sir.

Chair: Oh, oh goodness me.

Renault: Mr Jones.

Sole: Mr Jones (inaudible).

Chair: That’s even worse, that’s even worse.  Mr Renault I think you should note this and it should be, it should go to a racing inspector, racing investigator.

Renault: That’s fine.

Chair: I know your experience Mr Jones but.

Jones: I would like to bring other horseman in to watch this video.

Chair: Oh no, no, no.

Jones: From their opinion as well.

Chair: No, no, no.

Renault: Mr Jones this is not the place to be talking about this.

Chair: No.

Jones: Yeah I just.

Chair: Sorry Mr Jones you’ve gone too far I shouldn’t have allowed you to stay, I should have sent you out.

Renault: You were called as a witness you’ve continued to speak.

Chair: Yeah, yeah and you’ve made, you’ve made submissions. I should have knocked you on the head but I was fair, being fair to you, giving you every chance but you’ve gone, you’ve crossed the line.

Jones: Oh look (inaudible).

Chair: You’ve crossed the line.

Jones: (inaudible).

Chair: You’ve gone too far and, ah ah, I resent your ah criticism or doubting my qualifications. I’ve been doing this job for 28 years Mr Jones, I have seen hundreds of these, hundreds of them.

Jones: Yep.

Chair: I’ve never sat behind a horse in a race but that doesn’t mean I can’t, don’t know what’s happening so.

….

Chair: Anyway look stop, stop. I’m not going to discuss this any further, you’ve made your point well but my decision is the charge is upheld, the charge is proved. I’m satisfied that Mr Close did not or that he did fail to drive his runner out to the end of the race and he had a reasonable chance of finishing 3rd so I’m satisfied that the charge is found proved. So you can leave us now Mr Jones and we’ll move onto penalty (inaudible) thank you.

….

Chair: He needs to be very careful that man. I know he has got it in for the RIB, he needn’t make it so obvious or he’ll be in trouble.

Submissions of Informant

10.  The Informant after referring to Rule 303(2), referred the Adjudicative Committee to the HRNZ Code of Conduct Regulations requiring Licensees to treat all with respect and courtesy and not to behave in a way so as to bring Harness Racing into dispute. He referred to a number of other Serious Misconduct cases where fines for use of abusive language towards Stewards and Officials have ranged up to $1,250, although none involved abuse of an Adjudicative Committee Chair. He emphasised that each case is fact specific and impugning the integrity of a very experienced Chair of an Adjudicative Committee is a much more serious breach of the Misconduct Rule than occurred in other cases, with this breach being in the “high range”.  The penalty has to reflect the need to act as a deterrent to others in the Harness Industry who may be tempted to behave in similar ways towards Adjudicators (and Stewards) charged with performing judicial disciplinary matters.  He submits a fine of “not less” than $1,000 is appropriate.

Submissions of Respondent

11.  As a preliminary matter, Mr Jones in his written submissions, says he pleaded guilty “at the first opportunity when Mr Renault arrived at my stables and I asked Mr Renault what he will be seeking as a fine, to which he replied “$600”. The Informant’s submissions to this Adjudicative Committee, as mentioned, refers to it “not being less than $1,000”.

12.  But Mr Jones does not seek to withdraw or alter his plea.  Indeed he accepts the breach of the Rule and “accept I made a mistake”. So, it is not the case that Mr Jones admitted the charge in error.  He might have thought a modest fine would follow, but he is misguided when he says a Stipendiary Steward and an Adjudicator “should be deemed the same as it says in the Rules”.  Stewards are appointed by HRNZ and have a “policing” function whereas adjudication functions are totally different.  It is not an Informant that decides what penalty follows – that is solely the function of an Adjudicative Committee, and although Informants (as well as Defendants) will make submissions, they do not decide the outcome.

13.  Mr Jones submitted in summary:

• He had endeavoured to apologise to the Chair, but other factors prevented this, and that he fully co-operated with the RIB.
• He made a “mistake” using “a totally incorrect word due to total frustration of this case”.
• His language was at the “low end of the breach of the Rule … was only one word – integrity – and I did not swear and was not abusive”.
• He has had a long association in the Harness Racing Industry without a Misconduct Charge, and he submits a warning only is sufficient but if a fine, then only $500.

Outcome

14.  For a witness, in a professional disciplinary hearing (who has the privilege of having a License in that profession), to openly challenge without foundation, the Judge or Adjudicator by “actually questioning your integrity” is a serious misconduct. Mr Jones was not the Defendant and had no business remaining in the room, so as to engage in debate with argumentative questions to the Chair who had made it clear what was required.  The Chair was extremely benevolent in allowing him to remain, which seems to have afforded Mr Jones with the opportunity to take over large parts of the hearing which appears in his behaviour outlined in the transcript.

15.  “Integrity” is the quality of honesty, sincerity and adhering to strong moral and ethical principles.  There can hardly be any more serious allegation than to assert dishonesty, openly expressed, to a Judicial Officer.

16.  Mr Jones displays a lack of insight into his behaviour, by thinking it was at the low end of the scale.  Rather than being at the low end of the scale of Misconduct under Rule 303(2)(a), it may well fall into the category of Serious Racing Offence under Rule 1002(1)(c).  He was fortunate that he was not charged under that Rule.

17.  Significant penalties are required for this type of behaviour.  There has to be personal deterrence of the offender, and general deterrence to any other Harness Racing Licensee who may be tempted to offend in a similar way. The proper management of the Harness Racing profession cannot be impugned by this type of action. This behaviour is not simply using “inappropriate words”, but it strikes at the heart of the judicial system.  It is not to do with the “feelings” of the person abused.

18.  The HRNZ Penalty Guide says a starting point of a $600 fine is listed for a breach of Rule 303(2)(a) but it is fact dependent and it only “assumes the severity of the breach is mid range”.  It may usually relate to a failure to comply with a direction or request.  But that guide is manifestly inadequate for a serious offence of personal abuse directed at an Adjudicator’s honesty.  A more reliable guide might be to $1,500 for insulting abusive language to RIB Staff and/or Administration Officials under Rule 1001(1)(v)(ii) (a Serious Racing Offence).  The Adjudicative Committee views Mr Jones as being fortunate that he was not facing a charge under that Rule.  But for this level of breach of the type of this personal abuse, the Adjudicative Committee fixes a starting point under this Rule of a fine of $1,000.

19.  Aggravating factors which require an uplift are:

(a)  His deliberate disobedience of the Chair’s proper directions as to what he could not do (i.e. make argumentative submissions), and

(b)  His criticism of the actual decision of the Chair, and contention that he was not treated by the Chair with “respect, courtesy and without harassment or unlawful discussion – which he describes as “prejudice” argument against him.  This does not indicate genuine remorse so as to require any discount for his guilty plea (where no defence was possible).  An uplift of 25% is fixed for the aggravating matters.

20.  As to mitigation:

(a)  His admission of the offence is not, in the circumstances, deserving of any discount.

(b)  His continued attitude towards the Chair, as evidenced in his submissions, is inconsistent to any claim for true remorse and his “regret” for “my mistake”.

21.  Mr Jones’ long history and standing in the Code is a mitigating factor, although with his seniority, he must have known that such behaviour was totally out of line.  He could not call in aid inexperience or being unaware of his obligations under the HRNZ Rules.  If he and other Licensees in this Code adopt similar approaches to their duty, they may expect stern sanctions.

22.  The Adjudicative Committee allows a discount of 20% for his history.

23.  Accordingly, Mr Jones is fined $1,000.