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Appeal S L Ross v RIU - Reasons Decision of Appeals Tribunal dated 28 October 2020 - Chair, Mr M McKechnie

Created on 29 October 2020

BEFORE AN APPEALS TRIBUNAL OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RULES OF

GREYHOUND RACING NEW ZEALAND

IN THE MATTER of the Greyhound Racing New Zealand

Rules of Racing

BETWEEN SHIRLEY LORAINE ROSS

APPELLANT

AND THE RACING INTEGRITY UNIT (RIU)

RESPONDENT

Judicial Committee: Mr Murray McKechnie, Chairman and Mr Noel McCutcheon

Present: Ms Jessica Gilby-Todd and Ms Jessica Mathieson, Counsel representing Shirley Ross

Mr Nick Webby, Counsel representing the RIU

Mr Andy Cruickshank, Registrar

REASONS DECISION OF APPEALS TRIBUNAL

DATED THIS 28th DAY OF OCTOBER 2020

1. INTRODUCTION

1.1 The Appeal(s) by Ms Ross were heard at Cambridge Raceway on 22 October 2020. The Tribunal issued a decision (ruling) upon each of the Appeals and explained that a decision would follow setting out the reasons for the rulings that were made. This reasons decision should be read alongside that given on 22 October. That decision has been circulated to the parties.

2. INFORMATION A8716

2.1 This Information alleged that on 9 July 2020, at the Waikato Greyhound Racing Club meeting, Cambridge Raceway, Taylor Street, Cambridge did an act detrimental to the interests and welfare of Greyhound Racing by using a dummy electronic aversion device (shock collar), in breach of New Zealand Greyhound Racing Health and Welfare Standards thereby committing a breach of Rule 62.1(q) and is therefore liable to the penalty of penalties that may be imposed pursuant to Rule 63.1(q) of the said Rules. Rule 63.1(q) is as follows:

(q) commits or omits to do any act or engages in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion or Greyhound racing;

2.2 The evidence before the Non-Raceday Judicial Committee (the Committee) was that Ms Ross is an owner/trainer under the New Zealand Greyhound Rules. On 9 July 2020 Ms Ross was attending the Waikato Greyhound Racing Club meeting at Cambridge. Four greyhounds had been entered to race on that day. At around 10am Ms Ross kennelled her greyhounds in the kennel block. Soon afterwards one of the kennelling staff employed by the Racing Club advised Stipendiary Stewards that there was a collar on the greyhound Sovereign Pride trained by Ms Ross and that this was of concern. Sovereign Pride was scheduled to take part in race 5 “The Clubhouse Sports Bar Sprint C2 375ms. As a result of the advice given to the Stewards they entered the kennels and found that Sovereign Pride was wearing what appeared to be a shock collar. The collar contained a battery. It had two metal prongs which were designed to press against the neck of the greyhound.

2.3 Under the NZ Greyhound Health and Welfare Standards clause 4.6 provides “the use of aversive electronic training devices is prohibited”. The Tribunal was shown a photograph of the collar with the battery in place. The collar was removed from the greyhound, taken into the custody of the Stipendiary Stewards and Sovereign Pride was scratched from Race 5.

2.4 Ms Ross was spoken to. She said in essence that there was no breach of the Health and Welfare Standards because the device did not work. She repeatedly said that she would not use a shock collar as she thought this was cruel. Stewards told Ms Ross that using a “shock collar” on a greyhound and then subsequently putting on what is known as a “dummy shock collar” was not acceptable. It was said that a greyhound would expect that the dummy collar would be capable of administering the same shock as a working “shock collar”.

2.5 Evidence was given before the Committee by Dr Malcolm Jansen. He is a Licensed Veterinarian and the Chief Veterinary Advisor to Greyhound Racing New Zealand. Dr Jansen’s evidence established that aversive collars have the potential to harm both the physical and mental health of dogs and have caused significant negative animal welfare outcomes. Dr Jansen pointed to the use of aversive electronic devices being expressly prohibited by clause 4.6 of the Health and Welfare Standards.

2.6 In the course of the investigation and at the hearing before the Committee, Ms Ross advised that she was not aware of the terms of the NZ Greyhound Health and Welfare Standards. Those Standards came into effect on 1 August 2018. Licensed trainers have an obligation to acquaint themselves with all relevant Rules and Standards set by the NZ Greyhound Racing Association. Ms Ross cannot be excused by reason of her claiming to be unaware of the Health and Welfare Standards. At the time of the event spoken of those Standards had been in place for almost two years. Ms Ross told the Committee that she had been training and racing greyhounds for over 30 years. She, like all trainers, had a responsibility to be acquainted with all Rules relating to Greyhound Racing and with the Health and Welfare Standards.

2.7 At around 5pm on Thursday 9 July after the race meeting had concluded, Ms Philippa Kinsey, a Stipendiary Steward and Mr Andy Cruickshank, a Senior Racing Investigator, went to the property of Ms Ross at Horotiu. It was the evidence of Ms Kinsey and Mr Cruickshank that Ms Ross was very uncooperative. Mr Cruickshank turned on his voice recorder and the transcript of the conversation that took place between Ms Kinsey, Mr Cruickshank and Ms Ross was made available to the Committee. More will be said of what took place at Horotiu when reasons are set out for the Rulings in relation to Informations A8717, A8718 and A8719.

2.8 The defence advanced for Ms Ross at the hearing before the Committee was that the collar which had been taken from Sovereign Pride was “a dummy”. It was said that it did not work. The Tribunal finds it curious that if this collar was in truth “a dummy” why a battery was in place when the Stipendiary Stewards took possession of it at Cambridge Raceway. As shall later be explained in more detail it was established by Ms Kinsey and Mr Cruickshank that Ms Ross had at her kennels at Horotiu a live shock collar. With that collar was located a remote and the collar was turned on in the presence of Ms Kinsey and Mr Cruickshank. It was set at 80/100. It was Mr Cruickshank’s evidence that at the level of 80/100 a greyhound would receive electric shock.

2.9 Ms Ross denied that she had ever used the live shock collar. She was not able to provide any credible explanation as to why she had a live shock collar if she did not propose to use it or had not in the past made use of the live shock collar.

2.10 Ms Ross told the Committee that Sovereign Pride was difficult to train. She said she had tried a number of different ways to calm him down. She had been helped in this by a friend named Jimmy Black. Ms Ross recounted that at a race meeting on 25 June this year Jimmy Black gave her a plastic bag and told her that it had an electric collar and a broken collar which she could use as a dummy collar. She recounted that she placed the working collar on her hand and turned on the remote but could not get it to go. The collars were then given back to Jimmy Black and some days later, on 6 July, a friend named Joe Kingsnorth gave the collars back to Ms Ross and she recounted that he said something to the effect “there’s a switch on the back of the collar that you need to press to make it work”. Ms Ross said he did not show her how to use the collar. Ms Ross said that she used the dummy collar for the first time that day on 6 July. She recounted that she was really unsure about using an electric collar. She said that she placed this collar in a set of drawers in her garage. The evidential statement of Ms Ross went on to recount that she placed a dummy collar on the greyhound again the next morning, 7 July and that on the following day, Wednesday 8 July, she took him for a ride in her ute. She placed the collar on him and he did not bark. She recounted that she was encouraged by these results and thought it would be appropriate to take the collar to the races the following day to keep the greyhound calm and quiet.

2.11 The so-called dummy collar was, as noted in paragraph 2.8 above, fitted with a battery. If this collar was intended to be a dummy collar from the time that it was made then there would be no reason for it to be fitted with a battery. That battery was clearly there to make it operative. It may not have been operative on the day in question or perhaps for some time before that. There is nothing in clause 4.6 of the Health and Welfare Standards which decrees that the aversive electronic training device must be operative. In the Tribunal’s view the dummy collar was an aversive electronic training device. On the day in question it was inoperative. That in the Tribunal’s view does not provide a defence. It may be distinctly relevant, as the Tribunal will later explain, to the level of penalty that might appropriately be imposed.

2.12 It has already been noted in this decision that Ms Ross said she was not aware that aversive electronic training devices were prohibited under the Health and Welfare Standards. If that be so it is perhaps surprising that when Ms Kinsey and Mr Cruickshank went to her property at Horotiu in the late afternoon of 9 July she was so reluctant to make known to them that she had in her garage a working shock collar.

2.13 The Tribunal for the reasons set out rules that there was a breach of clause 4.6 of the Health and Welfare Standards. The committing of such a breach is an act or conduct which is in the Tribunal’s view detrimental to the interests of Greyhound Racing. The whole rationale for the Health and Welfare Standards is to uphold the interests of Greyhound Racing and ensure the welfare of greyhounds. For the reasons explained there was a breach of Rule 62.1(q) and the decision of Committee is upheld.

3. PENALTY IN RELATION TO BREACH OF RULE 63.1(q)

3.1 The Committee imposed a disqualification of 15 months back-dated to 13 July 2020. On that date Ms Ross was served with an Exclusion Notice. As explained in the Tribunal’s decision of 22 October, the service of that Exclusion Notice had the effect of placing Ms Ross in what might be described as a semi disqualification situation. She was able to continue training at her kennels but was not able to enter greyhounds in races or attend greyhound race meetings.

3.2 The Tribunal has considered a number of penalty decisions. With reference to animal welfare the decision of RIU v McInerney & Armstrong 31 August 2018 is significant. This was a decision of an experienced Non-Raceday Judicial Committee. The breach of the Health and Welfare Standards was concerned with the death of a number of greyhounds during their transportation across Cook Strait. A financial penalty was imposed in respect of both Messrs McInerney and Armstrong. In this Tribunal’s view that offending was significantly more egregious than has occurred here.

3.3 It would appear that the Committee when fixing penalty relied in part at least upon the decision of the Non-Raceday Judicial Committee in RIU v McGrath. That is a decision as recently as 3 July this year. It is from Harness Racing. The conduct of Mr McGrath was deliberately dishonest and much more serious than the conduct of Ms Ross.

3.4 The Tribunal has also had regard to the judgment of the Appeals Tribunal in RIU v Lawson 13 May 2019. This is also from Harness Racing. It sets out very succinctly the purpose of disciplinary sanctions. It emphasises that the regulatory Tribunal should focus upon the interests and reputation of the profession as a whole and that is more important than the fortunes of the individual offending member. This Tribunal has that consideration at the forefront of its thinking.

3.5 For the reasons explained the Tribunal considers that the appropriate penalty for the breach of Rule 63.1(q) was suspension rather than disqualification. As recorded in the decision of the Tribunal on 22 October there was some recognition of this by Mr Webby, Counsel for the RIU. The appropriate period of suspension is four months from 13 July this year. The suspension will thus expire on 13 November 2020.

4. APPEALS AGAINST PENALTY IN RESPECT OF INFORMATIONS A8717, A8718 & A8719

4.1 In respect of these three admitted breaches the Committee imposed a disqualification of three months back-dated to 13 July 2020. These charges arose from the non-cooperation of Ms Ross when Ms Kinsey and Mr Cruickshank visited her property at Horotiu. To some extent the charges overlap. After a period of non-cooperation Ms Ross did make the shock collar available to Ms Kinsey and Mr Cruickshank. She would not say who she got the collar from. Subsequent investigations established that this was the friend named Jimmy Black spoken of above. Reference was earlier made to why Ms Ross would be so uncooperative about the live shock collar if, as she insisted, she had never used it and if, as she said, she was unaware of clause 4.6 of the Health and Welfare Standards.

4.2 The three month period of disqualification is set aside and is replaced by three months suspension back-dated to 13 July. As set out in paragraph 3(c) of the decision of 22 October it follows that the period of suspension expired on 13 October this year.

5. COSTS

5.1 The issue of costs was addressed in paragraph 3(d) of the Tribunal’s decision of 22 October. Nothing further need be said on that subject other than to emphasise that before a Non-Raceday Judicial Committee fix costs between the parties and costs that might be payable to the JCA submissions should be sought and further there should be an explanation as to how any costs award has been arrived at.

DATED THIS 28th DAY OF OCTOBER 2020

MURRAY MCKECHNIE

Chairman

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