Reasons for Decision. Harness Racing New South Wales ( HRNSW ) Steward s Inquiry Mr Greg Bennett

Transcription

1 Reasons for Decision Harness Racing New South Wales ( HRNSW ) Steward s Inquiry Mr Greg Bennett Stewards Panel: R Sanders (Chairman), M Prentice & C Paul The Charges: 1. On 7 February 2014, Mr Bennett was charged pursuant to Rule 187 (2) which provides; A person shall not refuse to answer questions or to produce a horse, document, substance or piece of equipment, or give false or misleading evidence or information at an inquiry or investigation. The particulars are that Mr Greg Bennett did on 7 September 2011, give false and misleading evidence to HRNSW, during the course of its investigation into possible corrupt activity by licensed persons and former HRNSW Stewards. The relevant evidence alleged to be given by Mr Bennett for the purpose of those particulars was the provision by Mr Bennett to HRNSW of a Samsung mobile telephone in response to a direction from HRNSW dated 7 September 2011 and at that time he advised HRNSW that such telephone was his regular mobile telephone and was related to the mobile telephone number XXX. The evidence was false in that the said mobile telephone was not Mr Bennett s regular mobile telephone, and was not connected to the mobile telephone number XXX 1. Referred to as Charge On 8 May 2015, Mr Bennett was issued with a further charge pursuant to Rule 187 (2), the particular being that on Wednesday, 29 April 2015, at a Steward s inquiry he refused to answer questions subject to that inquiry. Referred to as Charge 2. Background: 3. In the week commencing 1 August 2011, HRNSW commenced its investigation into allegations that more than one of its employed Stewards had been involved in corrupt activity including the accepting of bribes from, inter alia, owners, trainers, licensed people, and unlicensed people in exchange for assurances that particular horses would be excluded from the drug testing regime in specific harness races. 4. Mr Bennett was identified by HRNSW as a person of interest in the investigation and via correspondence dated 12 August 2011 he was directed by HRNSW to provide records relating to his mobile telephone. 5. On 3 September 2011, Mr Bennett was directed to attend the offices of HRNSW, at Meredith Street, Bankstown on 7 September On 7 September 2011, Mr Bennett attended as did other numerous persons. Mr Bennett was then directed in writing to provide to a Forensic Specialist his mobile 1 Last 3 digits deleted by Stewards intentionally 1

2 telephone associated with his registered mobile telephone number XXX. Mr Bennett handed over a mobile telephone for forensic imaging. 7. In late November 2011, Mr Bennett was arrested by NSW Police in relation to a criminal investigation into corruption within the harness racing industry. On 25 November 2011, Mr Bennett s licence with HRNSW was suspended pending the outcome of its investigation. 8. Mr Bennett was found not guilty of six (6) criminal charges in the NSW District court on 7 December On 7 February 2014, via written correspondence, HRNSW issued the charge against Mr Bennett pursuant to Rule 187(2). 10. On 26 May 2014, the inquiry was commenced at HRNSW Offices and Mr M Higgins of Counsel was granted leave to represent Mr Bennett. An application was made at this time for the Chairman of Stewards, Mr Reid Sanders to step aside from the inquiry. The inquiry was adjourned to enable further evidence to support the application to be provided to HRNSW. No such evidence was provided to HRNSW. 11. The inquiry reconvened on 18 May 2015 at the offices of HRNSW, where Mr Bennett confirmed his plea of not guilty to the charge issued on 7 February Decision 12. Mr Bennett has requested that the Chairman of Stewards disqualify himself from the panel of Stewards inquiring into charge 1. Stewards have determined that the application should be refused. 13. That the charge against Mr Bennett issued on 7 February 2014, pursuant to Rule 187 (2), be proven. 14. That the charge issued against Mr Bennett on 8 May 2015, pursuant to Rule 187 (2), be proven. Reasons for Decision Application against Chairman of Stewards 15. The application that Mr Sanders disqualify himself for apprehension of bias has been made in four tranches: (i) That Mr Sanders was the representative for HRNSW in dealing with the NSW Police in relation to their investigation into corruption in harness racing (ii) That HRNSW had engaged in a joint strategy with the NSW Police (iii) That a representative from NSW Police was present on 7 September 2011, and lastly (iv) The Notice to Produce the handset on 7 September 2011 was with a view to assisting the NSW Police. 2

3 16. It is important to note at the outset that any HRNSW Steward s inquiry is conducted in accordance with the Australian Harness Racing Rules, and any HRNSW Local Rules of harness racing (collectively the rules ), as well as the relevant provisions of the Harness Racing Act This is not a court of law. Stewards do not sit as judges or judicial officers. It is not an adversarial process, but rather an inquisitorial process. Stewards hold multiple functions, including supervision of harness races; taking of evidence; testing of horses; and, in certain circumstances, investigating and inquiring into matters arising out of harness races. In those circumstances stewards are also called upon to make decisions under the rules. These inquisitorial procedures are not bound by the rule of evidence. 17. A fair minded impartial observer would of course be understood to be aware of the unique aspect of Steward s Inquiries. 18. HRNSW has assisted the NSW Police where legally possible for the purpose of their investigation. It must be stated that HRNSW was somewhat limited in its knowledge of what was occurring in the Police investigation including the application for telephone intercepts and the taking of statements from certain witnesses. 19. Mr Sanders was the HRNSW representative dealing with its own investigation and therefore it was responsible for him to be the liaison person with the NSW Police. The telephone device provided by Mr Bennett was provided to an independent forensic expert engaged by HRNSW. The information downloaded from the device was only provided to HRNSW. This information has not been provided to any other party. 20. The submission that due to certain actions undertaken by HRNSW, that assistance was provided to the NSW Police through the causation of conversations amongst parties is rejected. HRNSW was not aware nor should it have been that the NSW Police had obtained Telephone Interception Warrants. Even if it had been, it is not accepted, in light of the multiple facets of Steward s roles and the multiple functions of HRNSW, under the Harness Racing Act and the Australian Harness Racing Rules, that this would lead to Mr Sanders being biased against Mr Bennett in any way. 21. Stewards are not convinced that the matters complained of by Mr Bennett invite the logical conclusion that the Chairman of Stewards has closed his mind to the possibility that Mr Bennett may not be guilty of a particular offence. Mr Sanders being the HRNSW representative dealing with the NSW Police does not lead to a conclusion that he will be biased towards Mr Bennett in this matter and therefore that aspect of the application is refused. 22. Mr Sanders being the HRNSW representative dealing with the NSW Police does not lead to a conclusion that he will be biased towards Mr Bennett in this matter and therefore that aspect of the application is refused. Stewards will therefore proceed to consider the two charges proffered against Mr Bennett. Charge 1: Rule 187 (2) which provides; A person shall not refuse to answer questions or to produce a horse, document, substance or piece of equipment, or give false or misleading evidence or information at an inquiry or investigation. 3

4 23. Mr Bennett attended the offices of HRNSW on 7 September 2011, and was handed a Notice to Produce Mobile Telephone for Inspection. 24. Mr Bennett proceeded to produce to the forensic expert a Samsung mobile telephone. This mobile telephone device underwent imaging and the following information was extracted: 25. HRNSW continued its investigation, which included exercising its powers under the Telecommunication (Interception and Access) Act 1979 (C th) and sought information from the Optus Law Enforcement Liaison Unit on 19 December 2013 to identify information pertaining to the IMSI details downloaded from the Samsung handset. 26. IMSI is a unique number that only relates to one sim card. Optus Law Enforcement provided details of the telephone number relating to the IMSI obtained from the Samsung Handset, and that number was XXX. This number was not and is not the number related to the telephone records provided by Mr Bennett in August Telephone number XXX was not registered in the name of Mr Bennett. HRNSW further requested the call charge records (CCR s) for this number. 27. The information provided by Optus revealed that the number XXX was only connected on 17 August 2011 and was disconnected on 16 April The CCR s revealed that in the short period of 18 August to 9 September 2011 this number calls known associates of Mr Bennett. 28. Finally the IMSI number associated with the mobile telephone number XXX, has never been used for Mr Bennett s mobile number XXX. 29. There was a submission put by Mr Higgins of Counsel as to why HRNSW should not proceed with charge 1. MR HIGGINS: That's the close of the evidence on the application. The first application is that the stewards do not proceed with this inquiry, and the basis of that is that the stewards wish to rely upon evidence which is improperly obtained, and because it's improperly obtained, the stewards should not be entitled to have regard to it. 30. The finding by the District Court that the information was improperly obtained was made in the context of the consideration by that Court of the six criminal charges proceeding before it. The judgment of Bennet J was relied on by Mr Higgins. 4

5 31. HRNSW does not accept that it is bound by that judgment, or by the finding that for the purpose of those different proceedings, constituted by different parties, and pursuant to adversarial not inquisitorial principles, and subject to the rules of evidence. 32. HRNSW was entitled to issue the Notice to Produce for the purposes permitted by the Harness Racing Act and enabled by the Rules. The material was only improperly produced, on the Court s reasoning, for purposes other than the regulation and control of the harness racing industry in New South Wales. This Inquiry is now being conducted for the purpose of, inter alia, determining whether Mr Bennett committed a breach of the Rules while purporting to comply with a direction properly issued by HRNSW. It has not been suggested, and could not be, that the Inquiry has not been properly commenced pursuant to HRNSW s statutory powers. 33. Therefore the submission made by Mr Higgins that HRNSW could not rely on the evidence obtained by their forensic expert, due to a Ruling by the District Court in the criminal proceedings against Mr Bennett, which does not flow to the Stewards inquiry. 34. The evidence obtained was done so by HRNSW during the course of its investigation. 35. Further, the evidence clearly depicts that the mobile telephone provided by Mr Bennett on 7 September 2011 to HRNSW, was not the mobile telephone nor the correct sim card that related to his telephone records provided to HRNSW. This was not in dispute between the parties. 36. We are therefore comfortably satisfied that charge 1 against Mr Bennett is proven. Charge 2: That Mr Bennett refused to answer questions relating to the investigation at the inquiry (2) A person shall not refuse to answer questions or to produce a horse, document, substance or piece of equipment, or give false or misleading evidence or information at an inquiry or investigation. (7) A person who fails to comply with any provision of this rule is guilty of an offence. The particulars of the charge are that Mr Bennett, on Wednesday the 29 th of April 2015 at a Steward s Inquiry did refuse to answer questions subject of that Inquiry. 37. Mr Bennett is compelled to answer questions by the provision of the Rules. The clear and unequivocal language of the Rules A person must not refuse to answer questions indicates a clear intention of the rule makers that a person appearing before a Steward s Inquiry cannot rely on the right to silence. 38. There is no basis for a stay of the Steward s Inquiry on the basis that there are pending or current criminal investigations into the matter the subject of the Steward s Inquiry. The criminal investigation into Mr Bennett s activities appears to have concluded with his acquittal at trial, and there is no evidence to the contrary. 5

6 39. HRNSW has awaited the finalisation of the criminal investigation and trial before resuming the Inquiry out of fairness to Mr Bennett. 40. A submission has been made for Mr Bennett that it constitutes an abuse of process to recommence the Inquiry. Stewards are not persuaded that the circumstances of this case involve oppression or unfairness to Mr Bennett. It is appropriate for HRNSW to act for the protection of the harness racing industry by concluding the inquiry into Mr Bennett s conduct. The relevant delay was for Mr Bennett s own protection and to allow the conclusion of the criminal prosecution. 41. There is no argument raised against the charge itself. Mr Bennett cannot deny that he refused to answer the questions, and does not do so. Therefore the Stewards are comfortably satisfied that charge 2 against Mr Bennett is proven. GENERAL MATTERS 42. The submissions for Mr Bennett do not address the charges individually. Those submissions raise some matters which might be understood as relating to one or both of the charges. 43. The first of those matters is the suggestion that there is some double jeopardy involved by HRNSW pursuing this Inquiry and/or the two charges, in circumstances where he has been acquitted at trial. The principle of finality of acquittal is also called upon. 44. Stewards do not consider that those principles affect these matters. The criminal prosecution related to criminal charges of corruption. It was conducted by the state, and not by HRNSW (a non government statutory body). These are different matters, conducted by a different body, and for different purposes. PENALTY 45. This is was very serious investigation being undertaken by HRNSW, into corruption by licensed persons and officials, which struck at the core of the harness racing industry. 46. The production of false and misleading evidence to Stewards affects the integrity of the harness industry and its control In this sense, the matter is directly analogous with the case of Ben Sarina, who was charged with the same offence. On appeal from a penalty of warning-off imposed by the Special Stewards panel, the Tribunal said in that case: The findings on the key facts bearing in mind there was no contest the Tribunal has referred to in some detail. As to the investigation into corruption itself, it was of the most serious kind and touched upon the key and fundamental points of integrity of the industry. That corruption and the actions of the people involved in it could not be worse. It might be said in a criminal law sense a worse-case scenario cannot be imagined. In a civil disciplinary sense, a worse-case scenario cannot be imagined. As to what he, Mr Sarina, did, he lied to the investigators. As was said in Clements, the case just quoted, he was not charged with corruption, but what he did related to 6

7 inquiries dealing with corruption. His conduct therefore, as in Clements, had the capacity to thwart the investigation. The findings on the key facts bearing in mind there was no contest the Tribunal has referred to in some detail. As to the investigation into corruption itself, it was of the most serious kind and touched upon the key and fundamental points of integrity of the industry. That corruption and the actions of the people involved in it could not be worse. It might be said in a criminal law sense a worse-case scenario cannot be imagined. In a civil disciplinary sense, a worse-case scenario cannot be imagined. As to what he, Mr Sarina, did, he lied to the investigators. As was said in Clements, the case just quoted, he was not charged with corruption, but what he did related to inquiries dealing with corruption. His conduct therefore, as in Clements, had the capacity to thwart the investigation. 48. Although Mr Bennett s offending has those aspects in common with that of Mr Sarina, Stewards believe that a lesser penalty is warranted for Mr Bennett. Several matters should be regarded as more favourable in the current case. Mr Sarina s conduct was exacerbated by a finding that he lied again at the inquiry into his conduct. The manner in which Mr Sarina conducted the inquiry and appeal put HRNSW to significant expense, and required a complex hearing on the merits. That criticism cannot be made of Mr Bennett s conduct of the Inquiry. Although Mr Bennett refused to give evidence at the Inquiry, that has been charged as a separate breach, and will not be considered in relation to this offence. Stewards take into account the fact that Mr Bennett faced the expense and stress of facing significant criminal charges, of which he was acquitted (albeit in connection with rather than as a result of his production of the telephone). The submissions made for Mr Bennett made certain concessions on the facts, which was a responsible and helpful way to approach the hearing of the matter. Some reduction of penalty will be allowed for that. Stewards acknowledge that there was some partial compliance with other orders to produce. Stewards also acknowledge the financial effect of Mr Bennett s suspension to date, and any further disqualification or period of warning-off which might apply. 49. Stewards conclude that in light of the decision in Sarina, the appropriate starting point for an offence of giving false or misleading evidence, in connection with an investigation of the utmost importance to the industry, is one of indefinite warning-off. However, in light of the manner in which Mr Bennett has conducted the Inquiry; the onerous financial effect of any warning-off or disqualification; the lack of previous offences of this character; and the degree of hardship encountered by Mr Bennett in relation to the police investigation, Stewards consider it appropriate to reduce the penalty to a fixed term disqualification. 50. For charge 1, the Stewards order that Mr Bennett be disqualified for a period of 7 years back dated to the date on which he was stood down. The period of disqualification will commence on 25 November 2011 and expire on 24 November In respect of Charge 2, Stewards have had regard to the matters of Mark Vallender and Robbie Byrnes for similar offences. Those charges also arose in connection with directions issued to further the corruption investigations. 52. It is noted that Mr Bennett has not cured his decision to refuse to give evidence. Mr Bennett can choose to do so at any time, by approaching HRNSW Stewards. 53. Stewards order that Mr Bennett be warned off until such time as he appears and answers questions in relation to the Inquiry. The term of that warning-off is therefore in Mr Bennett s hands. 7

8 54. Against the Stewards decision Mr Bennett s has his right of appeal to the NSW Racing Appeals Tribunal within 7 days of this decision accompanied with the appropriate deposit. 23 June