Trainer’s Disqualification Upheld By Supreme Court

Press, Volume XCIII, Issue 27892, 14 February 1956, Page 8

Trainer’s Disqualification Upheld By Supreme Court

(New Zealand Press Association)

WELLINGTON. Feb. 13. The Supreme Court today upheld decisions finding John Langford Muir, a horse trainer, of Palmerston North, guilty of a corrupt practice involving strychnine and resulting in his disqualification for 10 years. In his judgment, the Chief Justice (Sir Harold Barrowclough) suggested that it would be helpful if it was a standing instruction to Racing Conference officials that interested owners and trainers be advised of the precise date, time, and place of the analysis of specimens, and that they were entitled to have an analyst attend.

Muir claimed that the decisions were in contravention of the principles of natural justice, and sought a declaration that they were null and void.

His Honour found there was no denial of natural justice, and the action failed.

The decisions were made after the swabbing of Hutton at Te Rapa on December 1, when the horse won the Miller Handicap.

The first decision was that of the Waikato Racing Club, which resulted in disqualification for five years, and the second was that of an appellate body, which resulted in disqualification for 10 years. After strychnine had been found in Hutton’s sample. Muir was found guilty of administering, or causing to be administered to Hutton, or aiding, abetting, counselling, or procuring to be administered, a drug or stimulant, strychnine, for the purpose of affecting the speed, stamina, courage, or conduct of the horse, and of committing a corrupt nractice.

Defendants in Action The first defendants, appointed by the president of the New Zealand Racing Conference to hear Muir’s appeal, were James Macfarlane Laing, a solicitor, of Masterton, lan Higgle, a farmer, of Wanganui, and Terence Arbuthnot Gres on, a solicitor, of Christchurch. The second defendants, members of the Waikato District Committee, were John Pollock, Percy Vercoe, William Luxton, Hugh Duncan, Edward Trobe Hill, Cliff Haworth. John Guiness. George Peach, Edward Brown, and Earl Johnston.

Mr T. P. Cleary, with him Mr J. A. L. Bennett, appeared for Muir. Mr E. D. Blundeil appeared for the defendants.

In his judgment his Honour said the Court was not concerned to review the findings of either of the tribunals which investigated the charge. It had no power to review them and was in no sense a court of appeal authorised to hear and determine appeals from either of the tribunals. The Court’s duty was merely to ascertain whether Muir had established his allegation that in hearing the charge or the appeal, either tribunal acted in contravention of the principles of natural justice, and whether, if that allegation was established, the decisions should be declared null and void. The plaintiff claimed that the tribunals heard and accepted the evidence of G. A. Lawrence (the conference analyst) which they knew or ought to have known Muir was unable to check, test, or refute; that they acted upon such evidence; that they heard and determined the charges before them when they knew or ought to have known that Muir had been prejudiced or embarrassed in his defence because he was unable to check, test, or refute the analytical evidence.

Review of Evidence In his review of thb evidence, his Honour, said that surplus urine was poured away. Long before it was taken, Muir had asked whether it were possible to get samples, and had been told by an official that it was not in his power to give a sample or any part of one. The policy of the conference was against splitting samples.

His Honour said that Muir admitted that Lawrence reported strychnine, but Muir did not admit that there was any strychnine. He contended that Lawrence was mistaken.

Referring to a telephone conversation between Muir and the conference secretary, Mcßeath, his Honour said the evidence of whether Mcßeath had undertaken to inform Muir of the time of the analysis was rather vague on both sides. If Mcßeath had undertaken to inform Muir, his failure to do so might have had a most important bearing on the question before the Court.

“I have come to a very definite conclusion, however, that I ought not to find that any such definite undertaking was given,” he said. The plaintiff had not definitely asserted that such an undertaking was given, said his Honour. If Mcßeath said anything about the time of analysis it was probably only an indication that it would be within a very short time, which was far from an undertaking to give the exact time. His Honour said he thought that at the time of the telephone conversation the plaintiff supposed he would probably be unable to obtain the services of an analyst on his behalf, and that he was therefore pot greatly interested in the precise time when Lawrence would make his analysis. Muir was told of the result of the analysis, but his Honour said that his attention was not drawn to any immediate protest by Muir at Mcßeath’s failure to fulfil his suggested undertaking. His Honour said there was nothing before him to show that any protest was made until the hearing

before the district committee, and even then it was not very forcibly made.

The absence of a prompt protest, coupled with the other facts he had mentioned, led him to the conclusion that it was in the highest degree improbable that Mcßeath ever undertook to notify Muir, in advance, of the exact time and place of the intended analysis.

His Honour said he was satisfied that there would be no objection to Muir’s having an approved, qualified chemist present during the analysis. He was also satisfied that if Muir had been sufficiently earnest over the matter he could have ascertained the date and place of the intended analysis. He had not proved that it would have been impossible for him to have engaged an analyst who could have attended and watched the experiments on his behalf, and no evidence had been given of any attempt having been made to get a sample. “Submission Not Established” It had been submitted that it was contrary to natural justice to refuse a clear request for a part of the urine when the urine was taken only for analysis and it was known that the bringing of a charge would depend solely on that analysis, and there was in fact a surplus of urine available. The submission was that Muir could not, by independent analyses or other means, check, test or refute the analysis made by Lawrence. His Honour said that that submission was not established by the facts. His Honoyr said that, Muir not having been refused the opportunity of being represented at the analysis, the factual basis of the submission seemed not to be established, and the case might be disposed of on that footing alone.

The prosecution had not refused Muir an opportunity of being represented at the analysis. Was it unfair in refusing the request for a sample? asked his Honour. Neither in the civil nor criminal jurisdiction of the Courts was there any general requirement that the plaintiff or prosecution should invite the other side to be present at any preliminary inquiries that were made before proceedings commenced, said his Honour. Nor could he find any general authority for the proposition that a plaintiff or prosecutor ought to make available to the other side samples that were intended to be analysed for the purpose of tending the results of the analysis in evidence. The splitting of samples without taking some such precautions as mentioned in certain enactments was open to very obvious abuses and was not by itself a guarantee of justice, said his Honour.

His Honour said he was unable to say that the refusal of the prosecution to give Muir a sample was contrary to natural justice. But even if he were, he was at a loss to see how either of the tribunals could be said to have adopted the faults of the prosecution. Their official findings contained no pronouncement on the manner in which the prosecution conducted its inquiries or case. The fact that the findings were against Muir was not proof that the tribunals accepted every bit of evidence tendered by the prosecution, or that they approved of the way the evidence had been obtained. The charge having been made and the appeal lodged, the tribunals had no right to refuse to hear them.

He knew of no rule of evidence making inadmissible Lawrence’s evidence of his analysis. And there was nothing to show that either tribunal did not submit his evidence to such additional scrutiny as it thought warranted by its not being checked and confirmed independently. Submission Unacceptable

His Honour said that Mr Cleary did not suggest that in all circumstances it was essential that the sample should be divided. But he did submit that in the present case, where there was a surplus of urine available and the plaintiff had asked for a sample, it was a denial of natural justice not to give him one. His Honour said he could not accept that.

“If natural justice demands that a sample should be given when there is a surplus of urine, it would appear to me that a trainer or owner would'be equally denied that justice if, for insufficiency of urine, he could not have been given a sample. The justice of the matter cannot depend on the quantity of urine which may happen to be voided.”

His Honour held that in declaring that the splitting of samples was a matter of policy for the Racing Conference and outside their province, the defendants had not declined to hear and determine for themselves any matter which they were called on to determine, and that the fact that they made such a declaration was not a ground for declaring their decision null and void.

He concluded by suggesting that it would be helpful to owners and trainers if there was a standing instruction to the officials of the conference that whenever such an analysis was to.be made, the interested owner and trainer must each be advised, by telegram if necessary, of the precise date, time, and place of the intended analysis, and that each would be entitled to be represented at the analysis by an approved, qualified, analytical chemist. It would be desirable that sufficient notice should be given to allow reasonable time for the owner and trainer to instruct the analyst who was to represent them, he said.