Two appeals dismissed over rule breaches

Press, 29 February 1984, Page 38

Two appeals dismissed over rule breaches

Appeals by Bertram William Clapham, of Auckland, and Patrick Kevin Ryder, of West Melton, have been dismissed in a majority judgment delivered by appeal judges appointed by the Trotting Conference. Both men were ordered to pay $5OO towards' the cost of their appeals. The appeal hearings were held in Christchurch on May 25, 1983, and the decision was reached on February 20, 1984. Appeals lodged by Kevin Patrick Leighton, Ernest Thomas Macdonald and William Joseph Flynn were withdrawn before the hearing. The appeal judges were Messrs W. G. P. Cuningham (chairman), of Christchurch, T. J. Killalea, of Wellington, and C. A. McVeigh, of Christchurch. Mr B. P. Henry, of Auckland, made written submissions on behalf of Clapham, while Mr B. J. Scott, of Christchurch, appeared for Ryder.

Mr B. McClelland represented the conference in both appeals. Clapham, a three-time convicted bookmaker, was originally found guilty of four breaches of the Rules of Trotting in a judgment issued by an executive subcommittee on July 9, 1982. He was fined $3500 and ordered to pay $l5OO in costs. These related to the racing and training of the horses, Tiny Wave, Waive the Rule, and Al Pacino. Ryder was found guilty of two charges involving the training or racing of the horses, Tiny Wave and Maverick. He was fined $l5OO and ordered to pay $750 in costs. The appeal judges were unanimous that Clapham was guilty of training the horse, Al Pacino, when he knew it could not be in the hands of a licensed trainer for the 28-day period as required by Rule 221 before it was entered in a race or races. Also the horse was

being trained by him, a prohibited person. The appeal judges were not prepared to interfere with the sub-committee’s findings regarding Ryder. Although Mr McVeigh agreed with the findings of the majority, and although Mr Scott had not raised submissions on the subject, Mr McVeigh recorded that he would have allowed the appeal on charages laid under Rule 338 (p). In his dissenting opinion, Mr McVeigh, says he would have allowed the appeal “not, I hasten to add, because of any of the factual findings made by the committee (with which the appeal judges unanimously concurred), but because of the legal interpretations I have placed on that particular rule.” Mr McVeigh expressed concern over the use of the word “deemed” in the charges which referred to doing an act which “the executive of the New Zea-

land Trotting Conference deems fraudulent or corrupt or detrimental to the interests of trotting .. The use of the word “deems” suggested that the executive had made some sort of decision in advance of the hearing concerning the conduct in question, says the dissenting opinion. “If that rule had simply referred to doing an act which ‘is’ fraudulent or corrupt or detrimental, and so on, then there would have been little difficulty because that would be similar to a charge of offensive behaviour or obscene language under the old Police Offences Act. Then there would have been no difficulty in the committee hearing the evidence coming to a view at the end of it as to whether the conduct proved was fraudulent or corrupt, and so on. “For my own part I am left with a state of doubt about this particular charge,” says Mr McVeigh.