Mud in Your Eye Muzza – Why the RIB Appeals Committee Judgement in the Case of Sheis Fatally Flawed – And Why Wigg Will Win in the Supreme Courtryl Wigg

The Appellant draws a distinction with the constitution of benches in the Court of Appeal, which regularly involves one permanent Court of Appeal Judge and two sitting High Court Judges. Considering the process outlined above, it is clear that there is an analogy, rather than a distinction, to be drawn between the Appeals Tribunal and the Court of Appeal in that Judges (or adjudicators) who sit both at first instance and on Appeal are always accompanied by a Judge (or adjudicator) who sits only on Appeal.

This is what the NZ Racing Integrity Board Appeal Committee ruled in its judgement to dismiss the appeal of Sheryl Wigg against a 17 months suspension for race day treatment of a horse.

These findings were made in response to Wigg’s representative’s submission that, in essence, the NZ Court of Appeal was comprised of independent judges who didn’t sit on day to day first instance court cases, so the RIB’s appeal body should be the same.

The RIB’s assertions about the operation of the Court of Appeal are not true.

The Permanent Court of Appeal does not have one permanent independent judge and two lower court judges hearing appeal matters at all times as claimed.

It has three independent Court of Appeal judges hearing them.

Only the Divisional Court of the Court of Appeal – a body that hears non-important criminal matters, or criminal matters of lesser importance – is composed of one member of the Permanent Court and two other usual court judges.

The Permanent Court – the one made up of truly independent judges who sit only in that court – hear the majority of appeals, not the Divisional Court.

This is evidenced by the 2022 Court of Appeal Calendar that shows that the Permanent Court sits 23 times this year, whereas the Divisional Court sits only 20.

Sheryl Wigg’s was not a criminal appeal, it is a civil occupational matter.

If it were to be heard by the NZ Court of Appeal, it would be heard by judges of the Permanent Court, not by the Divisional Court.

The RIB’s judgement is therefore fatally flawed, and utterly wrong.

It is wrong in other respects too.

The RIB employs ten permanent Appeal Committee only Adjudicators (judges), and only nine Adjudicators that work in both jurisdictions of hearing first instance matters AND appeals.

Yet by its own reckoning the RIB does not at any stage seek to constitute an Appeal Committee comprised of only the permanent appeal Adjudicators. Instead its practice is to have one permanent Appeal Adjudicator, and one dual purpose Adjudicator.

The practical process of constitution of Adjudicative Committees and Appeals Tribunals is done by the Executive Officer of the RIB once an Appeal has been filed. Executive Officer Catherine Hutton has advised that when constituting Appeals Tribunals, she will do so by selecting one person … who only sit on Appeals Tribunals) who will usually be designated as chairperson, and one person … who sit(s) on both Adjudicative Committees and Appeals Tribunals who will be designated as a member.

This is totally at odds with the way the real NZ Court of Appeal works.

The RIB Appeal Committee explanation for the practice in the Wigg case does not stand up to scrutiny either.

This is what it asserts as fact:

The reason for the third group of persons outlined above, that is, those who sit on both Adjudicative Committees and Appeals Tribunals, is one of pragmatism. It reflects the reality that in an industry such as racing, when dealing with busy legal practitioners and busy participants in the industry, it can be difficult to find persons to constitute panels to deal with all matters that arise. The persons who sit on both panels are generally those with the greatest availability. Allowing persons to sit on both panels widens the pool available for each panel and is effectively required to ensure that the RIB can perform its adjudicative function without undue delay.

Having two entirely separate and distinct pools of persons might be regarded as best practice. However, it is simply not realistic for the expeditious functioning of a body such as the RIB. 

This may or may not be true.

You are never going to know if any 2 of the permanent and exclusive Appeal Committee members you employ are available to sit in on a matter unless you ask them are you, and by its own admission the RIVB don’t.

So the so-called facts in the judgement are merely supposition, presumption and speculation, not facts at all.

Therefore this part of the judgement is flawed too.

Mr Dale sought to draw support from the New Zealand Bill of Rights. That with reference to the principles of natural justice. The Tribunal can see no breach of the rules of natural justice in the procedure which has been followed over many years for the appointment of Adjudicative Committees and Appeal Tribunals.

Yeah, yeah, I know this is technical and legal and difficult for a trot person to understand.

So I will say it in plain race track English, and excuse the French.

The RIB Appeals Committee’s findings of fact are bullshit.

If Sheryl Wigg elects to seek a judicial review of the matter – that is, get the Supreme Court to look at the judgement to see if it correct in every aspect – she is a $1.10 certainty to win.

Win means get the judgement knocked out on review, and have the matter send back to the Appeals Committee for rehearing, almost certainly by a properly independent panel.

She’d be mad if she didn’t have a crack.

There are other areas she will win on too.

Ms Wigg was being observed by investigators. Clearly, they must have had some grounds for believing that a breach of the Rules might occur.

In the absence of any evidence to prove it – and none was presented – this assertion is also crap too.

RIB investigators do not only make observations when they have ground to suspect that a breach of the rules may occur. They make random inspections of stables too.

The Appeals Committee is way out of line, and making findings that are not permitted under the rules of evidence and law.

This one is flawed too.

The Tribunal believes that a starting point of 18 months disqualification was appropriate; perhaps even generous to Ms Wigg given that there were three Rule breaches.

What the Appeal Tribunal is saying is that Wigg’s lucky to have been treated as a first offender, when she could have been sentenced as a first, second, and third.

That’s absolute nonsense.

The rule breaches were a single sequence of events, at the same time on the same day, not three discrete and distinctly different offences. That’s like saying if a bank robber steals three different $100 notes it is three different offences. It’s bullshit.

In any event, if the RIB wanted to treat them as 3 they would have to hear the 3 different charges separately wouldn’t they, and issue a penalty on each, which they didn’t.

So the finding is fatuitous palaver.

So is this.

The Committee having set the starting point then considered aggravating and mitigating circumstances. Reference has been made to the number of the aggravating circumstances. It is the Tribunal’s view that the most significant of those was that there were administrations to three horses.

How can administration of a substance to a horse be an aggravating factor that deserves an increased penalty on a charge of administering to a horse?

That’s exactly like saying that a person convicted of unlicensed driving should get a higher sentence because they were driving without a license.

WTF?

Are we Alice in the court of Wonderland or something?

The Chairman of this panel, a barrister from Rotorua named Murray McKenzie, should know better than to spout this sort of crap.

Mud in his eye and egg in his face.

Having a law degree on your wall doesn’t always make you the smartest man in the room.

It doesn’t make you right either, as I suspect he is about to find out on Judicial Review.

Let’s hope he learns from it.

And let’s hope the RIB do too.

The full decision of the RIB Appeals Committee can be found at the link below

Appeal – Written Reasons of Appeals Tribunal dated 10 May 2022 – Sheryl Wigg

 

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