Tail Chopper’s Disqualification Reduced on Appeal

Details have just come to hand from South Australia where Paul Burgess, who had been handed a ten year diqualification for an animal welfare issue; has just had his sentence reduced to 2 years on appeal.

Back in February 2009, Paul Burgess was given a ten year disqualification for cutting the end of a greyhound’s tail in the Angle Park kennel block.

At the time, such seems to be the trend of Stewards Inquiry reports nationawide, the detail was very light on about what, how or why Burgess came to remove the dog’s tail. Those details have no been described by the Racing Apeals Tribunal.

What the intial GRSA Stewards reports intially failed to convey was that the greyhound in question, Atomic Clock; had been severely injured in the run and that injury had caused a compound fracture of the tail, so severe that the distal portion of the tail has only attached by a single thread of tendon or ligament.

It would appear that without thinking, Burgess impulsively removed that damaged portion of tail by using scissors. The evidence given by the vet in attendance, Dr Doyle, was that he would have performed the same procedure although he added he would have used a local aneasthetic.

In reality though, it does become questionable how beneficial the addition of local aneasthetic would have been given the greyhound was already in significant distress and it would have taken some time for the local to take effect. This point it seems was never raised in the Appeal, the main focus being that as there was a vet in attendance, it was their rightful responsibilty or duty to perform the act rather than the trainer.

Additionally the GRSA Stewards Inquiry report failed to disclose the fact thet Burgess had previously been pleaded guilty before the NSW GHRRA Stewards to a charge that he mistreated greyhounds in his care, including the striking, kicking and throwing of greyhounds. NSW Stewards at the time imposed a penalty of ten years disqualification, which was subsequently reduced to just one years disqualification plus $550.

The SA Racing Appeal Tribunal consequently found that the initial GRSA Stewards penalty of ten years was unduly severe and disproprtionate to the gravity of the offence given “the unpremeditated nature of the conduct and the relatively short period over which the conduct and its consequences occurred”.

In upholding Burgess’ appeal, the Racing Appeals Tribunal reduced his disqualification to from ten years to just two with the second year of the disqualification wholly suspended, effectively Burgess has been handed just 12 months disqualifiation for this current offence.

The full Racing Appeals Tribunal finding is reproduced below :

RACING APPEALS TRIBUNAL
RAT 5/09
DATE: FRIDAY, 10 JULY 2009
TRIBUNAL: PRESIDENT: MR C R LEE
ASSESSOR: MR H ASHTON
MS J FULLER APPEARS FOR GREYHOUND RACING
S.A. LTD STEWARDS
APPELLANT: MR P BURGESS
MR M GIORGIO APPEARS FOR APPELLANT
IN THE MATTER of an Appeal by PAUL JOHN BURGESS against a decision of Greyhound Racing SA Ltd Stewards.
BREACH OF RULE: GAR 86 (q)
Rule 86: A person (including an official) shall be guilty of an offence if the person-
(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 of greyhound racing.`

PENALTY: DISQUALIFICATION OF LICENCE FOR 10 YEARS

DETERMINATION
This appeal concerns an incident which followed the running of Race 9 at Angle Park on 26 January 2009. The greyhound ATOMIC CLOCK competed in that race and her handler was the appellant. The appellant returned the greyhound to the kennel house after the race and it was then that the incident occurred.

The substance of the charge laid by the Stewards was that the appellant cut off a portion of the tail of ATOMIC CLOCK, resulting in unnecessary distress to the greyhound.

The appellant pleaded guilty to the charge, and the penalty imposed by the Stewards was disqualification of the appellant for a period of 10 years. His appeal to this Tribunal is against the severity of the penalty.

During the inquiry the Stewards interviewed the appellant, three eye witnesses and the duty veterinary surgeon, Dr Christopher Doyle. There was little dispute of any significance about what happened, and the following is a summary of the evidence that was given:
1. During the running of Race 9 another greyhound ran into the back of ATOMIC CLOCK fracturing her tail.
2. The appellant did not notice the injury until he returned the greyhound to the kennel house. The effect of his evidence was that the end of the tail was hanging by a thread, and bone on the attached part of the tail caught on his jeans and again on the greyhound’s stretch vest as it was being removed.
3. The appellant obtained a pair of scissors from a tray or the ramp in the kennel house. On a second attempt, after the scissors got stuck at the first attempt, he cut off about three inches of skin and tissue at the end of the tail.
4. The appellant took the greyhound to the wash bay, hosed her down, and returned her to the kennel house. It was at this point that Dr Doyle approached and bandaged the wound.
5. Witnesses to the incident and the hosing down variously described what they heard as screaming, howling and yelling, and obviously the greyhound was under a great deal of distress until after a bandage was applied by Dr Doyle.
6. The appellant left Angle Park with the greyhound about 15 minutes after the running of Race 9 and before the running of race 10. When he arrived home, he changed the bandage and removed it altogether about two days later.
7. Dr Doyle was in the vicinity of the kennel house at the time of the incident, and told the Stewards that he probably would have excised the end section of tail had his assistance been sought by the appellant. But Dr Doyle also said that he would have used a local anaesthetic to alleviate the pain.
8. When asked by the Stewards why he did not wait for the vet, the appellant said: ‘Oh well I just acted out of impulse, as I said to you earlier, you said to me how long did I have a licence and I said three years but previous to that I’d held a licence for thirty-seven years in New South Wales and coming from Broken Hill, Mr Marks will tell you this, there is no vets on course on country tracks, so you have to do your own maintenance on your own greyhounds. So it was just something I’d done out of instinct, nothing else, for the benefit of the dog and nothing else.’

Not surprisingly, the Stewards took a serious view of the appellant’s conduct. They said that they took into account the appellant’s frankness at the inquiry; that a severe penalty was required as a deterrent to others and to maintain the integrity of the industry; that the appellant’s actions had hit at the core of animal welfare; and that the appellant had already been convicted and disqualified for 12 months on a welfare charge in New South Wales.

Before me through his counsel, the appellant seeks a substantial reduction in the period of his disqualification. In consequence of Clause 72.8 of that part of the Constitution which governs appeals to this Tribunal, an appeal is to be conducted by way of rehearing. So, albeit that I have the opportunity to consult with an assessor, I am obliged in the end to bring my own judgment to the evidence, whilst nevertheless taking into account the views that the Stewards have expressed.

There are few decisions in this and other jurisdictions with respect to so called animal welfare cases, and those that exist largely turn on their own special facts. The appellant’s past record in New South Wales, on the other hand, must be given due weight. So I go to the decision of Judge Thorley in the New South Wales Tribunal on 5 July 2004. The appellant pleaded guilty before the Stewards to a charge that, on occasions between 13 October and 5 November 2003, he mistreated greyhounds in his care, including the striking, kicking and throwing of greyhounds.

The Stewards imposed a penalty of ten years disqualification. At the hearing of the appeal, Judge Thorley characterized the offence as a pattern of training methods which rested upon the dominance of the man over the animal but which were excessive. Judge Thorley concluded the Tribunal’s reasons in this way: ‘We think that the appellant needs to undertake a self-examination of his training methods and to recognise his obligations not only to the owners of his greyhounds but also to the reputation of the industry which he has been a contributor over a significant period. We think the best way to achieve that is to subject the appellant to a penalty of 12 months disqualification and to a fine of 5 penalty units, that is to say $550.’

To assess the extent to which significance should be attached to the conduct before Judge Thorley, and the deterrent effect of the penalty which he imposed, it is helpful to compare and characterize the appellant’s conduct before me. The appellant’s conduct before me did not amount to a course of conduct over a period of time. Rather it was a single act committed on the spur of the moment over a few seconds, and the resultant distress occurred over however long it took for the greyhound to be washed and a bandage applied. The conduct added unnecessarily to the pain that the greyhound must already have been experiencing from the injury sustained during the running of the race.

Despite those points of distinction and the diminished impact that Judge Thorley’s warning to the appellant to examine his training methods would have had upon an unpremeditated single spur of the moment act of this kind, a significant penalty is required for two reasons. First, the appellant failed to seek the assistance of the veterinary surgeon in the vicinity, who would have alleviated the pain by the use of a local anaesthetic. And second, the appellant did what he did in a public place and in the presence of others, thereby putting the image of the industry at risk.

That said, I consider that ten years disqualification is unduly severe, especially given the unpremeditated nature of the conduct and the relatively short period over which the conduct and its consequences occurred. It is true that the welfare of greyhounds must be protected where possible by deterrent penalties, but it is also true that justice to the individual requires that the penalty be reasonably proportionate to the gravity of the offending.

The appellant is 58 years of age, and for approximately 38 of those years was involved in the greyhound racing industry, primarily as the holder of an owner trainer’s licence. His involvement came to an end on the date of his disqualification, which was 9 February 2009. He was then obliged to relocate the 16 greyhounds in his care.

In the end, I consider that the period of the appellant’s disqualification should be reduced to two years, and that the second of those years should be suspended on condition that the appellant does not commit another animal welfare offence within a period of three years. To be more specific, the twelve month period of actual disqualification should continue until 9 February 2010, and the period of twelve month disqualification that has been suspended should be activated by the Stewards if they find that the appellant has committed within three years from 9 February 2009 another animal welfare offence in breach of the Rules.

The formal orders are that the appeal be allowed, that a penalty be substituted in the terms that I have described, and that the bond be refunded to the appellant.