The Referrals Committee Robert Dore (in the Chair), Philip Caffrey and Laurence McFerran met in the Turf Club, The Curragh, Co Kildare on Thursday 9th June, Tuesday 21st June and Friday 8th July 2016 to consider whether or not Ms Sharon Dunphy (Restricted Trainer), E. Joseph Logan and Fabian Burke were in breach of any Rules as a result of an investigation carried out into Like A Diamond which was declared to run at Ballinrobe on 22nd July 2013 but was subsequently withdrawn by order of the Stewards. The matter had been referred to the Referrals Committee by Denis Egan, Chief Executive of the Turf Club.

Evidence was heard from Chris Gordon, Turf Club Head of Security, Ms Sharon Dunphy, Fabian Burke and Michael Philips (Ms Dunphy’s landlord). The Committee also considered transcripts of interviews with Ms Sharon Dunphy, Fabian Burke, E. Joseph Logan, Ryan McElligott, Authorised Riders Agent, Paul Deegan, Trainer, Chris Hayes, Rider, Pat Kelly, Manager of the Curragh Training Grounds, Richie Brophy, Assistant Manager of the Curragh Training Grounds, and Thomond O’Mara (Ms Dunphy’s employer).

The decision of the Referrals Committee on the matter and on sanction is set out on the following pages:

THE TURF CLUB
APPLICANT
SHARON DUNPHY (DUNPHY)
FABIAN BURKE (BURKE)
E. JOSEPH LOGAN (LOGAN)
RESPONDENTS

DECISION OF THE REFERRALS COMMITTEE

1. In dealing with this case this committee sat on the 9th June 2016, the 21st June 2016 and on the 8th July 2016.

2. On the 9th June 2016 Dunphy did not attend and the matter was adjourned to the 21st June 2016. This committee found Dunphy to be in breach of Rule 25(b). This committee was not satisfied that Dunphy was prevented from attending by reasonable cause. While this committee was minded to impose a sanction on Dunphy and was minded to fix Dunphy with the costs incurred on the 9th June 2016 it adjourned these matters to the 21st June 2016.

3. On the 21st June 2016 Mr Crean B.L. made two submissions on behalf of Logan. In written submissions dated 14th June 2016 Mr Crean B.L. made submissions on behalf of both of his clients but, before this committee, on the 21st June 2016, he abandoned these submissions on behalf of Burke.

4. The first submission was that the Turf Club did not have jurisdiction over Logan because he had not submitted himself to the Rules of Racing. This committee disagreed with this submission placing reliance on Rule 119.

5. The second submission was that this Committee should recuse itself and this committee disagreed with this submission, on the basis that the Committee does not believe that a reasonable person would have a reasonable apprehension that the Respondents would not have a fair hearing from it in all the circumstances. The Committee agreed it would rely on what is appropriate and relevant and will disregard that which is not.

6. On the 8th July 2016 Mr Crean B.L. revisited his application that Logan was not amenable to the jurisdiction of the Turf Club on the basis that between March 2013 and September 2013 his name was placed on the “Irish Forfeit List” and that accordingly he was not bound by the Rules of Racing for that period of time. This committee rejects this contention and once again relies on Rule 119 together with the submissions made by Mr Weston in reply to Mr Crean B.L.

The Standard of Proof

7. Rule 271 provides:

“The standard of proof to be applied in all Stewards’ Enquiries and in all cases before the Licensing Committee, the Referrals Committee or the Appeals Body shall be the balance of probabilities.”

8. In Miller -V- Minister of Pensions (1947 2 All E.R.) Denning J. set out the law on the balance of probabilities:

“The degree of cogency required to discharge a burden in a civil case is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say “we think it is more probable than not”, the burden is discharged, but if the probabilities are equal it is not”.

9. The Turf Club’s case is largely based on circumstantial evidence. The law in relation to circumstantial evidence is succinctly set out by Charleton J. in his judgment in John O’Brien -V- Francis Derwin and others (2001/14175P). This committee is grateful to Mr Reidy for providing it with this judgment.

10. The Turf Club must prove to the satisfaction of this committee, on a balance of probabilities, that Dunphy never trained the horse. In applying the appropriate standard of proof this committee is cognisant of the potential gravity of the consequences for the Respondents if findings are made against them.

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Facts

11. While the Turf Club concedes that Logan was not an owner of the horse he was heavily involved with the horse up to and including the 22nd July 2013

12. Burke occupied boxes in Logan’s yard in Kilmeague arriving there in January of 2013.

13. In early June 2013 Burke rang Chris Hayes to ask him to ride the horse in work.

14. Chris Hayes met with Burke at the Curragh racecourse and rode the horse in the company of a slow horse. Chris Hayes was asked was the horse good enough for a flat race or was it a bumper horse.

15. Chris Hayes rode the horse some two weeks later, in the company of the slow horse. Chris Hayes thought the horse was good enough but needed to work with flat horses.

16. Burke and Logan met with Paul Deegan and Burke asked him was there any chance of a piece of work some morning. Paul Deegan said that there was no problem with this. Chris Hayes rode the horse at Maddenstown. Burke and Logan were present and Paul Deegan expressed the view that the horse would win a race.

17. On a date between the 16th July 2013 and the 20th July 2013 the horse was microchipped / passport checked and stalls certified. Also between these dates the horse galloped at the Curragh. On the two occasions that the horse was at the Curragh Burke and Logan were present and Dunphy was not in attendance.

18. On the face of the eight receipts issued for the Curragh Gallops to Burke between the 5th June 2013 and the 19th July 2013, the trainer is named as Burke.

19. On the 17th July 2013 Logan paid the sum of €425-00 in respect of a flat trainers licence fee on behalf of Dunphy.

20. On the 19th or 20th July 2013 Logan collected the horse’s passport from Weatherbys.

21. Dunphy entered the horse to run in a maiden race in Ballinrobe on the 22nd July 2013 and the horse was duly declared to run.

22. On the 21st July 2013 Logan rang Wayne Lordan’s agent, Ryan McElligott, stating that he was acting on behalf of Dunphy and he booked Wayne Lordan to ride the horse at Ballinrobe.

23. On the 22nd July 2013 the horse was backed from long odds to short odds.

24. The horse arrived in Ballinrobe having been transported there by Logan Snr., Logan and Burke.

25. In the stable yard the horse was, in the main, looked after by Burke.

26. Chris Gordon approached Dunphy and it transpired that the horse had not come from her registered training establishment giving rise to a stewards’ enquiry and the horse was withdrawn at the direction of the stewards.

27. On the 23rd July 2013 the horse was returned out of training.

28. There is no record of Dunphy using Aidan O’Brien’s gallops in July 2013.

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The Respondents’ Case

29. It is the Respondents’ case that in June 2013 one of the Logans telephoned Dunphy to see if she would train a horse that they thought a lot of. Fees and facilities and the like were discussed. Dunphy advised Logan of her work commitments. She was working for Thomond O’Mara.

30. Dunphy had met Logan at sales a number of years previously for 5 minutes.

31. Shortly thereafter there was a second telephone call. Fees were agreed at €900-00 a month and arrangements were made to deliver the horse to Michael Philips’ yard in Fethard.

32. On the 11th July 2013 the horse was delivered to Fethard.

33. Between the 11th July 2013 and the 22nd July 2013 Dunphy looked after the horse on a daily basis, feeding him and mucking out and the like.

34. Dunphy transported the horse to Thomond O’Mara’s and rode him out on one or two afternoons.

35. Dunphy transported the horse to Pilltown and rode him out on Aidan O’Brien’s gallops.

36. Between the 11th July 2013 and 22nd July 2013 Logan and Burke travelled from Kilmeague to Fethard on three occasions to exercise the horse. On each occasion Dunphy gave instructions to Logan which in turn were relayed by Logan to Burke as to what he was to do with the horse. She could not be there to give instructions directly to Burke due to her work commitments with Thomond O’Mara. She had never met Burke prior to the 22nd July 2013 and did not know him.

37. Between 11th July 2013 and the 22nd July 2013 the horse was transported to the Curragh by Burke and Logan to be stall tested and microchipped and the horse was also transported to the Curragh for a gallop. The horse went to the Curragh twice and Dunphy was not in attendance on either occasion due to work commitments. Burke and Logan were in attendance. Dunphy makes the case that her non-attendance at the Curragh was not unusual.

38. On the other dates between the 11th July 2013 and the 22nd July 2013 Dunphy exercised the horse in Michael Philips’ yard.

39. Logan paid for Dunphy’s flat licence and this cost was to be set off against her fees. This was done for convenience as Logan lived adjacent to the Curragh.

40. Likewise Logan collected the horse’s passport from Weatherbys as this was convenient.

41. Dunphy entered the horse for a maiden race in Ballinrobe to be run on the 22nd July 2013.

42. Dunphy telephoned Wayne Lordan the evening before declarations to book him to ride the horse and Logan telephoned Wayne Lordan’s agent, Ryan McElligott to book Wayne Lordan to ride the horse.

43. On the day of the race Dunphy was transporting a horse of Thomond O’Mara’s to Ballinrobe and she could not transport the horse to the races.

44. To transport the horse to the races Logan and Burke, who were being driven by Logan Snr drove from Kilmeague to Fethard and loaded up the horse. They then drove from Fethard back to Kilmeague and from there to Ballinrobe.

45. When the horse arrived at Ballinrobe it was tended to by Burke at the direction of Dunphy.

46. After the horse was withdrawn, at the direction of the stewards there was a heated exchange between Dunphy and the Logans and the horse was transported back to the Logans’ property in Kilmeague and returned out of training the following day.

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The Turf Club’s Case

47. Dunphy was never involved in the training of the horse and was merely a facilitator such that the horse could run in a maiden in Ballinrobe in circumstances where, as it transpired, there was a significant gamble on the horse. Put simply, it is the Turf Club’s position that the Respondents’ case is not credible.

48. In fact at all material times Burke trained the horse for “The Fair Play Partnership”.

49. In support of this case the Turf Club places reliance on the facts as set out above and also on the various statements taken from witnesses by the Turf Club security team.

50. If the Respondents case is true it means that between 11th July 2013 and 22nd July 2013 Burke and Logan travelled from Kilmeague to Fethard and returned to Kilmeague on three separate occasions for the purpose of working the horse. On two further dates in that period they travelled from Kilmeague to Fethard to pick up the horse. They then travelled the Horse to the Curragh for various purposes, returned the horse to Fethard and then returned to Kilmeague. On the day of the race they travelled from Kilmeague to Fethard to collect the horse. They returned with the horse to Kilmeague and then travelled onwards to Ballinrobe. After the horse was withdrawn they returned from Ballinrobe to Kilmeague with the horse.

51. All of this would have been done despite the fact that Logan had boxes adjacent to the Curragh where the horse had been stabled before allegedly being delivered to Fethard. It is the Turf Club’s case that this is implausible and goes to the credibility of Burke and Logan.

52. There is confusion as to the routes taken by Logan and Burke to their various destinations. Burke claims not to know the route taken to Ballinrobe because he was asleep for a lot of the time and when he was awake he was keeping an eye on the horse. It was claimed that the horse was not a good traveller. It is Turf Club’s case that this is implausible. Logan was offered every opportunity to produce documentation from toll operators and despite agreeing to co-operate fully no such documentation was produced and the Turf Club questions why this is so and believes that this goes to the credibility of Logan.

53. The Turf Club makes the case that on the very first occasion that Dunphy was interviewed by Chris Gordon on the day of the race before the stewards enquiry, that she sought to mislead Chris Gordon and that this goes to her credibility.

54. The Turf Club makes the case that given Dunphy’s training history that it was most unlikely that she would be selected as a trainer to in fact train the horse that had ability.
55. The Turf Club makes the case that there is no documentary evidence whatever to support the assertion that the horse was trained by Dunphy for “The Fair Play Partnership”.

56. At the stewards enquiry Michael O’Donoghue, Stewards’ Secretary, put the following question to Burke:

“Since you know the owner, are you familiar with him, or has the owner had him for a long time or do you know anything about it?”

In reply Burke stated:

“Very little about him as I say he just asked me as a favour to go down and ride him out and that’s as much as I’ve done.“

The Turf Club makes the case that this statement by Burke to the stewards at Ballinrobe is demonstrably untrue and that Burke was heavily involved with the horse and Logan prior to the horse allegedly being delivered to Fethard on the 11th July 2013 and that this calls into question his credibility.

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The Evidence of Michael Philips

57. Counsel for Dunphy questioned Chris Gordon concerning his failure to interview Michael Philips the owner of the yard leased by Dunphy. Dunphy called Michael Philips to give evidence on the third day of this hearing and this committee is of the view that his evidence is of little assistance.

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Decision

58. While certainly the onus is on the Turf Club to prove its case on a balance of probabilities, it is a feature of this case that the Respondents did not call any evidence to corroborate the evidence given by Dunphy and Burke and neither has Dunphy been in a positon to produce any documentary evidence to support the contention that she trained the horse between the 11th July 2013 and the 22nd July 2013 other than that Logan paid for a licence for her.

59. Bearing in mind Denning J’s statement on the law on the balance of probabilities in Miller -v- Minister of Pensions (1947 2 All E.R.) and applying the principals enunciated by Charleton J. in John O’Brien –V- Francis Derwin and others (2001/14715P) and conducting the analysis set out by him this committee is satisfied that it is probable that the horse was never trained by Dunphy and that the horse was probably trained by Burke for “The Fair Play Partnership” and this committee, being of the view that there is no other probable scenario that is based on the same set of circumstances, this committee finds on a balance of probabilities, taking into account the potential gravity of the consequences for the Respondents, that the Turf Club has proven its case against each Respondent as set out in each of the letters from the Turf Club to each of the Respondents dated the 28th of April 2016 and the letter sent under cover of registered post to Dunphy dated the 5th of May 2016.

60. This committee invites submissions on penalty.

Dated the 22nd September 2016

THE TURF CLUB
APPLICANT

SHARON DUNPHY (DUNPHY)
FABIAN BURKE (BURKE)
E. JOSEPH LOGAN (LOGAN)
RESPONDENTS

DECISION OF THE REFERRALS COMMITTEE ON SANCTION

1. A person or persons who either owned or were heavily involved in the horse, to include Logan, believed that the horse had talent and could win a race.

2. Rather than putting the horse in training in the orthodox way, a plan was hatched to pull the wool over the eyes of the Turf Club, bookmakers and the public. It is no coincidence that on the 22nd July 2013 the horse was heavily backed.

3. Logan could call on the services of Burke to train the horse.

4. A co-conspirator, a racehorse trainer, Dunphy, was recruited such that the horse could run under her name as the trainer at Ballinrobe on the 22nd July 2013, when in fact she had no hand, act or part in the training of the horse.

5. By acting in concert in the manner in which they did, each of the respondents egregiously breached the Rules of Racing.

6. To exacerbate matters, rather than own up to their wrongdoing, the respondents, between them, concocted a bizarre account of events and each of them steadfastly stuck to this account throughout the Turf Club investigation and throughout the hearings before this committee, putting the Turf Club to very considerable expense and putting a lot of people to huge inconvenience.

7. This committee sat on the 9th June 2016, 21st June 2016 and on the 8th July 2016 and this committee delivered its decision on the 22nd September 2016 and found that the Turf Club had proved its case against each of the three respondents and this committee invited submissions on penalty.

8. Written submissions on penalty prepared by Frank Crean B.L on behalf of Burke dated the 21st October 2016 were received under cover of post from Coonan Cawley Solicitors on the 25th October 2016. No written submissions on penalty were received on behalf of Logan or Dunphy.

9. This committee sat on the 24th November 2016 and heard oral submissions on penalty on behalf of the Turf Club, Burke and Dunphy. Written submissions on behalf of the Turf Club were received. Michael Halford (Trainer and employer of Burke) gave evidence on behalf of Burke. No oral submissions on penalty were made on behalf of Logan.

10. This committee considers the breaches by the respondents of the Rules of Racing as extremely serious breaches and that the actions of the respondents acting in concert constitute an attack on the integrity of Irish racing and that these breaches are very much on the higher end of the scale.

POWERS

11. Rule 19A8(iii) provides:

“The right to withdraw or suspend the licence of any person holding a licence for any period of time subject to the right of appeal to the Appeals Body. The Committee shall also have the right to declare a person a Disqualified Person.”

Rule 19A8(ix) provides:

“All disciplinary powers under these rules which heretofore could only be exercised by the Stewards of the Governing Bodies shall henceforth also be exercisable by the Referrals Committee”

Rule 20(xiv) (a) provides:

“To impose a disqualification on any person for such period as they think fit. To refuse to grant a licence to any person or to withdraw a licence to train, licence to ride, permission to ride, licence to act as an Authorised Agent, Authorised Representative, Authorised Riders’ Agent or Jockeys’ Valet for such periods as they think fit and to publish by any means the period of such withdrawal, or disqualification.”

Rule 20(xvi) provides:

“To declare any person a “Disqualified Person”.”

12. Unless there are extenuating circumstances it is the view of this committee that it is appropriate and proportionate that the respondents be declared disqualified persons for a period of two years pursuant to Rule 19A8(iii) and Rule 20(xvi).

13. This committee is satisfied, having considered the oral submissions made on behalf of Dunphy, that there are no extenuating circumstances that would justify anything other than the disqualification of Logan and Dunphy for a period of two years and this committee declares them so disqualified.

14. In light of the written submissions made on behalf of Burke, the evidence of Michael Halford on his behalf, the oral submissions made on his behalf and his personal circumstances this committee is satisfied that there are extenuating circumstances made out on behalf of Burke and this committee considers the following sanction as appropriate and proportionate:

1. Burke to be declared a disqualified person for a period of two years.

2. This disqualification to be suspended for the entire period unless there is a further breach of the rules committed by Burke during that period.

3. Burke shall not be granted a licence to train racehorses for a period of four years.

15. This committee found Dunphy to be in breach of Rule 25 (b) by failing to attend before this committee on the 9th of June 2016 without reasonable cause. In light of the sanction imposed on her at 13 above this committee does not propose to impose a sanction in relation to this breach and does not propose to direct that Dunphy be liable for the costs of that date.

16. With regard to all of the costs incurred by the Turf Club, other than the costs referred to at 15 above, this committee directs that each of the respondents be liable for one third of those costs each.

Dated this 21st day of December 2016

APPEALS

1. Appeals have been lodged by E. Joseph Logan and Ms. Sharon Dunphy against the decisions. No date has been set for the hearing of these appeals.

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The case was presented by Louis Weston, Barrister, instructed by Conal Boyce Solicitor, Naas, Co Kildare. E. Joseph Logan was represented by Frank Crean BL, instructed by Andrew Coonan, Coonan Cawley Solicitors, Naas, Co Kildare. Ms Sharon Dunphy was represented by Frank Quirke BL, instructed by Patrick Kennedy, Patrick J. O’Meara & Co. Solicitors, Thurles, Co Tipperary.

Andrew Cody and Patrick Reidy, Reidy Stafford Solicitors, Newbridge, Co Kildare acted as Legal Assessors.

Editor’s note
1. Copies of the charges issued by the Turf Club against each Respondent as set out in each of the letters to the Respondents are attached.