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T.J. O'Mara Referral - Down Royal 27th May, 2011

 Thomond O’Mara (trainer), Michael Gunn & Conor O’Donnell Referrals

Down Royal – 27th May 2011

The Referrals Committee Judge Tony Hunt (in the chair), Philip Caffrey and Martin O’Donnell met at the Turf Club, the Curragh, Co. Kildare on Monday, 4th November 2013 , Friday 10th January 2014 and Monday 19th May 2014 to consider whether or not Thomond O’Mara, trainer, Michael Gunn and Conor O’Donnell were in breach of any rules, as a result of an incident which took place at Down Royal on 27th May 2011, and evidence subsequently given at a Referrals Committee hearing into the matter on 23rd January 2012. The matter was referred to the Referrals Committee by Denis Egan, Chief Executive of the Turf Club, following an investigation carried out by Christopher Gordon, Turf Club Head of Security, and Hugh Hynes, Stipendiary Steward.

In the case of Thomond O’Mara, the Committee was asked to consider whether or not Mr. O’Mara gave false and misleading evidence at the referrals hearing on 23rd January 2012, including an attack on Conor O’Donnell’s character.

In the case of Michael Gunn, the Committee were asked to consider whether or not Mr. Gunn mislead Senior Turf Club Officials in an investigation by stating that he travelled to Down Royal with John Nallen’s horses, that he was in the company of Warren Ewing at Down Royal and that he collected horses from his Templepatrick yard on 27th May 2011. The Committee was also asked to consider if Mr. Gunn made misleading claims that he was in attendance at Down Royal on 27th May 2011 as an authorised representative for Thomond O’Mara.

In the case of Conor O’Donnell, the Committee was asked to consider whether or not Mr. O’Donnell failed to co-operate with a Turf Club investigation and whether or not he attempted to gain access to the stable yard at Down Royal on 27th May 2011, with an A.I.R. card in the name of Thomond O’Mara.

At the outset Patrick Kennedy, solicitor, tendered a medical certificate in respect of Michael Gunn who was unable to be present for medical reasons. As such, the Committee did not hear evidence or consider any allegations against Mr. Gunn. At the subsequent hearing on 19th May 2014 the Committee asked that an up to date medical certificate be submitted for Michael Gunn. They adjourned his case with a liberty to re-enter should Mr. Gunn’s medical condition improve.

Evidence was heard from Thomond O’Mara. The Committee considered submissions on behalf of Mr. O’Mara from Frank Quirke B.L. and on behalf of Conor O’Donnell from Robbie O’Neill B.L. The Committee also considered a written report from Christopher Gordon, Turf Club Head of Security, on the investigation carried out into the evidence given by Thomond O’Mara at the referral on 23rd January 2012 and other issues which arose from that evidence.

In his submission, Frank Quirke B.L. said that Thomond O’Mara wanted to assist the tribunal as much as possible and that he was primarily there to mitigate. He said he would like to clarify certain inaccuracies in the evidence given by Mr. O’Mara at the hearing on 23rd January 2012, namely that:

i) The version of events about how the lorry travelled to Down Royal was incorrect. He said he now accepted that the lorry left from his yard in Fethard with Conor O’Donnell and John McSweeney and it was incorrect to say that they only assumed control of the lorry at the Curragh when the person originally named as being the driver of the lorry, had to return home due to a medical emergency.
ii) it was incorrect to have said that Conor O’Donnell never worked for him. He now accepted that Mr. O’Donnell was registered as his employee with the Turf Club from June 2002 until December 2003 and that Mr. O’Donnell looks after his yard periodically when he is away.
iii) It was incorrect to say that Conor O’Donnell unlawfully and without authority took his A.I.R. card from his wallet.

Mr. Quirke said that Mr. O’Mara did not intentionally mislead the Committee at the hearing on 23rd January 2012.

In his evidence, Thomond O’Mara stated that he was hugely “overwhelmed” at the previous hearing. He said he was never in such a situation before and he was “shaking” when he left. He said he accepted there were inaccuracies in his evidence and that he did not set out to mislead anyone. He also said he never intended to show Conor O’Donnell in a poor light. He said he fully accepted that his wallet was never in the jeep and that the reasons he previously outlined as to why Conor O’Donnell had to drive the lorry were incorrect. He told the Committee that he had issued a written apology to Mr. O’Donnell for misleading the Committee with incorrect evidence about him and for alleging that he unlawfully and without authority stole or otherwise took from his (Thomond O’Mara’s) wallet his stable yard pass. He also accepted that Conor O’Donnell had worked for him in the past. In conclusion, he said he could not remember giving instructions or handing his A.I.R. card to Conor O’Donnell.

In his submission, Robbie O’Neill B.L. said he would not be calling Conor O’Donnell to give evidence, but accepted that Mr. O’Donnell used Thomond O’Mara’s A.I.R. Card at Down Royal on 27th May 2011. He went on to say that Mr. O’Donnell did not meet with Turf Club investigators based on legal advice, as he was exercising his constitutional right to silence. He said that he still stands over the evidence he gave at the stewards enquiry at Down Royal, which was that Thomond O’Mara told him “he needed (the card) to scan whatever to get John McSweeney’s racing pass” He said that he never purported to be Thomond O’Mara when he used the card.

Conal Boyce, on behalf of the Turf Club made a number of submissions and highlighted parts of the transcript from the previous referral hearing which Thomond O’Mara reiterated over and over as being the facts which he today accepted were not true. He said the Turf Club’s case in relation to Mr. O’Mara was that he gave false and misleading evidence at the referral hearing on 23rd January 2012. In relation to Mr. O’Donnell, he said that the Turf Club’s case was that the failed to co-operate with the investigation into what occurred and that he attempted to use Mr. O’Mara’s A.I.R. card at Down Royal to gain access to the stable yard.

In conclusion, Frank Quirke B.L. said that his client did not intentionally or deliberately mislead the Committee at the last hearing and that any inaccuracies in the evidence given were due to Mr. O’Mara being overwhelmed by the occasion.

Robbie O’Neill B.L. on behalf of Conor O’Donnell said that his client did not pretend to be anyone else except himself and he did not believe he was in breach of Rule 25 for failing to co-operate, as he was exercising his constitutional right to silence on legal advice.

Having considered the evidence, the Committee reserved its decision.

The Committee reconvened on Friday, 10th January 2014 to consider a further application from Patrick Kennedy Solicitor with regard to matters under review. Having considered the submission the Committee confirmed that it would deliver its decision at a later date.

The Committee reconvened on Monday, 19th May 2014 to deliver its decision and consider any outstanding issues.

The Committee first dealt with Conor O’Donnell. They said the privilege of self-incrimination is not applicable in Turf Club investigations, as licensees are bound contractually to obey the Rules. In this regard, the Committee adverted to the decision of the Supreme Court in Re National Irish Bank. Noting that Mr. O’Donnell had previously furnished an explanation of his actions to the Down Royal stewards, and taking all relevant factors into account, the Committee acquitted Conor O’Donnell of the alleged or any breaches of the Rules.

In relation to Mr. O’Mara, it appeared to be conceded that his original evidence was wrong and incorrect on three material issues, namely:
i) His wallet containing an AIR card was never left in his vehicle,
ii) Conor O’Donnell could not have misappropriated a wallet or contents as originally alleged,
iii) His two vehicles had returned to his Fethard yard, and had not met at the Curragh.

The Committee found that Mr. O’Mara gave inaccurate evidence, which having regard to the scale of the inaccuracies, must have been either intentional, or at best, highly reckless. The evidence was calculated to mislead, and the Committee held that it had been misled by the original evidence. The purpose of the inaccurate the evidence was to convince the Committee that Mr. O’Mara was as distant as possible from the use of his AIR card and the absence of a representative in connection with his runner at Down Royal. The Committee did not accept that he was “overwhelmed” at the earlier hearing, noting that he had forcefully challenged the Committee on a number of occasions during that hearing, and rejected this as an explanation for giving materially inaccurate evidence to the extent described.

As a result of his conduct at the previous hearing, he was found in breach of Rule 272 as his conduct was deemed to be prejudicial to the proper conduct of racing.

The Committee considered an oral submission from Michael Grassick, chief executive of the Irish Racehorse Trainers Association in support of Mr. O’Mara. Mr. Grassick said that Mr. O’Mara’s primary concern was the loss of his licence, and he requested the committee to consider the imposition of a monetary fine. He said that Mr. O’Mara would be prepared to give any undertaking that he will comply with the Rules of Racing.

In relation to penalty, the Committee’s view was that this misconduct deserved a disqualification sanction, it being the first time that a licensee had been proved to have intentionally or recklessly misled the Referrals Committee. They pointed out that if Mr. O’Mara had given a more truthful account of his actions at the original hearing, the outcome of that hearing would have been similar.

The mitigating factors were that he had made some admissions, that his actions did not prejudice any members of the public other than the Committee, and the wrong that has been done to Mr. O’Donnell had been set right.

The Committee imposed a disqualification on Mr. O’Mara holding a licence for a period of 2 years which they suspended for 2 years provided there are no further breaches of Rule 272 within that period. The operative date for any subsequent breach is not the date on which the breach is established, but the date of occurrence. If a breach occurs within the suspension period, the two year licence disqualification may be activated by any Referrals Committee, together with any penalties applicable to any subsequent breach. They also imposed a fine of €1,000 and ordered that he make a contribution of €4,000 to the Turf Club’s costs.

The Committee said that the penalty would not have been suspended if there had been some public aspect to this misconduct. They expressed displeasure at his approach to both hearings and the evidence given and strongly suggested that he should take the advices of his legal team with regard to his future conduct.

The case was presented by Conal Boyce, Solicitor, Naas, Co. Kildare.

Thomond O’Mara was represented by Frank Quirke B.L., instructed by Patrick Kennedy, Patrick J. O’Meara Solicitors, Thurles, Co. Tipperary.

Conor O’Donnell was represented by Robbie O’Neill B.L., instructed by John Whelan, Mathew McNamara & Son Solicitors, Cashel, Co. Tipperary.

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