The conversations are part of the ongoing major police investigation into the harness racing industry in Canterbury - code named Operation Inca - which involved undercover officers and electronic surveillance.
Prominent trainer and driver Nigel McGrath initially faced a race-fixing charge in the district court relating to a race at Addington Raceway in March, 2018, leading up to the prestigious New Zealand Derby.
Raceway stipendiary stewards launched an inquiry after the race, concerned by the manner McGrath had driven one of the two horses he trained in the race - Star Commander. His other horse, Sheriff, won.
At the time, police were covertly running Operation Inca, gathering information and evidence on drug-taking by people in the industry and potential race-fixing in order to land bets.
Two phone calls were intercepted, one between the businessman and McGrath, and a second between the businessman and an associate in relation to the Star Commander race.
The identity of the businessman, who is associated with the McGrath stable, remains secret.
He is facing criminal charges in the district court next month as a result of Operation Inca and has interim name suppression.
Police charged McGrath with race fixing, which was later dismissed in the district court.
The racing industry’s investigative body, Racing Integrity Unit, then charged McGrath with racing offences, which were heard by the Judicial Control Authority.
At the hearing, details of the bugged phone calls emerged. Former High Court judge Warwick Gendall, who chaired the two day JCA hearing, did not suppress the recordings.
The first phone call hears McGrath tell the businessman: “Don’t worry about Star Commander”. And then he adds: “Star Commander won’t get in Sheriff’s way”.
In his written decision released last week, Justice Gendall says it was “abundantly clear” the businessman believed Star Commander was unlikely to finish in a place.
Betting records showed the businessman bet $27,252 on 19 bets involving wins, multis, quaddies, trebles and a double on Sheriff to win $37,057.
McGrath is asked by the businessman if Star Commander would beat Sheriff. “Nah. Oh, if it does, it won’t. If-if it ah. Nah, don’t worry, don’t worry about Star Commander. Star Commander won’t get in Sheriff’s way. You don’t want that.”
The businessman called McGrath after the race saying a betting associate had said the impressive thing was “Nigel burning other horse.”
McGrath had sat outside the horse leading the race, which wilted under pressure, and Sheriff was able to come through and win.
McGrath faced two charges at the JCA hearing.
The first was a serious racing offence, which accused McGrath of driving in a manner detrimental to the interests of harness racing in that he planned and deliberately drove his horse in a manner to assist Sheriff.
He originally pleaded not guilty to both charges.
However, on the second day of the hearing he pleaded guilty to the lesser improper driving charge, and the Racing Integrity Unit dropped the more serious charge.
Justice Gendall suspended him from driving racing for six months and ordered him to pay costs of $11,500.
In a letter obtained by The Star to his horse owners after the decision, McGrath said: “As you’ll be well aware, I haven’t driven at the races for over a year so this is a no penalty for me.”
McGrath’s defence counsel Pip Hall QC fought for the transcripts of the conversation with the businessman to not be heard at the JCA hearing.
He argued the agreement of the material being given to the Racing Integrity Unit was an “unlawful bargain to stifle prosecution.”
Justice Gendall criticised Mr Hall saying it was “disingenuous and opportunistic” considering the defence had agreed to the transcripts being handed to the prosecution under the agreement the criminal proceedings would be brought to an end.
Mr Hall argued the transcripts did not demonstrate a deliberate plan to assist and favour Sheriff, who he said was a horse a class above any other in the field which was reflected in the TAB odds for the race.
Said Mr Hall: “The two talked about scenarios as to how the race might unfold. But the race never unfolded in the way discussed. At no stage was the possibility discussed that Star Commander would attempt to obtain the parked position outside the leading horse and that Sheriff would gain the one/one position, which demonstrates there was no predetermined plan.
“Mr McGrath described the difference in the ability of Star Commander and Sheriff as ‘night and day’ and he was in the in the best position to know as the trainer of both.”
Justice Gendall said: “Of course as is common practice, it is very usual for a trainer to discuss with an owner how his horse may be driven and race tactics and chances before a race. But this does not permit a driver trainer to advise or discuss how his other horse in the race, which he will be driving, will likely to be driven or its tactics.
“That is especially where the (businessman) is told, as here ‘don’t worry about Star Commander’ and then ‘Star Commander won’t get in Sheriff’s way.’
“His actions provided significant benefits to Sheriff and that it may not have mattered as it was the very hot favourite and superior horse in the race, it does not lessen the offence of Mr McGrath of improper driving. Those punters who may have wagered on
Star Commander for a place or in an exotic bet such as place six were entitled to see it properly driven.”
During the hearing, RIU counsel Brian Dickey said: “Racing around the first bend Mr McGrath looks behind him and to his inside towards Sheriff on two clear occasions. With 400m of the race remaining Mr McGrath looks once to his outside and then three times to his inside, again all in the direction of Sheriff.
“Star Commander then moves outwards on the final stages of the final bend which creates a vacant gap ahead of Sheriff. Sheriff, who was trailing Star Commander did not need to make use of that run which was presented, instead switching to a run on the inside and going on to win the race.”
Justice Gendall did not accept the suggestion made by Mr Hall that it was permissible to look behind for safety reasons before crossing another horse.
“The total number of times he looked behind was 11 times and the compelling inference we draw that this was to see Sheriff.
“His action provided significant benefits to Sheriff, and that it may not have mattered as it was the very hot favourite and superior horse in the race, it does not lessen the offence of Mr McGrath of improper driving.”
He said McGrath’s actions were “complete stupidity.”
Justice Gendall issued a warning to other harness racing drivers.
“In this industry, participants that respect the integrity of harness racing are to be reminded that stipendary of the RIU have evidence of improper driving should bring charges,” he said.
Several senior harness racing drivers gave written evidence for McGrath (before he changed his plea to guilty), saying they saw nothing wrong with how he drove Star Commander.
Mr Spicer sat with McGrath during the first day of the hearing, and even approached The Star saying: “When’s your bloody newspaper going to write something positive about harness racing.”
Mr Spicer later told The Star he had no conflict of interest in terms of supporting McGrath and carrying out his role as HRNZ chairman.
“I supported the man as a friend but not in my official capacity. I put my friendship above the role, I’m not going to turn against a friend,” he said.
Mr Spicer manages a syndicate of owners for a horse in McGrath’s stable. He also bred and originally owned Sheriff. He still owns the broodmare.
Said Mr Spicer: “I just think we have to let the JCA and courts run their course. If anyone has broken the law or infringed they will certainly have to pay the price.”
Mr Hall also has racing connections with McGrath, part owning a horse in his stable.
