Non Raceday Inquiry RIU v J Waddell – Reasons for Decision(s) of Non-Raceday Judicial Committee and Penalty Ruling dated 4 December 2015

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decisiondate: 04/12/2015

hearing_title: Non Raceday Inquiry RIU v J Waddell - Reasons for Decision(s) of Non-Raceday Judicial Committee and Penalty Ruling dated 4 December 2015

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE
JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred
Rules of Racing

RACING INTEGRITY UNIT
INFORMANT

JASON WADDELL, Licensed Jockey
DEFENDANT

Judicial Committee: Mr Murray McKechnie, Chairman & Mr Noel McCutcheon

Present: Mr Steve Symon and Mr Andy Cruickshank, Counsel for the Racing Integrity Unit - Mr Michael Curran, Counsel for Mr Waddell
Mr Jason Waddell

REASONS FOR DECISION(S) OF NON-RACEDAY JUDICIAL COMMITTEE AND PENALTY RULING

DATED THIS 4th DAY OF DECEMBER 2015

1. INTRODUCTION
1.1 This statement of reasons is to be read alongside and further to the interim decision given by the Committee on 24 November 2015 at the conclusion of the all –day hearing at Te Rapa. The interim decision will be published together with what is set out here.

1.2 The explanation for the need to issue an interim decision is set out in the course of that decision.

2. BACKGROUND
2.1 Mr Waddell is a Class A jockey who has, at times, enjoyed considerable success at the highest level. There have, as we shall later relate, been periods when he has not been riding.

2.2 Mr Bruce Harvey and his wife are well-known figures in the thoroughbred industry in the Waikato. They own and operate Ascot Farm at Cambridge. They undertake pre-training and spelling, prepare horses for the Hong Kong Jockey Club and on behalf of vendors at the Ready to Run Sales. Mr Harvey who served for 15 years on the Cambridge Jockey Club Committee and 8 years of that time as President also owns and races a number of horses. In his evidence Mr Harvey set out his acquaintance with Mr Waddell. We set out, verbatim, a particularly relevant part of that evidence:

I have known Mr Jason Waddell for a number of years. When I first got involved with Mr Waddell he was a disqualified jockey because of disciplinary matter, he’d been adjudged bankrupt and was down and out.

I was asked by our son who knew him if we could help. So we took Jason under our wing. He’s always been an extremely talented horseman and rider; no one would ever doubt that.

He rode work for us, got his weight down, and we couldn’t have been happier with his work ethic and we got a thrill out of seeing him get hack to race riding.

We got to the point where Jason was back race riding. From memory I think he rode 60 winners in his first season back. All was going well and he moved into our cottage on the property.

We helped him financially. We helped him with his accounts; he worked with our accountant, worked through his bills, assisted with his bankruptcy and basically got him back on track.

He had a good relationship with the Stipendiary Stewards who we kept up in contact on the way through, on how he was going, he was moving in the right direction.

2.3 In 2013 the horse RUUD AWAKENING was to run in the Karaka Million. The horse was short in the market. Mr Waddell had ridden the horse on a number of occasions. There were problems with his weight. He was replaced by the Australian jockey Craig Williams for the Karaka Million. These events led to a dispute between Mr Waddell and the connections of RUUD AWAKENING. Mr Harvey had no direct involvement in that dispute but told the Committee that he felt that Mr Waddell was of the view that he (Mr Harvey) had not sufficiently supported him in the course of the dispute. For his part Mr Harvey did not accept that such was the case. It was then related by Mr Harvey that Mr Waddell gave up riding following the RUUD AWAKENING episode and moved away from Ascot Farm and took accommodation in Cambridge. Sometime later Mr Waddell made contact with Mr Harvey and it was agreed that Mr Waddell go with Mr Harvey to Hong Kong. Mr Harvey said that Mr Waddell did a good job in Hong Kong. Mr Waddell continued to work for Ascot Farm into 2014.

2.4 Sometime in 2014 difficulties arose in the working relationship between Mr Harvey and Mr Waddell and there were a number of discussions. Mr Harvey related that in the last of these discussions there was an occasion when “Jason went off his tree”. Mr Harvey then told the Committee that Mr Waddell said “you can stick your job up your arse”. Mr Waddell then left Ascot Farm.

2.5 Sometime soon after the events just spoken of Mr Waddell initiated a personal grievance against Ascot Farm for unfair dismissal, hurt and humiliation. Mr Harvey explained that the claim made was for $40,000. Mr Waddell had engaged legal counsel. The dispute went to mediation in July of this year. Mr Waddell attended the mediation without legal counsel. After a brief discussion Mr Harvey told the Committee that Mr Waddell stormed out of the meeting and that there was no further contact until the events of 25 September 2015.

3. CAMBRIDGE RACECOURSE 25 SEPTEMBER 2015
3.1 Mr Harvey related that on the morning of 25 September he was at the Cambridge Racetrack when Mr Waddell and another rider rode past a short distance away. It was Mr Harvey’s evidence that Mr Waddell looked at him and said “revenge is sweet” or “revenge will be sweet”. Mr Harvey told the Committee that he did not reply. The Committee comments on this incident further at paragraph 6.2.

3.2 What was said by Mr Harvey and Mr Waddell is in dispute. As related above Mr Harvey said that the words spoken were “revenge is sweet” or “revenge will be sweet”. It was Mr Waddell’s evidence that what he said was “karma is a bitch”. It was not put to Mr Harvey in cross examination that he had made any response to what Mr Waddell said. However when Mr Waddell came to give his evidence he related that after he had spoken Mr Harvey addressed him saying “you are a spiteful little c… and nothing but a fuckwit”.

4. AVONDALE TRIALS 29 SEPTEMBER 2015
4.1 Mr Harvey, when looking at the fields for the trials, realised that a horse which he had entered and which was to be ridden by Ms Samantha Collett was drawn alongside a horse which was to be ridden by Mr Waddell. Mr Harvey said that as a result of the conversation on 25 September he had concerns about how Mr Waddell might conduct himself in the trial so he spoke with Ms Collett and with the Stipendiary Steward Mr Alan Coles.

4.2 As to the riding of Mr Waddell at the trials at Avondale the Committee set out reasons in its decision on 24 November and now emphasises the following:

(a) The interference caused by Mr Waddell was deliberate;

(b) No other jockey contributed to the interference. Mrs Tiley was blameless;

(c) Messrs Cameron & Hills had a good view of what took place. Mr Hills evidence was particularly persuasive. He related that Mr Waddell was leaning so far towards the inside rail that he (Mr Hills) initially thought that the saddle had slipped on the horse Mr Waddell was riding;

(d) Ms Collett gave evidence of Mr Waddell’s right elbow being extended away from his body;

(e) Ms Johnson related a conversation with Mr Waddell after the horses had passed the winning post. In the course of that Mr Waddell is alleged to have said “I got him back”. Ms Johnson told the Committee that she was not aware of what this remark referred to but in further conversation with Mr Waddell it was apparent to her that the reference was to Mr Harvey.

4.3 Ms Collett’s mount, a 3YO gelding by Savabeel suffered minor injuries, required veterinary attention and was spelled.

4.4 Following the trial Mr Waddell was spoken to by the Stipendiary Steward Mr Coles and by the jockey mentor Mr Noel Harris. Both gave evidence. Each related that Mr Waddell made a somewhat equivocal apology for the interference which he had caused. He did not give any explanation to Messrs Coles and Harris to suggest that any other jockey had caused the interference which had taken place.

5. EVENTS AT CAMBRIDGE ON OR ABOUT 3 OCTOBER 2015: THE BREACH OF RULE 801(1)(s)(i)
5.1 It was the evidence of Ms Johnson that following track work at Cambridge she found herself alongside Mr Waddell as they were walking off the track and it was said to her “how’s my mate Bruce Harvey”? Ms Johnson gave evidence that she said “I think he is well”. Ms Johnson then related that she said to Mr Waddell “I don’t know why you even bother doing things like what you did at Avondale the other day”. It was the evidence of Ms Johnson that Mr Waddell’s reply was “it won’t be the last time I do it”. Ms Johnson then said “you know it is pathetic what happens if you put Sam down while you are trying to get back at Bruce Harvey”. Mr Waddell is said to have shrugged his shoulders and Ms Johnson then said “well what happens if you put her in a wheelchair or put her in a coma”. Mr Waddell is said to have replied “oh well we’ll cross that bridge when we get to it”. Mr Waddell is then said to have remarked “it won’t be the last time”.

5.2 Ms Johnson made clear to the Committee that she was concerned by the attitude exhibited by Mr Waddell. She said that Mr Waddell was a brilliant rider but expressed real concern that his attitude might lead to serious injury to other jockeys or to Mr Waddell himself.

6. MR WADDELL’S EVIDENCE
6.1 With reference to the riding at the Avondale Trials the film coverage and the evidence of the jockeys Ms Collett, Mrs Tiley, Mr Hills and Mr Cameron is conclusive. Mr Waddell’s evidence was not credible. Moreover his comments post the trial to other persons which we have related above are consistent with his actions being deliberate.

6.2 As to the events at Cambridge on or about 3 October Mr Waddell denied speaking to Ms Johnson as she had recounted in her evidence. When cross examined Mr Waddell made two (2) claims. These were:

(a) That Ms Johnson had told him that Mr Harvey had instructed her to give evidence that was not true;

(b) When asked in cross examination what motive, if any, Ms Johnson might have for giving evidence that was untrue Mr Waddell alleged that Ms Johnson was in a personal relationship with the trainer Mr Stephen Marsh and that Mr Marsh and Mr Harvey worked closely together and that this somehow had led to Ms Johnson being an untruthful witness.

Neither of these claims made by Mr Waddell in his evidence was put to Mr Harvey or Ms Johnson in cross examination. There were very serious allegations and when they have not been made known to the persons concerned we can have no regard of them. What has just been said is not a criticism of Mr Waddell’s counsel. The Committee has concluded that in all probability counsel was not made aware that allegations of this character would be made by Mr Waddell in his evidence.

6.3 Mr Waddell insisted that he did not say to Mr Harvey on 25 September that “revenge is sweet” or “revenge will be sweet” Mr Waddell claimed that what he said was “karma is a bitch”. Mr Waddell was asked about what he understood “karma” to mean. He plainly understood that “karma” means that persons engaged in wrongdoing in some way are punished or held responsible for that. In a remarkable passage in the cross examination of Mr Waddell he was asked whether he wanted bad things to happen to Mr Harvey. Without hesitation he replied in the affirmative. He was asked to give examples. He gave three. These were:

(a) That Mr Harvey and Ascot Farm has a bad year selling horses;

(b) There was then reference to a Harvey family member’s health which plainly indicated that Mr Waddell wished it to be worse rather than better;

(c) That Mr Harvey “go down a peg or two”.

6.4 Mr Waddell was asked why he had apologised in the presence of Mr Coles and Mr Harris if nothing wrong had occurred. His explanation was wholly unconvincing.

6.5 The Committee does not believe that any of the witnesses called for the RIU had any motive to give evidence that was not truthful and accurate. All were credible witnesses. Mr Waddell’s evidence about what happened at Avondale was contradicted by all those who saw the events and by the film coverage. As to what happened at Cambridge on or about 3 October following the trials at Avondale the Committee accepts the evidence of Ms Johnson who we consider to be an honest and reliable witness. Mr Harvey was straightforward. He acknowledged that Mr Waddell had talent and that he had, at times, done good work. Where the evidence of Mr Waddell and Mr Harvey was at odds we prefer, by a significant margin, what was said by Mr Harvey.

7. WHAT CONSTITUTES A SERIOUS RACING OFFENCE
7.1 The question of whether or not the conduct complained of relates to matters connected with racing is for the Judicial Committee to determine: see judgment in Carter v JCA et al, High Court Hamilton CIV-2006-419-841, Harrison J, 7 December 2006

7.2 Here it is said that the threatening language used by Mr Waddell in conversation with Ms Johnson constituted misconduct connected with racing of sufficient seriousness to constitute a serious racing offence. We have no difficulty in upholding that submission. Ms Johnson understandably told the Committee that when she was spoken to she had concerns for her safety and for riders who might find themselves in proximity to Mr Waddell. She was concerned about the on-going issues between Mr Waddell and Mr Harvey. The words used by Mr Waddell suggest very strongly that he might be planning to act as he did at Avondale or in some similar way at some time in the future.

7.3 Threatening behaviour indicating planning for future serious breaches of the Rules of Racing involving safety and health is plainly detrimental to the interests of racing and in our judgment constitutes a serious racing offence.

8. PENALTY
8.1 Both counsel have now furnished detailed submissions to the Committee. Those for Mr Waddell comment on the submissions earlier filed for the RIU. The penalty for improper riding can be a disqualification for a period not exceeding twelve (12) months and/or a suspension of licence for a period not exceeding twelve (12) months; and/or a fine not exceeding $20,000. A person who commits a serious racing offence shall be liable to:

(a) Disqualification for a specific period or for life; and/or

(b) Be suspended from holding or obtaining a licence for a period not exceeding twelve (12) months. If a licence is renewed during a term of suspension then the suspension shall continue to apply to the renewed licence; and/or

(c) A find not exceeding $50,000.

8.2 The charge of improper riding has led to a comparison with cases of foul riding: RIU v Lupton 1 November 2014, reckless riding, Parkes v RIU, 8 August 2014 and improper riding RIU v Stam 26 December 2006.

The three decisions mentioned involved actions that were unplanned. In contrast we are quite clear that Mr Waddell set out to deliberately cause inference to Ms Collett’s mount. In the cases referred to above none resulted in any significant injury to horses. In the Parkes case that did involve injury to another jockey. The distinguishing feature here is that Mr Waddell carefully planned what he did. That is plain from what he said before the trial, the manner in which he rode the horse and significantly his unattractive references to what he had done after the trial had taken place.

8.3 Both counsel drew attention to decisions in RIU v Fisher et al, 2 September 2014 and RIU v Dyke, 9 July 2008. Both decisions are well known to the Committee. In both instances the allegations of wrongdoing were strongly denied. Neither decision is of particular assistance here. RIU v Fisher et al had to do with an alleged performance enhancing drug that was found in the possession of a licenced trainer. The trainer and those who had supplied the drug to him were charged with breaches of the rules. The Dyke decision involved a trainer who without any premeditation acted in a manner which compromised the integrity of the TAB. No issue of the safety of riders or animal welfare arose.

8.4 The RIU emphasised what it submits are significant aggravating considerations. These are:

(a) What is described as premeditation. The Committee has already made reference to the deliberate nature of Mr Waddell’s conduct;

(b) The lack of regard for physical welfare of other riders. That there was a lack of regard is acknowledged in the sentencing submissions filed for Mr Waddell;

(c) Lack of remorse. There is some reference to remorse in the submissions filed for Mr Waddell. It is unconvincing. More of said of that later in this decision;

(d) Compromising future races. This has reference to Mr Waddell’s indication that he might act in the same way at some future time;

(e) Damaging public perception. It goes without saying that the sort of behaviour under consideration here damages the image of thoroughbred racing;

(f) The previous offending. The Committee makes reference to Mr Waddell’s previous record in paragraph 8.9 below.

The RUI submits that on the charge of improper riding there should be a disqualification of six (6) to nine (9) months and that on the charge of committing an act detrimental to the interests of racing a starting point for the disqualification of between twelve (12) and sixteen (16) months. It is then contended that because of Mr Waddell’s record there should be an uplift leading to an end sentence of two (2) years disqualification.

8.5 Counsel for Mr Waddell in his sentencing submissions acknowledged that there were aggravating factors. These included:

(a) A degree of premeditation;

(b) That Mr Waddell had acted inappropriately on three occasions within the period of about seven (7) days;

(c) That Mr Waddell had demonstrated, at times, an inability to control his feelings of grievance and anger.

Mr Waddell’s counsel submits that there are mitigating circumstances. These are said to be the following:

(a) He is still a relatively young man;

(b) His peers and previous employer relate that he is an extremely talented rider. His record confirms that;

(c) He has an ability, which if appropriately directed, will enhance the public and professional perception of the industry;

(d) That talent logically promotes the interests of the owners and trainers he rides for by ensuring that they get the best results for the high level of investment they have in the sport;

(e) He has a partner and young child to provide for. His actions have severely impacted upon them through loss of employment.

With reference to Mr Waddell’s previous history counsel submits that a pattern of unacceptable behaviour is not clear. That submission is inconsistent with what is said in (c) above and is not consistent with the submission that any suspension or disqualification should be subject to conditions under Rule 812(a): refer paragraph 8.10 below.

In conclusion it is said for Mr Waddell, with reference to RIU v Dyke, that a suspension of around three (3) months would be appropriate.

8.6 The relevant sentencing principles are well known. These were identified some years ago by Mr Justice Warwick Gendell as he now is. These are:

(a) Penalties are designed to punish the offender for his/her wrong doing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment;

(b) In a racing context it is extremely important that a penalty has the effect of deterring others from committing similar offences;

(c) A penalty should also reflect the disapproval of the JCA for the type of behaviour in question;

(d) The need to rehabilitate the offender should be taken into account.

8.7 The Committee must bear in mind that since 13 October this year Mr Waddell’s Class A licence has been suspended. This has meant no riding permitted on race days or at barrier trials or at jump outs. Track work riding has been permitted for certain nominated trainers.

8.8 A very curious aspect of this matter is that Mr Waddell had not been race riding for an extended period. He was to resume race riding on the Saturday following the trials at Avondale. This proposed return to race riding by Mr Waddell had received significant publicity. With that return to race riding imminent it is all the more curious and of concern that Mr Waddell should have chosen to jeopardise his position by the behaviour which has brought him before the Committee.

8.9 Mr Waddell has a most unattractive record of breaching the Rules of Thoroughbred Racing. A number of these breaches are of particular relevance to the charges which the Committee has found proved. In particular the following:

(a) In 2005 in Singapore a period of suspension for misleading stewards;

(b) In April 2006 a fine of $1,000 was imposed for misconduct. This involved the use of threatening, offensive and insulting language and intimidation. It is apparent from reading the decision of the Non-Raceday Judicial Committee that a period of suspension was escaped by a very narrow margin;

(c) In October 2009 suspension of seven weeks for abusing office holders of the Rotorua Racing Club and making threats to call off a race meeting,

(d) June 2010 disqualified for 14 months following a positive test for the Class A drug methamphetamine (“P”);

(e) January 2012 convicted of misconduct for abuse of a fellow jockey. Fine imposed;

(f) Between December 2012 and January 2013 there were four occasions when Mr Waddell failed to make the contracted riding weight which had been set;

(g) There are a very significant number of careless riding suspensions.

This record when taken along with the events in and around the conduct at Avondale on the 29 September 2015 demonstrate a wholly unacceptable pattern of behaviour. That behaviour involves anger and abuse. It demonstrates a marked lack of self-discipline. Further in relation to the charges presently under consideration Mr Waddell gave evidence which was not credible. He ascribed improper motives to persons who gave evidence for the RIU. There was no credible foundation for those allegations and, as earlier remarked, they were not put in cross examination to the persons said to have the improper motivation.

In our view the RIU was perfectly justified in suspending Mr Waddell’s Class A Riders Licence following the investigation into the events leading up to the trials at Avondale, the events on that day and Mr Waddell’s subsequent behaviour.

Mr Curran counsel for Mr Waddell in his careful and measured submissions on penalty observed as follows:

Paragraph 24:
“-The reality is that the Defendant has demonstrated that he, at times, lacks the ability to appropriately control his feelings of grievance and anger”.

Further with direct reference to the riding at the Avondale Trials it is said in the submissions of counsel:

Paragraph 25:
“The Defendant accepts that his actions at the trials showed a lack of regard for the welfare of a fellow rider”.

This submission now made for Mr Waddell is totally at odds with the evidence he gave at the hearing before the Committee. He sought to place all of the blame upon other riders and nowhere in his evidence did he accept or acknowledge that his actions had been deliberate or that they showed “a lack of regard for the welfare of a fellow rider”.

The submission that there is now an acceptance by Mr Waddell that his actions showed a lack of regard of a fellow rider would be a great deal more convincing if it had occurred at the hearing before the Committee. Any expression of regret or remorse by Mr Waddell at this time is entirely contrary to the way he presented his position before the Committee at the hearing on 24 November and in such circumstances can count for very little.

8.10 Counsel for Mr Waddell made a most interesting submission by reference to Rule 812(a). That rule states:

In addition to or in substitution of any penalty imposed under Rules 801, 803 and/or 804 require the person committing the breach to complete a counselling or rehabilitation course of the type specified by the Judicial Committee.

8.11 In our judgment the offending by Mr Waddell must be seen as a single extended episode. It was an episode in three parts, as follows:

(a) The events at Cambridge on 25 September 2015;

(b) The conduct at the Avondale Trials on 29 September 2015; and

(c) The exchanges with Ms Johnson on or about 3 October at Cambridge.

Taken together all of this is completely unacceptable. A person who behaves as Mr Waddell has puts at risk fellow jockeys and animal welfare. Mr Waddell should not be riding until he can demonstrate that he will cease to behave in this way.

8.12 In our view only a significant period of disqualification can adequately recognise the seriousness of the offending in what we have characterised as a single episode. On the charge under Rule 638(1) Mr Waddell is disqualified for six (6) months. On the charge under Rule 801(1)(s)(i) he is disqualified for twelve (12) months. The periods of disqualification are concurrent. They are to take effect immediately. In setting the period of disqualification the Committee has taken account of the suspension that has been in force.

8.13 The Committee further orders that if Mr Waddell seeks to renew his jockey’s licence he shall undergo counselling and furnish to the Committee a psychiatric or psychological report from a reputable medical practitioner which addresses the issues of anger management and abuse. That report should also make an assessment of Mr Waddell’s likely future conduct: refer Rule 812(a).

9. COSTS AND WITNESS EXPENSES
9.1 The RIU seeks a substantial costs award. This in respect of counsels’ fees. Also in relation to expenses incurred in the investigation. Further witness expenses are sought to recompense the licenced jockeys who had to forego riding engagements in order to answer the witness summons which each had received requiring their attendance at the hearing at Te Rapa on 24 November 2015.

9.2 The JCA has incurred considerable expense in the sum of around $8,000.00.

9.3 We have been told that Mr Waddell’s financial position is not strong. He will not henceforth be able to earn any income as a jockey for twelve (12) months at least and perhaps for longer. What other employment might be open to him is not known to the committee.

9.4 Where, as here, the licenced jockey has been disqualified for a significant period of time with the obvious impact upon his income earning ability it would be neither realistic nor fair to impose a costs award and require the payment of witness expenses. As to the latter the Committee is of the view that the RIU should make a meaningful contribution to the lost income of the licenced jockeys summonsed to give evidence.

9.5 There will be no costs awarded in favour of the RIU. There will be no order to pay witness expenses. No order for costs is made in favour of the JCA.

DATED this 4th day of December 2015

Murray McKechnie Chairman
Signed pursuant to Rule 920(4)
 

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BEFORE A JUDICIAL COMMITTEE OF THE
JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

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