Appeal M McNab v RIU – Written Decision of Appeals Tribunal dated 9 March 2016 – Chair, Mr M McKechnie

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hearing_title: Appeal M McNab v RIU - Written Decision of Appeals Tribunal dated 9 March 2016 - Chair, Mr M McKechnie

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Decision:

BEFORE AN APPEALS TRIBUNAL OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred

Rules of Racing

MICHAEL MCNAB, Licensed Jockey

APPELLANT

RACING INTEGRITY UNIT

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Mr Adrian Dooley

Present: Mr Michael McNab, Licenced Jockey

Mr Phillip Cornegé, Counsel for Mr McNab

Mr Chris McNab, Licenced Trainer

Mr Darryl Lang, Licenced Trainer

Mr Tony Pike, Licenced Trainer

Mr Kevin Booth, Mr McNab’s agent

Mr John Oatham, Senior Stipendiary Steward

Mr Liam Tidmarsh, Stipendiary Steward

Mr Brady Jones, Registrar

HEARD AT TE RAPA RACECOURSE ON THURSDAY 3 MARCH 2016

DECISION OF APPEALS TRIBUNAL 3 MARCH 2016

WRITTEN DECISION ISSUED THIS 9TH DAY OF MARCH 2016

1. INTRODUCTION

1.1 At the Wairoa Racing Club meeting on 25 February this year Mr McNab was charged with careless riding in breach of Rule 638(1)(d). Mr McNab pleaded not guilty to the charge of careless riding and there was an extended hearing before the one person Judicial Committee. The charge was found to have been proved and Mr McNab was suspended for fourteen (14) days. He was then offered the opportunity to defer that suspension for seven (7) days. He availed himself of that opportunity and the seven (7) day period expires at the conclusion of racing today here at Te Rapa.

1.2 Mr McNab lodged an appeal both against the finding of careless riding and the fourteen (14) day penalty that was imposed. His Notice of Appeal sought a stay of proceedings. In a decision headed up Minute of Appeals Tribunal dated 29 February this year the Tribunal denied the application for a stay. Sometime thereafter Mr McNab engaged legal counsel Mr Cornege and yesterday a memorandum was received from Mr Cornege seeking an adjournment of today’s hearing and necessarily a further stay of proceedings. Upon receipt of that memorandum a telephone conference was arranged yesterday afternoon. After hearing submissions from Mr Cornege and from Mr Oatham on behalf of the RIU the application for adjournment and further stay was declined and hence this hearing has taken place at Te Rapa today 3 March 2016.

1.3 In support of the application for stay the Judicial Control Authority received an extensive email letter from Mr Tony Pike and also a letter from Mr Stephen Marsh. Both are senior trainers and Mr Pike is the President of the New Zealand Trainers’ Association.

1.4 As is known to all who are present here Mr McNab has been engaged to ride a horse named RAGHU in the New Zealand Derby which is to take place at Ellerslie Racecourse in Auckland on Saturday. That horse has considerable form and that is reflected in its place in the market.

2. LEGAL PRINCIPALS

2.1 An Appeals Tribunal acting under the Rules of Racing is required to conduct a rehearing. It must reach its own determination upon the evidence. It is required to have regard to the decision which is under appeal but in so doing it must nevertheless reach its own assessment and judgment upon the evidence that is put before it.

2.2 The standard of proof in proceedings of this kind is the balance of probabilities. It is recognised that the more serious disciplinary charge that is faced the more compelling must be the evidence to support that if the charge is to be made out. The leading authority is Z The Dental Complaints Committee in 2009 a decision of the Supreme Court. This is reported at 2009 New Zealand Law Reports page 1.

2.3 Mr Cornege in support of Mr McNab’s appeal raised an issue of jurisdiction. In this Tribunal’s experience this issue has never previously been raised. Shortly stated it was contended that the one person Judicial Committee presiding at Wairoa on 25 February was not lawfully constituted under the provisions of the Racing Act 2003 and the regulations made by New Zealand Thoroughbred Racing under the provisions of that Act. It was said that the correct statutory interpretation of the legislation and the regulations required that there be more than one person to constitute a valid Judicial Committee. Mr Cornege put before this Tribunal extracts from the Racing Act and the regulations. His submission was founded primarily upon the repeated use of the plural when the Act and the regulations speak of Judicial Committees. The words used are “members of Judicial Committees”. This is at first glance an attractive proposition but it needs to be made clear that for many years now the Judicial Control Authority for Racing has appointed one person Judicial Committees and those have never been subject to challenge. This Tribunal takes the view that looking at Section 39 of the Racing Act it is for the Judicial Control Authority to make appointments to Judicial Committees and that there is nothing in that section or other relevant legislation which mandates that the Committee must be more than one person.

3. THE CASE FOR MR MCNAB

3.1 Mr McNab was supported today by his father Mr Chris McNab a trainer and former senior jockey, by his agent Mr Kevin Booth and by Mr Darryl Lang a former jockey and trainer. All of those persons are known to the Tribunal. All have had a long association with thoroughbred racing. Mr Tony Pike of whom the decision spoke earlier has also been present throughout.

3.2 The Tribunal arranged for the playing of the films. These had been made available earlier in the day for Mr McNab and his advisers to examine. There are two (2) films – one is shot from behind the horses at the relevant part of the race and the other is a side-on film. Mr Lang went through the films in detail. He contended that the horse ridden by Mr McNab named CATHEDRAL COVE was sufficiently clear of the horse ridden by Mrs Allpress named LIPSIPSUC and that Mr McNab in moving his horse from a position 2 out from the rail to a 3 out from the rail position was sufficiently clear and not in breach of his obligations.

3.3 Further Mr Lang made detailed reference to the finding of the Judicial Committee that the mount of Mrs Allpress had clipped the heels of CATHEDRAL COVE. Mr Lang contended that there was no evidence on examination of the films to demonstrate that such a clipping of heels had occurred. He also drew attention to how the mount of Mrs Allpress had turned its head quite sharply to the left towards the running rail and that its mouth was open and that it did not appear to be a tractable mount. The Tribunal has looked very carefully at the films. There is no evidence from that examination to show that the horse LIPSIPSUC did clip the heels of Mr McNab’s mount of CATHEDRAL COVE. However the films are not necessarily conclusive in as much as the running rail may have obscured what has occurred and we are mindful that Mrs Allpress for her part was adamant throughout the hearing before the Raceday Judicial Committee that there had been a clipping of heels.

3.4 It was Mr Lang’s interpretation of the films that the horse LIPSIPSUC had, when checked, over reacted, turned its head sharply to the left causing its front legs to cross and that this was responsible for the fall and not a clipping of heels.

3.5 We shall return to other issues in relation to Mr McNab’s appeal later in this decision. For completeness we should record that CATHEDRAL COVE went on to win the race. LIPSIPSUC fell. Mrs Allpress was dislodged and had to be stood down from riding for the rest of the day. LIPSIPSUC was found to have broken a shoulder and was euthanised.

4. THE CASE FOR THE RIU

4.1 Mr Oatham also analysed the films and made submissions by reference to that analysis. It was his position that Mr McNab had moved his horse from a 2 wide position to a 3 wide position when insufficiently clear of the mount of Mrs Allpress. Mr Oatham said at best the mount of Mr McNab was 11/4 lengths clear of the mount of Mrs Allpress. Mr Lang in his presentation contended that the horse was some 2 lengths clear of LIPSIPSUC. Looking at the side-on film of the race it is clear to the Tribunal that the horse CATHEDRAL COVE was not 2 lengths clear and that the distance is more accurately as described by Mr Oatham as being a length and a quarter.

4.2 With reference to the clipping of heels Mr Oatham said that in his experience it was not always the case that the horse whose heels had been clipped showed sign of injury. This is mentioned because Mr Cornege told the Tribunal that Mr Jamie Richards one of the co-trainers of CATHEDRAL COVE had advised that when the horse was inspected post- race it showed no sign of having had its heels clipped. The Tribunal is satisfied that this of itself is not conclusive as to whether there was a clipping of the heels of CATHEDRAL COVE by LIPSIPSUC. For his part Mr Oatham was prepared to accept what Mr Richards had advised without further inquiry or without any question as to Mr Richards’s veracity.

5. OTHER PROPOSED EVIDENCE FOR MR MCNAB

5.1 Counsel for Mr McNab advised that the licensed jockey Mr Leith Innes had reported a conversation with Mrs Allpress on the Saturday following the racing at Wairoa and that it was proposed to put an account of this conversation before the Tribunal. It was said that Mr Innes could not be available to give evidence before the Tribunal. It is appropriate to record that the Tribunal members have observed Mr Innes on the racecourse within an hour or two of being told that he was not available. In any event and more importantly Mr Cornege was asked to indicate the nature of the evidence that Mr Innes would give. When told of that the Tribunal ruled that the evidence would not be admitted. That is not a comment on the honesty of Mr Innes but rather because the proposed evidence is anecdotal. It is not clear whether it is a reference to the finding of guilty of careless riding or with reference to the penalty and most importantly the proposed evidence was rejected because there is no way that this Tribunal can establish the accuracy of what was alleged to have been said.

6. ANALYSIS OF THE EVIDENCE

6.1 In the Tribunal’s judgment rather too much emphasis has been placed upon whether or not LIPSIPSUC actually clipped the heels of CATHEDRAL COVE. In the Tribunal’s view it is clear that CATHEDRAL COVE was moved away from the rail out to a 3 wide position when not sufficiently clear of LIPSIPSUC ridden by Mrs Allpress. That horse had to be checked. It was checked for some five (5) strides before it fell. It is not clear as earlier noted whether that fall was precipitated by a clipping of heels or whether the horse fell for some other reason. A determination of what was causative of the fall is not pivotal to the decision that has to be made by this Tribunal as to whether or not Mr McNab was guilty of careless riding. It is unfortunate that the horse fell. As earlier related Mrs Allpress had to be stood down for the rest of the day’s racing and after veterinary examination the horse LIPSIPSUC had to be euthanised. The Tribunal is unable on the evidence to reach a definitive finding as to whether or not LIPSIPSUC clipped the heels of CATHEDRAL COVE. In as much as the Raceday Committee’s decision made a positive finding in that regard this Tribunal differs in that respect.

6.2 As observed earlier the Tribunal is satisfied that Mr McNab was not sufficiently clear when he moved his horse from the rail and that this movement taking the line of LIPSIPSUC caused that horse to be checked and it was checked for some 5 strides before it fell. It follows from what has been said that there was a measure of carelessness in the riding of Mr McNab and for that reason the appeal against the finding of guilty of careless riding is dismissed.

7. PENALTY

7.1 We turn now to the question of penalty. There are a range of considerations which are required to be considered in determining an appropriate penalty. This list of considerations is not perforce exhaustive but it is comprehensive. In the first place we note that Mr McNab denied the charge of careless riding. That should not be held against him as the circumstances were far from clear and in his view, as he told the Raceday Committee, he did not think there had been a clipping of heels. Nothing had occurred that he had seen or felt which led him to the view that a clipping of heels had taken place. The next consideration is the record of the subject jockey particularly with reference to the charge that is under consideration. Mr McNab has had eight (8) careless riding convictions in the last twelve (12) months. That is not an attractive record. We then look at the level of carelessness. In our view this was at the lower end. It is appropriate at this time to mention also the issue of consequences. As this Tribunal has emphasised in other appeal hearings the most significant consideration when assessing penalty for careless riding is the degree of carelessness rather than the consequences which have followed. While those consequences must be considered they are not as significant as the exercise of measuring the degree of carelessness which has been exhibited. In our view as stated above we consider that the degree of carelessness was low. The consequences were unfortunate and not necessarily directly linked to the low level of carelessness. We have not lost sight of the fact that Mrs Allpress was stood down for the rest of the day and that the horse had to be euthanised. The next consideration is that Mr McNab was offered a deferment for seven (7) days and he availed himself of that deferment. It was applied by reference to his being a rider throughout New Zealand although Mr Oatham quite rightly reminded us that Mr McNab’s rides in the South Island had been limited.

7.2 There are other considerations when fixing penalty. One of those is the financial impact and significance that the period of suspension will have for the rider. Plainly if there are significant upcoming races the financial impact and significance will be greater than if that were not the case. As noted in the early part of this decision the Tribunal is conscious that the New Zealand Derby is to run this Saturday, the Auckland Cup the following Saturday and the New Zealand Oaks at Trentham on the Saturday following that. This issue of the financial impact and significance for the rider is something that has been recently noted by a Raceday Judicial Committee. Ironically that was in the recent decision of a Raceday Committee in relation to a careless riding charge proved against Mrs Allpress.

7.3 The Tribunal has looked at all of these various considerations in trying to determine the appropriate level of penalty. We have also looked carefully at cases which bear meaningful comparison with the circumstances that exist here. Mr Oatham helpfully put before us a list of careless riding breaches which resulted in falls between 2011 and 2016 and the members of the Tribunal are personally acquainted with a number of those cases. In our assessment which is somewhat different from that of the Raceday Judicial Committee the appropriate period of suspension here is not fourteen (14) days but rather it would be appropriate if it were eleven (11) days. That will take the suspension from the conclusion of racing today until the conclusion of racing on Friday 18 March 2016. That will mean that if rides are available Mr McNab will be able to be at Trentham on 19 March 2016.

DATED this 9th day of March 2016

Murray McKechnie

Chairman

(Signed pursuant to Rule 920(4))

ADDENDUM

A. At the conclusion of the dictation of the above decision on 3rd March Mr Cornege sought leave to address the Tribunal. That was granted. Mr Cornege sought a further stay or deferment of Mr McNab’s suspension. This, he said, was to enable Mr McNab to ride RAGHU in the New Zealand Derby on Saturday.

B. The Tribunal requested Mr Cornege to point to some authority in the NZTR Rules of Racing or some decision of an Appeals Tribunal where a stay or deferment of the kind sought had been granted. Mr Cornege readily acknowledged that he was not able to do so. For its part the Tribunal knows of no authority in the Rules or any decision of an Appeals Tribunal which would lawfully permit a further stay or deferment of a suspension which has already been put in place. It is important to emphasise that the suspension under consideration here was imposed on 25 February 2016. Today’s decision of this Tribunal is not a fresh suspension: rather it is a consideration of the suspension imposed on 25 February 2016 which has resulted in a reduction from fourteen (14) days to eleven (11) days. Mr McNab has already had a deferment of the suspension imposed on race day at Wairoa and, as related above; his application for a stay of this hearing and his subsequent application for an adjournment and/or stay after the engagement of counsel have both been declined.

C. There is no authority to grant any further stay or deferment and the application is refused.

COSTS

A. The conventional practice at the conclusion of a hearing before an Appeals Tribunal is to invite the parties to make submissions as to costs. On 3 March, when there was some considerable time pressure with a race meeting about to commence at Te Rapa, this was overlooked.

B. Without expressing any settled view the Tribunal observes that a costs award is more likely where the case for the Appellant has been lacking in any substantive merit. In the Tribunal’s view Mr McNab did have an arguable case. Further the period of suspension has been reduced. In the circumstances just explained it is the Tribunal’s entirely preliminary view that costs may not, in this instance, be appropriate.

C. The Judicial Control Authority has incurred costs. The Tribunal will inquire of the Executive Officer of the JCA an estimate of the costs involved with the setting up and conduct of this appeal and the consideration of the stay application(s).

D. Counsel for Mr McNab and Mr Oatham on behalf of the RIU are both requested to file brief submissions in relation to costs. Those submissions not to exceed two (2) pages. The submissions are to be lodged with the Executive Officer of the JCA by 3.00p.m. on Thursday 17th March 2016. The Tribunal will then issue a costs ruling.

DATED this 9th day of March 2016

Murray McKechnie

Chairman

(Signed pursuant to Rule 920(4))

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