Appeal M Hashizume v RIU – Reserved Reasons for Decision dated 22 October 2020 – Chair, Hon J W Gendall QC

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hearing_title: Appeal M Hashizume v RIU - Reserved Reasons for Decision dated 22 October 2020 - Chair, Hon J W Gendall QC

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Before an Appeals Tribunal of the Judicial Control Authority

Appeal Heard at Matamata on 21 October 2020

BETWEEN MASAHIRO HASHIZUME

Licensed Apprentice Jockey

Appellant

AND BRADY JONES

RIU Stipendiary Steward

Respondent

Appeals Tribunal:-Hon J W Gendall QC (Chair)

Mr M McKechnie (Member)

Present:--Mr G L Cooksley, employer of and advocate for Mr Hashizume

Mr M Hashizume, Appellant

Mr B Jones, (for RIU) Respondent

RESERVED REASONS FOR DECISION DATED 22 OCTOBER 2020

(1)- The Appellant is a Licensed Apprentice Jockey. On 10 October 2020, after the running of the Listed Race 7 at Matamata, the Team Wealleans Matamata Cup, he was charged with careless riding in breach of Rule 638(1)(d). The Respondent alleged that Mr Hashizume :
“Allowed his mount RONCHI to shift in near the 1050 m when not sufficiently clear of BURGANDY(sic) BELLE (D Johnson) which was dictated into the line of OUR ALLEY CAT which was checked”

(2)- He did not admit the charge and after a defended hearing the Judicial Committee found it to be established and suspended his licence for 7 National Riding Days, that is from 24 October 2020 to 1 November 2020, inclusive.

(3)- He appealed against both the finding of liability and the penalty imposed, and to accommodate his wish for urgency the JCA Appeals Tribunal heard the Appeal at Matamata Racecourse on 21 October 2020 and after hearing from Mr Cooksley on behalf of the Appellant, as well as Mr Jones, and considering the raceday films and transcript of the evidence then adduced, we dismissed the Appeal against both liability and penalty. We advised that our reasons would be committed in writing, which now follow.

PRELIMINARY

(4)-All Appeals to the Appeals Tribunal are by way of “rehearing” based on the evidence adduced at the hearing before the Judicial Committee unless the Appeals Tribunal directs otherwise (Rule 1005 (3)). We dealt with the Appeal on that basis, there being no good reason to hear further evidence although naturally we heard submissions and arguments from and on behalf of the Appellant and Respondent and had before us the full transcript of the evidence and hearing before the Judicial Committee.

(5)-We mention that there is a misspelling of the name of the horse BURGUNDY BELLE - it is immaterial – but when we record what the decision says the spelling has to be as recorded.

THE HEARING BEFORE THE JUDICIAL COMMITTEE AND ITS DECISION

(6)-Evidence was heard from Jockeys Ms D Johnson, Rider of BURGUNDY BELLE. Ms T Thornton (Rider of OUR ALLEY CAT), Mr Hashizume, Senior Stipendiary Steward Mr M Williamson, the race films and opinion evidence from Mr N Harris (on behalf of Mr Hashizume) and Mr Williamson. Submission as to liability, and subsequently penalty, were advanced by Mr Jones and Mr Harris.

(7)-The decision of the Committee in upholding the charge was:

“Near the 1050m Mr Hashizume allowed his mount RIONCHI to shift in when ¾ clear of BURGANDY (sic) BELLE who in turn shifted down into the path of OUR ALLEY CAT [which] was approximately 1 ¼ lengths in arrears of BURGANDY (sic) BELLE and racing well on the bit. OUR ALLEY CAT ran out of sufficient racing room and was forced to check to avoid the heels of BURGANDY (sic) BELLE.

There was much comment as to whether there was any yelling during the incident. Whilst there is usually calling during interference it is not an obligation to do so. It is the obligation of Riders to be two lengths clear when shifting off line and clearly Mr Hashizume was not on this occasion”

(8)-The Committee received Mr Hashizume’s riding record which show that he had 4 breaches of the Careless Riding Rule in the past 12 months, the most recent being on 4 October 2020. Mr Harris submitted that Mr Hashizume was a dedicated Apprentice Jockey, a good listener and eager to learn and there was “no intent” to breach the Rule.

(9)-In fixing the penalty the Committee said it took into account the JCA Penalty Guide, the degree of carelessness (said to be “mid-range category”) the Jockey’s record, and that this was a Listed Race.

SUBMISSIONS BY AND ON BEHALF OF APPELLANT

(10) Mr Hashizume’s Notice of Appeal states that the grounds he advanced were:

“I think the decision was wrong as the film does not support the finding”

On his behalf Mr Cooksley contended, in summary, that:

(a)-The films did not support the proposition that Mr Hashizume’s riding was careless. He contended that the evidence and opinion of Ms Thornton, being the “one interfered with” ought to have been preferred.

There were conflicts between the respective evidence of Ms Johnson and Ms Thornton, and that of Ms Thornton was to be preferred as being consistent with the films.

(b)-The questioning of Ms Johnson by the Informant involved leading questions so as to elicit - that is, that he put words into her mouth – and get her to say that the movement and pressure was from the outside namely Mr Hashizume.

(c)-If there was any rider who was careless it was Ms Johnson as she made no effort to “pull off” the line of Ms Thornton’s mount.

SUBMISSIONS ON BEHALF OF RESPONDENT

These were presented in writing and spoken to by Mr Jones. He contended

(a)-The race films show that Mr Hashizume was outside and only ¾ length in front
of BURGUNDY BELLE.

(b)-The inward movement was such that at no stage was Ms Johnson able to relieve the pressure to Ms Thornton’s mount, which was only 1 length behind and on her inside.

(c)-No other rider contributed to the check that Ms Thornton was required to make.

REASONS FOR DECISION

(11)-After carefully considering the evidence adduced at the raceday hearing, the further submissions presented to us, the raceday films, and the arguments on behalf of Mr Hashizume and Mr Jones we found the charge established for the following reasons.

(a)-At about the 1050m point Mr Hashizume allowed his mount to move inwards by 3 horse widths when racing outside and insufficiently clear of BURGUNDY BELLE. His mount was no more than ¾ length clear and the movement inwards placed pressure on that horse so as to require Ms Johnson to try to ease the pressure and shift inwards from her entitled running line.

(b)-As a consequence, OUR ALLEY CAT following on the inside and just behind Ms Johnson’s mount, had to be checked so as to avoid the heels of BURGUNDY BELLE. Ms Thornton’s evidence that the pressure from Ms Johnson caused her to check, is, of course obvious from the films, but her opinion that Ms Johnson was careless is conjecture and not supported by all the evidence, and derived only from her view of the films, and which we do not accept. Ms Thornton was not able to see what led to the movement in by Ms Johnson’s mount.

(c)-The comment made by Mr Harris to the Judicial Committee that Mr Hashizume “was unlucky to be charged ….it was a case of an Apprentice being used by a Senior Rider” is not supported by the evidence of the films and Ms Johnson. It was only the action of Mr Hashizume in allowing his mount to move inwards when not sufficiently clear that required Ms Johnson to relieve the pressure and dictated her to move inwards so as to result in Ms Thornton having to check her mount. We do not accept as valid the claim by Mr Hashizume that he “was only following Ms Johnson in” so, he said, he was not careless. Of course, a Rider may angle in tandem with other inward horses but cannot place pressure on, and endeavour to cross, the inward horse if insufficiently clear, and ¾ length as was the case here was not a legitimate “following in”.

(d)- Whether the riding at this point was intended or not is not material to whether it was careless, as intention to breach Rule 638(1)(d) is not a required element of “carelessness. To be careless simply comprises riding without due care and attention to one’s duties and responsibilities under the Rules.

(e)-The careless riding was not of the most serious type, but we agree with the Judicial Committee and have independently come to the same view that the charge of careless riding was established.

(12)-We need to record 2 preliminary matters raised by Mr Cooksley. He said someone (unknown) “had told him or others” that some information or opinion outside the judicial hearing had “possibility “ happened. In fairness to Mr Cooksley we record that it was not his allegation, but rather he was simply saying it had been “suggested” to him. We have inquired into that “suggestion” and it is completely unfounded. Secondly Mr Cooksley said that “someone else was in the Committee room during the deliberations. We have ascertained that he was a member of the JCA who on this, and other earlier occasions, was observing the process for educational purposes. He took no part in the hearing or deliberation and was simply an observer. There was nothing untoward about this relatively common practice.

APPEAL AGAINST PENALTY

(13)-Mr Cooksley submitted on behalf of Mr Hashizume that:

(a)-A suspension of 7 national riding days was excessive for the actions, of Mr Hashizume which were minor.

(b)- His record was not “too bad” for an Apprentice Rider, less experienced that many senior to him.

(14)-Mr Jones on behalf of the RIU presented Mr Hashizume’s riding offence record from 1 August 2017 to 10 October 2020. Of relevance is 4 findings of careless riding offences in the 10 months since December 2019, and that 4 days before this offence, on 4 October 2020, he had been suspended for 6 days for careless riding, to commence on 11 October 202, so that when this offence occurred he had that pending penalty.

(15)-A starting point of 8 National Riding Days is recommended in the JCA Penalty Guide for a mid -range breach of the Careless Riding Rule, and 6 days for low category offending. Of course, it is a guide only as recommended starting points to assist committees in their decision making process, and the final penalty decision is always a matter for the Committee’s discretion and judgment, after taking into account all aggravating and mitigating factors (relating to both the offence and the offender). The Committee was not required to specify its starting point because it clearly identified the aggravating factors of the several breaches of the Rule over the past year, and that this was a Listed Race . There were no relevant mitigating factors. So obviously if any starting point had been mentioned, even if it had been 6 National Riding days, a necessary uplift for the Appellant’s poor record and the fact that this was a Listed Race, would have justified an increase of 2 days to a final sanction of suspension for 8 days. So, to that extent, Mr Hashizume might count himself fortunate that the decision was to suspend for only 7 National Riding Days. The penalty was not manifestly excessive, and one which we endorse as well within the permissible range.

(16)-For those reasons the Appeal against the findings on liability and penalty was dismissed.

(17)-As to costs; In terms of Rule 1011, the Filing Fee deposited with the Notice of Appeal is forfeited. The RIU have incurred expense of $230 in having the audio of the hearing transcribed and we order that this sum be paid by the Appellant to the RIU, but no further order for costs in its favour is made. The Appellant is ordered to pay $200 to the JCA as a contribution towards the costs incurred by it.

J W Gendall QC (Chair)

22 October 2020

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