Appeal – B R Jones v RIU – Decision of Appeals Tribunal dated 12 February 2014

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hearing_title: Appeal - B R Jones v RIU - Decision of Appeals Tribunal dated 12 February 2014

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Decision:

BARRY REESE JONES v NZ RACING INTEGRITY UNIT (RIU)

Heard at Te Rapa Racecourse, Hamilton

Saturday 8 February 2014

APPEALS TRIBUNAL: Mr Murray McKechnie, Chairman and Mr Richard Seabrook

PRESENT: Mr Reese Jones, Licensed Jockey

Mr John Oatham, Stipendiary Steward

Mr Matthew Williamson, Stipendiary Steward

Mr Brady Jones, Registrar

Decision of Appeals Tribunal

1. Nature of appeal

1.1 Following the running of Race 8 at Arawa Park Rotorua on the 24 January 2014 Mr Jones was charged with careless riding pursuant to Rule 638(1)(d). It was alleged that near the 400 metres he had ridden carelessly by permitting his mount ALL OKAY to shift out when not clear of the horse MUTT WILLIAMS causing that horse to clip a heel and falter. In consequence of that the rider of MUTT WILLIAMS Miss Collett was dislodged.

1.2 Mr Jones denied the charge of careless riding. There was an extended hearing before the Raceday Judicial Committee. The race was run at 4.40p.m. and the hearing of evidence and submissions did not conclude until 6.20p.m. The Raceday Committee found the charge proved. A penalty decision was not given on the day. This was made known at the Te Teko Race Meeting the following Monday 27 January 2014. Mr Jones was suspended for twelve (12) days until the conclusion of racing on 19 February.

1.3 The appeal was against both the finding of careless riding and the penalty imposed.

2. The course of the hearing

2.1 In order to meet the convenience of all parties it was agreed to conduct the appeal hearing at Te Rapa Racecourse before the commencement of the premier race meeting that was to take place there on Saturday 8 February 2014.

2.2 The hearing of the appeal took significant time and in those circumstances it was not possible for the Tribunal to give a detailed decision at the conclusion of the proceeding. The Tribunal did however make its decision known with a brief statement of reasons and advice that a detailed decision would follow. Mr Jones’ appeal against the finding of careless riding was dismissed. His appeal against the period of suspension was allowed. That period was reduced to eight (8) days and will now conclude following the meeting at Ellerslie on Wednesday 12 February 2014.

3. Approach on appeal

3.1 Appeals under the Rules of Racing are by way of rehearing. The Appeals Tribunal must have regard to the decision of the Raceday Judicial Committee and be mindful that the Committee saw and heard the witnesses who gave evidence.

3.2 As earlier noted there was an extended hearing at Arawa Park Rotorua. The Tribunal has carefully considered the transcript and the decision of the Raceday Judicial Committee.

3.3 In opening his case Mr Jones who made detailed and measured submissions, contended that there was not proof of his guilt beyond reasonable doubt. The Tribunal explained to Mr Jones that the standard of proof of which he spoke is not appropriate under the Rules of Racing. Rather it has application to the criminal law. A Raceday Judicial Committee and this Appeal Tribunal are disciplinary bodies acting under the Rules of Racing and the standard of proof before such Tribunals, in the absence of any statutory direction (none here exists), is the civil standard. It is the balance of probabilities. The leading authority is the Court of Appeal judgment in Z v The Complaints Assessment Committee [2008] 1 NZLR 65.

3.4 The Tribunal is satisfied that the Raceday Judicial Committee applied the correct standard of proof.

4. The case advanced by Mr Jones on the careless use charge

4.1 Mr Jones repeatedly emphasised, to use his words, “a hell of a lot was going on”. By this Mr Jones clearly meant that a good many horses were shifting positions in the period immediately before and at the time the relevant events took place. The description is not inappropriate.

4.2 In essence Mr Jones contended that he did throughout hold his line – did not move out to take the line of MUTT WILLIAMS and was thus not responsible for that horse clipping heels. It was common ground that it was not possible to determine the heels of which horse had been clipped by MUTT WILLIAMS. It may have been ALL OKAY ridden by Mr Jones. It is also possible that it may have been the heels of the horse JIGGER TIME ridden by Mr du Plessis. The horse JIGGER TIME was on the outside of Mr Jones and MUTT WILLIAMS was between and some distance behind those two horses – certainly less than a clear length.

4.3 Mr Jones placed some emphasis on the closeness of JIGGER TIME to MUTT WILLIAMS. The films demonstrate that there appeared to be some contact between those two horses shortly before MUTT WILLIAMS faltered. It was contended by Mr Jones that JIGGER TIME was moving in towards the running rail and was therefore principally responsible for MUTT WILLIAMS having insufficient room.

4.4 Mr Jones called Mr Matthew Cameron to give evidence. Mr Cameron was riding the horse FAST EDDIE SLEVIN in the race. He was not called to give evidence before the Raceday Judicial Committee. His horse was ahead of Mr Jones’ mount. The films demonstrate that the horse was tiring and Mr Cameron was looking to move the horse towards the rail. The Tribunal does not consider that Mr Cameron’s evidence is of any material assistance in determining the culpability of Mr Jones.

5. Mr Jones’ submissions on the conduct of the hearing and the imposition of penalty

5.1 Mr Jones contended that the Raceday Judicial Committee acted as prosecutor (the Tribunal’s emphasis). He pointed to the number of questions directed to him by the Judicial Committee. The Tribunal has noted the frequency of the questions. It has also noted the Committee’s responses to the evidence of Mr du Plessis recorded on page 8 of the transcript. There are two (2) passages at that page which contain inappropriate observations by the Committee. Notwithstanding what has just been said we are satisfied that Mr Jones had a fair hearing on 24 January at Arawa Park Rotorua. He addressed the Committee at some length. He was given the opportunity to address questions to the witnesses. Mr Jones chose not to ask any questions of Mr du Plessis or of Miss Johnson the rider of the horse THE SHOW.

5.2 It is important that Raceday Judicial Committees are mindful that the responsibility for the tendering of evidence to support a charge brought against a jockey is with the stewards. The Committee can legitimately seek clarification where there is some uncertainty. The Committee should not however engage in extended debate with the person upon whose conduct they are required to rule. As to the conduct of judicial officers in this regard see the observations of the Court of Appeal in E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146.

5.3 With reference to penalty Mr Jones told the Tribunal that he was not permitted to make any submissions at the hearing at Te Teko on 27 January this year. In the penalty decision the Committee referred to three (3) cases which it considered bore a legitimate comparison with the present. These had been researched by the members of the Raceday Committee.

5.4 It is clear from the transcript of the hearing which took place on 24 January that there was discussion as to penalty and Mr Williamson had, on that day, drawn attention to Mr Jones’ three (3) previous breaches of the Careless Riding Rule in the previous twelve months.

5.5 It also appears clear to the Tribunal that the three (3) cases cited by the Committee when imposing penalty were appropriate. We can see nothing to suggest that had Mr Jones been given the opportunity of commenting on those decisions the penalty imposed by the Raceday Judicial Committee would have been other than that which was adopted. It is to be remembered that the hearing at Arawa Park Rotorua was adjourned for the express purposes of enabling the Committee to undertake inquiry so as to be better informed as to the appropriate term of suspension.

5.6 Where a Judicial Committee proposes to adopt the reasoning that has been followed in previous cases the parties to the hearing (whether the Informant or the Defendant) should, if it is possible, be given the opportunity to make some brief comment or submission. In the circumstances which arose here we do not believe that Mr Jones has in any way been disadvantaged by reason of the approach taken by the Committee.

5.7 As to the term of the suspension Mr Jones contended that if careless riding were found to have occurred it was at the low end of the scale of seriousness and that this should have led to a suspension somewhat less than twelve (12) days. Mr Jones again pointed to how much was going on at the relevant time – this in the sense of how many horse movements were taking place.

6. The position of the RIU

6.1 Mr Williamson prepared helpful written submissions. These succinctly summarised the case for the RIU. In summary it was said that Mr Jones on the horse ALL OKAY had moved outwards when not sufficiently clear of MUTT WILLIAMS ridden by Miss Collett. Mr Williamson said that on a correct analysis of the position Mr Jones’ contention that he was always three wide was not correct. At the time immediately before the incident developed Mr Williamson described Mr Jones’ mount ALL OKAY as running in a loose one-off position. That is the same expression which he had adopted before the Raceday Judicial Committee. With reference to Mr du Plessis Mr Williamson pointed out that Mr du Plessis appeared to be endeavouring to ensure that his mount JIGGER TIME was not running in and drew attention to the position of Mr du Plessis right hand. The right hand was in a somewhat unusual position and provided some basis for suggesting that efforts were being made to avoid the horse running in towards the rail.

6.2 Mr Williamson also emphasised that Mr Jones was riding his horse vigorously throughout and that he knew of the position of Miss Collett’s mount. It was not in dispute that she had been calling out. It is not entirely clear to whom those calls were directed. It may well be given the position of the horses ALL OKAY and JIGGER TIME that Miss Collett was directing her calls to both Messrs Jones and du Plessis.

6.3 On the question of penalty Mr Williamson supported the term of suspension imposed by the Judicial Committee. He drew attention to the discussion about penalty which had taken place at Arawa Park Rotorua on 24 January and contended that Mr Jones was not disadvantaged by not having an opportunity to further address the Committee at Te Teko on 27 January 2014.

7. Analysis and reasons for decision on careless riding charge

7.1 There were two films. One a side on film from a considerable distance, the other a film with the horses running towards the camera but at around a 45˚ angle. It seems clear to the Tribunal from discussion with the stewards and Mr Jones that the 400 metre mark at Arawa Park Rotorua is perhaps the least easy area of the track to film. It was therefore necessary to make a very close study of both films. This was done very carefully with extended comment and submissions from both Messrs Jones and Williamson. A direct front-on view was not possible for the reasons explained. Had that been the case analysis would perforce have been less difficult.

7.2 The Tribunal has also taken account of the evidence given before the Raceday Judicial Committee and the clearly expressed findings of credibility which are set out in the reasons for decision at pages 4 and 5.

7.3 The Tribunal has reached essentially the same conclusion as the Raceday Judicial Committee. Mr Jones did move outwards. This movement was not sudden. It is however clear that at the time that MUTT WILLIAMS clipped heels Mr Jones’ mount ALL OKAY was one or perhaps two places further out from the running rail than it had been some 30 or 40 metres earlier in the race. While that movement was taking place it is clear from the films that Mr Jones’ mount was less than one length clear of Miss Collett on MUTT WILLIAMS.

7.4 We are not persuaded that the evidence of Mr du Plessis or the film shows that he had moved outwards to relieve pressure. He may have been taking steps as earlier recorded to ensure that his horse did not run in but we do not believe that a correct analysis of the films demonstrates an outward movement. In the event and for the reasons explained a finding in relation to the precise line taken by Mr du Plessis’ mount JIGGER TIME is not critical to a finding of careless riding by Mr Jones.

7.5 For completeness we record that the Judicial Committee noted that Mr Jones had acknowledged that he had heard Miss Collett calling. Mr Jones, to his credit, made the same acknowledgement before this Tribunal.

8. Penalty

8.1 While this Tribunal has upheld the finding of the Raceday Judicial Committee it considers that the degree of carelessness by Mr Jones was at the lower end of seriousness. The movement out of ALL OKAY was gradual. The position of JIGGER TIME meant that a gap which might have been available to Miss Collett on MUTT WILLIAMS was no longer available. Mr Jones knew of the close proximity of Miss Collett on MUTT WILLIAMS.

8.2 The Tribunal believes that in assessing the appropriate penalty for careless riding it is important to make a close analysis of the degree of carelessness which has been exhibited. That consideration is more significant than the consequences which might have followed from the lack of care. Here the consequences were serious in as much as Miss Collett was dislodged. Fortunately she escaped any significant injury. In as much as the Raceday Judicial Committee considered the consequence of the carelessness being:

“a key determinate when assessing penalties that the interference resulted in Miss Collett being dislodged from her mount, such consequence we assess as being of high range”,

The Tribunal does not support that reasoning. In reaching the penalty decision a greater concentration should have been placed upon measuring the degree of carelessness which had been exhibited by Mr Jones. That was at a low level.

8.3 The three cases referred to in the penalty decision all involved jockeys being dislodged. In only one of the penalty decisions mentioned is there reference to the degree of carelessness. There it is said that the jockey had “made a severe outwards movement causing a jockey to be dislodged”. That case resulted in a fourteen (14) day suspension.

8.4 Measuring all the considerations to which reference has been made we consider that a suspension of eight (8) days is appropriate. This was advised at the hearing at Te Rapa on Saturday 8 February. The penalty of twelve (12) days suspension is set aside and replaced by a period of eight (8) days which will end following the racing at Ellerslie on Wednesday 12 February 2014.

9. Costs

9.1 Following the hearing there was some brief discussion between Messrs Jones, Williamson and the Tribunal. Mr Jones’ appeal against conviction failed. It should be emphasised that the films required a lengthy and careful analysis. The carelessness was at the lower end of the scale and Mr Jones presented his submissions in a careful and responsible manner. As recorded above the appeal against sentence was successful.

9.2 Mr Williamson indicated that the RIU would not press for costs. It is not appropriate that any award of costs should be made to Mr Jones given that his primary appeal did not succeed. In the circumstances the Tribunal ruled that each party must meet their own costs. Both Messes Jones and Williamson were advised of this at the conclusion of the hearing on Saturday 8 February. There will be no costs award made in favour of the JCA.

Dated this 12th day of February 2014

__________________________________
Murray McKechnie

Chairman

Signed pursuant to Rule 920(5)

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