Appeal – L Innes v NZTR – Decision 18 July 2011

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decisiondate: 21/07/2011

hearing_title: Appeal - L Innes v NZTR - Decision 18 July 2011

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LEITH INNES v NZ RACING INTEGRITY UNIT
Heard at Te Rapa Racecourse Hamilton
Friday 15th July 2011

APPEALS TRIBUNAL: Mr Murray McKechnie, Chairman and Mrs Nikki Moffatt

PRESENT: Mr Leith Innes, Licensed Jockey, Mr Andrew Castles, Agent for Mr Innes, Mr Matthew Williamson, Stipendiary Steward

Decision of Appeals Tribunal

1. Introduction
1.1 The licensed jockey Mr Leith Innes appeals against a five (5) day suspension which was imposed by a Raceday Judicial Committee following the running of Race 2 at Ruakaka on the 22nd June this year.
1.2 Mr Innes pleaded guilty to a charge of careless riding laid under Rule 638(1)(d). Mr Innes was riding the horse Shanstar. It was alleged that he permitted this horse to shift inwards some 100m from the winning post when not sufficiently clear of the horse Valencia’s Image. That horse was ridden by Mr Craig Grylls. There was subsequently a protest which was dismissed.
1.3 The decision of the Judicial Committee when published made reference to Mr Innes having been suspended three times for careless riding in the preceding three months. That was in error. The transcript of the hearing makes clear (page 3) that in fact Mr Innes had been suspended three times in the previous twelve months. Mr Innes told the Tribunal this morning he that was concerned when he saw the decision that made reference to three suspensions in three months when he knew that was not accurate. The Chairman of the Raceday Judicial Committee also observed the mistake and the decision of the Committee has now been corrected.
1.4 The Racing Integrity Unit has been represented at this hearing today by Mr Matthew Williamson. He was the Chairman of the panel of stewards who were on duty at Ruakaka on the 22nd June. Both Mr Williamson and Mr Innes agree that the transcript accurately records the position. We are satisfied that the Judicial Committee on the day cannot have been under any misapprehension about the true position. They would clearly have been aware that Mr Innes had three suspensions in twelve months rather than three suspensions in the preceding three months. We are reinforced in this view by reference to the penalty that was actually imposed. Had there been three suspensions in the previous three months then the period of suspension would almost certainly have been greater than the five days which was imposed.
1.5 Mr Innes told the Tribunal that when he became aware that the corrected decision recorded three suspensions in twelve months he nevertheless decided to pursue the appeal. His primary submission is that the five day suspension was excessive. He contends that the suspension should have been for a period of four days.

2. The case for Mr Innes
2.1 Mr Innes was assisted by his agent Mr Andrew Castles. Both addressed the Tribunal. At the forefront of the submissions for Mr Innes was the proposition that the careless riding was at the lower end of the scale. In support of that submission much emphasis was given to the evidence of Mr Williamson before the Judicial Committee. This is set out towards the foot of page 3 of the transcript. Mr Innes suggested that Mr John Oatham the other Stipendiary Steward who gave evidence before the Committee had characterised the riding the same way. That is not correct. Mr Oatham did not express any opinion as to where the riding in question might have been positioned on a scale of seriousness.
2.2 Mr Innes drew our attention to the fact that on the same day at the same meeting the Judicial Committee had dealt with two other charges of careless riding. One of these was following Race 2. This involved the jockey Miss C. A copy of the decision was made available to the Tribunal. The Committee described Miss C’s carelessness as being at the low end. The Committee also drew attention to the fact that her mount was green and racing erratically. The suspension was for four days. The other case from Ruakaka on the 22nd June this year involved the senior rider Mrs T. She was charged with careless riding following Race 7. The decision records that Mr Williamson had submitted the penalty that should be imposed be in the mid range. The Committee pointed to Mrs T’s outstanding record. It then went on to record that three horses had received varying degrees of interference and that the heels of one horse had been clipped. The suspension imposed was for five days. It is worth noting that in the case of Mrs T the interference which lead to the charge of careless riding occurred some 1200m from the finish.
2.3 Mr Innes then drew the Tribunal’s attention to a series of contemporary decisions. These all postdate the 30th April this year. A number of those decisions were from Judicial Committees presided over by the committee member who was Chairman at Ruakaka on the 22nd June this year. Without setting out each and every decision the proposition that Mr Innes and Mr Castles advanced was that when Committees had found the careless riding to be in the lower range the penalty was almost invariably four days or in some instances less. A comparison with these cases and the present is of limited assistance. In the present case we have been able to view the film and more will be said of that later. In none of the cases which were referred to us has that been possible. Moreover the individual circumstances of the individual licence holders need to be considered. Some are significantly less senior than Mr Innes.
2.4 The Tribunal does accept that in most instances careless riding which is accurately identified at the lower end of the scale will result in a penalty of four days suspension. There is no hard and fast rule. The question which we have to determine is whether the Committee was in error in the characterisation of the riding of Mr Innes on the 22nd June.

3. Discussion
3.1 As noted above we have carefully studied the film. Both head on and side on. In our judgment the interference occurred for five possibly six strides taken by the horse Valencia’s Image. It was said on behalf of Mr Innes that the mount of Mr James McDonald Miss Curiosity may have contributed to the check of Valencia’s Image. That issue does not appear to have been canvassed in any way before the Judicial Committee. In our view while Miss Curiosity did move out from the rail that had no material bearing on the check caused to Valencia’s Image. The interference to that horse was brought about by the inward movement of Shanstar.
3.2 In setting out the reasons for the five day suspension the Committee noted that Mr Innes was riding with the whip. Further that he made no attempt to straighten the horse. The Committee characterised the interference as being quite a severe check. This Tribunal agrees with that description. It follows that the Tribunal does not accept that the level of interference can properly be categorised as being at the lower end of the scale.
3.3 A Raceday Judicial Committee must make its own independent assessment of the evidence that is presented to it. While it is proper that the Committee take cognisance of the advice and opinion of stipendiary stewards that is not binding. The Committee is entitled to reach a different view if that is justified upon the evidence. This Tribunal having seen the evidence considers that the categorisation made by the Judicial Committee on the day was entirely accurate.
3.4 Messrs Innes and Castles argued that the Judicial Committee should have accepted the characterisation of the riding put forward by Mr Williamson. Plainly the Judicial committee did not agree. The interference in the opinion of the Judicial Committee was not at the lower end of the scale although that exact expression does not occur in the decision. It is however clear to us that the Raceday Judicial Committee did not accept that the interference was at the lower end. The language used makes plain that the Judicial Committee considered that the interference was significant and beyond the lower end of the scale.
3.5 An Appeals Tribunal under the Rules of Racing will not interfere with a decision of a Judicial Committee unless it is plainly demonstrated to be wrong: either as a matter of law or if a significant factual mistake can be identified. Neither circumstance exists here. In the Tribunal’s view the analysis of the Judicial Committee on the 22nd July was accurate. It follows that the appeal must fail and it is dismissed.

4. Costs
4.1 The parties were invited to make submissions on this question. Mr Williamson indicated that The Racing Integrity Unit did not seek a costs award. Given the categorisation adopted by Mr Williamson at Ruakaka on the 22nd July and the manner in which the appeal was advanced today that is a responsible position for The Racing Integrity Unit to take. Ordinarily where an appeal fails a costs award is made in favour of The Racing Integrity Unit but this is an appropriate case for the submission that we have heard. It follows that there will be no costs award made in favour of The Racing Integrity Unit. On the question of the costs of the hearing and the expenses of the JCA Mr Innes submitted that it was the right of all license holders to bring appeals that costs should lie where they fall. The Tribunal does not question the right to appeal but unless there are circumstances outside the ordinary costs follow the event. The Judicial Control Authority incurs significant expense in setting up and conducing appeals. In this case what was being sought by Mr Innes was essentially a fine tuning of the decision of a very experienced Raceday Judicial Committee. The appeal had little merit. Mr Innes will pay costs to the JCA in the sum of $400.00.

5. The Suspension
51 After some discussion it was agreed that given the time of the notification of the stay of proceedings Mr Innes had lost the opportunity to ride at the Otaki meeting on the 26th June and the Te Teko meeting on the 29th June. Thus those two days can be taken as part of the five day suspension. Mr Castles advised that Mr Innes has rides booked for tomorrow the 16th July at Ruakaka. Examining the calendar from that day forwards the relevant meetings would be Tauranga on the 20th, Hawkes Bay on the 21st and then the meeting at Oamaru on Friday the 22nd of July. Thus the suspension will run from the conclusion of racing tomorrow the 16th July at Ruakaka until the conclusion of racing at Oamaru on Friday the 22nd July. Mr Innes could not tell the Tribunal when he last rode at Oamaru.

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