Appeal CW Johnson v RIU – Decision dated 21 November 2015 – Chair, Mr T Utikere
ID: JCA16346
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE
JUDICIAL CONTROL AUTHORITY
AT CHRISTCHURCH
UNDER THE RACING ACT 2003
IN THE MATTER of the Rules of Racing
BETWEEN C W JOHNSON
Appellant
AND RACING INTEGRITY UNIT
Respondent
Appeals Tribunal: Mr T Utikere, Chairman - Mr S Ching, Member
Appearances: Mr B Kinley (for the Appellant)
Mr C Johnson (Appellant)
Ms B Middlewood (Appellant’s Partner)
Mr R Neal (for the Respondent)
Mr N McIntyre (Registrar)
Hearing: Held at Christchurch, 20 November 2015
DECISION OF APPEALS TRIBUNAL
FACTS
[1] The Appellant was suspended as a result of admitting a breach of careless riding in relation to Race 9 at the Canterbury Jockey Club's Meeting on 7 November 2015. The Raceday Committee imposed a four (4) day period of suspension, to commence from the conclusion of racing on Saturday 14 November, up to and including racing on Saturday 28 November 2015.
[2] Mr Johnson has lodged an appeal against the Penalty that was imposed, specifically stating in the Notice of Appeal that: "In determining that the penalty should end on 28/11/15 the JCA effectively imposed upon me a suspension which grossly exceeded the 4 days which it had decided that I should serve."
[3] On 13 November 2015 a teleconference was held with members of the Tribunal, Mr B Kinley (Counsel for the Appellant) and Mr R Neal (for the Respondent). The purpose of the teleconference was to identify preliminary matters that needed to be undertaken prior to the matter being heard. Subsequent to the teleconference, a Minute was issued which identified that both parties sought for this matter to be determined via hearing rather than on the papers; that films from the Raceday incident would not be required for the hearing; and that Mr Johnson was not seeking a stay of proceedings until the appeal had been determined. A copy of the Minute is attached to this decision.
[4] At the hearing, the Chairman acknowledged that all parties had received copies of the Notice of Appeal, Notice of Appointment to the Appeals Tribunal, the Raceday Decision from the Canterbury JC Meeting on 7 November 2015 and a transcript of the Penalty Submissions and Penalty Decision aspects of the Raceday hearing.
APPELLANTS’ SUBMISSIONS
[5] Mr Kinley identified Mr Johnson as 51 years of age. He and his partner had been together for 17 years, they have two young children, along with a mortgage. While he had been based in the South Island for a number of years, he began life as a jockey in Woodville, and Mr Johnson enjoyed returning there at every opportunity. He submitted that Mr Johnson ranked as one of the most successful jockeys in New Zealand, having ridden more than 2000 winners both in New Zealand and Australia. Within his career he had achieved a number of notable winners, including at Group 1 level.
[6] He was a rider who rode at a number of meetings throughout New Zealand and it would not have been possible for him to achieve what he had achieved if he had been based solely in the South Island. It was not a cheap exercise for him to travel, and he would need to be assured of more than two or three rides a day for such travel to be worthwhile. Mr Kinley noted as a recent example that Mr Johnson had travelled to Hawke's Bay for each of the three days of the Spring Carnival Meeting including the one that was abandoned. This involved travel by air, and by rental car and also included accommodation costs.
[7] He had also been to Taranaki to ride on 18 July; however, that meeting was also abandoned due to bad weather. Although there was a cost to get to the North Island meetings, Mr Johnson had a relationship with certain trainers which meant he continued to be offered rides and where possible he had indicated he would continue to take them. Mr Kinley identified a recent meeting at Woodville which had seven races, two of which were Apprentice Only races. As such, this was not an attractive one for him to attend. It was also noted that Mr Johnson would often need to travel from a North Island racecourse back to Wellington by car in order to return to the South Island to fulfil obligations around track work for trainers whom he also had an obligation towards.
[8] Those trips were made at no little cost to Mr Johnson and in support of this, Mr Kinley tabled a Schedule from the appellant’s accountant identifying a printout of his expenses which he had occurred for the current year up until 7 November. The schedule identified he had spent $12,026 on airfares and $7,649 on rental cars, accommodation and race day expenses.
[9] Mr Kinley also tabled a Schedule which noted Mr Johnson's attendance at North Island meetings since November last year. In doing so, he believed not all meetings listed on the Schedule were Saturday meetings.
[10] Mr Kinley submitted that the Raceday committee erred in two material respects. Firstly, in the starting point for the period of suspension. The written Raceday Decision referred to the starting point for the period of suspension being five (5) days. The Judicial Committee took the view that it would adopt the five (5) day starting point. Mr Kinley believed this meant they determined that the appellant was to be considered as a Northern or Central Districts rider where the five (5) days starting point is recommended. After adopting that, Mr Kinley believed the Judicial Committee then accepted Mr Neal's submission that "meetings in the Northern Region, along with mid-week Central District meetings, should be excluded from any consideration in fixing the term of suspension".
[11] Mr Kinley submitted that the Judicial Committee could not have it one way for the purpose of obtaining a starting point, and then have it another way for the purpose of determining the penalty.
[12] Further, he believed the Judicial Committee made a "grave error" in including Saturday 28 November within the suspension period. With Mr Johnson's busy riding history he suggested that it was tantamount to a six (6) day period of suspension.
[13] He referred the Tribunal to the Raceday Committee’s Decision which stated: "the Committee was satisfied that it was quite likely that Mr Johnson, who has a North Island agent, would have been likely to secure rides at the Central Districts meetings at Rangitikei on Saturday 21 November, and at Wanganui on Saturday, 28 November."
[14] In his assessment he believed the Judicial Committee erred, as while the Committee included the Southland Meeting of 19 November, it disregarded the possibility of Mr Johnson having rides at the Woodville Meeting on 18 November, the course at which he served his apprenticeship, and at Taranaki on 20 November. Although he noted that the Committee did include racing at Awapuni on 21 November. He submitted that the mind-set of the Committee was that they were not going to entertain the idea that Mr Johnson could ride mid-week at Woodville or Taranaki, which he labelled as 'patently wrong'.
[15] Further, Mr Kinley referred to the JCA Penalty Guidelines which stated that in calculating the meetings to be included in the period of suspension, Judicial Committees must use enquiries of the rider and stipendiary stewards, along with the rider’s recent riding history, to ensure the period of suspension is genuine. Prior to Riccarton on 7 November, it had been three (3) months since Mr Johnson's previous period of suspension for careless riding. He submitted that the Committee should not determine that a careless riding breach on 21 February this year was, recent riding history. He also maintained that the transcript identified no real and meaningful enquiry by the Raceday Committee of Mr Johnson as required by the JCA Penalty Guidelines.
[16] Mr Kinley described the appellant as "not the most erudite in the room", and referred to the transcript of the Raceday hearing to suggest that Mr Johnson was "chopped off" when attempting to respond to a question from the Committee about upcoming commitments. Mr Kinley also believed that the transcript clearly demonstrated that instead of enquiring as to Mr Johnson's upcoming engagements, the committee had already made up its mind, and that that form of examination was never an enquiry of the appellant as required by the JCA Penalty Guidelines, but rather an expression of assumptions held by both members of the Committee as to which days within the coming period would be incorporated into the suspension; a penalty which Mr Kinley described as “patently excessive” in the circumstances.
[17] Mr Kinley then invited the Tribunal to take into consideration a further matter which was not known to the Raceday Judicial Committee. He referred again to the JCA Penalty Guidelines which identified the need to consider 'relevant matters' when determining the appropriate starting point for the imposition of penalty. This included any consequential effect on any person or horse as a result of the breach of the rules.
[18] He identified that Mr Johnson had been the regular rider of NATUZZI. He tabled the riding history of NATUZZI, and identified 31 starts of which Mr Johnson had ridden NATUZZI on 22 occasions, including having had some significant wins on the horse in New Zealand and Australia. He identified that NATUZZI was being set for the Railway Handicap and was due to start at the Levin Meeting on 27 November.
[19] NATUZZI had been trained by Mr Paul Richards in the South Island, but had been moved to be with Mr Richards at his present base in the Auckland area. An email from Mr Richards dated 19 November was tabled. This identified that Mr Richards wished to engage Mr Johnson as the rider in the Levin Stakes on 27 November, which falls within the suspension period. Mr Kinley submitted that to deny Mr Johnson the opportunity to ride NATUZZI would place at risk any future engagements for the horse and would be a disproportionate penalty.
[20] In summing up, Mr Kinley invited the Appeals Tribunal to allow the appeal and exercise its discretion to have the Woodville and Taranaki Meetings incorporated into the appellant's period of suspension. This would ensure the period of suspension concludes at the close of racing at Awapuni on 21 November.
[21] In response to questions from the Tribunal regarding the enquiry of any judicial committee in relation to recent riding history for the purposes of a genuine suspension, Mr Kinley conceded that such an enquiry does include how many rides a rider has had, but also the specific venues at which the rider had ridden.
RESPONDENT’S SUBMISSIONS
[22] For the Racing Integrity Unit (RIU), Mr Neal suggested that it was clear that the appellant was seeking the inclusion of Woodville and Taranaki Meetings in his period of suspension.
[23] Mr Neal tabled NZTR records which demonstrated Mr Johnson's riding record in the North Island for the current, 2014/15 and 2013/14 seasons. The respondent indicated that Mr Johnson was not a regular rider at Taranaki meetings; the record identified one ride in the 2014/15 season and two rides in the 2013/14 season at Taranaki, a club that runs 14-15 race meetings per year.
[24] In response to Mr Kinley's submission that Mr Johnson likes to return to Woodville racecourse, where he served his apprenticeship, Mr Neal submitted that he had ridden on only one occasion at Woodville since the start of the 2013/14 season, specifically on 21 August 2014. As such, he rejected the notion that Mr Johnson was a regular rider at those two venues.
[25] Referring to the enquiry of riders as to their riding history when a Judicial Committee is considering a period of suspension, Mr Neal advised that the JCA Penalty Guidelines had been updated in May 2015. Since that time, he observed that Judicial Committees had been very enquiring of riders and Stipendiary Stewards as to where they had ridden or where they intended to ride, so that such riding history could be ascertained.
[26] He contested the suggestion that Mr Johnson did not restrict his rides exclusively to Saturdays within the North Island. The NZTR records showed that during the current calendar year the appellant had ridden at mid-week North Island meetings on four (4) occasions. These were 1 January (Auckland), 4 March (Auckland), 10 April (Manawatu) and 27 April (Feilding). All other North Island meetings which Mr Johnson had ridden at this year had been Saturdays.
[27] Mr Neal, advised the Tribunal that the Woodville and Taranaki meetings eluded to, were nowhere near being classified as a major meeting, but rather "Graduation Industry" days, which were racing for the minimum stakes scheduled.
[28] The RIU submitted that when a penalty was handed down by Judicial Committees, such penalties accurately reflected where a rider has a history, or has clearly proven they have upcoming engagements for an upcoming meeting. He believed there was a clear distinction between riding on a Saturday where the stakes were different from a generic mid-week meeting. To support this approach, Mr Neal referred to the Raceday hearing where the RIU conceded that Mr Johnson had a history of travelling to the North Island for Saturday meetings where the stakes may be higher, which is why the RIU supported the inclusion of the Rangitikei (21 November) and Wanganui (28 November) meetings in his suspension period.
[29] With regard to the differential starting points identified by Mr Kinley, the RIU submitted that the three (3) day starting point applied to those riders who are domiciled and restricted to riding entirely within the South Island. The five (5) day starting point applied to everyone else.
[30] In relation to the Levin Meeting on 27 November, Mr Neal noted that there were a number of high profile cases in recent times where riders had lost rides as a result of being suspended. As a consequence of riders' actions, he acknowledged that sometimes they will miss major rides. He believed it to be an unfortunate outcome for the rider, but that such a situation was not a unique occurrence, citing the high profile case of Mr Parkes and KAWI in the first Group 1 race of the current season.
[31] In response to a question from the Tribunal, Mr Neal acknowledged that the recent Parkes Appeal Decision had well traversed the issue of genuine riding days to be included in a period of suspension.
[32] In response, Mr Kinley submitted that the NATUZZI context was quite different from Mr Parkes and KAWI. Mr Johnson had travelled to Australia to ride NATUZZI, and it was only fair to the owner, trainer and betting public for the horse to have the rider that the trainer wished to engage. He also asked the Tribunal to consider the potential financial, and consequential, impact upon the appellant if he were not to ride NATUZZI in the Levin Stakes.
REASONS FOR DECISION
[33] The Tribunal considered all of the submissions and evidence placed before it. In essence, what the Tribunal must determine is whether the four (4) days for which the appellant has been suspended by the Raceday Committee, exclude in the calculation, any race meetings that would be considered a genuine raceday for Mr Johnson. Complimentary to that, we must determine whether or not the suspension days identified, and incorporated, in the penalty imposed by the Raceday committee were appropriate in the circumstances that have been advanced by the appellant's counsel.
[34] The Tribunal draws on the recent Appeal decision of Parkes v RIU (2015) which identifies the approach that Judicial Committees should undertake to obtain where a rider habitually rides, so that any period of suspension imposed is a genuine penalty. Mr Kinley submitted that Mr Johnson was disadvantaged by the assumptions of the Raceday Committee. He relies partly on the interpretation of the written transcript, which he believes suggests, that Mr Johnson was cut off when responding to a question from the Raceday Chairman. Such suggestions potentially invoke concerns around the maintenance and application of the principles of natural justice in a hearing.
[35] The Tribunal has reviewed the Raceday transcript and notes that Mr Johnson was asked if he had any further submissions to make before the Committee adjourned to consider penalty. Mr Johnson indicated he did not. While we accept that Mr Johnson is less vocal than other participants in a judicial hearing, he nonetheless is a senior rider with many years experience. If he had concerns regarding the inclusion, or non-inclusion, of particular Central Districts race days within a potential period of suspension, he should have expressed this to the Committee when he was invited to do so.
[36] The transcript also identifies that this matter in contention, that of which days were to be incorporated into the suspension period, was raised during the hearing, but Mr Johnson chose not to make any submission or comment when invited to by the Raceday Committee Chairman.
[37] Accordingly, the Tribunal is satisfied that the Raceday Committee undertook a robust analysis of upcoming race meetings and invited submissions from both the RIU and the appellant in determining which days would be incorporated into the suspension to ensure such a penalty was a genuine reflection of where Mr Johnson would be riding.
[38] We now turn to the Tribunal's analysis of potential race meetings that were up for consideration by the Raceday Committee. To assist, the Tribunal examined Mr Johnson's recent riding pattern which has been obtained from NZTR. The ‘recent’ riding timeframe is not quantified under the JCA Penalty Guidelines, however; in our view, Raceday Committees may adopt a three (3) to four (4) month period, as the quantum for 'recent' riding in the context of the JCA Penalty Guidelines.
[39] For the purposes of this Appeal, we must review some 11 months of riding records in order to obtain a meaningful analysis of the appellant's mid-week riding record outside of the South Island. In looking at this extremely liberal approach, Mr Johnson rode at 19 North Island meetings since the start of the calendar year. It is clear that his riding record demonstrates that since 1 January 2015, there have been four occasions where he rode mid-week outside of the South Island. Those dates are: 1 January (Auckland/Premier), 4 March (Auckland Cup), 10 April (Manawatu/Listed) and 27 April (Feilding/Listed). All four (4) of these meetings have a higher Raceday status, quite different than those upcoming meetings of a mid-week nature.
[40] The crux of this appeal is whether the Woodville (18 November) and/or Taranaki (20 November) meetings should be incorporated into the appellant's period of suspension. It is clear to this Tribunal that those two (2) meetings have a lesser Raceday status compared to those mid-week meetings at which Mr Johnson has ridden at in the Central District region over the previous 11 months. Based on the evidence before this Tribunal, the inclusion of either of these meetings within the period of suspension would be inappropriate as their inclusion would, in our assessment, not result in a genuine penalty.
[41] Mr Kinley asked the Tribunal to consider the possible impact to the appellant if he was denied the opportunity to ride NATUZZI at the Levin Meeting on 27 November. It is clear from the evidence placed before us that there is obviously an historical connection between the horse and Mr Johnson who has ridden NATUZZI on 22 occasions in New Zealand and abroad.
[42] We note that the information tabled at the Appeal Hearing was not presented to the Raceday Committee for their consideration, and that the email from Mr Richards was received the day prior to this hearing. Mr Kinley is correct in submitting that we have discretion to consider such new information as part of our determination on this matter.
[43] The Tribunal notes that there is a mechanism within the Rules of Racing which allows any respondent to seek a deferment of any period of suspension for a period of seven (7) days. The intent that lies behind this rule is to protect any upcoming engagements that a rider may have with connections within that seven (7) day period. Mr Johnson exercised this opportunity when he sought a deferment of his suspension at the Raceday hearing. The Raceday Committee granted the deferment, which allowed him to undertake his riding commitments on the third day of the Canterbury Carnival (14 November).
[44] While it is accepted that it would be unfortunate for connections that Mr Johnson would be unable to fulfil an engagement for NATUZZI, any penalty needs to be meaningful and effective. Therefore, the Tribunal declines to exercise its discretion in excluding the Levin Meeting from the period of suspension.
DECISION
[45] The Appeal is dismissed. The original period of suspension imposed by the Raceday Committee is confirmed.
COSTS
[46] As directed at the hearing, the RIU is to file with the Judicial Control Authority written submissions as to costs within seven (7) days of the 20th November 2015. The appellant is to respond in writing within seven (7) thereafter.
Dated this 21st Day of November 2015
Tangi Utikere
Appeals Tribunal Chairman
Signed pursuant to Rule 1007(5)
________________________________________________________________________________________________________________________________________
BEFORE THE APPEALS TRIBUNAL OF THE
JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003
IN THE MATTER of the Rules of Racing
BETWEEN C W JOHNSON
Appellant
AND RACING INTEGRITY UNIT
Respondent
Appeals Tribunal: Mr T Utikere (Chairman)
Mr S Ching (Member)
Appearing: Mr B Kinley (for the Appellant)
Mr R Neal (for the Respondent)
MINUTE OF APPEALS TRIBUNAL DATED 13 NOVEMBER 2015
[1] A teleconference was held between members of the Appeals Tribunal, Mr B Kinley (Representing the Appellant) and Mr R Neal (For the Racing Integrity Unit) on 13 November 2015.
[2] Mr Kinley confirmed that Mr Johnson had lodged his appeal in relation to the penalty imposed by a raceday committee, specifically the determination of race meetings that have been incorporated into the four (4) day period of suspension.
[3] Mr Kinley confirmed that Mr Johnson was not seeking a stay of proceedings; accordingly no such order will be made.
[4] Both parties advised their preference for matters to be dealt with by way of a hearing, rather than on the papers.
[5] It is agreed that the films of the incident that led to the charge of careless riding are not required for the purposes of this appeal.
[6] The Appeals Tribunal sets this matter down for a hearing in Christchurch on Friday 20 November 2015 commencing at 9.00am.
[7] Leave is reserved to apply if for any valid reason the hearing cannot proceed on this date.
[8] The Executive Officer of the Judicial Control Authority is to make arrangements for the hearing and advise all parties at the earliest opportunity of the venue.
Signed at Palmerston North this 13th day of November 2015
Mr T Utikere
Appeals Tribunal Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 23/11/2015
Publish Date: 23/11/2015
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 23/11/2015
hearing_title: Appeal CW Johnson v RIU - Decision dated 21 November 2015 - Chair, Mr T Utikere
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE
JUDICIAL CONTROL AUTHORITY
AT CHRISTCHURCH
UNDER THE RACING ACT 2003
IN THE MATTER of the Rules of Racing
BETWEEN C W JOHNSON
Appellant
AND RACING INTEGRITY UNIT
Respondent
Appeals Tribunal: Mr T Utikere, Chairman - Mr S Ching, Member
Appearances: Mr B Kinley (for the Appellant)
Mr C Johnson (Appellant)
Ms B Middlewood (Appellant’s Partner)
Mr R Neal (for the Respondent)
Mr N McIntyre (Registrar)
Hearing: Held at Christchurch, 20 November 2015
DECISION OF APPEALS TRIBUNAL
FACTS
[1] The Appellant was suspended as a result of admitting a breach of careless riding in relation to Race 9 at the Canterbury Jockey Club's Meeting on 7 November 2015. The Raceday Committee imposed a four (4) day period of suspension, to commence from the conclusion of racing on Saturday 14 November, up to and including racing on Saturday 28 November 2015.
[2] Mr Johnson has lodged an appeal against the Penalty that was imposed, specifically stating in the Notice of Appeal that: "In determining that the penalty should end on 28/11/15 the JCA effectively imposed upon me a suspension which grossly exceeded the 4 days which it had decided that I should serve."
[3] On 13 November 2015 a teleconference was held with members of the Tribunal, Mr B Kinley (Counsel for the Appellant) and Mr R Neal (for the Respondent). The purpose of the teleconference was to identify preliminary matters that needed to be undertaken prior to the matter being heard. Subsequent to the teleconference, a Minute was issued which identified that both parties sought for this matter to be determined via hearing rather than on the papers; that films from the Raceday incident would not be required for the hearing; and that Mr Johnson was not seeking a stay of proceedings until the appeal had been determined. A copy of the Minute is attached to this decision.
[4] At the hearing, the Chairman acknowledged that all parties had received copies of the Notice of Appeal, Notice of Appointment to the Appeals Tribunal, the Raceday Decision from the Canterbury JC Meeting on 7 November 2015 and a transcript of the Penalty Submissions and Penalty Decision aspects of the Raceday hearing.
APPELLANTS’ SUBMISSIONS
[5] Mr Kinley identified Mr Johnson as 51 years of age. He and his partner had been together for 17 years, they have two young children, along with a mortgage. While he had been based in the South Island for a number of years, he began life as a jockey in Woodville, and Mr Johnson enjoyed returning there at every opportunity. He submitted that Mr Johnson ranked as one of the most successful jockeys in New Zealand, having ridden more than 2000 winners both in New Zealand and Australia. Within his career he had achieved a number of notable winners, including at Group 1 level.
[6] He was a rider who rode at a number of meetings throughout New Zealand and it would not have been possible for him to achieve what he had achieved if he had been based solely in the South Island. It was not a cheap exercise for him to travel, and he would need to be assured of more than two or three rides a day for such travel to be worthwhile. Mr Kinley noted as a recent example that Mr Johnson had travelled to Hawke's Bay for each of the three days of the Spring Carnival Meeting including the one that was abandoned. This involved travel by air, and by rental car and also included accommodation costs.
[7] He had also been to Taranaki to ride on 18 July; however, that meeting was also abandoned due to bad weather. Although there was a cost to get to the North Island meetings, Mr Johnson had a relationship with certain trainers which meant he continued to be offered rides and where possible he had indicated he would continue to take them. Mr Kinley identified a recent meeting at Woodville which had seven races, two of which were Apprentice Only races. As such, this was not an attractive one for him to attend. It was also noted that Mr Johnson would often need to travel from a North Island racecourse back to Wellington by car in order to return to the South Island to fulfil obligations around track work for trainers whom he also had an obligation towards.
[8] Those trips were made at no little cost to Mr Johnson and in support of this, Mr Kinley tabled a Schedule from the appellant’s accountant identifying a printout of his expenses which he had occurred for the current year up until 7 November. The schedule identified he had spent $12,026 on airfares and $7,649 on rental cars, accommodation and race day expenses.
[9] Mr Kinley also tabled a Schedule which noted Mr Johnson's attendance at North Island meetings since November last year. In doing so, he believed not all meetings listed on the Schedule were Saturday meetings.
[10] Mr Kinley submitted that the Raceday committee erred in two material respects. Firstly, in the starting point for the period of suspension. The written Raceday Decision referred to the starting point for the period of suspension being five (5) days. The Judicial Committee took the view that it would adopt the five (5) day starting point. Mr Kinley believed this meant they determined that the appellant was to be considered as a Northern or Central Districts rider where the five (5) days starting point is recommended. After adopting that, Mr Kinley believed the Judicial Committee then accepted Mr Neal's submission that "meetings in the Northern Region, along with mid-week Central District meetings, should be excluded from any consideration in fixing the term of suspension".
[11] Mr Kinley submitted that the Judicial Committee could not have it one way for the purpose of obtaining a starting point, and then have it another way for the purpose of determining the penalty.
[12] Further, he believed the Judicial Committee made a "grave error" in including Saturday 28 November within the suspension period. With Mr Johnson's busy riding history he suggested that it was tantamount to a six (6) day period of suspension.
[13] He referred the Tribunal to the Raceday Committee’s Decision which stated: "the Committee was satisfied that it was quite likely that Mr Johnson, who has a North Island agent, would have been likely to secure rides at the Central Districts meetings at Rangitikei on Saturday 21 November, and at Wanganui on Saturday, 28 November."
[14] In his assessment he believed the Judicial Committee erred, as while the Committee included the Southland Meeting of 19 November, it disregarded the possibility of Mr Johnson having rides at the Woodville Meeting on 18 November, the course at which he served his apprenticeship, and at Taranaki on 20 November. Although he noted that the Committee did include racing at Awapuni on 21 November. He submitted that the mind-set of the Committee was that they were not going to entertain the idea that Mr Johnson could ride mid-week at Woodville or Taranaki, which he labelled as 'patently wrong'.
[15] Further, Mr Kinley referred to the JCA Penalty Guidelines which stated that in calculating the meetings to be included in the period of suspension, Judicial Committees must use enquiries of the rider and stipendiary stewards, along with the rider’s recent riding history, to ensure the period of suspension is genuine. Prior to Riccarton on 7 November, it had been three (3) months since Mr Johnson's previous period of suspension for careless riding. He submitted that the Committee should not determine that a careless riding breach on 21 February this year was, recent riding history. He also maintained that the transcript identified no real and meaningful enquiry by the Raceday Committee of Mr Johnson as required by the JCA Penalty Guidelines.
[16] Mr Kinley described the appellant as "not the most erudite in the room", and referred to the transcript of the Raceday hearing to suggest that Mr Johnson was "chopped off" when attempting to respond to a question from the Committee about upcoming commitments. Mr Kinley also believed that the transcript clearly demonstrated that instead of enquiring as to Mr Johnson's upcoming engagements, the committee had already made up its mind, and that that form of examination was never an enquiry of the appellant as required by the JCA Penalty Guidelines, but rather an expression of assumptions held by both members of the Committee as to which days within the coming period would be incorporated into the suspension; a penalty which Mr Kinley described as “patently excessive” in the circumstances.
[17] Mr Kinley then invited the Tribunal to take into consideration a further matter which was not known to the Raceday Judicial Committee. He referred again to the JCA Penalty Guidelines which identified the need to consider 'relevant matters' when determining the appropriate starting point for the imposition of penalty. This included any consequential effect on any person or horse as a result of the breach of the rules.
[18] He identified that Mr Johnson had been the regular rider of NATUZZI. He tabled the riding history of NATUZZI, and identified 31 starts of which Mr Johnson had ridden NATUZZI on 22 occasions, including having had some significant wins on the horse in New Zealand and Australia. He identified that NATUZZI was being set for the Railway Handicap and was due to start at the Levin Meeting on 27 November.
[19] NATUZZI had been trained by Mr Paul Richards in the South Island, but had been moved to be with Mr Richards at his present base in the Auckland area. An email from Mr Richards dated 19 November was tabled. This identified that Mr Richards wished to engage Mr Johnson as the rider in the Levin Stakes on 27 November, which falls within the suspension period. Mr Kinley submitted that to deny Mr Johnson the opportunity to ride NATUZZI would place at risk any future engagements for the horse and would be a disproportionate penalty.
[20] In summing up, Mr Kinley invited the Appeals Tribunal to allow the appeal and exercise its discretion to have the Woodville and Taranaki Meetings incorporated into the appellant's period of suspension. This would ensure the period of suspension concludes at the close of racing at Awapuni on 21 November.
[21] In response to questions from the Tribunal regarding the enquiry of any judicial committee in relation to recent riding history for the purposes of a genuine suspension, Mr Kinley conceded that such an enquiry does include how many rides a rider has had, but also the specific venues at which the rider had ridden.
RESPONDENT’S SUBMISSIONS
[22] For the Racing Integrity Unit (RIU), Mr Neal suggested that it was clear that the appellant was seeking the inclusion of Woodville and Taranaki Meetings in his period of suspension.
[23] Mr Neal tabled NZTR records which demonstrated Mr Johnson's riding record in the North Island for the current, 2014/15 and 2013/14 seasons. The respondent indicated that Mr Johnson was not a regular rider at Taranaki meetings; the record identified one ride in the 2014/15 season and two rides in the 2013/14 season at Taranaki, a club that runs 14-15 race meetings per year.
[24] In response to Mr Kinley's submission that Mr Johnson likes to return to Woodville racecourse, where he served his apprenticeship, Mr Neal submitted that he had ridden on only one occasion at Woodville since the start of the 2013/14 season, specifically on 21 August 2014. As such, he rejected the notion that Mr Johnson was a regular rider at those two venues.
[25] Referring to the enquiry of riders as to their riding history when a Judicial Committee is considering a period of suspension, Mr Neal advised that the JCA Penalty Guidelines had been updated in May 2015. Since that time, he observed that Judicial Committees had been very enquiring of riders and Stipendiary Stewards as to where they had ridden or where they intended to ride, so that such riding history could be ascertained.
[26] He contested the suggestion that Mr Johnson did not restrict his rides exclusively to Saturdays within the North Island. The NZTR records showed that during the current calendar year the appellant had ridden at mid-week North Island meetings on four (4) occasions. These were 1 January (Auckland), 4 March (Auckland), 10 April (Manawatu) and 27 April (Feilding). All other North Island meetings which Mr Johnson had ridden at this year had been Saturdays.
[27] Mr Neal, advised the Tribunal that the Woodville and Taranaki meetings eluded to, were nowhere near being classified as a major meeting, but rather "Graduation Industry" days, which were racing for the minimum stakes scheduled.
[28] The RIU submitted that when a penalty was handed down by Judicial Committees, such penalties accurately reflected where a rider has a history, or has clearly proven they have upcoming engagements for an upcoming meeting. He believed there was a clear distinction between riding on a Saturday where the stakes were different from a generic mid-week meeting. To support this approach, Mr Neal referred to the Raceday hearing where the RIU conceded that Mr Johnson had a history of travelling to the North Island for Saturday meetings where the stakes may be higher, which is why the RIU supported the inclusion of the Rangitikei (21 November) and Wanganui (28 November) meetings in his suspension period.
[29] With regard to the differential starting points identified by Mr Kinley, the RIU submitted that the three (3) day starting point applied to those riders who are domiciled and restricted to riding entirely within the South Island. The five (5) day starting point applied to everyone else.
[30] In relation to the Levin Meeting on 27 November, Mr Neal noted that there were a number of high profile cases in recent times where riders had lost rides as a result of being suspended. As a consequence of riders' actions, he acknowledged that sometimes they will miss major rides. He believed it to be an unfortunate outcome for the rider, but that such a situation was not a unique occurrence, citing the high profile case of Mr Parkes and KAWI in the first Group 1 race of the current season.
[31] In response to a question from the Tribunal, Mr Neal acknowledged that the recent Parkes Appeal Decision had well traversed the issue of genuine riding days to be included in a period of suspension.
[32] In response, Mr Kinley submitted that the NATUZZI context was quite different from Mr Parkes and KAWI. Mr Johnson had travelled to Australia to ride NATUZZI, and it was only fair to the owner, trainer and betting public for the horse to have the rider that the trainer wished to engage. He also asked the Tribunal to consider the potential financial, and consequential, impact upon the appellant if he were not to ride NATUZZI in the Levin Stakes.
REASONS FOR DECISION
[33] The Tribunal considered all of the submissions and evidence placed before it. In essence, what the Tribunal must determine is whether the four (4) days for which the appellant has been suspended by the Raceday Committee, exclude in the calculation, any race meetings that would be considered a genuine raceday for Mr Johnson. Complimentary to that, we must determine whether or not the suspension days identified, and incorporated, in the penalty imposed by the Raceday committee were appropriate in the circumstances that have been advanced by the appellant's counsel.
[34] The Tribunal draws on the recent Appeal decision of Parkes v RIU (2015) which identifies the approach that Judicial Committees should undertake to obtain where a rider habitually rides, so that any period of suspension imposed is a genuine penalty. Mr Kinley submitted that Mr Johnson was disadvantaged by the assumptions of the Raceday Committee. He relies partly on the interpretation of the written transcript, which he believes suggests, that Mr Johnson was cut off when responding to a question from the Raceday Chairman. Such suggestions potentially invoke concerns around the maintenance and application of the principles of natural justice in a hearing.
[35] The Tribunal has reviewed the Raceday transcript and notes that Mr Johnson was asked if he had any further submissions to make before the Committee adjourned to consider penalty. Mr Johnson indicated he did not. While we accept that Mr Johnson is less vocal than other participants in a judicial hearing, he nonetheless is a senior rider with many years experience. If he had concerns regarding the inclusion, or non-inclusion, of particular Central Districts race days within a potential period of suspension, he should have expressed this to the Committee when he was invited to do so.
[36] The transcript also identifies that this matter in contention, that of which days were to be incorporated into the suspension period, was raised during the hearing, but Mr Johnson chose not to make any submission or comment when invited to by the Raceday Committee Chairman.
[37] Accordingly, the Tribunal is satisfied that the Raceday Committee undertook a robust analysis of upcoming race meetings and invited submissions from both the RIU and the appellant in determining which days would be incorporated into the suspension to ensure such a penalty was a genuine reflection of where Mr Johnson would be riding.
[38] We now turn to the Tribunal's analysis of potential race meetings that were up for consideration by the Raceday Committee. To assist, the Tribunal examined Mr Johnson's recent riding pattern which has been obtained from NZTR. The ‘recent’ riding timeframe is not quantified under the JCA Penalty Guidelines, however; in our view, Raceday Committees may adopt a three (3) to four (4) month period, as the quantum for 'recent' riding in the context of the JCA Penalty Guidelines.
[39] For the purposes of this Appeal, we must review some 11 months of riding records in order to obtain a meaningful analysis of the appellant's mid-week riding record outside of the South Island. In looking at this extremely liberal approach, Mr Johnson rode at 19 North Island meetings since the start of the calendar year. It is clear that his riding record demonstrates that since 1 January 2015, there have been four occasions where he rode mid-week outside of the South Island. Those dates are: 1 January (Auckland/Premier), 4 March (Auckland Cup), 10 April (Manawatu/Listed) and 27 April (Feilding/Listed). All four (4) of these meetings have a higher Raceday status, quite different than those upcoming meetings of a mid-week nature.
[40] The crux of this appeal is whether the Woodville (18 November) and/or Taranaki (20 November) meetings should be incorporated into the appellant's period of suspension. It is clear to this Tribunal that those two (2) meetings have a lesser Raceday status compared to those mid-week meetings at which Mr Johnson has ridden at in the Central District region over the previous 11 months. Based on the evidence before this Tribunal, the inclusion of either of these meetings within the period of suspension would be inappropriate as their inclusion would, in our assessment, not result in a genuine penalty.
[41] Mr Kinley asked the Tribunal to consider the possible impact to the appellant if he was denied the opportunity to ride NATUZZI at the Levin Meeting on 27 November. It is clear from the evidence placed before us that there is obviously an historical connection between the horse and Mr Johnson who has ridden NATUZZI on 22 occasions in New Zealand and abroad.
[42] We note that the information tabled at the Appeal Hearing was not presented to the Raceday Committee for their consideration, and that the email from Mr Richards was received the day prior to this hearing. Mr Kinley is correct in submitting that we have discretion to consider such new information as part of our determination on this matter.
[43] The Tribunal notes that there is a mechanism within the Rules of Racing which allows any respondent to seek a deferment of any period of suspension for a period of seven (7) days. The intent that lies behind this rule is to protect any upcoming engagements that a rider may have with connections within that seven (7) day period. Mr Johnson exercised this opportunity when he sought a deferment of his suspension at the Raceday hearing. The Raceday Committee granted the deferment, which allowed him to undertake his riding commitments on the third day of the Canterbury Carnival (14 November).
[44] While it is accepted that it would be unfortunate for connections that Mr Johnson would be unable to fulfil an engagement for NATUZZI, any penalty needs to be meaningful and effective. Therefore, the Tribunal declines to exercise its discretion in excluding the Levin Meeting from the period of suspension.
DECISION
[45] The Appeal is dismissed. The original period of suspension imposed by the Raceday Committee is confirmed.
COSTS
[46] As directed at the hearing, the RIU is to file with the Judicial Control Authority written submissions as to costs within seven (7) days of the 20th November 2015. The appellant is to respond in writing within seven (7) thereafter.
Dated this 21st Day of November 2015
Tangi Utikere
Appeals Tribunal Chairman
Signed pursuant to Rule 1007(5)
________________________________________________________________________________________________________________________________________
BEFORE THE APPEALS TRIBUNAL OF THE
JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003
IN THE MATTER of the Rules of Racing
BETWEEN C W JOHNSON
Appellant
AND RACING INTEGRITY UNIT
Respondent
Appeals Tribunal: Mr T Utikere (Chairman)
Mr S Ching (Member)
Appearing: Mr B Kinley (for the Appellant)
Mr R Neal (for the Respondent)
MINUTE OF APPEALS TRIBUNAL DATED 13 NOVEMBER 2015
[1] A teleconference was held between members of the Appeals Tribunal, Mr B Kinley (Representing the Appellant) and Mr R Neal (For the Racing Integrity Unit) on 13 November 2015.
[2] Mr Kinley confirmed that Mr Johnson had lodged his appeal in relation to the penalty imposed by a raceday committee, specifically the determination of race meetings that have been incorporated into the four (4) day period of suspension.
[3] Mr Kinley confirmed that Mr Johnson was not seeking a stay of proceedings; accordingly no such order will be made.
[4] Both parties advised their preference for matters to be dealt with by way of a hearing, rather than on the papers.
[5] It is agreed that the films of the incident that led to the charge of careless riding are not required for the purposes of this appeal.
[6] The Appeals Tribunal sets this matter down for a hearing in Christchurch on Friday 20 November 2015 commencing at 9.00am.
[7] Leave is reserved to apply if for any valid reason the hearing cannot proceed on this date.
[8] The Executive Officer of the Judicial Control Authority is to make arrangements for the hearing and advise all parties at the earliest opportunity of the venue.
Signed at Palmerston North this 13th day of November 2015
Mr T Utikere
Appeals Tribunal Chairman
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