Appeal J Markham v RIU 12 December 2016 – Decision dated 16 December 2016 – Chair, Prof G Hall
ID: JCA16714
Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN MR JEREMY MARKHAM
Junior Horseman
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
INFORMATION No. A1690
APPEALS TRIBUNAL: Prof G Hall (Chairman), Mr G Thompson (Member)
APPEARING: Mr M Jones, Open Horseman, for the appellant - Mr S Renault, Stipendiary Steward, for the RIU
RESERVED DECISION OF APPEALS TRIBUNAL
[1] The appellant, Mr Markham, has appealed against the finding and penalty of the raceday Committee on 26 November 2016 at the Geraldine Trotting Club race meeting at the Orari racecourse that he had driven carelessly in race 11, the Turley Farms Mobile Pace, in breach of r 869(3)(b) of the New Zealand Rule of Harness Racing and was suspended for 4 days.
[2] Rule 869(3)(b) states: “No horseman in any race shall drive carelessly”.
[3] The matter was heard at Addington raceway on Monday 12 December.
An appeal against an admitted breach
[4] The Tribunal requested that the parties address the issue of the appropriateness of our hearing an appeal against a finding of the Judicial Committee in circumstances where the appellant had admitted the breach on the day.
[5] Mr Renault stated that the RIU did not formally oppose the hearing of the appeal but were “disappointed regarding the circumstances behind it being lodged”.
[6] Mr Renault said that Mr Markham was asked prior to the laying of any charges whether he wanted assistance from a senior horseman. After being unable to locate a senior horseman, he then waived Mr Renault’s invitation of assistance and advised the Stewards in person that he wished to proceed independently.
[7] The RIU emphasised that Mr Markham, at no stage, requested an adjournment of the proceedings. Had he done so, the RIU could have initiated those discussions with him and the JCA.
[8] Mr Renault said that Mr Markham, after viewing the films on the day, had elected to admit the breach at the first opportunity. Mr Markham was advised that the hearing would be held immediately, once the information was served, however he did not attend the hearing.
[9] Mr Markham advised the Stewards he would prefer a term of suspension as his penalty, as opposed to the imposition of a fine.
[10] Mr Jones, the appellant’s employer, spoke on behalf of Mr Markham. He said that it was 40 minutes after the last race before Mr Markham was charged. There was no senior horseman available at that time and Mr Markham had never been advised that the hearing could be adjourned.
[11] Mr Markham then confirmed this. He said he had never spoken to the JCA because he had initialled the information to the effect that he admitted the breach and did not wish to attend. He said he had a family wedding to attend and he was unsure whether he had mentioned this to Mr Renault, although he thought he had.
[12] The Tribunal asked Mr Markham to recount the events on the day. He said when he came off the track he was told by a Steward that the Stipendiary Stewards wanted to see him. He was concerned as to this, as he was under pressure to leave the course to attend the wedding. He thought Mr Renault might have mentioned a senior horseman when he was first in the room talking to the Stewards.
[13] Mr Markham said that as he was in a rush, he just signed the information, admitted the charge, and left. He said he had looked at the video when first in the room with the Stipendiary Stewards and Mr Morrison (the driver of the horse concerned in the incident). When questioned by the Tribunal, he said he had seen the videos three times and did not have the assistance of a senior horseman at that time.
[14] Mr Markham said he also thought if he pleaded guilty the penalty would be less. He thus decided to admit the charge. He said this was due to his inexperience. He did not believe the Stipendiary Stewards had given him any indication as to penalty at this time, although they had said it would be a fine or a suspension. He had said to them that he would prefer a suspension, and they had said they would put this fact before the Committee.
Decision as to right to appeal
[15] The issue before us is whether or not Mr Markham should be allowed to appeal the finding that he was in breach of r 869(3)(b) in circumstances where he had admitted the breach on the day.
[16] We take guidance from established principles with respect to this issue in fora external to racing.
[17] We find we can deal with this issue briefly. Generally speaking a person will not be able to appeal a finding of guilt (charge proved) where that has been entered by a court (Judicial Committee) as a consequence of a guilty plea (an admission of the breach). One exception is where a miscarriage of justice is likely to result. This is one such case. We are satisfied that Mr Markham did not fully appreciate the merits of his position and due to the exigencies of time and no senior horsemen being available, he had not made an informed decision to admit the breach. We thus hold that we have jurisdiction to hear Mr Markham’s appeal against the finding of the Judicial Committee that he was in breach of the rule.
[18] In so finding, we emphasise there was no evidence before us that would lead us to conclude that Mr Markham was placed under undue pressure by the Stipendiary Stewards to admit the breach or to proceed with the hearing on the day. We note, in addition, that neither was there evidence to the effect that the possibility of an adjournment of the hearing of the charge was raised with Mr Markham. In light of his inexperience, we believe it would have been appropriate for that matter to have been canvassed.
Appellant’s submissions as to the breach of r 869(3)(b)
[19] Mr Jones addressed the circumstances of the incident that had resulted in the breach of r 869(3)(b) being found to be proved. He stated that he wished to call Mr Morrison, the driver of NUI TOC TIEN, to give evidence. This was new evidence, and the RIU stated they had no objection to this.
[20] Mr Jones first traversed the circumstances of the incident. He said it was clear that the tyre of NUI TOC TIEN had been deflated when it had been struck by the leg of Mr Purvis’s horse, THE NANS MAN. He continued by stating it was clear on the videos that Mr Markham’s horse, MYSISTERSASTAR, had never come into contact with the cart or the wheel of NUI TOC TIEN. He demonstrated there had been an easing of the pace just prior to the incident and this had had a concertina effect on the field. He demonstrated that there had been a chain reaction and NUI TOC TIEN had its head up as the appellant was trailing close behind its cart. He demonstrated on the videos that Mr Markham was restraining his horse immediately after Mr Morrison had pulled back. He reiterated there was no contact between the two.
[21] Mr Jones was adamant that the incident was caused by the foot of MYSISTERSASTAR being caught in the tyre that had come adrift from the rim of Mr Morrison’s wheel. He said he would have accepted there was carelessness if there had been contact with cart or wheel, but this had not been the case.
[22] Mr Jones continued by stating Mr Morrison had lost one and a half to two lengths when taking hold of his horse. He demonstrated on the videos that Mr Morrison was restraining his horse, and he believed it was in order to get out of the race. He believed the press had over-dramatised the incident because the cart had given way.
[23] Mr Jones demonstrated on the videos that Mr Morrison was hard up against the horse in front of him before he had restrained NUI TOC TIEN. He believed the appellant had reacted in time and, had Mr Morrison not restrained NUI TOC TIEN further in order to exit the race, everything would have been “okay”. It was the fact that Mr Morrison had restrained his horse further that had led to the incident in that MYSISTERSASTAR would not have stepped on the tyre. He emphasised that Mr Markham was not to know that the tyre had come off the rim of NUI TOC TIEN.
[24] Mr Morrison then gave evidence. He is an experienced junior driver, having had 349 starts, for 9 wins, 22 seconds and 15 thirds.
[25] Mr Morrison stated that Mr Purvis had come in to contact with the wheel of his cart on the first bend when there had been an easing of the pace. The tyre had punctured at this time but had stayed on the rim. Further round the bend there had been a further easing of the pace and the tyre (tube) had come off the rim. The tyre was hanging out off the back of the sulky. MYSISTERSASTAR had stood in the tyre. At no stage had MYSISTERSASTAR touched his wheel.
[26] Mr Morrison believed that as MYSISTERSASTAR stood in his tyre there was a backward movement of the leg of that horse, which had placed pressure on his sulky, which had then collapsed.
[27] Mr Morrison emphasised there had been a chain reaction in the one out line when the pace had eased. He believed he was one length off the horse in front after he had grabbed hold of NUI TOC TIEN. He said that almost at the same time the tyre came off the rim of his wheel and he decided to restrain his horse and retire it from the race, as it could no longer be competitive and would be a hazard to other runners. He acknowledged he was aware there was a horse behind him when took this action. It all happened so quickly. There was no yelling at the time, as there was not time to do so. Mr Markham’s horse had then stepped through his tyre, which was hanging out the back. He emphasised that Mr Markham had never touched any part of his sulky, wheel or undercarriage, at any time.
[28] Mr Morrison said he believed it was coincidental that he had received a check just as the tyre came off the rim.
[29] When questioned by Mr Renault as to what he had said to the Stewards when questioned immediately after the race, Mr Morrison was uncertain as to whether he had said to the Stewards that there had been contact between MYSISTERSASTAR and his cart. He did remember saying they had come close together. He said he thought he had said to the Stewards “I don’t know”, when asked whether Mr Markham had hit his cart.
[30] Mr Morrison then reiterated his belief that the tyre came off as the pace was easing and he was trying to get out of the race. He said he had grabbed hold of NUI TOC TIEN because he had received a check by the horse in front coming back. He said he had been trailing hard up behind that runner but there had not been any contact with that horse. It was a short distance race (1850 metres) that was being run at a good clip and there had been a sharp easing of the pace.
[31] Mr Morrison agreed with Mr Renault that Mr Markham was trailing hard up behind him. He could see from the videos that the head of Mr Markham’s horse was above his helmet. But he confirmed there had been no contact with his helmet. In response to questioning by this Tribunal, he said if the tyre had not been hanging out the back of his cart, he could not see there would have been any problem with Mr Markham’s drive. He was not concerned on the day that the appellant was too close to his cart. On viewing the video, he could see Mr Markham was trailing close but he would expect that to be the case.
[32] Mr Renault pointed out to Mr Morrison on the video that there was a four length gap between his horse and Mr Markham and asked whether he believed this was enough time for the appellant to have reacted. Mr Morrison replied that this was not the gap between the horses when the tyre came off the rim. He believed the check and the tyre coming off the rim had led him to come back a length on to Mr Markham. When asked to comment on whether Mr Markham had reacted more slowly than he had to the easing of the pace, Mr Morrison said Mr Markham had had more momentum at that time and when the tyre came out the back of his cart this would have been the first time Mr Markham would have been aware he was having issues with the wheel of his cart.
Respondent’s submissions as to the breach of r 869(3)(b)
[33] Mr Renault took the Tribunal through the videos. Approaching the 1700 metres NUI TOC TIEN had its wheel deflated by THE NANS MAN (Mr Purvis). This incident was independent of any actions of Mr Markham and the Stewards accepted that Mr Markham was not expected to be aware of this. At that time, he was some distance away and accordingly would not be aware that this incident had occurred.
[34] Racing towards the 1460 metres there was an easing of the pace in the two-wide line. The Stewards estimated the origin of this easing was the horse in the parked position. However, it only became apparent once the inevitable concertina reached SHANTALIA ROMEO and those horses racing back in the field. The slowing of the pace had affected NUI TOC TIEN. This was apparent by the actions of Mr Morrison and also by the horse’s actions. It got its head up when poorly positioned near the sulky of SHANTALIA ROMEO and at the 1460 metre point it began to shift its position inside and out to avoid contact being made.
[35] The distance of Mr Markham behind the field, and in particular, behind NUI TOC TIEN at this time was estimated to be conservatively between two and three lengths. From this point and over the next seven strides, Mr Renault said, Mr Markham made up that ground and became badly positioned close to the sulky of NUI TOC TIEN. MYSISTERSASTAR got its head over the shoulder of Mr Morrison in the cart in front and began racing roughly. It also got its head up and shifted ground.
[36] The tyre (or tube) had come free of the sulky of Mr Morrison and was dragging a short distance behind his sulky. MYSISTERSASTAR appeared to stand in or on the tyre causing that horse to break and lose its chance. This also caused the sulky of NUI TOC TIEN to collapse from under Mr Morrison and that horse’s chances were also extinguished.
[37] The Stewards alleged that Mr Markham was careless prior to this contact with the tyre, in that he had failed to appropriately read the situation before him. He had not paid due attention to the easing of the pace unfolding ahead of him and had allowed his horse to improve up and onto the back of NUI TOC TIEN, who was already in difficulty.
[38] Mr Renault asked this Tribunal Committee to compare the actions of the two drivers at the back of the field when the easing had occurred. Mr Morrison when faced with driving his horse through an easing of the pace made an immediate attempt to restrain and absorb as much of the concertina effect as possible, thereby ensuring his runner suffered as little interference as possible. Mr Morrison had managed to do this with little warning. He did not have the luxury of a two to three length buffer to consider what action he might take, and then execute those actions to best serve him and others and minimise the risk factor.
[39] Mr Markham’s actions on the other hand were said to be “non-existent”. The distance between the two runners when the easing became apparent was two to three lengths. It was not until his horse has travelled for another seven strides that Mr Markham attempted to make any effort to restrain his horse. Thus the respondent alleged that Mr Markham was not paying due attention to what had unfolded ahead of him.
[40] The respondent stated that it was quite apparent from the films of the incident that Mr Markham had made no attempt to restrain his horse prior to the incident. Significantly, they alleged that his horse getting its head up and avoiding the sulky frame was more a result of the horse itself attempting to avoid the cart than the actions of Mr Markham. The films show that leading up to MYSISTERSASTAR becoming poorly positioned, Mr Markham’s actions did not change. He did not swing back in the sulky and apply direct pressure to the reins and the horse’s mouth nor did he make any attempt to shift inwards or outwards. Mr Morrison with only a fraction of the time available to him as Mr Markham had been afforded, had made a far greater effort to restrain than Mr Markham had done.
[41] The RIU alleged that Mr Markham should have been more than aware of the easing ahead of him. It was apparent that the horse he was trailing was in some difficulty. However, instead of taking discernible measures to ensure his horse avoided that interference, he allowed himself to become positioned directly behind that runner where interference was inevitable.
[42] At the point where Mr Morrison was easing, the RIU identified Mr Markham had four options available to him: 1) shift inwards; 2) shift outwards (these were both good options which would have ensured his runner had manoeuvred safely around the incident and had been able to complete the race); 3) to remain on his course but make some attempt to steady or restrain his horse and minimise any impact the easing may have had upon him – had Mr Markham preferred this option and Stewards had been able to clearly see some form of prevention or restraint from Mr Markham then this charge would not have been brought; and 4) to remain on the same course and do nothing until he effectively “rear ended Mr Morrison and put both runners out of the race”.
[43] The RIU emphasised it did not expect Mr Markham to be aware of the damaged wheel. However, had Mr Markham made some effort to avoid Mr Morrison in a more timely manner, then NUI TOC TIEN’s chances of returning to the stable safely would have been greatly enhanced. “[C]areless” was noted to be defined in the Cambridge dictionary as, “not taking or showing enough care and attention”. The RIU submitted that Mr Markham’s driving at this stage of the race comfortably fell within that definition. Firstly, he should have been more aware of what was happening ahead and secondly, he should have made some demonstrable form of restraint to avoid the interference being so severe.
[44] The RIU accepted that the films did not show Mr Markham’s horse make contact with the sulky of NUI TOC TIEN and it was apparent that he had not struck the wheel of that cart. What was apparent, however, the RIU alleged was that for a considerable time the respondent had been “dangerously close” to that runner. This, the respondent believed, was easily avoidable. Mr Markham should not have allowed his runner to improve at the same speed when the horses ahead were being restrained. He simply should have made a more careful assessment of the situation at an earlier time. He had failed to read the situation, whereas Mr Morrison had.
[45] Mr Renault said the Judicial Committee had been correct in stating “there was a slight easing of the pace in front of NUI TOC TIEN just prior to this incident but Mr Markham has driven carelessly by not noticing the slight ease in the pace and allowed his horse to get too close before acting to avoid running into the sulky of Mr Morrison.” Earlier the Committee had stated that the Stewards had said that the “right foot of MYSISTERSASTAR went through the tube with the left foot striking the sulky wheel heavily, which collapsed the undercarriage of the sulky.” We note, of course, that the RIU are no longer alleging there had been such contact. We add that they are clearly correct to so do.
[46] Mr Renault concluded his submission by stating the Judicial Committee on the day in question were correct in their finding that the actions of Mr Markham amounted to carelessness and for that reason the appeal should be dismissed.
Summing up
[47] Mr Jones stated that despite what the RIU had alleged, he believed Mr Markham had restrained his horse. The head of MYSISTERSASTAR was up high and was above the head of Mr Morrison. Mr Markham had taken all opportunities available to him to avoid Mr Morrison. The incident itself was a freakish accident and the appellant could not have anticipated this. Mr Morrison had taken strong action as the pace eased and the tyre came off. There was no contact by the appellant.
[48] With reference to the seven strides that Mr Renault had emphasised, he pointed out Mr Morrison had said he had taken a strong hold and had come back further as a consequence. He believed Mr Markham had taken both care and strong action to avoid Mr Morrison. He was restraining MYSISTERSASTAR when he got close to Mr Morrison’s cart. Indeed, it was his view that Mr Markham had taken “every step and measure that were open to him on the day”. Had the tyre not come off, he did not believe Mr Markham would have been charged.
[49] Mr Renault accepted there was no contact. He reiterated there did not need to be contact for a charge of careless driving to be proved. He accepted that Mr Markham would not have been aware the wheel was damaged, however, when the pace eased and the tyre came off, he did not restrain his horse, as he was not paying attention. The appellant’s carelessness lay in the fact that he got too close to Mr Morrison
Decision as to breach
[50] The RIU’s case is that whilst there was no contact between Mr Markham and Mr Morrison, the appellant had driven carelessly in trailing Mr Morrison as close as he did, and in allowing the head of his horse to be close to if not above Mr Morrison’s helmet. Mr Renault added that the appellant had not reacted quickly enough when the pace slackened and Mr Morrison came back on to him.
[51] Mr Jones has submitted that trailing a runner immediately behind the cart is a common practice and that in so doing, the appellant could not be said to be in breach of the careless driving rule.
[52] We find the facts to be as follows.
[53] The tyre of Mr Morrison’s cart was punctured when Mr Purvis made a forward move with THE NANS MAN early in the race.
[54] Mr Morrison was thus travelling in the race with a punctured tyre. The Tribunal raised the issue whether this would or should have been known to the appellant. Both parties agreed that this would be not be likely.
[55] The tyre came off the rim of Mr Morrison’s cart at the time or immediately after the pace in the race slackened and Mr Morrison took hold of his horse. Mr Morrison was very clear in his evidence that he had taken hold of NUI TOC TIEN because the horses in front were coming back on him and that the tyre then came off. It was almost simultaneous, although he did not believe his taking hold of NUI TOC TIEN had caused the tyre to come off the rim. He then decided to take NUI TOC TIEN out of the race, as with the rim scraping along the grass the horse would not be competitive.
[56] Once the tyre came off the rim it was dragged behind Mr Morrison’s sulky. Eventually a leg of MYSISTERSASTAR either went through the tyre, which is the more likely scenario, or the horse stood on the tyre. The result was significant pressure to Mr Morrison’s cart and it then collapsed. MYSISTERSASTAR galloped out of the race. Mr Morrison and Mr Markham finished last and second last, respectively.
[57] The factual basis on which the Committee on the day found the charge to be proved was that the left foot of MYSISTERSASTAR had struck Mr Morrison’s sulky wheel heavily, which collapsed the undercarriage of the sulky. The parties agree this is incorrect. In circumstances where the then respondent had admitted the breach (as Mr Markham had) it is understandable that a Committee would not scrutinise the videos to the extent that this Tribunal has in this hearing.
[58] Mr Morrison’s evidence is clear that there was no contact between MYSISTERSASTAR and his cart or his person (his helmet). On viewing the films, he is satisfied, as is this Tribunal, that MYSISTERSASTAR has come into contact with his tyre that was trailing behind his cart.
[59] As we have noted, the RIU do not allege there was contact with the cart of NUI TOC TIEN. We are not satisfied that Mr Markham in trailing up close to Mr Morrison when Mr Morrison had a punctured tyre constitutes careless driving. He was not aware of the problem with the tyre, nor should it have been obvious to him. We have had regard to the seven strides scenario that Mr Renault has emphasised. We agree that Mr Markham had moved up quite swiftly to trail Mr Morrison and he had not reacted to the easing of the pace as quickly as had Mr Morrison, but as Mr Morrison has said, he took a strong hold of NUI TOC TIEN and believed he had come back a length on to Mr Markham.
[60] We are satisfied that a reasonable and competent driver could be expected after having lost ground to try to catch the field and find cover, and perhaps to later catch a drag into the finish of the race. This is what Mr Markham was doing. There is a conflict in the submissions of the RIU and the appellant as to whether Mr Markham had taken hold of MYSISTERSASTAR prior to that horse standing in or on the tyre. The video certainly evidences that the head of MYSISTERSASTAR is up some three strides before contact with the trailing tyre. It is difficult to determine the pressure Mr Markham has placed on the horse with the reins at this time. Had Mr Markham driven into the back of Mr Morrison’s cart or made contact with a wheel, we would have had to determine this issue and, depending on our finding, may have found the charge proved. He did not; so we take this matter no further.
[61] When regard is had to the highly unusual circumstances of this case, we uphold the appeal. The finding that Mr Markham was in breach of r 869(3)(b) in race 11 at the Geraldine Trotting Club race meeting on 26 November 2016, in that he had driven carelessly, is quashed.
[62] Mr Markham did not seek a stay of the four-day penalty imposed by the Judicial Committee. However, the finding that this breach had been proved is to be removed from his record. The Judicial Committee observed that Mr Markham had had 162 drives and had had no breaches of this rule. We are not aware that there have been any subsequent breaches and thus Mr Markham’s record remains clear under this rule. A fact for which he is to be commended.
[63] There were no applications for costs and their imposition is not appropriate in the circumstances of this case.
[64] The Filing Fee of $250 is to be refunded.
Dated at Dunedin this 16th day of December 2016.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 16/12/2016
Publish Date: 16/12/2016
JCA Decision Fields (raw)
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decisiondate: 16/12/2016
hearing_title: Appeal J Markham v RIU 12 December 2016 - Decision dated 16 December 2016 - Chair, Prof G Hall
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN MR JEREMY MARKHAM
Junior Horseman
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
INFORMATION No. A1690
APPEALS TRIBUNAL: Prof G Hall (Chairman), Mr G Thompson (Member)
APPEARING: Mr M Jones, Open Horseman, for the appellant - Mr S Renault, Stipendiary Steward, for the RIU
RESERVED DECISION OF APPEALS TRIBUNAL
[1] The appellant, Mr Markham, has appealed against the finding and penalty of the raceday Committee on 26 November 2016 at the Geraldine Trotting Club race meeting at the Orari racecourse that he had driven carelessly in race 11, the Turley Farms Mobile Pace, in breach of r 869(3)(b) of the New Zealand Rule of Harness Racing and was suspended for 4 days.
[2] Rule 869(3)(b) states: “No horseman in any race shall drive carelessly”.
[3] The matter was heard at Addington raceway on Monday 12 December.
An appeal against an admitted breach
[4] The Tribunal requested that the parties address the issue of the appropriateness of our hearing an appeal against a finding of the Judicial Committee in circumstances where the appellant had admitted the breach on the day.
[5] Mr Renault stated that the RIU did not formally oppose the hearing of the appeal but were “disappointed regarding the circumstances behind it being lodged”.
[6] Mr Renault said that Mr Markham was asked prior to the laying of any charges whether he wanted assistance from a senior horseman. After being unable to locate a senior horseman, he then waived Mr Renault’s invitation of assistance and advised the Stewards in person that he wished to proceed independently.
[7] The RIU emphasised that Mr Markham, at no stage, requested an adjournment of the proceedings. Had he done so, the RIU could have initiated those discussions with him and the JCA.
[8] Mr Renault said that Mr Markham, after viewing the films on the day, had elected to admit the breach at the first opportunity. Mr Markham was advised that the hearing would be held immediately, once the information was served, however he did not attend the hearing.
[9] Mr Markham advised the Stewards he would prefer a term of suspension as his penalty, as opposed to the imposition of a fine.
[10] Mr Jones, the appellant’s employer, spoke on behalf of Mr Markham. He said that it was 40 minutes after the last race before Mr Markham was charged. There was no senior horseman available at that time and Mr Markham had never been advised that the hearing could be adjourned.
[11] Mr Markham then confirmed this. He said he had never spoken to the JCA because he had initialled the information to the effect that he admitted the breach and did not wish to attend. He said he had a family wedding to attend and he was unsure whether he had mentioned this to Mr Renault, although he thought he had.
[12] The Tribunal asked Mr Markham to recount the events on the day. He said when he came off the track he was told by a Steward that the Stipendiary Stewards wanted to see him. He was concerned as to this, as he was under pressure to leave the course to attend the wedding. He thought Mr Renault might have mentioned a senior horseman when he was first in the room talking to the Stewards.
[13] Mr Markham said that as he was in a rush, he just signed the information, admitted the charge, and left. He said he had looked at the video when first in the room with the Stipendiary Stewards and Mr Morrison (the driver of the horse concerned in the incident). When questioned by the Tribunal, he said he had seen the videos three times and did not have the assistance of a senior horseman at that time.
[14] Mr Markham said he also thought if he pleaded guilty the penalty would be less. He thus decided to admit the charge. He said this was due to his inexperience. He did not believe the Stipendiary Stewards had given him any indication as to penalty at this time, although they had said it would be a fine or a suspension. He had said to them that he would prefer a suspension, and they had said they would put this fact before the Committee.
Decision as to right to appeal
[15] The issue before us is whether or not Mr Markham should be allowed to appeal the finding that he was in breach of r 869(3)(b) in circumstances where he had admitted the breach on the day.
[16] We take guidance from established principles with respect to this issue in fora external to racing.
[17] We find we can deal with this issue briefly. Generally speaking a person will not be able to appeal a finding of guilt (charge proved) where that has been entered by a court (Judicial Committee) as a consequence of a guilty plea (an admission of the breach). One exception is where a miscarriage of justice is likely to result. This is one such case. We are satisfied that Mr Markham did not fully appreciate the merits of his position and due to the exigencies of time and no senior horsemen being available, he had not made an informed decision to admit the breach. We thus hold that we have jurisdiction to hear Mr Markham’s appeal against the finding of the Judicial Committee that he was in breach of the rule.
[18] In so finding, we emphasise there was no evidence before us that would lead us to conclude that Mr Markham was placed under undue pressure by the Stipendiary Stewards to admit the breach or to proceed with the hearing on the day. We note, in addition, that neither was there evidence to the effect that the possibility of an adjournment of the hearing of the charge was raised with Mr Markham. In light of his inexperience, we believe it would have been appropriate for that matter to have been canvassed.
Appellant’s submissions as to the breach of r 869(3)(b)
[19] Mr Jones addressed the circumstances of the incident that had resulted in the breach of r 869(3)(b) being found to be proved. He stated that he wished to call Mr Morrison, the driver of NUI TOC TIEN, to give evidence. This was new evidence, and the RIU stated they had no objection to this.
[20] Mr Jones first traversed the circumstances of the incident. He said it was clear that the tyre of NUI TOC TIEN had been deflated when it had been struck by the leg of Mr Purvis’s horse, THE NANS MAN. He continued by stating it was clear on the videos that Mr Markham’s horse, MYSISTERSASTAR, had never come into contact with the cart or the wheel of NUI TOC TIEN. He demonstrated there had been an easing of the pace just prior to the incident and this had had a concertina effect on the field. He demonstrated that there had been a chain reaction and NUI TOC TIEN had its head up as the appellant was trailing close behind its cart. He demonstrated on the videos that Mr Markham was restraining his horse immediately after Mr Morrison had pulled back. He reiterated there was no contact between the two.
[21] Mr Jones was adamant that the incident was caused by the foot of MYSISTERSASTAR being caught in the tyre that had come adrift from the rim of Mr Morrison’s wheel. He said he would have accepted there was carelessness if there had been contact with cart or wheel, but this had not been the case.
[22] Mr Jones continued by stating Mr Morrison had lost one and a half to two lengths when taking hold of his horse. He demonstrated on the videos that Mr Morrison was restraining his horse, and he believed it was in order to get out of the race. He believed the press had over-dramatised the incident because the cart had given way.
[23] Mr Jones demonstrated on the videos that Mr Morrison was hard up against the horse in front of him before he had restrained NUI TOC TIEN. He believed the appellant had reacted in time and, had Mr Morrison not restrained NUI TOC TIEN further in order to exit the race, everything would have been “okay”. It was the fact that Mr Morrison had restrained his horse further that had led to the incident in that MYSISTERSASTAR would not have stepped on the tyre. He emphasised that Mr Markham was not to know that the tyre had come off the rim of NUI TOC TIEN.
[24] Mr Morrison then gave evidence. He is an experienced junior driver, having had 349 starts, for 9 wins, 22 seconds and 15 thirds.
[25] Mr Morrison stated that Mr Purvis had come in to contact with the wheel of his cart on the first bend when there had been an easing of the pace. The tyre had punctured at this time but had stayed on the rim. Further round the bend there had been a further easing of the pace and the tyre (tube) had come off the rim. The tyre was hanging out off the back of the sulky. MYSISTERSASTAR had stood in the tyre. At no stage had MYSISTERSASTAR touched his wheel.
[26] Mr Morrison believed that as MYSISTERSASTAR stood in his tyre there was a backward movement of the leg of that horse, which had placed pressure on his sulky, which had then collapsed.
[27] Mr Morrison emphasised there had been a chain reaction in the one out line when the pace had eased. He believed he was one length off the horse in front after he had grabbed hold of NUI TOC TIEN. He said that almost at the same time the tyre came off the rim of his wheel and he decided to restrain his horse and retire it from the race, as it could no longer be competitive and would be a hazard to other runners. He acknowledged he was aware there was a horse behind him when took this action. It all happened so quickly. There was no yelling at the time, as there was not time to do so. Mr Markham’s horse had then stepped through his tyre, which was hanging out the back. He emphasised that Mr Markham had never touched any part of his sulky, wheel or undercarriage, at any time.
[28] Mr Morrison said he believed it was coincidental that he had received a check just as the tyre came off the rim.
[29] When questioned by Mr Renault as to what he had said to the Stewards when questioned immediately after the race, Mr Morrison was uncertain as to whether he had said to the Stewards that there had been contact between MYSISTERSASTAR and his cart. He did remember saying they had come close together. He said he thought he had said to the Stewards “I don’t know”, when asked whether Mr Markham had hit his cart.
[30] Mr Morrison then reiterated his belief that the tyre came off as the pace was easing and he was trying to get out of the race. He said he had grabbed hold of NUI TOC TIEN because he had received a check by the horse in front coming back. He said he had been trailing hard up behind that runner but there had not been any contact with that horse. It was a short distance race (1850 metres) that was being run at a good clip and there had been a sharp easing of the pace.
[31] Mr Morrison agreed with Mr Renault that Mr Markham was trailing hard up behind him. He could see from the videos that the head of Mr Markham’s horse was above his helmet. But he confirmed there had been no contact with his helmet. In response to questioning by this Tribunal, he said if the tyre had not been hanging out the back of his cart, he could not see there would have been any problem with Mr Markham’s drive. He was not concerned on the day that the appellant was too close to his cart. On viewing the video, he could see Mr Markham was trailing close but he would expect that to be the case.
[32] Mr Renault pointed out to Mr Morrison on the video that there was a four length gap between his horse and Mr Markham and asked whether he believed this was enough time for the appellant to have reacted. Mr Morrison replied that this was not the gap between the horses when the tyre came off the rim. He believed the check and the tyre coming off the rim had led him to come back a length on to Mr Markham. When asked to comment on whether Mr Markham had reacted more slowly than he had to the easing of the pace, Mr Morrison said Mr Markham had had more momentum at that time and when the tyre came out the back of his cart this would have been the first time Mr Markham would have been aware he was having issues with the wheel of his cart.
Respondent’s submissions as to the breach of r 869(3)(b)
[33] Mr Renault took the Tribunal through the videos. Approaching the 1700 metres NUI TOC TIEN had its wheel deflated by THE NANS MAN (Mr Purvis). This incident was independent of any actions of Mr Markham and the Stewards accepted that Mr Markham was not expected to be aware of this. At that time, he was some distance away and accordingly would not be aware that this incident had occurred.
[34] Racing towards the 1460 metres there was an easing of the pace in the two-wide line. The Stewards estimated the origin of this easing was the horse in the parked position. However, it only became apparent once the inevitable concertina reached SHANTALIA ROMEO and those horses racing back in the field. The slowing of the pace had affected NUI TOC TIEN. This was apparent by the actions of Mr Morrison and also by the horse’s actions. It got its head up when poorly positioned near the sulky of SHANTALIA ROMEO and at the 1460 metre point it began to shift its position inside and out to avoid contact being made.
[35] The distance of Mr Markham behind the field, and in particular, behind NUI TOC TIEN at this time was estimated to be conservatively between two and three lengths. From this point and over the next seven strides, Mr Renault said, Mr Markham made up that ground and became badly positioned close to the sulky of NUI TOC TIEN. MYSISTERSASTAR got its head over the shoulder of Mr Morrison in the cart in front and began racing roughly. It also got its head up and shifted ground.
[36] The tyre (or tube) had come free of the sulky of Mr Morrison and was dragging a short distance behind his sulky. MYSISTERSASTAR appeared to stand in or on the tyre causing that horse to break and lose its chance. This also caused the sulky of NUI TOC TIEN to collapse from under Mr Morrison and that horse’s chances were also extinguished.
[37] The Stewards alleged that Mr Markham was careless prior to this contact with the tyre, in that he had failed to appropriately read the situation before him. He had not paid due attention to the easing of the pace unfolding ahead of him and had allowed his horse to improve up and onto the back of NUI TOC TIEN, who was already in difficulty.
[38] Mr Renault asked this Tribunal Committee to compare the actions of the two drivers at the back of the field when the easing had occurred. Mr Morrison when faced with driving his horse through an easing of the pace made an immediate attempt to restrain and absorb as much of the concertina effect as possible, thereby ensuring his runner suffered as little interference as possible. Mr Morrison had managed to do this with little warning. He did not have the luxury of a two to three length buffer to consider what action he might take, and then execute those actions to best serve him and others and minimise the risk factor.
[39] Mr Markham’s actions on the other hand were said to be “non-existent”. The distance between the two runners when the easing became apparent was two to three lengths. It was not until his horse has travelled for another seven strides that Mr Markham attempted to make any effort to restrain his horse. Thus the respondent alleged that Mr Markham was not paying due attention to what had unfolded ahead of him.
[40] The respondent stated that it was quite apparent from the films of the incident that Mr Markham had made no attempt to restrain his horse prior to the incident. Significantly, they alleged that his horse getting its head up and avoiding the sulky frame was more a result of the horse itself attempting to avoid the cart than the actions of Mr Markham. The films show that leading up to MYSISTERSASTAR becoming poorly positioned, Mr Markham’s actions did not change. He did not swing back in the sulky and apply direct pressure to the reins and the horse’s mouth nor did he make any attempt to shift inwards or outwards. Mr Morrison with only a fraction of the time available to him as Mr Markham had been afforded, had made a far greater effort to restrain than Mr Markham had done.
[41] The RIU alleged that Mr Markham should have been more than aware of the easing ahead of him. It was apparent that the horse he was trailing was in some difficulty. However, instead of taking discernible measures to ensure his horse avoided that interference, he allowed himself to become positioned directly behind that runner where interference was inevitable.
[42] At the point where Mr Morrison was easing, the RIU identified Mr Markham had four options available to him: 1) shift inwards; 2) shift outwards (these were both good options which would have ensured his runner had manoeuvred safely around the incident and had been able to complete the race); 3) to remain on his course but make some attempt to steady or restrain his horse and minimise any impact the easing may have had upon him – had Mr Markham preferred this option and Stewards had been able to clearly see some form of prevention or restraint from Mr Markham then this charge would not have been brought; and 4) to remain on the same course and do nothing until he effectively “rear ended Mr Morrison and put both runners out of the race”.
[43] The RIU emphasised it did not expect Mr Markham to be aware of the damaged wheel. However, had Mr Markham made some effort to avoid Mr Morrison in a more timely manner, then NUI TOC TIEN’s chances of returning to the stable safely would have been greatly enhanced. “[C]areless” was noted to be defined in the Cambridge dictionary as, “not taking or showing enough care and attention”. The RIU submitted that Mr Markham’s driving at this stage of the race comfortably fell within that definition. Firstly, he should have been more aware of what was happening ahead and secondly, he should have made some demonstrable form of restraint to avoid the interference being so severe.
[44] The RIU accepted that the films did not show Mr Markham’s horse make contact with the sulky of NUI TOC TIEN and it was apparent that he had not struck the wheel of that cart. What was apparent, however, the RIU alleged was that for a considerable time the respondent had been “dangerously close” to that runner. This, the respondent believed, was easily avoidable. Mr Markham should not have allowed his runner to improve at the same speed when the horses ahead were being restrained. He simply should have made a more careful assessment of the situation at an earlier time. He had failed to read the situation, whereas Mr Morrison had.
[45] Mr Renault said the Judicial Committee had been correct in stating “there was a slight easing of the pace in front of NUI TOC TIEN just prior to this incident but Mr Markham has driven carelessly by not noticing the slight ease in the pace and allowed his horse to get too close before acting to avoid running into the sulky of Mr Morrison.” Earlier the Committee had stated that the Stewards had said that the “right foot of MYSISTERSASTAR went through the tube with the left foot striking the sulky wheel heavily, which collapsed the undercarriage of the sulky.” We note, of course, that the RIU are no longer alleging there had been such contact. We add that they are clearly correct to so do.
[46] Mr Renault concluded his submission by stating the Judicial Committee on the day in question were correct in their finding that the actions of Mr Markham amounted to carelessness and for that reason the appeal should be dismissed.
Summing up
[47] Mr Jones stated that despite what the RIU had alleged, he believed Mr Markham had restrained his horse. The head of MYSISTERSASTAR was up high and was above the head of Mr Morrison. Mr Markham had taken all opportunities available to him to avoid Mr Morrison. The incident itself was a freakish accident and the appellant could not have anticipated this. Mr Morrison had taken strong action as the pace eased and the tyre came off. There was no contact by the appellant.
[48] With reference to the seven strides that Mr Renault had emphasised, he pointed out Mr Morrison had said he had taken a strong hold and had come back further as a consequence. He believed Mr Markham had taken both care and strong action to avoid Mr Morrison. He was restraining MYSISTERSASTAR when he got close to Mr Morrison’s cart. Indeed, it was his view that Mr Markham had taken “every step and measure that were open to him on the day”. Had the tyre not come off, he did not believe Mr Markham would have been charged.
[49] Mr Renault accepted there was no contact. He reiterated there did not need to be contact for a charge of careless driving to be proved. He accepted that Mr Markham would not have been aware the wheel was damaged, however, when the pace eased and the tyre came off, he did not restrain his horse, as he was not paying attention. The appellant’s carelessness lay in the fact that he got too close to Mr Morrison
Decision as to breach
[50] The RIU’s case is that whilst there was no contact between Mr Markham and Mr Morrison, the appellant had driven carelessly in trailing Mr Morrison as close as he did, and in allowing the head of his horse to be close to if not above Mr Morrison’s helmet. Mr Renault added that the appellant had not reacted quickly enough when the pace slackened and Mr Morrison came back on to him.
[51] Mr Jones has submitted that trailing a runner immediately behind the cart is a common practice and that in so doing, the appellant could not be said to be in breach of the careless driving rule.
[52] We find the facts to be as follows.
[53] The tyre of Mr Morrison’s cart was punctured when Mr Purvis made a forward move with THE NANS MAN early in the race.
[54] Mr Morrison was thus travelling in the race with a punctured tyre. The Tribunal raised the issue whether this would or should have been known to the appellant. Both parties agreed that this would be not be likely.
[55] The tyre came off the rim of Mr Morrison’s cart at the time or immediately after the pace in the race slackened and Mr Morrison took hold of his horse. Mr Morrison was very clear in his evidence that he had taken hold of NUI TOC TIEN because the horses in front were coming back on him and that the tyre then came off. It was almost simultaneous, although he did not believe his taking hold of NUI TOC TIEN had caused the tyre to come off the rim. He then decided to take NUI TOC TIEN out of the race, as with the rim scraping along the grass the horse would not be competitive.
[56] Once the tyre came off the rim it was dragged behind Mr Morrison’s sulky. Eventually a leg of MYSISTERSASTAR either went through the tyre, which is the more likely scenario, or the horse stood on the tyre. The result was significant pressure to Mr Morrison’s cart and it then collapsed. MYSISTERSASTAR galloped out of the race. Mr Morrison and Mr Markham finished last and second last, respectively.
[57] The factual basis on which the Committee on the day found the charge to be proved was that the left foot of MYSISTERSASTAR had struck Mr Morrison’s sulky wheel heavily, which collapsed the undercarriage of the sulky. The parties agree this is incorrect. In circumstances where the then respondent had admitted the breach (as Mr Markham had) it is understandable that a Committee would not scrutinise the videos to the extent that this Tribunal has in this hearing.
[58] Mr Morrison’s evidence is clear that there was no contact between MYSISTERSASTAR and his cart or his person (his helmet). On viewing the films, he is satisfied, as is this Tribunal, that MYSISTERSASTAR has come into contact with his tyre that was trailing behind his cart.
[59] As we have noted, the RIU do not allege there was contact with the cart of NUI TOC TIEN. We are not satisfied that Mr Markham in trailing up close to Mr Morrison when Mr Morrison had a punctured tyre constitutes careless driving. He was not aware of the problem with the tyre, nor should it have been obvious to him. We have had regard to the seven strides scenario that Mr Renault has emphasised. We agree that Mr Markham had moved up quite swiftly to trail Mr Morrison and he had not reacted to the easing of the pace as quickly as had Mr Morrison, but as Mr Morrison has said, he took a strong hold of NUI TOC TIEN and believed he had come back a length on to Mr Markham.
[60] We are satisfied that a reasonable and competent driver could be expected after having lost ground to try to catch the field and find cover, and perhaps to later catch a drag into the finish of the race. This is what Mr Markham was doing. There is a conflict in the submissions of the RIU and the appellant as to whether Mr Markham had taken hold of MYSISTERSASTAR prior to that horse standing in or on the tyre. The video certainly evidences that the head of MYSISTERSASTAR is up some three strides before contact with the trailing tyre. It is difficult to determine the pressure Mr Markham has placed on the horse with the reins at this time. Had Mr Markham driven into the back of Mr Morrison’s cart or made contact with a wheel, we would have had to determine this issue and, depending on our finding, may have found the charge proved. He did not; so we take this matter no further.
[61] When regard is had to the highly unusual circumstances of this case, we uphold the appeal. The finding that Mr Markham was in breach of r 869(3)(b) in race 11 at the Geraldine Trotting Club race meeting on 26 November 2016, in that he had driven carelessly, is quashed.
[62] Mr Markham did not seek a stay of the four-day penalty imposed by the Judicial Committee. However, the finding that this breach had been proved is to be removed from his record. The Judicial Committee observed that Mr Markham had had 162 drives and had had no breaches of this rule. We are not aware that there have been any subsequent breaches and thus Mr Markham’s record remains clear under this rule. A fact for which he is to be commended.
[63] There were no applications for costs and their imposition is not appropriate in the circumstances of this case.
[64] The Filing Fee of $250 is to be refunded.
Dated at Dunedin this 16th day of December 2016.
Geoff Hall, Chairman
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