Appeal – J Dickie v HRNZ – decision 18 July 2011

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hearing_title: Appeal - J Dickie v HRNZ - decision 18 July 2011

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APPEAL HEARING: JOSHUA DICKIE v THE RACING INTEGRITY UNIT
18th Day of July 2011
APPEALS TRIBUNAL: Mr Murray McKechnie, Chairman and Mr Bryan Scott

PARTIES: Mr Joshua Dickie
Mr Rob Lawson, Advocate for Mr Dickie
Mr Nick Ydgren, Stipendiary Steward on behalf of The Racing Integrity Unit


DECISION OF APPEAL TRIBUNAL

1. INTRODUCTION
1.1 On Monday 6th June this year Mr Dickie was taking part in the Australasian Young Drivers’ Championship. The race meeting was held at Ashburton. Race 10 was the last race in the competition and Mr Dickie’s drive was with the horse Wilusi Blues. This horse won the race. But for the circumstances which will later be outlined this gave Mr Dickie sufficient points to win the drivers competition.
1.2 Following the “all clear” having been given post race the Stipendiary Stewards on duty summonsed Mr Dickie and advised that he was to be charged under Rule 869(2)(a). That rule has to do with excessive use of the whip. It was alleged that Mr Dickie had applied the whip twenty three (23) times in the home straight.
1.3 Mr Dickie pleaded guilty to the charge. A short hearing then took place. At that hearing Mr Dickie was assisted by the senior horseman Mr Ricky May. The Judicial Committee imposed a suspension of 1 driving day and a fine of $400.00.
1.4 In imposing penalty the Committee indicated, quite properly, that they took into account Mr Dickie’s admission of the breach and secondly his driving record. The breach was the third in respect of the same rule since the 24th March this year. It is pertinent to note that new guide lines for breaches of this rule had been in place since the 1st June.
 

2. EVENTS FOLLOWING DECISION OF THE JUDICIAL COMMITTEE
2.1 Some time after the conclusion of the race meeting at Ashburton on the 6th June the senior management of Harness Racing New Zealand (HRNZ) became aware of a problem. The rules which had been adopted for the Australasian Young Drivers’ Championship contained two (2) provisions which at first glance appear to be in conflict and about which nobody was aware when the Judicial Committee sat on 6th June. The relevant rules are as follows: 

Rule No 27 in the relevant part says:
In the event of a driver being suspended in a race in a series points will not be awarded to that driver for that race.
Rule No 33 in the relevant part is to this effect:
The driver with the most points after the “all clear” being given in the last race of the series shall be declared the winner.
2.3 As noted above the “all clear” for Race 10 on the 6th June had been given before Mr Dickie was charged with the breach of Rule 869(2)(a). HRNZ has advised that the rationale for Rule 33 is to ensure that a driver does not lose the points otherwise available in the event that some circumstance (perhaps in the nature of a positive swab) is revealed a significant time after the competition has taken place. In the event that Rule 27 is to be given a literal interpretation (and Rule 33 set to one side) Mr Dickie’s suspension would result in the loss of the points which he gained in Race 10 and in consequence he would no longer be the winner of the Australasian Young Drivers’ Championship.
2.4 Mr Dickie’s appeal is based primarily upon the submission that had the Judicial Committee been made aware of the rules under which the competition was taking place then in all probability the penalty imposed would not have involved suspension and there would have been a more significant monetary penalty. 
 

3. THE PROCEDURE ON APPEAL
3.1 On the 30th June there was a telephone conference involving the Tribunal Chairman, Mr Lawson Advocate for Mr Dickie and Mr Cameron George the Chief Stipendiary Steward. That conference was called to define precisely what the issue for determination was and to direct the parties to file written submissions in advance of the proposed hearing on 8th July.
3.2 Following some constructive discussion between the parties to the telephone conference the central issue in the appeal was clarified and both parties were asked to file written submissions. In the result Mr Lawson for Mr Dickie and Mr Ydgren for RIU have both filed detailed and constructive submissions. Upon receipt of those the Tribunal determined that a hearing which would require the parties to be present was not necessary and that the appeal could be determined on the papers. The hearing set for Alexandra Park on the afternoon of the 8th July was cancelled.
 

4. DISCUSSION
4.1 As recorded in paragraph 2.4 above Mr Lawson submits that had the Judicial Committee been fully informed then there is a high probability that no suspension would have been imposed. Mr Ydgren in his submissions does not take issue with that. He points to the fact that the stewards were of the view that Wilusi Blues would have won the race without being struck as many times as was the case.
4.2 Mr Lawson contends that upholding the suspension would have consequences out of all proportion to the gravity of the breach. Mr Dickie was awarded the championship following the race meeting. He was presented with the trophy. There was significant media coverage. We are told that the TAB had been running bets on the outcome of the championship and has paid out on the basis that Mr Dickie was the winner. Further Mr Lawson points to the possible consequences of upholding the suspension. These include:
• Forfeiture of the title and the prestige that goes with it.
• Mr Dickie would almost certainly miss out on an all expenses paid trip to the Perth Interdominions of 2012 to defend the title. Such a trip would be a career highlight.
4.3 Mr Ydgren acknowledges it was an unfortunate situation that the rules governing the junior drivers’ series were not known to the participants at the Judicial Committee hearing on the 10th June. Necessarily the participants were not aware of the consequences of a period of suspension. Mr Ydgren very fairly acknowledges that the circumstances are exceptional and that the hardship that Mr Dickie might suffer by upholding the suspension would be out of proportion to the gravity of the breach. Interestingly he points to a case in 2004 involving the prominent thoroughbred racing jockey Opie Bosson who had a suspension reduced and substituted with an increased fine in order to permit him to accept rides in a prestigious series in Japan.
 

5. DECISION OF APPEAL TRIBUNAL
5.1 In our view the circumstances described here are exceptional. Had all parties been fully informed a suspension would not have been sought and in all probability no suspension would have been imposed. Nobody in particular is responsible for this state of affairs. It is simply an unfortunate oversight from which lessons will doubtless be learned when future similar competitions take place.
5.2 We agree with the submission, essentially advanced by both parties, that the penalty was out of proportion to the consequences which are now known to follow. We are driven to conclude that had the Judicial Committee been fully informed they would have taken a similar view and not imposed a suspension.
5.3 For the reasons explained the suspension is quashed. Both parties acknowledge that if the suspension is to have no effect there must be an increase in the monetary penalty. The fine imposed on the 10th June of $400 is also quashed and replaced by a fine of $750. We note that Mr Dickie has paid a filing fee of $250 which is non-refundable. The co-operative and constructive attitude taken by the parties and their advisers have meant that a formal hearing with the attendant expense has been avoided. In all those circumstances there will be no costs award and no requirement to make a contribution towards the costs incurred by the JCA.

DATED this 18th day of July 2011

__________________________________ _______________________________
Murray McKechnie                     Bryan Scott
Chairman
 

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