Non Raceday Inquiry RIU v I Lupton – Decision dated 1 November 2014
ID: JCA18016
Decision:
NON RACEDAY INQUIRY BEFORE THE JUDICIAL CONTROL AUTHORITY
Non Race Day Judicial Committee: Mr Richard Seabrook, Chair - Mr N McCutcheon, Committee Member
Venue: Tauranga Racecourse
Date: 1 November 2014
Information No: A4353
Informant: Racing Integrity Unit - Mr A Coles, Stipendiary Steward
Respondent: Mr Isaac Lupton - Licensed Rider
Persons Present: Mr W Robinson, Stipendiary Steward
CHARGE:
1) That on Sunday 28 September 2014, at a race meeting conducted by the Waikato Racing Club at Te Rapa, Mr Lupton committed a breach of 638 (1) (a) of the NZ Rules of Racing in that as the rider of FACET in race 7 he rode in a foul manner. Therefore he is liable to the penalty or penalties which may be imposed upon him pursuant to the provisions of rule 803 of the said rules.
2) The particulars of the charge being that passing the 300 metres he struck the rider Michael McNellis about the body and head with his whip on at least four occasions.
RULE:
Rule 638 (1) (a)
This Rule reads as follows:
"a rider shall not ride a horse in a manner which the Judicial Committee considers to be foul"
At the outset of the enquiry and in answer to a question from the committee Mr Coles confirmed that Mr Lupton had been served a copy of the charge and the relevant rule. He also confirmed that Mr Lupton said he did not want to be present at the enquiry nor did he want to make any submissions whatsoever.
EVIDENCE:
Mr Robinson demonstrated the video films and pointed out to the committee that soon after turning for home BAD TASTE ridden by Mr McNellis did lug in onto FACET ridden by Mr Lupton making brief contact. However Mr Robinson submitted that Mr McNellis pulled off immediately but went on to show that shortly after this Mr Lupton raised his right arm out and struck Mr McNellis three or four times. He said at this stage there was a considerable gap between the two horses and he believed the action by Mr Lupton was deliberate.
SUBMISSIONS by Mr A Coles:
1. Isaac Lupton is a Class ‘D’ rider licenced with New Zealand Thoroughbred racing.
2. On Sunday 28 September 2014 Mr Lupton was in attendance at the meeting conducted by the Waikato Racing Club at Te Rapa racecourse.
3. Mr Lupton was engaged to ride three horses on the day’s programme including FACET, an acceptor in Race 7.
4. Mr Lupton duly fulfilled his engagement on FACET and finished in 8th place.
5. As part of their duties the Stewards viewed the race from their observation point from an elevated position in the grandstand.
6. When viewing the race live the Stewards noticed, near the 300 metres Mr Lupton’s whip come into contact with the body of rider Mr Michael McNellis on several occasions.
7. Following the race the Stewards examined the films and confirmed their observations that Mr Lupton struck Mr McNellis at least five times.
8. Mr Lupton and Mr McNellis were interviewed regarding the incident and advised that the matter would be adjourned pending further investigations.
9. The circumstances of the incident that led to the charge are very well depicted in the films of the race. The most telling film being the coverage from the turn camera which shows Mr Lupton looking to his right at Mr McNellis and then raising his right arm proceeding with an action in which the whip appears to hit rider McNellis on at least four occasions. These hits being on the body and skull cap of McNellis.
10. It is clear from all the films of the race that the strikes were intentional and directed at Mr McNellis.
11. In promulgating the charges levied upon Mr Lupton the Stewards determined that on the basis of both their visual evidence and that of the films that Mr Lupton intentionally struck Jockey McNellis.
12. The Stewards are firmly of the view that the actions of Mr Lupton constitute a breach of Rule 638(1)(a) – Foul riding.
13. In categorising the riding as foul riding the Stewards refer to the decision of the Racing Appeals Tribunal of Victoria concerning the appeal by Jockey Hartnett of 18 December 1989. In that Appeal Jockey Hartnett was charged with foul riding concerning the act of hitting another jockey and that Tribunal considered the difference between improper and foul riding in the following reason stated by Judge JH Forrester:
“… the second consideration as to whether the action of Hartnett, in leaning over and standing up and hitting Patton on the arm amounts to foul riding or, as suggested by Harnett's counsel, improper riding. The difference between improper and foul riding is, and I agree with the submission of counsel for the appellant here, a blurred area. We have been referred to, and I have read, Judge Nixon's decision in Lienert's case and / propose to quote his words on it: In one dictionary, ‘improper' is referred to as 'Being not in accordance with the rules, abnormal, incorrect or wrong, whereas 'foul', under the sub-heading "Sporting and Game" was defined as 'Contrary to the rules, irregular, unfair conduct and behaviour in the game or sporting event, an unfair action to handle or strike an opponent or attempt to handle or strike an opponent’ I point out that that definition clearly is not referable to racing”.
14. In Hartnett the Appeals Tribunal went on to make observations between improper and foul riding when they said;
It seems to me that foul riding must be a more serious offence than improper riding. What is improper may not necessarily be foul, but what is foul riding must, I think, almost of necessity be improper riding. So far as racing is concerned, it seems to me that foul riding must show a substantial degree of departure from the rules in the normal standards that are applied to a jockey riding in races. Put another way, the degree of villainy must be of a high nature to sheet home a charge of foul riding as opposed to improper riding.
15. The relevance of Hartnett is to demonstrate that a charge of foul riding is of far more significance than one of simply improper riding and as such any penalty imposed for a breach of the foul riding rule must be more demonstrable than one of improper conduct.
16. In this case the Stewards believe that the tenants of foul riding have been made out as Mr Lupton has intentionally struck jockey McNellis with the whip on five occasions.
17. The films of the race are unequivocal and leave no room for doubt or otherwise.
18. Commensurately the Stewards submit that the offending, on this occasion, is deserving of a significant period of suspension of Mr Lupton's licence to ride in races.
PENALTY SUBMISSIONS BY Mr A Coles:
19. With respect to the quantum of penalty the Stewards note that in previous matters where jockeys have been charged with intentionally using a whip to strike another jockey the sanction imposed by Judicial Committees has been a period of suspension in the range of 3 months.
20. To this end the Committee is referred to Mr AT 1996 Waikato RC, 3 months – Mr LT 1996 Thames JC, 3 months.
21. It is submitted that the above are reference points which are of relevance in this case.
22. Turning to the aggravating and mitigating factors the Stewards submit that an aggravating feature is that Mr McNellis was struck on five occasions.
23. In regards to mitigating factors Mr Lupton has admitted his wrongdoing at the earliest point and he also has an excellent record spanning seventeen years in which time he has ridden in 1066 races and has only offended the careless riding rule on very few occasions. Therefore his record - prior to this incident is considered excellent.
24. An additional factor which the Committee are invited to consider is that 'jumps riders' generally do not attract the same impost as do flat riders for the reason that their earning capacity is far more restricted than their flat counterparts. For offences of careless riding a discount in the range of 25% is commonly applied.
25. As submitted the Stewards recommend that a term of suspension is the appropriate sanction to be imposed and to this end we believe that the starting point should be three months.
26. However when the relevant factors are applied it is submitted that relief from this starting point should be afforded to Mr Lupton.
27. A more problematic matter however is how a suspension should be levied upon Mr Lupton. This being that with jumps racing occurring within a restricted date range and this year's jumps racing now concluded any suspension would need, in order to be real and effective, to start at the commencement of the new jumping season which is some months off.
28. NZTR informs that it intends to follow the same dates structure as this season with Highweight racing starting in the beginning of April 2015.
29. This being the case the Stewards submit that any suspension imposed would need to recognize racing from April 2015 onwards.
DECISION:
30. As the breach was admitted we find the charge proved.
REASONS FOR PENALTY:
31. The Committee carefully considered all submissions and evidence as presented. We also reviewed all the relevant films which clearly show Mr Lupton striking Mr McNellis on at least three occasions. We concede that just prior to the first strike made by MR Lupton, BAD TASTE ridden by Mr McNellis had been lugging in slightly making contact with Mr Lupton’s mount. However it was also clearly evident on the films that Mr McNellis then straightened his mount and there was a considerable gap between the two horses when Mr Lupton reached out to make his first strike. He then continued to strike Mr McNellis in quite an aggressive manner on another two or three occasions, an action which the Committee is satisfied was intentional.
32. Foul riding is the most serious charge a rider can face with respect to race riding. We find the breach on this occasion was at the top end as Mr Lupton’s actions were clearly deliberate and intentional. This is because he continued to strike Mr McNellis when there appeared to be no reason to do so.
PENALTY:
33. After taking all the above into account the committee believes that the starting point for such a serious breach should be no less than four months. However after considering Mr Lupton's admission of the breach and his outstanding record as far as race riding is concerned the committee is prepared to give Mr Lupton a 25% reduction from this starting point.
34. Accordingly Mr Lupton’s race riding license is suspended from 1 November until after racing on 30 June 2015. As jumps races and high weights do not start until 1 April 2015 this suspension is effectively one of a period of three months.
Mr R Seabrook Mr N McCutcheon
Chairman Committee Member
1 November 2014
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 01/11/2014
Publish Date: 01/11/2014
JCA Decision Fields (raw)
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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: 01/11/2014
hearing_title: Non Raceday Inquiry RIU v I Lupton - Decision dated 1 November 2014
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Decision:
NON RACEDAY INQUIRY BEFORE THE JUDICIAL CONTROL AUTHORITY
Non Race Day Judicial Committee: Mr Richard Seabrook, Chair - Mr N McCutcheon, Committee Member
Venue: Tauranga Racecourse
Date: 1 November 2014
Information No: A4353
Informant: Racing Integrity Unit - Mr A Coles, Stipendiary Steward
Respondent: Mr Isaac Lupton - Licensed Rider
Persons Present: Mr W Robinson, Stipendiary Steward
CHARGE:
1) That on Sunday 28 September 2014, at a race meeting conducted by the Waikato Racing Club at Te Rapa, Mr Lupton committed a breach of 638 (1) (a) of the NZ Rules of Racing in that as the rider of FACET in race 7 he rode in a foul manner. Therefore he is liable to the penalty or penalties which may be imposed upon him pursuant to the provisions of rule 803 of the said rules.
2) The particulars of the charge being that passing the 300 metres he struck the rider Michael McNellis about the body and head with his whip on at least four occasions.
RULE:
Rule 638 (1) (a)
This Rule reads as follows:
"a rider shall not ride a horse in a manner which the Judicial Committee considers to be foul"
At the outset of the enquiry and in answer to a question from the committee Mr Coles confirmed that Mr Lupton had been served a copy of the charge and the relevant rule. He also confirmed that Mr Lupton said he did not want to be present at the enquiry nor did he want to make any submissions whatsoever.
EVIDENCE:
Mr Robinson demonstrated the video films and pointed out to the committee that soon after turning for home BAD TASTE ridden by Mr McNellis did lug in onto FACET ridden by Mr Lupton making brief contact. However Mr Robinson submitted that Mr McNellis pulled off immediately but went on to show that shortly after this Mr Lupton raised his right arm out and struck Mr McNellis three or four times. He said at this stage there was a considerable gap between the two horses and he believed the action by Mr Lupton was deliberate.
SUBMISSIONS by Mr A Coles:
1. Isaac Lupton is a Class ‘D’ rider licenced with New Zealand Thoroughbred racing.
2. On Sunday 28 September 2014 Mr Lupton was in attendance at the meeting conducted by the Waikato Racing Club at Te Rapa racecourse.
3. Mr Lupton was engaged to ride three horses on the day’s programme including FACET, an acceptor in Race 7.
4. Mr Lupton duly fulfilled his engagement on FACET and finished in 8th place.
5. As part of their duties the Stewards viewed the race from their observation point from an elevated position in the grandstand.
6. When viewing the race live the Stewards noticed, near the 300 metres Mr Lupton’s whip come into contact with the body of rider Mr Michael McNellis on several occasions.
7. Following the race the Stewards examined the films and confirmed their observations that Mr Lupton struck Mr McNellis at least five times.
8. Mr Lupton and Mr McNellis were interviewed regarding the incident and advised that the matter would be adjourned pending further investigations.
9. The circumstances of the incident that led to the charge are very well depicted in the films of the race. The most telling film being the coverage from the turn camera which shows Mr Lupton looking to his right at Mr McNellis and then raising his right arm proceeding with an action in which the whip appears to hit rider McNellis on at least four occasions. These hits being on the body and skull cap of McNellis.
10. It is clear from all the films of the race that the strikes were intentional and directed at Mr McNellis.
11. In promulgating the charges levied upon Mr Lupton the Stewards determined that on the basis of both their visual evidence and that of the films that Mr Lupton intentionally struck Jockey McNellis.
12. The Stewards are firmly of the view that the actions of Mr Lupton constitute a breach of Rule 638(1)(a) – Foul riding.
13. In categorising the riding as foul riding the Stewards refer to the decision of the Racing Appeals Tribunal of Victoria concerning the appeal by Jockey Hartnett of 18 December 1989. In that Appeal Jockey Hartnett was charged with foul riding concerning the act of hitting another jockey and that Tribunal considered the difference between improper and foul riding in the following reason stated by Judge JH Forrester:
“… the second consideration as to whether the action of Hartnett, in leaning over and standing up and hitting Patton on the arm amounts to foul riding or, as suggested by Harnett's counsel, improper riding. The difference between improper and foul riding is, and I agree with the submission of counsel for the appellant here, a blurred area. We have been referred to, and I have read, Judge Nixon's decision in Lienert's case and / propose to quote his words on it: In one dictionary, ‘improper' is referred to as 'Being not in accordance with the rules, abnormal, incorrect or wrong, whereas 'foul', under the sub-heading "Sporting and Game" was defined as 'Contrary to the rules, irregular, unfair conduct and behaviour in the game or sporting event, an unfair action to handle or strike an opponent or attempt to handle or strike an opponent’ I point out that that definition clearly is not referable to racing”.
14. In Hartnett the Appeals Tribunal went on to make observations between improper and foul riding when they said;
It seems to me that foul riding must be a more serious offence than improper riding. What is improper may not necessarily be foul, but what is foul riding must, I think, almost of necessity be improper riding. So far as racing is concerned, it seems to me that foul riding must show a substantial degree of departure from the rules in the normal standards that are applied to a jockey riding in races. Put another way, the degree of villainy must be of a high nature to sheet home a charge of foul riding as opposed to improper riding.
15. The relevance of Hartnett is to demonstrate that a charge of foul riding is of far more significance than one of simply improper riding and as such any penalty imposed for a breach of the foul riding rule must be more demonstrable than one of improper conduct.
16. In this case the Stewards believe that the tenants of foul riding have been made out as Mr Lupton has intentionally struck jockey McNellis with the whip on five occasions.
17. The films of the race are unequivocal and leave no room for doubt or otherwise.
18. Commensurately the Stewards submit that the offending, on this occasion, is deserving of a significant period of suspension of Mr Lupton's licence to ride in races.
PENALTY SUBMISSIONS BY Mr A Coles:
19. With respect to the quantum of penalty the Stewards note that in previous matters where jockeys have been charged with intentionally using a whip to strike another jockey the sanction imposed by Judicial Committees has been a period of suspension in the range of 3 months.
20. To this end the Committee is referred to Mr AT 1996 Waikato RC, 3 months – Mr LT 1996 Thames JC, 3 months.
21. It is submitted that the above are reference points which are of relevance in this case.
22. Turning to the aggravating and mitigating factors the Stewards submit that an aggravating feature is that Mr McNellis was struck on five occasions.
23. In regards to mitigating factors Mr Lupton has admitted his wrongdoing at the earliest point and he also has an excellent record spanning seventeen years in which time he has ridden in 1066 races and has only offended the careless riding rule on very few occasions. Therefore his record - prior to this incident is considered excellent.
24. An additional factor which the Committee are invited to consider is that 'jumps riders' generally do not attract the same impost as do flat riders for the reason that their earning capacity is far more restricted than their flat counterparts. For offences of careless riding a discount in the range of 25% is commonly applied.
25. As submitted the Stewards recommend that a term of suspension is the appropriate sanction to be imposed and to this end we believe that the starting point should be three months.
26. However when the relevant factors are applied it is submitted that relief from this starting point should be afforded to Mr Lupton.
27. A more problematic matter however is how a suspension should be levied upon Mr Lupton. This being that with jumps racing occurring within a restricted date range and this year's jumps racing now concluded any suspension would need, in order to be real and effective, to start at the commencement of the new jumping season which is some months off.
28. NZTR informs that it intends to follow the same dates structure as this season with Highweight racing starting in the beginning of April 2015.
29. This being the case the Stewards submit that any suspension imposed would need to recognize racing from April 2015 onwards.
DECISION:
30. As the breach was admitted we find the charge proved.
REASONS FOR PENALTY:
31. The Committee carefully considered all submissions and evidence as presented. We also reviewed all the relevant films which clearly show Mr Lupton striking Mr McNellis on at least three occasions. We concede that just prior to the first strike made by MR Lupton, BAD TASTE ridden by Mr McNellis had been lugging in slightly making contact with Mr Lupton’s mount. However it was also clearly evident on the films that Mr McNellis then straightened his mount and there was a considerable gap between the two horses when Mr Lupton reached out to make his first strike. He then continued to strike Mr McNellis in quite an aggressive manner on another two or three occasions, an action which the Committee is satisfied was intentional.
32. Foul riding is the most serious charge a rider can face with respect to race riding. We find the breach on this occasion was at the top end as Mr Lupton’s actions were clearly deliberate and intentional. This is because he continued to strike Mr McNellis when there appeared to be no reason to do so.
PENALTY:
33. After taking all the above into account the committee believes that the starting point for such a serious breach should be no less than four months. However after considering Mr Lupton's admission of the breach and his outstanding record as far as race riding is concerned the committee is prepared to give Mr Lupton a 25% reduction from this starting point.
34. Accordingly Mr Lupton’s race riding license is suspended from 1 November until after racing on 30 June 2015. As jumps races and high weights do not start until 1 April 2015 this suspension is effectively one of a period of three months.
Mr R Seabrook Mr N McCutcheon
Chairman Committee Member
1 November 2014
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