Appeal SL McCaffrey v RIU 10 May 2012 – Decision dated 6 June 2012
ID: JCA18447
Hearing Type (Code):
harness-racing
Decision:
BEFORE AN APPEALS TRIBUNAL
HELD AT CAMBRIDGE
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr SL McCaffrey – Licensed Trainer and Horseman
Appellant
AND The Racing Integrity Unit on behalf of Harness Racing New Zealand - (Mr JM Muirhead, Stipendiary Steward appearing)
Respondent
Tribunal: BJ Scott (Chairman) – Mr JN Holloway (Panellist)
Date of Hearing: Thursday the 10th of May 2012
Present: Mr SL McCaffrey – the Appellant, Mr JM Muirhead – Stipendiary Steward representing the Respondent, Mr L Tidmarsh – Trainee Stipendiary Steward, Mr J Oatham – Stipendiary Steward, Observer
Date of Written Decision: 6th of June 2012
DECISION OF APPEALS TRIBUNAL
Background
1.1 This Appeal arose from a Decision of Judicial Committee at the Hawera Harness Racing Club’s Meeting on the 7th of April 2012.
1.2 The Informant on Race Day was Stipendiary Steward Mr TW Taumanu.
1.3 The Defendant on Race Day was Mr SL McCaffrey the Appellant in this Hearing
1.4 The charge on Race Day was pursuant to Rule 865(2) and it was alleged that Mr McCaffrey presented his horse BETTOR BLAZE to race without the notified pacifiers. The charge was defended.
1.5 The evidence before the Raceday Judicial Committee was that Mr Tidmarsh was stationed in the “Farrier Inspection Area” as designated by the Galloping Code. Mr Tidmarsh’s duties were to inspect the horse’s brands and he was also required to inspect each horse to ensure it was wearing the correct gear.
Mr Tidmarsh reported to Mr Taumanu prior to the start of Race 4 that Mr McCaffrey’s horse BETTOR BLAZE was presented without the notified pacifiers.
1.6 Mr McCaffrey was then presented with a Minor Infringement Notice but he refused to accept this and an Information was then served on him. Mr McCaffrey did not admit the breach.
1.7 Mr Tidmarsh in evidence to the Raceday Committee said that Mr McCaffrey had presented his horse in exactly the same manner as every other horse that had been presented all day in that he was sitting in the sulky like every other Driver.
1.8 Mr Tidmarsh said that if he had not been stationed where he was then Mr McCaffrey’s horse would have been able to go onto the track without the notified pacifiers. He said that the designated inspection area can only take one horse at a time so every horse is inspected in the same way and that was the most practicable place to do it.
1.9 Mr Taumanu told the Raceday Committee that Mr Tidmarsh was stationed at the junction of the saddling area and walkway to the birdcage. He said that once Drivers had passed the inspecting Steward then they are on a path directly to the birdcage. He further said that where Mr Tidmarsh was located was the best possible position to read the brands on the neck of the horses and in answer to a question from the Committee he said that it was only about the fourth time that the inspection of brands had been undertaken at the Hawera Racecourse and from his experience the birdcage was not the place to do that. He believed that the placement of Mr Tidmarsh was in the appropriate area.
1.10 Mr Taumanu also said that the Stewards maintained that if Mr McCaffrey was going to have the pacifiers on then he would have had them on by the time he reached the area where Mr Tidmarsh was positioned and if they weren’t on then it was clear he had forgotten to put them on his horse.
1.11 Mr McCaffrey said that when his horse was inspected he was not in the Assembly Area or in the birdcage and therefore he had not presented his horse to race and so was not at that point where he was required to have the pacifiers on. Mr McCaffrey told the Committee that his interpretation of when a horse is presented to race is based on what happens when there is a “walk over”. He said that this is when you present the horse to race and you get paid when you put the horse in the birdcage and not before. He said that the definition of when a horse is presented to race is a grey area.
1.12 In reaching its decision, the Raceday Committee stated that all the evidence presented by both parties had been considered and the Committee had also taken the opportunity to visit the inspection area and witness Mr Tidmarsh carry out his designated duties.
1.13 The Committee further said that it was clear that the point of inspection on this racecourse was the most practicable and safest area for the horses to be inspected prior to going into the birdcage.
1.14 The Committee then referred to the definition of “Assembly Area” within the Rules of Harness Racing which is:
“Assembly Area means the birdcage, parade ring or other area where horses are assembled prior to entering the track for the purposes of a race.”
1.15 The Committee Members advised that they were satisfied that at the designated inspection point on the Hawera track for this Meeting BETTOR BLAZE was presented to race and the Committee found the charge proved and ultimately imposed a fine of $100.00 on Mr McCaffrey.
1.16 Mr McCaffrey appeals from that decision.
Preliminary Matters
2.1 At the outset of this Hearing, Mr McCaffrey advised the Tribunal that he objected to Mr Muirhead appearing for the Respondent. His objection was on the grounds of bias on the part of Mr Muirhead.
2.2 Mr McCaffrey then advised the Committee that following his lodgement of a Notice of Appeal that Mr Muirhead had spoken to him two or three times on Raceday and had advised him not to proceed with the Appeal because he would not succeed.
2.3 Mr Muirhead for his part acknowledged speaking to Mr McCaffrey but said that he did not tell Mr McCaffrey that he would not succeed but rather that that was the Stewards’ opinion. He also said that he spoke to Mr McCaffrey in order to save him further costs.
2.4 The Committee considered Mr McCaffrey’s objection and then advised the parties that the objection would be noted but that the Appeal would continue with Mr Muirhead appearing on behalf of the Respondent. The Committee also expressed its concern to the parties about any alleged interference in the Appeal process.
2.5 Mr Muirhead presented several aerial photos of the relevant part of the Hawera Racecourse and these were marked with the various locations that Mr Tidmarsh stood at.
Appellant’s Submissions
3.1 Mr McCaffrey in his Notice of Appeal set out the following grounds:
(a) The Committee erred in fact and law;
(b) The Committee finding was not supported by evidence or the Rules of Harness Racing; and
(c) The conduct of the Informant was unfair and derogatory to others and the JCA Committee failed to stop this.
3.2 At the outset Mr McCaffrey stated that there were three decisions in this matter being firstly the oral decision given by the Raceday Committee, then an unsigned written decision and further, a signed written decision.
Mr McCaffrey referred to page 27 of the Guide for Judicial Committees which records:
“It is essential that oral decisions are recorded and that the only written version of the decision is a verbatim transcript of what was said orally.”
Mr McCaffrey said that as far as he was concerned the only valid decision was the oral decision on Raceday. The Tribunal explained to Mr McCaffrey the process of delivery of JCA decisions and explained to him that even though he thought he had received three versions they were in fact one in the same and there was only one decision. That was the signed decision that he had received. The unsigned written decision and the signed decision were both the same. It was explained to Mr McCaffrey that the Raceday Committee operates under considerable time constraints and an oral decision is given with the basic reasons and it is followed by the full written decision.
3.3 Mr McCaffrey had in his submissions concerning the decisions referred to certain Rules of Harness Racing and also referred to the Guide for Judicial Committees. He objected to the procedure and believed that it was wrong and he advised that this was one of the grounds for his Appeal.
3.4 Mr McCaffrey also submitted that there was a breach of natural justice in the way that the second and third decisions (his interpretation) were not communicated to him.
3.5 Mr McCaffrey then referred to the Raceday Committee taking the opportunity to visit the inspection area. He referred to an extract from the Raceday decision which stated:
“After hearing all the evidence that was presented, the Committee had the opportunity to visit the inspection area and witness Mr Tidmarsh carrying out his designated duties on this Racecourse. Those were the same duties he has carried out throughout the day for every race. We are quite clear now that at the point of inspection, Mr McCaffrey your horse was presented to race and because it was not wearing pacifiers, which were notified, you have breached Rule 865(2) the horse was presented in incorrect gear and we find the charge proven.”
Mr McCaffrey said that that extract from the decision recorded the sole reason for finding the charge proved.
3.6 Mr McCaffrey submitted that the procedure adopted by the Committee was unfair and wrong at law. He said that the Committee unbeknown to him carried out a scene visit and there was no notification given to him of this visit and he was not present when the Committee carried out its inspection. He further said that he did not know on what basis the Committee Members carried out their observations where Mr Tidmarsh was present. Mr McCaffrey further submitted that in his opinion the JCA Committee appeared to have become an Informant and gone out and sought to garner evidence. He also said that he was not sure whether there was any communication between Mr Tidmarsh and the Committee Members at the time of the inspection and he said that he should have been given the opportunity to be present.
3.7 Mr McCaffrey in his further submission referred to page 26 of the Guide for Judicial Committees which states:
“Decisions and decision making must be evidence based. No decision can be made without having a foundation, or a connection to, evidence presented at the Hearing.”
Mr McCaffrey submitted that the scene visit carried out by the Raceday Committee was not presented as evidence before the parties at the Hearing and he submitted that that was wrong.
3.8 Mr McCaffrey made further submissions about the procedure of the Raceday Committee being unfair and he submitted that the findings on the decision were not based on the evidence presented but on the observations of the Members of the Committee. He further said that the decision set out in the transcript of the Hearing makes no reference to the evidence given by the Informant’s witnesses or himself.
3.9 In a further submission Mr McCaffrey said that Mr Taumanu commenced the Raceday Hearing representing the Informant and that he had called Mr Tidmarsh as witness and then halfway through the Hearing Mr Muirhead took over the proceedings. He said that Mr Muirhead was not present when Mr Tidmarsh gave his evidence or when Mr Taumanu opened the case. He said that it was unfair that Mr Muirhead then took over as the Prosecutor and that he had not been given leave by the Raceday Committee to do so. He also submitted that Mr Muirhead had not only assumed the role of Prosecutor but also was giving evidence. He submitted that this should have been controlled by the Raceday JCA Committee.
3.10 Mr McCaffrey then submitted that there was a conflict in the evidence as to the location and the place of presentation and that this had not been dealt with by the Raceday Committee in its decision.
3.11 Mr McCaffrey also presented to the Tribunal an aerial photo taken from Google Maps of the relevant part of the Hawera Racecourse. This map shows the location of the stables and it shows an area at the northern end of the stables where the horses walk out under cover and then into a reasonably long walkway to the birdcage. He pointed out the location of Mr Tidmarsh and he submitted that Mr Tidmarsh was not in the Assembly Area. He said that the horses had to walk along the walkway from the stables to the birdcage and that at any time he could have turned back and put the pacifiers on his horse. He pointed out that at all other race tracks the horses assemble in the birdcage and then go out onto the track and at Hawera the horses would assemble in the birdcage before going onto the track also. He submitted that the walkway to the birdcage was not part of the Assembly Area and accordingly the charge against him should not have been upheld.
Evidence of Mr Tidmarsh
4.1 Mr Tidmarsh gave evidence that he was officiating at the Hawera Harness Club’s Meeting on the 7th of April 2012. He also referred to the aerial photograph of the appropriate part of the Hawera Racecourse and he referred to areas marked “A”, “B” and “C” on that photo.
“A” was at the point where the horses left the stabling area and went under the covered area and into the walkway to the birdcage;
“B” was prior to the birdcage; and
“C” was at the start of the walkway.
He said that those were the designated areas where he stood on Raceday.
4.2 Mr Tidmarsh then advised that nobody told him where to stand on the day he just chose those points himself. He thought they were the best positions.
4.3 He said that he had advised Mr Muirhead where he was located and was told that that was fine.
4.4 He did say that where he was located at the point marked “C” that Drivers could turn back if they had incorrect gear. He inspected 152 horses that day and three horses returned under his direction.
4.5 He thought that he was in the appropriate area although he did acknowledge moving sometime after Race 4 to the spot marked “B” on the aerial photo and he was then able to view the horses just prior to their entering the birdcage.
Submissions of Respondent
5.1 Mr Muirhead referred to Rule 878 in respect to Walk Over and Unfilled Places. Rule 878(1) refers to the situation where there is only one horse that checks out for a race then it must walk over unless the Stipendiary Stewards exempt it from doing so. He did accept that if there was no such exemption then the horse had to at least enter the birdcage.
5.2 He also referred to the aerial photos and confirmed that Mr Tidmarsh had advised him where he was positioned and he thought that that was fine. He confirmed that Mr Tidmarsh being positioned at the spot marked “C” did allow for Trainers to be sent back if they had incorrect gear.
5.3 He referred to Rule 212 and the powers of the Stipendiary Stewards and in particular he referred to Rule 212(1)(d) which states:
“Stipendiary Stewards shall have power to require any horse to be produced for inspection, examination or observation by any person specified by him or her at a time and place also so specified.”
5.4 In answer to Mr McCaffrey’s concerns about the change from Mr Taumanu to himself, Mr Muirhead advised the Tribunal that he was Chairman of the Stewards on the day and at the time of the Hearing he was busy with other Raceday matters and he asked Mr Taumanu to commence the Hearing. He participated in the Hearing as soon as he was free of his other duties.
5.5 Mr Muirhead in dealing with the definition of “Assembly Area” in the Rules stated that in his opinion the Assembly Area includes the birdcage and the walkway leading into it. He said that although not specified in the above definition the Rules do not preclude it. Mr Muirhead submitted that on the balance of probabilities the area where Mr Tidmarsh was standing at the time of inspecting Mr McCaffrey’s horse would be included in the Assembly Area. He said that what the Stewards were saying that if Mr Tidmarsh had not drawn the problem to Mr McCaffrey’s attention then he would have gone out and raced in incorrect gear.
Appellant’s Summary
6.1 Mr McCaffrey referred to the submissions that he had made on the various points of appeal. He said that the definition of Assembly Area does not cover the area where Mr Tidmarsh was standing and therefore the charge should not have been upheld.
Respondent’s Summary
7.1 Mr Muirhead again referred to the Rules and in particular the powers of the Stipendiary Stewards and in his opinion the horses were assembling to race once they entered the walkway prior to the birdcage.
Reasons for Decision
8.1 Mr McCaffrey has outlined a number of Grounds of Appeal including multiple decisions, the Raceday Committee visiting the inspection area and the conduct of the Hearing.
8.2 We have dealt with the multiple decisions as referred to earlier in this decision. In respect to the Raceday Committee viewing the inspection area without Mr McCaffrey being present, we would suggest that while it was well intentioned on the part of the Committee, that Mr McCaffrey should have been present. This is particularly so when the viewing of the inspection area is referred to in the decision.
The conduct of the Hearing and in particular the change from Mr Taumanu to Mr Muirhead did not, in our opinion, prejudice Mr McCaffrey.
8.3 The essence of this Appeal is whether Mr McCaffrey was in the Assembly Area at the time of inspection. Mr McCaffrey says that he wasn’t and Mr Muirhead submits that he was.
8.4 The aerial photos presented to us have been very helpful in this regard as has the straight forward evidence given by Mr Tidmarsh.
8.5 Mr Muirhead has referred us to Rule 212(1)(d) and suggested that that is sufficient for the point at which Mr Tidmarsh was standing to be included in the Assembly Area and therefore the charge on Raceday was upheld and that this Appeal should be dismissed.
The problem with that is that Rule 212(1)(d) requires some positive steps to be taken by the Stipendiary Stewards by notifying Trainers and Drivers that horses are to be produced for inspection and in a particular area. This did not happen at Hawera because Mr Tidmarsh has told us that he went to the various points of his own volition and advised Mr Muirhead afterwards.
There is also a further problem with this Rule in that the Tribunal believes that inspections envisaged by this Rule are one off inspections and would not include the general Raceday inspections of horses prior to going onto the track.
A further problem with this Rule is that the definition of Assembly Area denotes an area where a number of horses are assembled. In our view horses passing one by one along a chute have not assembled but are rather heading towards the Assembly Area. A dictionary definition of “Assembly” means “a coming together or a gathering of” (in this case) horses.
8.6 The evidence before us is very clear in that at the point of inspection the horses have not assembled nor do they in fact assemble in the walkway but rather they assemble in the birdcage. A further point is that the Assembly Area is the area where horses are assembled prior to entering the track. The walkway towards the birdcage is not part of this.
8.7 In our view therefore and based upon the submissions and evidence before us, the Appeal must succeed.
Decision
9.1 We accordingly uphold the Appeal.
Penalty and Costs
10.1 Mr McCaffrey has been successful in his Appeal. He has undertaken the Appeal himself but he is entitled to present Submissions as to Costs. We accordingly give Mr McCaffrey seven days from the date of receipt of this Appeal Decision to make written Submissions as to Costs and the RIU will have seven days therefrom to respond.
Decision Date: 07/04/2012
Publish Date: 07/04/2012
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.
hearingid: 12d9e00eb38bcea9254d0536ee46bc4c
informantnumber:
horsename:
hearing_racingtype: harness-racing
startdate: 07/04/2012
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Appeal SL McCaffrey v RIU 10 May 2012 - Decision dated 6 June 2012
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE AN APPEALS TRIBUNAL
HELD AT CAMBRIDGE
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr SL McCaffrey – Licensed Trainer and Horseman
Appellant
AND The Racing Integrity Unit on behalf of Harness Racing New Zealand - (Mr JM Muirhead, Stipendiary Steward appearing)
Respondent
Tribunal: BJ Scott (Chairman) – Mr JN Holloway (Panellist)
Date of Hearing: Thursday the 10th of May 2012
Present: Mr SL McCaffrey – the Appellant, Mr JM Muirhead – Stipendiary Steward representing the Respondent, Mr L Tidmarsh – Trainee Stipendiary Steward, Mr J Oatham – Stipendiary Steward, Observer
Date of Written Decision: 6th of June 2012
DECISION OF APPEALS TRIBUNAL
Background
1.1 This Appeal arose from a Decision of Judicial Committee at the Hawera Harness Racing Club’s Meeting on the 7th of April 2012.
1.2 The Informant on Race Day was Stipendiary Steward Mr TW Taumanu.
1.3 The Defendant on Race Day was Mr SL McCaffrey the Appellant in this Hearing
1.4 The charge on Race Day was pursuant to Rule 865(2) and it was alleged that Mr McCaffrey presented his horse BETTOR BLAZE to race without the notified pacifiers. The charge was defended.
1.5 The evidence before the Raceday Judicial Committee was that Mr Tidmarsh was stationed in the “Farrier Inspection Area” as designated by the Galloping Code. Mr Tidmarsh’s duties were to inspect the horse’s brands and he was also required to inspect each horse to ensure it was wearing the correct gear.
Mr Tidmarsh reported to Mr Taumanu prior to the start of Race 4 that Mr McCaffrey’s horse BETTOR BLAZE was presented without the notified pacifiers.
1.6 Mr McCaffrey was then presented with a Minor Infringement Notice but he refused to accept this and an Information was then served on him. Mr McCaffrey did not admit the breach.
1.7 Mr Tidmarsh in evidence to the Raceday Committee said that Mr McCaffrey had presented his horse in exactly the same manner as every other horse that had been presented all day in that he was sitting in the sulky like every other Driver.
1.8 Mr Tidmarsh said that if he had not been stationed where he was then Mr McCaffrey’s horse would have been able to go onto the track without the notified pacifiers. He said that the designated inspection area can only take one horse at a time so every horse is inspected in the same way and that was the most practicable place to do it.
1.9 Mr Taumanu told the Raceday Committee that Mr Tidmarsh was stationed at the junction of the saddling area and walkway to the birdcage. He said that once Drivers had passed the inspecting Steward then they are on a path directly to the birdcage. He further said that where Mr Tidmarsh was located was the best possible position to read the brands on the neck of the horses and in answer to a question from the Committee he said that it was only about the fourth time that the inspection of brands had been undertaken at the Hawera Racecourse and from his experience the birdcage was not the place to do that. He believed that the placement of Mr Tidmarsh was in the appropriate area.
1.10 Mr Taumanu also said that the Stewards maintained that if Mr McCaffrey was going to have the pacifiers on then he would have had them on by the time he reached the area where Mr Tidmarsh was positioned and if they weren’t on then it was clear he had forgotten to put them on his horse.
1.11 Mr McCaffrey said that when his horse was inspected he was not in the Assembly Area or in the birdcage and therefore he had not presented his horse to race and so was not at that point where he was required to have the pacifiers on. Mr McCaffrey told the Committee that his interpretation of when a horse is presented to race is based on what happens when there is a “walk over”. He said that this is when you present the horse to race and you get paid when you put the horse in the birdcage and not before. He said that the definition of when a horse is presented to race is a grey area.
1.12 In reaching its decision, the Raceday Committee stated that all the evidence presented by both parties had been considered and the Committee had also taken the opportunity to visit the inspection area and witness Mr Tidmarsh carry out his designated duties.
1.13 The Committee further said that it was clear that the point of inspection on this racecourse was the most practicable and safest area for the horses to be inspected prior to going into the birdcage.
1.14 The Committee then referred to the definition of “Assembly Area” within the Rules of Harness Racing which is:
“Assembly Area means the birdcage, parade ring or other area where horses are assembled prior to entering the track for the purposes of a race.”
1.15 The Committee Members advised that they were satisfied that at the designated inspection point on the Hawera track for this Meeting BETTOR BLAZE was presented to race and the Committee found the charge proved and ultimately imposed a fine of $100.00 on Mr McCaffrey.
1.16 Mr McCaffrey appeals from that decision.
Preliminary Matters
2.1 At the outset of this Hearing, Mr McCaffrey advised the Tribunal that he objected to Mr Muirhead appearing for the Respondent. His objection was on the grounds of bias on the part of Mr Muirhead.
2.2 Mr McCaffrey then advised the Committee that following his lodgement of a Notice of Appeal that Mr Muirhead had spoken to him two or three times on Raceday and had advised him not to proceed with the Appeal because he would not succeed.
2.3 Mr Muirhead for his part acknowledged speaking to Mr McCaffrey but said that he did not tell Mr McCaffrey that he would not succeed but rather that that was the Stewards’ opinion. He also said that he spoke to Mr McCaffrey in order to save him further costs.
2.4 The Committee considered Mr McCaffrey’s objection and then advised the parties that the objection would be noted but that the Appeal would continue with Mr Muirhead appearing on behalf of the Respondent. The Committee also expressed its concern to the parties about any alleged interference in the Appeal process.
2.5 Mr Muirhead presented several aerial photos of the relevant part of the Hawera Racecourse and these were marked with the various locations that Mr Tidmarsh stood at.
Appellant’s Submissions
3.1 Mr McCaffrey in his Notice of Appeal set out the following grounds:
(a) The Committee erred in fact and law;
(b) The Committee finding was not supported by evidence or the Rules of Harness Racing; and
(c) The conduct of the Informant was unfair and derogatory to others and the JCA Committee failed to stop this.
3.2 At the outset Mr McCaffrey stated that there were three decisions in this matter being firstly the oral decision given by the Raceday Committee, then an unsigned written decision and further, a signed written decision.
Mr McCaffrey referred to page 27 of the Guide for Judicial Committees which records:
“It is essential that oral decisions are recorded and that the only written version of the decision is a verbatim transcript of what was said orally.”
Mr McCaffrey said that as far as he was concerned the only valid decision was the oral decision on Raceday. The Tribunal explained to Mr McCaffrey the process of delivery of JCA decisions and explained to him that even though he thought he had received three versions they were in fact one in the same and there was only one decision. That was the signed decision that he had received. The unsigned written decision and the signed decision were both the same. It was explained to Mr McCaffrey that the Raceday Committee operates under considerable time constraints and an oral decision is given with the basic reasons and it is followed by the full written decision.
3.3 Mr McCaffrey had in his submissions concerning the decisions referred to certain Rules of Harness Racing and also referred to the Guide for Judicial Committees. He objected to the procedure and believed that it was wrong and he advised that this was one of the grounds for his Appeal.
3.4 Mr McCaffrey also submitted that there was a breach of natural justice in the way that the second and third decisions (his interpretation) were not communicated to him.
3.5 Mr McCaffrey then referred to the Raceday Committee taking the opportunity to visit the inspection area. He referred to an extract from the Raceday decision which stated:
“After hearing all the evidence that was presented, the Committee had the opportunity to visit the inspection area and witness Mr Tidmarsh carrying out his designated duties on this Racecourse. Those were the same duties he has carried out throughout the day for every race. We are quite clear now that at the point of inspection, Mr McCaffrey your horse was presented to race and because it was not wearing pacifiers, which were notified, you have breached Rule 865(2) the horse was presented in incorrect gear and we find the charge proven.”
Mr McCaffrey said that that extract from the decision recorded the sole reason for finding the charge proved.
3.6 Mr McCaffrey submitted that the procedure adopted by the Committee was unfair and wrong at law. He said that the Committee unbeknown to him carried out a scene visit and there was no notification given to him of this visit and he was not present when the Committee carried out its inspection. He further said that he did not know on what basis the Committee Members carried out their observations where Mr Tidmarsh was present. Mr McCaffrey further submitted that in his opinion the JCA Committee appeared to have become an Informant and gone out and sought to garner evidence. He also said that he was not sure whether there was any communication between Mr Tidmarsh and the Committee Members at the time of the inspection and he said that he should have been given the opportunity to be present.
3.7 Mr McCaffrey in his further submission referred to page 26 of the Guide for Judicial Committees which states:
“Decisions and decision making must be evidence based. No decision can be made without having a foundation, or a connection to, evidence presented at the Hearing.”
Mr McCaffrey submitted that the scene visit carried out by the Raceday Committee was not presented as evidence before the parties at the Hearing and he submitted that that was wrong.
3.8 Mr McCaffrey made further submissions about the procedure of the Raceday Committee being unfair and he submitted that the findings on the decision were not based on the evidence presented but on the observations of the Members of the Committee. He further said that the decision set out in the transcript of the Hearing makes no reference to the evidence given by the Informant’s witnesses or himself.
3.9 In a further submission Mr McCaffrey said that Mr Taumanu commenced the Raceday Hearing representing the Informant and that he had called Mr Tidmarsh as witness and then halfway through the Hearing Mr Muirhead took over the proceedings. He said that Mr Muirhead was not present when Mr Tidmarsh gave his evidence or when Mr Taumanu opened the case. He said that it was unfair that Mr Muirhead then took over as the Prosecutor and that he had not been given leave by the Raceday Committee to do so. He also submitted that Mr Muirhead had not only assumed the role of Prosecutor but also was giving evidence. He submitted that this should have been controlled by the Raceday JCA Committee.
3.10 Mr McCaffrey then submitted that there was a conflict in the evidence as to the location and the place of presentation and that this had not been dealt with by the Raceday Committee in its decision.
3.11 Mr McCaffrey also presented to the Tribunal an aerial photo taken from Google Maps of the relevant part of the Hawera Racecourse. This map shows the location of the stables and it shows an area at the northern end of the stables where the horses walk out under cover and then into a reasonably long walkway to the birdcage. He pointed out the location of Mr Tidmarsh and he submitted that Mr Tidmarsh was not in the Assembly Area. He said that the horses had to walk along the walkway from the stables to the birdcage and that at any time he could have turned back and put the pacifiers on his horse. He pointed out that at all other race tracks the horses assemble in the birdcage and then go out onto the track and at Hawera the horses would assemble in the birdcage before going onto the track also. He submitted that the walkway to the birdcage was not part of the Assembly Area and accordingly the charge against him should not have been upheld.
Evidence of Mr Tidmarsh
4.1 Mr Tidmarsh gave evidence that he was officiating at the Hawera Harness Club’s Meeting on the 7th of April 2012. He also referred to the aerial photograph of the appropriate part of the Hawera Racecourse and he referred to areas marked “A”, “B” and “C” on that photo.
“A” was at the point where the horses left the stabling area and went under the covered area and into the walkway to the birdcage;
“B” was prior to the birdcage; and
“C” was at the start of the walkway.
He said that those were the designated areas where he stood on Raceday.
4.2 Mr Tidmarsh then advised that nobody told him where to stand on the day he just chose those points himself. He thought they were the best positions.
4.3 He said that he had advised Mr Muirhead where he was located and was told that that was fine.
4.4 He did say that where he was located at the point marked “C” that Drivers could turn back if they had incorrect gear. He inspected 152 horses that day and three horses returned under his direction.
4.5 He thought that he was in the appropriate area although he did acknowledge moving sometime after Race 4 to the spot marked “B” on the aerial photo and he was then able to view the horses just prior to their entering the birdcage.
Submissions of Respondent
5.1 Mr Muirhead referred to Rule 878 in respect to Walk Over and Unfilled Places. Rule 878(1) refers to the situation where there is only one horse that checks out for a race then it must walk over unless the Stipendiary Stewards exempt it from doing so. He did accept that if there was no such exemption then the horse had to at least enter the birdcage.
5.2 He also referred to the aerial photos and confirmed that Mr Tidmarsh had advised him where he was positioned and he thought that that was fine. He confirmed that Mr Tidmarsh being positioned at the spot marked “C” did allow for Trainers to be sent back if they had incorrect gear.
5.3 He referred to Rule 212 and the powers of the Stipendiary Stewards and in particular he referred to Rule 212(1)(d) which states:
“Stipendiary Stewards shall have power to require any horse to be produced for inspection, examination or observation by any person specified by him or her at a time and place also so specified.”
5.4 In answer to Mr McCaffrey’s concerns about the change from Mr Taumanu to himself, Mr Muirhead advised the Tribunal that he was Chairman of the Stewards on the day and at the time of the Hearing he was busy with other Raceday matters and he asked Mr Taumanu to commence the Hearing. He participated in the Hearing as soon as he was free of his other duties.
5.5 Mr Muirhead in dealing with the definition of “Assembly Area” in the Rules stated that in his opinion the Assembly Area includes the birdcage and the walkway leading into it. He said that although not specified in the above definition the Rules do not preclude it. Mr Muirhead submitted that on the balance of probabilities the area where Mr Tidmarsh was standing at the time of inspecting Mr McCaffrey’s horse would be included in the Assembly Area. He said that what the Stewards were saying that if Mr Tidmarsh had not drawn the problem to Mr McCaffrey’s attention then he would have gone out and raced in incorrect gear.
Appellant’s Summary
6.1 Mr McCaffrey referred to the submissions that he had made on the various points of appeal. He said that the definition of Assembly Area does not cover the area where Mr Tidmarsh was standing and therefore the charge should not have been upheld.
Respondent’s Summary
7.1 Mr Muirhead again referred to the Rules and in particular the powers of the Stipendiary Stewards and in his opinion the horses were assembling to race once they entered the walkway prior to the birdcage.
Reasons for Decision
8.1 Mr McCaffrey has outlined a number of Grounds of Appeal including multiple decisions, the Raceday Committee visiting the inspection area and the conduct of the Hearing.
8.2 We have dealt with the multiple decisions as referred to earlier in this decision. In respect to the Raceday Committee viewing the inspection area without Mr McCaffrey being present, we would suggest that while it was well intentioned on the part of the Committee, that Mr McCaffrey should have been present. This is particularly so when the viewing of the inspection area is referred to in the decision.
The conduct of the Hearing and in particular the change from Mr Taumanu to Mr Muirhead did not, in our opinion, prejudice Mr McCaffrey.
8.3 The essence of this Appeal is whether Mr McCaffrey was in the Assembly Area at the time of inspection. Mr McCaffrey says that he wasn’t and Mr Muirhead submits that he was.
8.4 The aerial photos presented to us have been very helpful in this regard as has the straight forward evidence given by Mr Tidmarsh.
8.5 Mr Muirhead has referred us to Rule 212(1)(d) and suggested that that is sufficient for the point at which Mr Tidmarsh was standing to be included in the Assembly Area and therefore the charge on Raceday was upheld and that this Appeal should be dismissed.
The problem with that is that Rule 212(1)(d) requires some positive steps to be taken by the Stipendiary Stewards by notifying Trainers and Drivers that horses are to be produced for inspection and in a particular area. This did not happen at Hawera because Mr Tidmarsh has told us that he went to the various points of his own volition and advised Mr Muirhead afterwards.
There is also a further problem with this Rule in that the Tribunal believes that inspections envisaged by this Rule are one off inspections and would not include the general Raceday inspections of horses prior to going onto the track.
A further problem with this Rule is that the definition of Assembly Area denotes an area where a number of horses are assembled. In our view horses passing one by one along a chute have not assembled but are rather heading towards the Assembly Area. A dictionary definition of “Assembly” means “a coming together or a gathering of” (in this case) horses.
8.6 The evidence before us is very clear in that at the point of inspection the horses have not assembled nor do they in fact assemble in the walkway but rather they assemble in the birdcage. A further point is that the Assembly Area is the area where horses are assembled prior to entering the track. The walkway towards the birdcage is not part of this.
8.7 In our view therefore and based upon the submissions and evidence before us, the Appeal must succeed.
Decision
9.1 We accordingly uphold the Appeal.
Penalty and Costs
10.1 Mr McCaffrey has been successful in his Appeal. He has undertaken the Appeal himself but he is entitled to present Submissions as to Costs. We accordingly give Mr McCaffrey seven days from the date of receipt of this Appeal Decision to make written Submissions as to Costs and the RIU will have seven days therefrom to respond.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
hearing_type: Old Hearing
Rules: 865(2)
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent:
StipendSteward:
raceid:
race_expapproval:
racecancelled:
race_noreport:
race_emailed1:
race_emailed2:
race_title:
submittochair:
race_expappcomment:
race_km:
race_otherexp:
race_chair:
race_pm1:
race_pm2:
meetid:
meet_expapproval:
meet_noreport:
waitingforpublication:
meet_emailed1:
meet_emailed2:
meetdate: no date provided
meet_title:
meet_expappcomment:
meet_km:
meet_otherexp:
tracklocation:
meet_racingtype:
meet_chair:
meet_pm1:
meet_pm2:
name: