Non-Raceday Inquiry – CW Johnson

hearingid: 3ef2c25eb26794e2a8f9b2fd1fe78c39

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - CW Johnson

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Decision:

As a result of the manner in which the horse "Futureproof" was ridden by Mr Christopher William Johnson, Licensed Jockey, in Race 2 at the Wairarapa Racing Club meeting at Tauherenikau Racecourse on Tuesday 6^th February 2007, Chief Stipendiary Steward, Mr Cameron George preferred a charge against Mr Johnson pursuant to Rule 866(1)(b) of the Rules of Racing.

RESERVED DECISION OF JUDICIAL COMMITTEE

THE CHARGE:

As a result of the manner in which the horse "Futureproof" was ridden by Mr Christopher William Johnson, Licensed Jockey, in Race 2 at the Wairarapa Racing Club meeting at Tauherenikau Racecourse on Tuesday 6^th February 2007, Chief Stipendiary Steward, Mr Cameron George preferred a charge against Mr Johnson pursuant to Rule 866(1)(b) of the Rules of Racing. Mr George alleged that:

THE RULE

"Rule 866(1)?

(b) ? being the rider of a horse in a race, fails to take all reasonable

and permissible measures throughout the race to ensure that

his horse is given full opportunity to win the race or to obtain

the best possible finishing place and position;.

"Futureproof" was a starter in the Randwick Meats 1400m at the Wairarapa Racing Club's meeting held on 6^th February 2007 at the Tauherenikau Racecourse. "Futureproof" was one of seven starters, and was ridden by CW Johnson, Licensed Jockey. The horse was not a particularly favoured runner. The race book indicated that the horse was having its nineteenth start, having won three races during its racing career with three seconds, two thirds and two fourths, for a total stake money of $26,325. The horse had had seven starts over 1400m for two wins and two seconds over that distance. The horse drew number 7 (i.e. the outside stall) at the barrier.

On release, "Futureproof" did not have a particularly good start and Mr Johnson elected to settle his mount on the hind quarters of "Jaunt" (Mr P Taylor). Racing slightly ahead of "Jaunt" but two horse widths off the fence, was "Kilgarnie Lass" (Mr J Parkes). The pace was slow.

The horses ran on to approximately the 800m and at that point, the pace quickened. "Kilgarnie Lass" commenced a movement around the horses on its inner, and as a consequence of that, "Jaunt" followed. Within a few strides, the gap between "Futureproof" and the rest of the field was approximately one length. The pace of the field improved further, with the consequence being that "Futureproof" was left some two to three lengths behind the field. It should be noted at this point, that that part of the Tauherenikau track from approximately the 700m mark to the bend, which is approximately 380m from the winning post, is described as a "dummy straight".

As the horses came to the bend, they then spread out in the run home to the winning post. "Futureproof's" position was still two to three lengths behind the field some two to three horse widths off the running rail. "Futureproof" appeared, as a result of Mr Johnson's urgings, to pick up in speed but then, for a distance of at least 100m or more, "Futureproof" was "stuck" behind the field until such time as gaps began to appear. Under Mr Johnson's urgings, "Futureproof" regained speed, made its way through gaps in the field and finished on strongly, being beaten by a margin of a long neck for first place.

It should be noted at the outset that Mr George had no complaint to make about Mr Johnson's riding tactics for the first 650m or so. He was satisfied that Mr Johnson had the right to settle his horse at the rear of the field in the manner that he did, having regard to the start that the horse achieved.

Furthermore, Mr George had no complaint about Mr Johnson's riding of the horse in the last 250m. The prosecution's concern was that from approximately the 700m mark until approximately 400m from home, it was the prosecution's view that Mr Johnson had an opportunity to put "himself in to the race", on two occasions. The prosecution took the view that as soon as the pace quickened, that Mr Johnson should have tracked around the field with "Kilgarnie Lass". Instead, Mr Johnson allowed his mount to stay at the rear of the field with the consequence being that "Jaunt" then moved across a line which he, Johnson, should have taken. Mr George submitted, in his evidence, that this is what a jockey with Mr Johnson's experience should have anticipated and, in fact, should have done.

Mr George considered that the result of Mr Johnson's failure to improve with "Kilgarnie Lass", in particular, at this stage of the race, negated "Futureproof" from obtaining a better chance of winning the race. He believed that the most logical tactic for Mr Johnson to adopt at this point was to improve his mount so as not to lose ground on his competitors. Mr Johnson, quite clearly, from the video evidence, did lose ground. To all intents and purposes, Mr George was alleging that to improve in the manner that he believed Mr Johnson should have improved, would have been "a reasonable and permissible measure" in terms of Rule 866(1)(b), to take, in order to give the horse full opportunity to win.

Mr George then addressed the second particular of the charge in which he alleged that Mr Johnson, near the 400m mark, failed to shift to the outside of the field, which would have given "Futureproof" a clear run to the line. The essence of Mr George's case in this regard, was by Mr Johnson remaining some two to three widths off the rail, behind the field, that he caused the horse to be "held up". Mr George was firmly of the view that Mr Johnson should have been in a position, at the 400m mark, to move around the field and to give "Futureproof" a straight run to the line. Mr George was in no doubt that had Mr Johnson done that, that "Futureproof" would have won the race.

Mr George demonstrated the incident on the video coverage of the race. Three films were shown from varying angles. Mr George submitted to us that Mr Johnson took a "low percentage" option by staying in the position that he did and, therefore, left matters to chance.

Mr George produced the transcript of the Steward's inquiry as an exhibit.

On race day, the race was subjected to lengthy scrutiny and Mr Johnson was questioned in some depth about various aspects of the race. Mr Johnson was asked, in the first instance, what his riding instructions were. Mr Johnson responded that he was told not to go to the lead and to try and ride the horse mid field. Because he drew the outside, he was going to get three deep but instead, he dropped back to last. As the questioning continued, Mr Johnson's responses were somewhat equivocal in that as the inquiry progressed, he said he was told to "look for runs through them on the horse" and then he conceded that his instructions were "to ride for luck". Mr Johnson then said that he did not actually want to go up where he ended going up.

Mr Johnson conceded that there was an opportunity for him to get on the back of"Kilgarnie Lass" just after the 600m mark but said that he was not actually prepared to go at that stage. His reason was that because there had been no pace on early in the race, that he knew that "once they got to the 400m, they were going to be getting along fairly quick". As the inquiry progressed, and when Mr George began his line of questioning with regard to the second element of the charge, Mr Johnson said he was going to be "sweating on a run" as a result of him going to the inside on the home turn. He then said "I probably should have brought him to the outside, Sir."

When Mr Johnson was shown the video coverage of the race, he conceded that if he had done what Mr George believed he should have done, that he "probably would have done better". He conceded that some aspects of his ride were not the right options to take but prefaced his admissions with the word "probably".

Mr J Lynds, the trainer of "Futureproof", was questioned by Mr George. Mr George asked Mr Lynds what riding instructions were given to Mr Johnson. He responded by saying that his instructions were to get the horse's breathing right, and to settle the horse in a position to get his breathing right. He said that Mr Johnson wanted to put the horse to the back of the field. Mr Lynds said that he left that to Mr Johnson, but emphasised that he was not to get caught wide. Mr Lynds confirmed to Mr George that he did not instruct Mr Johnson to either "ride for luck" or "come wide in the straight" or anything like that. Mr Lynds confirmed that he left that to Mr Johnson's judgement. Mr Lynds confirmed to Mr George that he did not have any strong opinion as to the likelihood of "Futureproof" succeeding in the race because of its indifferent racing record.

Mr Johnson was then subjected to further vigorous questioning about the incident by Mr George, which line of questioning, was essentially repetitive of the early part of the inquiry.

Mr Tannahill commenced his cross examination of Mr George by asking Mr George to outline his experience as a Stipendiary Steward to the hearing. Mr George responded by outlining the significant experience he has had in the racing industry from his late teens in Australia, at a country and metropolitan level, through to his appointment as the Chief Stipendiary Steward by New Zealand Thoroughbred Racing. We comment at this point that it was quite clear from this line of questioning that Mr Tannahill was endeavouring to challenge Mr George's ability and qualifications to "read a race" and to present a charge such as the one before this hearing. Quite frankly, we were unimpressed by this line of questioning which, from the point of view of endeavouring to damage the prosecution case, had no impact on us, particularly in light of the fact that Mr Tannahill did not call any evidence to suggest that Mr George did not have the requisite skills to bring such a charge as the one in question. We are satisfied that Mr George has the necessary skills and we therefore pay no heed to any implication on Mr Tannahill's part to the contrary.

Mr Tannahill then turned his attention to various sections of the race in terms of his cross examination of Mr George. He questioned whether or not "Futureproof" "knuckled over" at the start. Mr George did not agree. Mr Tannahill then questioned Mr George about the first 600m or 700m of the race. Mr George agreed that Mr Johnson had elected not to rush the horse up on the field. Mr George was then questioned about Mr Johnson's decision at the bend, not to move to the outside of the field for the run home. Mr Tannahill asked if Mr George agreed that if Mr Johnson had gone to the outside, that he would have been some four to five horse widths out. Mr George agreed that that may have been the case. Mr Tannahill then suggested to Mr George that if Mr Johnson had done that, that the horse, "Futureproof", would not have won the race. Mr George agreed that it was conjecture, but maintained his view that that was the option that Mr Johnson should have taken. Mr George conceded, in answer to a question from Mr Tannahill, that Mr Johnson had the reputation of being a patient rider. It was then put to Mr George that Mr Johnson had been caught flat footed at around the 700m mark, to which Mr George responded that Mr Johnson did not endeavour to improve with the field, and "Kilgarnie Lass" in particular, at that point, which was the essence of his case in so far as the first element of the charge was concerned.

Mr Tannahill then suggested to Mr George that Mr George would not have said anything to Mr Johnson if the race had been won by "Futureproof". Mr George agreed that he would not have said anything because if the horse had won, then Mr Johnson would have discharged his duties to the owners and the betting public.

Mr Tannahill submitted, at the outset, that there was no case for Mr Johnson to answer. In support of this submission, Mr Tannahill stated that the horse had failed in previous starts due to it being ridden in different ways (and by different jockeys). He said that the horse had "knuckled over" at the start, and was quite slow away and that Mr Johnson's primary focus in the first 600m to 700m of the race was to get the horse to settle. He said that because the pace was slow, that this made it more difficult for Mr Johnson and that by the time the horses reached the 800m mark, Mr Johnson may have been in last place in a field of seven but he was not that far off the leaders. He submitted that the Tauherenikau track is a course with its own peculiarities. He pointed out that even though "Kilgarnie Lass" and "Jaunt" went "three wide" that Mr Johnson made a conscious decision not to go wide, and that he opted for patience. He then said that Mr Johnson was caught flat footed and lost ground, but did not panic. He said that instead of going wide, Mr Johnson waited for a run which is something that Mr Johnson has done on many occasions. He said that Mr Johnson then got the run he was looking for, a fraction too late.

After hearing Mr Tannahill's submission, we retired briefly to confer on this submission. We concluded that there was a case to answer and we now set out our reasons as to why, at that point of the hearing, we considered there was a prima facie case:

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1. The video evidence did, on the face of it, demonstrate that other options were available to Mr Johnson, particularly at the point when the pace quickened;
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2. In the Steward's inquiry, Mr Johnson made a number of concessions with regard to the options that were available to him, which were in accordance with the allegations that Mr George has made in this case;
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3. This Committee has no doubt that Mr George was justified in bringing this charge before a Judicial Panel, having regard to the factors mentioned above;
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4. Having regard to the matters mentioned above, and in particular to the concessions made by Mr Johnson in the race day inquiry, it is therefore important, in terms of this Committee determining the charge before it, that evidence be heard from the defence with regard to the charge.

Mr Tannahill called Mr Johnson. Mr Johnson outlined his experience as a jockey and horseman and we are satisfied that Mr Johnson does have extensive experience. We record that as at the date of the hearing, Mr Johnson has had in excess of 14,400 race day rides, and in his career, has ridden in excess of 1,300 winners.

Mr Johnson then produced a film of his previous rides on "Futureproof". He told the Committee that he rode "Futureproof" at Otaki on 14^th November 2006. He said that his riding instructions on that day were to ride the horse "handy". He said that his horse jumped well and hit the lead for a few strides. He finished third.

Other films of the horse's racing career was produced by Mr Johnson, although he confirmed that he did not ride "Futureproof" at earlier starts at Palmerston North or at Trentham.

Mr Johnson said that smaller fields are harder to ride in than larger fields, as a ride in smaller fields is more tactical.

In so far as the subject race was concerned, Mr Johnson said that he was instructed not to be "caught wide" but that the rest was up to him. He said that "Futureproof" was very keen and that it took him a lot of time to settle the horse down. He elected to steady him back at the rear of the field.

However, around the 600m or 700m mark, Mr Johnson stated that the pace quickened considerably and that when "Kilgarnie Lass" improved, he did not, in fact, see "Kilgarnie Lass" go out. He said that "Jaunt" just came off the fence and tracked round on "Kilgarnie Lass". Mr Johnson stated that the way the race was being run, he elected to latch on to the tail of the field and to not follow "Kilgarnie Lass" around after he became aware that that horse, in fact, had gone. He said that the home turn is just after the "dummy straight". Mr Johnson described that horses race around the home turn quite well, and that it is not a sudden tight turn, although he said it is "reasonably tight".

Mr Johnson recounted that when he was an apprentice if he ever went four or five wide, that he would be severely criticised by his trainers for doing so, and thus he stated that it is not really his style to go wide if he can avoid it. On this occasion, he elected to go up the middle.

Mr Johnson then told the hearing that he believed that if he had gone around to the outside, that he would have got beaten. He said that the horse was "no Phar Lap". He stated that he finished with a strong hands and heels ride. He said that he was caught flat footed, prior to the turn, but that by the 200m mark, the horse had come in to the race "quite well".

In response to a question from Mr Tannahill, Mr Johnson said that he had, having watched the videos on many occasions, reflected on his ride. He said to the hearing that he honestly felt that he took the right option to finish in the best possible place. He told the hearing that he was interviewed by the Stipendiary Steward not long after the race, and was asked back in to the Steward's room on two further occasions to answer questions about his ride.

He told the hearing that he had been criticised by the connections of "Futureproof" for the manner in which he rode the horse at Otaki, but there was no criticism of his performance in the ride on the day in question.

Mr George asked if, around the 700m mark, there was a "dummy straight" of some 250m/300m in length. Mr Johnson agreed. Mr George then put it to Mr Johnson that he would have been going in a straight line at that point, and that if Mr Johnson had run three wide in order to track up on "Kilgarnie Lass", that he would not have had to go over extra ground. Mr Johnson agreed. It was then put to Mr Johnson that had that option been chosen, that he would then have been in a better position to make a clear run to the straight from the outside of the field. Mr Johnson agreed that was the case.

Mr George then asked Mr Johnson if it was the case that he did not take that outside run because he had been caught flat footed. Mr Johnson responded to this line of questioning by saying that it would not have been reasonable for him to increase speed at the 700m mark by being "carted in to the race" by "Kilgarnie Lass" because he said that if he had elected to go at that point, then he did not believe that he would have finished second. He said that he did not think seriously about following "Kilgarnie Lass" around because he was still settling "Futureproof" as the pace quickened. He said that "Futureproof" might have battled if taken to the outside, in any event.

Mr Tannahill did not have any re-examination of Mr Johnson.

Mr Lynds confirmed to the hearing that he was the trainer of "Futureproof". He told the hearing that Mr Johnson had ridden "Futureproof" on 14^th November at the Otaki Maori Racing Club meeting. He said that Mr Johnson drew on the outside and ran the race three wide in a small field, finishing third. He said that Mr Johnson was criticised for this ride and that the owners of the horse preferred a nickname of "Three Wide Johnson" as a result of this performance.

Mr Lynds told the hearing that "Futureproof" was an indifferent horse, and that it was not "thoroughly genuine". He felt that the horse could have been "over trained" and that he was not expecting a great performance from the horse. He, and the connections of the horse, were quite satisfied with the result achieved on the day and he accepted Mr Johnson's explanation to him that the horse had "pulled" in the early stages of the race, and that the horse took some time to settle.

Mr Lynds emphasised that he did not want the horse to be three wide, as he said that in his opinion, the horse did not have an ability to win races from a wide position.

In summary, he said that he felt that Mr Johnson had balanced the horse well, and, in his opinion, Mr Johnson did everything he could, to get the horse "underneath him" in order to achieve the result that was achieved. He said that "Futureproof" finished out the race in a way that it had never done before, and that his analysis of the race was that he could understand what Mr Johnson was trying to achieve.

He told the hearing that, in his opinion, Mr Johnson's performance was a fraction of a second away from being a brilliant ride.

Mr Lynds explained to the hearing what he had meant in the Steward's inquiry when he referred to the Tauherenikau track as being one where it is advantageous to sit on the fence in order to get a "kick on" from a rails position. He took the view that if a rider is able to kick on his horse on the rails run, then that is due to good "synergy" between horse and rider.

Mr Lynds was then cross examined briefly by Mr George. Questions were asked of the riding instructions, and Mr Lynds again confirmed that he more or less gave Mr Johnson full discretion, but with a specific instruction not to go wide. Mr George put it to Mr Lynds that "Futureproof" was beaten because it did not accelerate with the field at the appropriate time, and that as a consequence, Mr Johnson put the horse in a situation where it was held up. Mr Lynds responded by saying that if the horse was a better accelerator, then it would have won. He added that the horse performed far better than credit has been given for. Mr Lynds could not say if the horse had clear running in the manner that Mr George put to him, that it would have won.

Mr Tannahill did not have re-examination of Mr Lynds.

Mr George presented written submissions by way of summary, and we are grateful to him for that.

Mr George stated that Stipendiary Stewards are charged with the responsibility of protecting the integrity of racing in New Zealand. Stipendiary Stewards are also responsible for maintaining and enhancing public confidence in the horse racing industry. Mr George said that New Zealand racing has seen many recent changes, and one significant change is that we are now an international product, and there is not only nationally, but internationally, an acceptance level on riders when they ride in a race.

Mr George submitted that the prosecution evidence clearly proves that Mr Johnson's ride on "Futureproof" fell well below the level of objective acceptance and/or opinion. Mr George produced to the hearing, a decision of a Judicial Committee dated 18^th February 2005 in the case of Harness Racing New Zealand v WE Higgs where the Chairman of the Judicial Committee, Mr RG McKenzie, said:

"The Rule requires both demonstration of tactics which can, by objective standards, be said to be both reasonable and permissible. Those have to be tactics which can be seen by not only the Stipendiary Stewards, but also those present at the race track, and in particular by the betting public, to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The informant does not have to prove any deliberate intent not to win the race. There may be circumstances in which a driver's manner of driving may amount to merely a permissible error of tactics, but when that error tactics amounts to bad judgment, that results in disadvantage to his horse, then such manner of driving falls within the terms of the Rule."

He then submitted that there had been a display of bad judgment, lack of attention and negligence throughout Mr Johnson's handling of "Futureproof" in the race. He submitted that this level of riding cannot be acceptable from an experienced rider of Mr Johnson's ability.

Mr George then referred us to J Cassidy v Racing New South Wales where the Chairman of a Racing Appeals Committee, Mr Peter Capelin, Q.C., said:

"Jim Cassidy is a most experienced and competent rider, and that those engaged in the industry and the public who bet on the races, can normally take an extreme amount of confidence that his mounts will be ridden competently and without unreasonable error."

Mr George then referred us to a further Australian decision in the case of Sheehan v Racing New South Wales where the Chairman, Mr M Einfield, Q.C., stated:

"The racing, and in particular, the betting fraternity, is entitled to expect that any race jockey, in particular senior and experienced race jockeys, will handle any mount to the best of his or her ability on every occasion. The racing and betting fraternities are entitled to expect that every horse will be ridden so as to ensure it will be provided every opportunity to perform to its best capacity. In the ordinary run of events, it will be no excuse for any race rider to point to extraneous circumstances to explain poor rides."

Mr George then went on to say that if the evidence presented by the prosecution is looked at objectively, that the Committee does not have to find any intent in the actions of Mr Johnson, but to consider Mr Johnson's ride as if we were a "normal person who had put hard earned money on "Futureproof" and then asked oneself, did my investment get every chance to win the race?" Mr George said that Mr Johnson failed in his duties, and displayed bad judgment and negligence between the 700m and 400m marks which type of riding is unacceptable.

Mr Tannahill submitted to the hearing that the prosecution had not made out its case to the required standard of proof. Mr Tannahill referred us to a decision of a Judicial Committee dated 27^th November 2006 in the case of New Zealand Thoroughbred Racing v DM Walsh where the Chairman of the Judicial Committee said, at page 7 of the decision:

"Mr Alderslade asked us to apply the criminal standard of proof of beyond reasonable doubt. We do not apply that standard but rather, having regard to the seriousness of the nature of the charge, whether we are satisfied, on the basis of credible evidence, that the charge has been proved."

He submitted to us that the onus, at all times, remains on the Stipendiary Stewards to satisfy this Committee to that standard of proof. We agree with that submission.

Mr Tannahill submitted that all of the evidence produced by the prosecution was essentially that of conjecture. Mr Tannahill said that it may well have been the case that if another line had been taken by "Futureproof" that it would have won the race. He submitted that if "Futureproof" had got up on even terms with the eventual winner, that the eventual winner may have fought back and still won the race. He pointed us to the fact that the margin at the finish was that of a long neck, and that Mr Lynds, the trainer, thought that it was a brilliant ride on Mr Johnson's part. He further said that the issues came down to the choice of options. He submitted that Mr Johnson, as a patient and experienced rider, elected to stay where he was, to take a run on the inside rather than go to the outside. He submitted that Mr Johnson was entitled to make that decision.

1. In order to find this charge proved, we must be satisfied that Mr Johnson failed to take all reasonable and permissible measures, throughout the race, so as to give "Futureproof" the full opportunity to win, or to obtain the best possible finishing place.

2. The onus is on the prosecution to prove its case to our satisfaction. We agree that the standard of proof applied in the Collett decision is the appropriate standard of proof, and by way of clarification, we consider that that standard of proof is to a balance of probabilities but to take into account the further qualification that the charge is, indeed, a serious one. With that qualification in mind, the standard of proof is high, but not the very high standard of beyond reasonable doubt. The charge imports connotations of incompetence, or negligence at the lower end of the scale, or deliberate cheating by "pulling" a horse at the upper end. We hasten to add, at this point, that no such suggestion has been made by Mr George that Mr Johnson had any ulterior motive for his riding tactics. If such had been the case, then a charge pursuant to Rule 866(1)(a) would have been preferred. A charge pursuant to that Rule is undoubtedly more serious in nature than the Rule that we are currently considering.

3. We record, at this point, that the decisions made in the various cases that have been put to us, are not binding on this Committee, but they most certainly are strongly persuasive in effect, and indeed, as we have said, we agree that the standard of proof required in this case is that as stated in the Collett decision.

4. A charge pursuant to this Rule is not an easy matter for this Committee. We share the views of Mr P Capelin, Q.C., in the Cassidy decision, where he said:

"The Rule is not an easy one to interpret, It has been subject to consideration by prior Appeal Panels and by the Racing Appeals Tribunal. One of the leading cases is Honan, a decision of Judge Goran on 26^th October 1983. That was a case before the Harness Racing Appeals

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hearing_type: Old Hearing

Rules: 866.1.b, 866.1, 866.1.a

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