Appeal J Abernethy v RIU 10 March 2011 – Decision 16 March 2011

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hearing_title: Appeal J Abernethy v RIU 10 March 2011 - Decision 16 March 2011

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APPEAL HEARING : JAYESH ABERNETHY v HARNESS RACING NZ
HEARD AT TE RAPA RACECOURSE, HAMILTON
THURSDAY 10TH MARCH 2011

APPEALS TRIBUNAL Mr Murray McKechnie, Chairman and Mr Bryan Scott

PRESENT Mr Jayesh Abernethy, Mr Rob Lawson advocate for Mr Abernethy,

                Mr Tom Taumanu, Stipendiary Steward, Mr John Oatham, Registrar

1. NATURE OF APPEAL
1.1 This is an appeal by Mr Jayesh Abernethy in respect of a decision made by a Judicial Committee at the Stratford Harness Club meeting on the 13th February this year. Mr Abernethy was charged under Rule 869(3)(a) that he did drive incompetently the horse Major Seelster in the first race on the programme that day. It was said that Mr Abernethy allowed the horse to pace for approximately 1800m in a 2600m trotting race.
1.2 Mr Abernethy pleaded guilty to the charge. He was suspended until the 3rd March this year and fined a sum of $3,000.00. This appeal is not concerned with the period of suspension. That is accepted. The appeal is directed solely to the level of the fine imposed.
1.3 On the day in question Mr Taumanu appeared for Harness Racing New Zealand and has appeared here today on behalf of the Integrity Unit. Mr Abernethy has been represented today by the experienced lay advocate Mr Rob Lawson.

2. PROCEDURE
2.1 On the day in question Mr Abernethy was not offered the opportunity of an adjournment. The practice of the JCA is that when persons are charged with serious racing offences – this has application both under the Rules of Harness Racing and Rules of Thoroughbred Racing – the Judicial Committee should offer the licence holder the opportunity to have the proceedings adjourned so that he or she may prepare whatever defence or explanation is to be offered. It is not the obligation of the stewards to draw attention to the adjournment question. For some reason which is not explained no such opportunity was offered to Mr Abernethy on the 13th February. This issue was raised by the Appeals Tribunal in the case of Crowley v HRNZ 5th March 2009. The importance of this has recently been emphasised by the Chairman of the JCA in a newsletter as recently as February this year.
2.2 We have carefully looked at the transcript of the hearing and the decision of the Committee. Notwithstanding what is said in the preceding paragraph it is clear that there was a very careful consideration of the position by the Committee. We are satisfied that everybody had ample opportunity to put their respective points of view.
2.3 Mr Abernethy having pleaded guilty to the charge the question for the Judicial Committee was the appropriate penalty that should be imposed. It is clear from both the transcript and the decision that Mr Taumanu drew attention to the upcoming Auckland Cup Carnival and the Inter Dominions. He said, very fairly in our view, that it would be harsh for Mr Abernethy to be suspended during the Cup Carnival and the Inter Dominions. With that in mind Mr Taumanu proposed a suspension until 3rd March 2011.
2.4 The decision of the Judicial Committee records that when Mr Abernethy was invited to make submissions he strongly supported the proposition that he be allowed to drive at the Auckland Cup Carnival and the Inter Dominions. The decision also records that he had no objection to the suggested period of suspension and a fine. More will be said in a moment as to the level of the monetary penalty.
2.5 The record of the hearing and the decision makes clear that Mr Taumanu proposed a fine of $2,000.00. Further (page 3 of the decision) Mr Abernethy is recorded as having no objection to a fine at that level.
2.6 As related earlier the fine imposed by the Judicial Committee was in the sum of $3,000.00. When the Tribunal asked Mr Lawson whether Mr Abernethy was still in the position of not objecting to a fine of $2,000.00 Mr Lawson said that Mr Abernethy, on reflection, would not necessarily now agree that $2,000.00 was appropriate. The Tribunal for its part does not intend to hold Mr Abernethy to what was recorded on page 3 of the decision of the Committee.

3. THE CASE FOR MR ABERNETHY
3.1 The horse Major Seelster is a 3YO. He is now a trotting horse but began life as a pacer. He had some starts as a 2YO in the pacing gait but now is in commission as a trotter. These circumstances were known to Mr Abernethy.
3.2 It was submitted for Mr Abernethy that he did not realise that the horse was pacing because he said the horse has an unusual gait. The Tribunal has carefully looked at the film of the race and it is clear both from the film and from the experience of the members of the Tribunal that the appearance of horses that are pacing and those that are trotting is somewhat different. Aside from the leg actions it is particularly noticeable with the movement of the hind quarters.
3.3 It was further said for Mr Abernethy that the dust sheet which protects the driver made it difficult for Mr Abernethy to see that the horse was in the pacing gait rather than trotting. The Tribunal does not find that explanation persuasive. Mr Abernethy knew that this horse had previously been a pacer and was now trotting. He should have taken particular care to ensure that the horse was trotting and that this was the case from as early as possible. The film shows that the horse actually commenced in the pacing gait and continued in that manner for 1800m. It is not in dispute that this continued until Mr Abernethy took Major Seelster alongside another horse and the driver of that horse Mr Peter Ferguson drew attention to the fact that the horse was pacing not trotting.
3.4 Mr Lawson referred the Tribunal to a number of cases where drivers have been charged under the same Rule. Those cases are of limited assistance. The primary reason for that is because Mr Abernethy is at a much more senior level than any of those persons referred to in the submissions made on his behalf. Mr Abernethy has had some 291 trotting drives since he obtained his licence.
3.5 Mr Lawson contended that the level of the monetary penalty was out of line with what had been imposed on other occasions and when account was taken of the number of drives that Mr Abernethy was likely to have the effect on his income would be severe.
3.6 Mr Lawson did not accept that there was the high level of incompetence which was contended for by Mr Taumanu. He (Mr Lawson) stressed that there was no intentional misconduct. That is accepted and it was not contended otherwise.
3.7 In answer to questions from the Tribunal Mr Lawson did accept that a driver of Mr Abernethy’s seniority and experience could be expected to exercise a higher degree of skill and judgment than somebody who drove only on an occasional basis.

4. THE CASE FOR HARNESS RACING NZ
4.1 Mr Taumanu characterised Mr Abernethy as a talented driver. He told the Tribunal that for this reason it was in his opinion all the more surprising that the events of the 13th February had occurred.
4.2 Mr Taumanu contended, with some justification, that comparisons between Mr Abernethy’s circumstances and those of the persons referred to in the submissions advanced by Mr Lawson were of limited value given that Mr Abernethy was at a quite different and more advanced level from those drivers.
4.3 Mr Taumanu confirmed that on the 13th February it was he who had first submitted that the period of suspension should be fixed so as to permit Mr Abernethy to drive at the Auckland Cup Carnival and the Inter Dominions. He further confirmed that he had before the Judicial Committee proposed that in addition to that suspension there be a fine of $2,000.00.

5. DISCUSSION
5.1 In the Tribunal’s view this was a serious breach of Rule 869(3)(a). Mr Abernethy knew that Major Seelster had previously been racing in the pacing gait. He knew that since it had adopted the trotting gait it had previously paced away from the start and had to be pulled back into the trotting gait. For these reasons he should have taken particular care to ensure that this horse adopted the appropriate gait on the occasion in question. As noted earlier the Tribunal does not find the dust sheet explanation or the explanation about the horse’s claimed unusual gait to provide either individually or collectively a satisfactory explanation for Mr Abernethy not knowing the true position.
5.2 In Mr Abernethy’s favour it has to be said that he pleaded guilty as soon as the matter was raised. In the light of the evidence that may have been inevitable. More importantly perhaps he has a good record and Mr Taumanu, as noted above, has drawn attention to his significant talent. Mr Abernethy through his advocate Mr Lawson has acknowledged that this was a serious misjudgement. Mr Abernethy has not previously faced a charge of this kind.
5.3 We consider that the Judicial Committee was right in determining that a meaningful fine was appropriate in addition to the period of suspension. The period of suspension was accepted by the Committee as enabling Mr Abernethy to drive at the Auckland Cup Carnival and the Inter Dominions and it seems clear that in adopting that period of suspension the Committee believed that the monetary penalty must reflect the fact that the suspension was shorter than it might otherwise have been.
5.4 Mr Taumanu at the hearing on the 13th February sought a fine of $2,000.00. The Committee imposed a fine of $3,000.00. It is difficult for this Tribunal to appreciate how the figure of $3,000.00 came to be fixed. Regrettably the decision under appeal does not explain how that figure came to be arrived at or why the figure proposed by Mr Taumanu (or some similar figure) was not adopted. Judicial Committees in fixing fines particularly when they are significant must explain the basis upon which the fine has been arrived at. This is particularly so when, as here, the fine that was imposed differs significantly from the figure which was proposed by the Stipendiary Steward. For our part we think that the fine proposed by Mr Taumanu was not unreasonable. There is however no guidance in the decision under appeal as to how the Judicial Committee regarded that suggested figure.
5.5 Proceedings of this nature are by way of rehearing. Nonetheless regard must be had to what was said on the 13th February. As noted earlier the Judicial Committee gave everybody ample opportunity to put their respective positions and save for what has been said in the preceding paragraph the decision under appeal is detailed and accurately records the parties’ positions. It is appropriate for an Appeals Tribunal to depart from the decision of the Judicial Committee only if the Appeals Tribunal is persuaded that the decision is significantly in error. In this case, as already noted, there is the additional difficulty that the significant fine arrived at has not been the subject of any explanation.
5.6 Approaching this matter as best we can and having seen the film, heard the submissions and considered all that was said on the 13th February we take that view that the fine of $3,000.00 was not appropriate. We are mindful of the figure that was proposed by the Stipendiary Steward on the day and we think that the submission which he made was a responsible one. In the circumstances as they now exist we consider that the appropriate fine would have been $1,500.00 and that is the fine that Mr Abernethy will be required to pay.

6. DECISION
6.1 The fine of $3,000.00 imposed on the 13th February 2011 by the Judicial Committee at the Stratford Harness Club is quashed and is replaced by a fine in the sum of $1,500.00.

7. COSTS
7.1 Both Mr Lawson and Mr Taumanu were asked about costs. Mr Lawson sought the refund of Mr Abernethy’s deposit. He then told the Tribunal that minimal costs had been incurred and he did not press that further. Mr Taumanu for his part indicated that as the fine now set was in line with the submission that he had made on the 13th February it would not be appropriate for costs to go against HRNZ.
7.2 The deposit that is paid by persons who appeal is regarded as a payment made for the necessary administration cost of getting the transcripts together and the JCA Tribunal into place. It is not standard practice to order a refund and we have taken that into account in fixing the fine level which we have now established. The deposit is forfeited to the JCA. It follows there will not be any order for the return of the deposit. It also follows that there will be no costs order either way and neither party will be required to pay any sum towards the costs of this hearing today.

________________________________ _______________________________
Murray McKechnie                             Bryan Scott
Chairman

16th day of March 2011

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