Appeal – HRNZ v AD Milne

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startdate: 01/01/2001

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hearing_title: Appeal - HRNZ v AD Milne

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This is an appeal by Harness Racing New Zealand in respect of a decision that was given on the 7^th May at the Gore Harness Racing Club's meeting at Gore. Mr Milne who is the respondent was driving in Race 4 and after the race was charged under Rule 869 (2) (b)

BEFORE THE APPEALS TRIBUNAL HELD AT DUNEDIN

IN THE MATTER OF -    New Zealand Rules of Harness Racing

BETWEEN  -                 Harness Racing New Zealand  (Appellant)

AND           -                 AD Milne  (Respondent)

Date of Hearing -            Thursday the 8 June 2006

Appeal Tribunal -           Judge J Bisphan (Chairman), Mr JM Phelan

Appearances    -           Mr AD Milne, Respondent

                                   Mr C Allison, for HRNZ

                                   Mr A Suddaby

                                   Mr P Knowles, Registrar

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DECISION OF APPEALS TRIBUNAL 

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This is an appeal by Harness Racing New Zealand in respect of a decision that was given on the 7^th May at the Gore Harness Racing Club's meeting at Gore. Mr Milne who is the respondent was driving in Race 4 and after the race was charged under Rule 869 (2) (b) which reads - No horseman during any race shall use his whip in such a way that it baulks, inconveniences, impedes or strikes another horse or horseman.

And what was alleged was that Mr Milne, in the use of his whip in the race, struck Mr Suddaby. The Judicial Committee heard the matter and came to a decision, which is not easy to follow. But the gist of it is the decision is that the Judicial Committee, and I?m now quoting said." that it was inclined to agree that it happened (that's the striking of the whip) but it happened accidentally." The Judicial Committee dismissed the charge against Mr Milne. Now it is against that decision that Harness Racing New Zealand Appeals.

Now the procedure today is governed by Rule 1025. And what we did was we heard from Mr Allison, we saw the relevant videos that the Judicial Committee have seen and we also heard briefly from time to time from Mr Milne and Mr Suddaby.

Now because of the way the Judicial Committee dealt with the matter I think it is necessary to just go through Rule 869 (2) (b). Just before I do that, it is true that as Mr Allison points out the offence is one of strict liability there is no requirement on the prosecution, Harness Racing, to prove intent. And of course in those circumstances for a Respondent to be relieved of being found guilty, he or she would have to show that they took all reasonable care, because that is the essence of strict liability.

But the Judicial Committee seems to have introduced the word "accidentally" into its decision and put a meaning onto it, which it is not in my view justified. What the Rule states quite clearly is that a horseman must not use his whip in any way that it strikes another horseman. Now of course that would include intentionally striking another horseman, although I suspect if that happened the charge might be much more serious than the one we are looking at today. But the Rule is aimed at horsemen using their whip in a careful manner within the Rules so that it doesn?t strike other horsemen or horses. And the reason for the Rule is absolutely obvious that if horsemen were able to flourish their whips and use them in an unruly manner hitting other horses and driver's chaos would reign. So that there is no requirement there that the striking has to be intentional or deliberate. It really is a matter of care, as in careless use, and the Judicial Committee seems to have got hooked on the word, in its decision, accidental. But accidental of course, would include careless use, and accidental is not to be interpreted as an act of god. That is what the Rule says.

Now, just turning to the evidence, and we have read the transcripts and heard today as I say briefly from Mr Milne and Mr Suddaby. There is quite substantial, almost overwhelming evidence, that Mr Suddaby was struck by a whip. It follows from that that the only person who could have done that was Mr Milne.

The evidence, and I?ll just briefly summarise it is to this affect. Mr Suddaby said he was hit by a whip. He immediately made a complaint once he came out of the race. His actions during the race indicated something untoward had happened. He had a red mark on his neck area, which was seen by the Stipendiary Steward. Then of course after the incident, Mr Suddaby acted in a retaliatory way. So all those matters add up to clear evidence in our view that Mr Suddaby was hit by a whip. And indeed Mr Milne, although he hasn?t made any formal admission of that, hasn?t gone to the extent of emphatically denying that it happened.

The evidence from the transcript is also indicative that there was a striking of Mr Suddaby by the whip. And I refer to page 5 of the Judicial Committee who asked Mr Milne?"so what you are saying that if contact did occur it was accidental." Mr Milne said, ?"It would have to be." And then further on Mr Allison was questioning Mr Milne "There is one question Mr Milne. Do you believe that you could have accidentally struck Mr Suddaby at all?" "Oh (Milne) yes that's quite possible..." was the answer.

So in our view there is very clear evidence that Mr Suddaby was struck by a whip and there is also clear evidence that the whip was wielded by Mr Milne and that was the whip that struck Mr Suddaby.

Now we are not absolutely certain whether HRNZ is contending that this was an intentional strike. I?ll say it once, that we find that there is insufficient evidence to reach that conclusion. If a person uses a whip intentionally on another and strikes that person, that is akin to a criminal offence of assault with a weapon. And this Committee would have to be very satisfied before it came to any conclusion that Mr Milne had deliberately hit Mr Suddaby with a whip. Now we have seen the videos and we have heard the evidence. The videos are not conclusive as to that issue. And Mr Milne said that he was simply scrubbing his horse up and hitting and using the reins and the whip, and there really is simply insufficient evidence for this committee to conclude that the striking was intentional.

So that we cannot find and I?m not sure that HRNZ wants us to, but we cannot find that Mr Milne deliberately struck Mr Suddaby with the whip. But we are satisfied that he was struck and we accept Mr Suddaby's evidence to that affect, as did of course the Judicial Committee. So we are satisfied that happened and that it was the whip wielded by Mr Milne at the top of the straight that struck Mr Suddaby.

Now that, clearly in our view is a breach of the Rule. That is what the Rule says. You can?t use your whip if it strikes another horse or horseman. So we simply find that the charge as alleged has been proved. And indeed this is what I think the Judicial Committee did. It found there had been a striking, and as I say they have introduced this concept of accidental, and then dismissed the charge. In our view the Judicial Committee should not have done that.

So we find that the charge has been proved and it is a question then of what penalty should be imposed.

Stipendiary Steward Mr Allison, as to penalty said it must be a deterrent to other

horsemen out there that they can?t become careless with the use of the whip. It can lead to very very serious allegations, as was the case on this occasion. Mr Milne pleaded not guilty to the charge in the first instance as he has continued to today. There's nothing to be seen there in any remorse in any way at all for his actions. On the day he pleaded not guilty to the charge and defended it.

Mr Suddaby was left with a small red mark although it certainly wasn?t serious in terms of an injury or anything like that, in fact it was very very minor. I must say that on Mr Milne's behalf that his driving record over 25 years is very very good. He would be one of the more careful drivers on the Southland/Otago circuit. It is very rare that we have Mr Milne in the room and I put this down to a momentary lose of control. HRNZ would be seeking a fine on this occasion, we do not seek a suspension, and we would be seeking a fine of $400. HRNZ would not be seeking any costs.

As to penalty, in our view there has to be some penalty for this offence. Of course as we said at the outset that is what the Rule was aiming at to prevent other horses and horseman from being struck. The maximum fine is $5,000 under the Rule, but we think the range is roughly in the area of between $250 and $500 for this type of offence, although its hard to fix a starting point because of the variety of circumstances that will involve striking another horse or another horseman. In our view the amount of fine suggested by HRNZ is appropriate. We are not imposing a fine of $400 because HRNZ has said so, but that in our view is an appropriate fine for the circumstances for this offence. We impose a fine Mr Milne of $400 and we do not propose to make any order as to costs.

JS Bisphan                                                              JM Phelan

Chairman

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Rules: 869.2.b

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