Appeal – M Walker v NZTR 22 Apr 09

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hearing_title: Appeal - M Walker v NZTR 22 Apr 09

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APPEAL HEARING : MICHAEL WALKER v NZTR
HEARD AT MATAMATA RACECOURSE
WEDNESDAY 22ND APRIL 2009

APPEALS TRIBUNAL  Mr M S McKechnie, Chairman and Mr B Rowe

PRESENT:   Mr Michael Walker and Mr Aidan Rodley
For NZTR Mr John Oatham and Mr Matthew Williamson Stipendiary Stewards 

DECISION OF APPEAL TRIBUNAL 22ND APRIL 2009
  
1. INTRODUCTION
1.1 This appeal was heard at the Matamata Racecourse on the 22nd April 2009. At the conclusion of the hearing the Tribunal indicated that the appeal was dismissed and a brief statement of reasons was delivered. The parties were advised that a detailed written decision would follow and that is now set out in succeeding paragraphs.

1.2 Mr Walker’s appeal was from a decision of the Raceday Judicial Committee given at Te Aroha on the 15th April this year. Mr Walker had admitted a breach of the Careless Riding Rule: 871(1). He was suspended for a period of four (4) riding days from the conclusion of riding on the 18th April until the conclusion of riding on the 25th April.

Appendix I

RULING OF CHAIRMAN OF APPEALS TRIBUNAL 20TH APRIL 2009
  

APPEAL HEARING : MICHAEL WALKER v NZTR
HEARD AT MATAMATA RACECOURSE
WEDNESDAY 22ND APRIL 2009

APPEALS TRIBUNAL  Mr M S McKechnie, Chairman and Mr B Rowe

PRESENT:   Mr Michael Walker and Mr Aidan Rodley
For NZTR Mr John Oatham and Mr Matthew Williamson Stipendiary Stewards 

DECISION OF APPEAL TRIBUNAL 22ND APRIL 2009
  
1. INTRODUCTION
1.1 This appeal was heard at the Matamata Racecourse on the 22nd April 2009. At the conclusion of the hearing the Tribunal indicated that the appeal was dismissed and a brief statement of reasons was delivered. The parties were advised that a detailed written decision would follow and that is now set out in succeeding paragraphs.

1.2 Mr Walker’s appeal was from a decision of the Raceday Judicial Committee given at Te Aroha on the 15th April this year. Mr Walker had admitted a breach of the Careless Riding Rule: 871(1). He was suspended for a period of four (4) riding days from the conclusion of riding on the 18th April until the conclusion of riding on the 25th April.

1.3 Today Mr Walker is present together with his licensed riding agent Mr Rodley. Both Messrs Walker and Rodley handed forward written material and addressed the Tribunal.

1.4 Mr Oatham made written submissions and provided information in answer to questions from the Tribunal.

1.5 The films of the race (both head on and side view) have been studied carefully. When the Tribunal asked that the films be viewed Mr Rodley made the curious suggestion that this was not necessary. Appeals under the Rules of Racing precede by way of re-hearing. If there were films viewed by the Judicial Committee then these must also been seen by the Appeal Tribunal.

2. THE COURSE OF THIS APPEAL
2.1 Mr Walker’s appeal was set to be heard on Friday morning the 24th April. Mr Walker applied for a stay of the suspension pursuant to Rule No 1306. This was opposed by NZTR. Both parties made written submissions. There was a telephone conference with the Chairman. In a written decision dated 20th April 2009 the application for stay was refused. In order to fully appreciate the position it is necessary to refer to that ruling and it is to be published alongside this decision as Appendix I.

2.2 Following the decision upon the stay application NZTR wrote to the Executive Officer of the JCA indicating that it had reviewed its position with respect to it objection on the stay of proceedings. This letter, like the earlier written submission, was under the hand of Mr Reid Sanders, the Chief Stipendiary Steward. The receipt of this advice from NZTR post dated the issuing of the ruling in which the stay was refused. It was said in this letter which was dated the 21st April, inter alia, ...”with the matter unable to be heard prior to Friday 24th April and declarations closing for Waikato the day before (Thursday), it is considered that he (reference to Mr Walker) may be disadvantaged by the hearing not being determined prior to this date”.

2.3 The Cambridge Jockey Club was to conduct a race meeting at Te Rapa on Saturday the 25th April.  It is a significant meeting with two (2) group races.

2.4 The letter from NZTR of the21st April provides no explanation as to what may have caused the review of the position taken a day earlier when the stay application was opposed. The factual position was just as it had been the day before. This change in stance by NZTR placed the Appeals Tribunal in an invidious position. A stay application had been refused in some part at least because it was opposed by NZTR. That opposition was withdrawn after the stay ruling had been issued. In these unsatisfactory circumstances it was decided that the appeal should be heard at the earliest possible time. The members of the Tribunal rearranged engagements already in place in order to assemble at Matamata on the 22nd April. The appeal hearing commenced at 11a.m. By the time the hearing had concluded the race meeting at Matamata was underway and principally for that reason it was not then possible to deliver a detailed decision.

3. LEGAL PRINCIPLES
3.1 The Tribunal must have careful regard to the decision of the Judicial Committee. This Tribunal can only allow an appeal of this kind if it is persuaded that the Judicial Committee made a clear error or seriously misunderstood or misinterpreted the factual position. Where the appeal is against penalty only it is not for this Tribunal to make minor adjustments or tinker with the decision of the Judicial Committee.

3.2 The Tribunal must have regard to the fact that Mr Walker pleaded guilty. It must also make its own assessment of the degree of carelessness which was involved. Hence it was necessary for the Tribunal to carefully study the films of the race.

3.3 Where an appeal is against the length of the suspension imposed it is necessary to examine other suspensions in comparable cases. It is important that there be consistency of penalties.

4. MR WALKER’S CASE
4.1 It was contended that the breach was minimal. Mr Walker was riding the horse Starcatcher. From about the 300 metre mark he sought to obtain a run for that horse and moved it away from the rail. Mr Walker contended that he did not cause trouble to the horse Kiwi Girl ridden by Trudy Thornton until the last part of the move made by his horse.

4.2 Mr Walker spoke of his extensive riding engagements. These are well known to the Tribunal. A reference was produced from the licensed trainer Mark Walker of Te Akau Racing Stables. Mr Mark Walker and Mr Michael Walker have had a long and successful professional relationship. The Appellant Mr Michael Walker described himself as a clean rider. He pointed to his good record.

4.3 Mr Rodley also emphasised Mr Walker’s excellent riding record. He outlined the number of rides taken by Mr Walker and submitted that Mr Walker had both an excellent record and that he did not frequently appeal against penalties that were imposed.

4.4 Mr Rodley placed particular reliance upon two (2) decisions of the Judicial Committee at Wanganui on the 12th March this year. On that day two (2) riders admitted breaches of Rule 871(1)(b). Each received a suspension for three (3) riding days. In the case of the jockey Lisa Allpress Mr Rodley drew attention to that rider’s record. Ms Allpress had two (2) suspensions for careless riding in the previous twelve months. Mr Walker has no suspensions for careless riding in the same period. It was Mr Rodley’s position that the offending by Ms Allpress was more serious than that of Mr Walker and that consistency required that Mr Walker’s suspension be no more than three (3) days.

4.5 The Tribunal has available to it a copy of the decision(s) given at Wanganui on the 12th March this year. The carelessness of Ms Allpress is described as being in the mid range.

5. THE CASE FOR NZTR
5.1 Mr Oatham demonstrated that Mr Walker’s horse Starcatcher had moved several horse widths from the rail and taken the line of Kiwi Girl. Towards the end of the movement by Starcatcher Kiwi Girl had to be checked. This was apparent from the film. Mr Oatham pointed to Mrs Thornton having to sit up when checking Kiwi Girl. He contended that it was irrelevant that Kiwi Girl may not have been travelling as well as Starcatcher. Mr Oatham submitted that it was plain Starcatcher had taken the line of running of Kiwi Girl even if the actual difficulty for that horse did not occur until the latter part of Starcatcher’s movement.

5.2 In answer to questions from the Tribunal Mr Oatham advised that since the 1st January this year there had in the northern region been forty six suspensions for careless riding. In twenty cases the penalty had been a suspension of four (4) days. In eleven instances the penalty was five (5) days. On seven occasions a penalty of six (6) days suspension had been imposed and on eight occasions the penalty had been greater than six (6) days. It can be seen that nowhere in the northern region since the 1st January this year has there been a suspension of careless riding of less than four (4) days. Mr Oatham argued that consistency required a suspension in this instance of four (4) days notwithstanding Mr Walker’s guilty plea and his excellent riding record.

5.3 In the decision under appeal there appears the expression the starting point of careless riding and suspensions is four (4) days. The reference to starting point was the subject of some criticism by Mr Rodley. Mr Oatham submitted that what was meant by the language of the Judicial Committee was that four (4) days was the accepted minimum penalty.

6. DISCUSSION AND DECISON
6.1 In addition to viewing the films the Tribunal has examined the transcript of the hearing at Te Aroha. Careful consideration has been given to all that was said at this hearing by both Messrs Walker and Rodley and by Mr Oatham for NZTR.

6.2 It is clear that Starcatcher did take the line of running of Kiwi Girl for quite some distance. There was, towards the end of the movement, a pronounced check. That is described by the Judicial Committee as a reasonably bad one. We consider that characterisation to be accurate. It follows that we cannot accept the characterisation of the carelessness as minimal.

6.3 At the hearing under appeal it is clear that Mr Walker made reference to the premier meeting to be run at Te Rapa on the 25th April.  It is also plain that the Judicial Committee was conscious of that important upcoming meeting. Moreover the Judicial Committee expressly noted Mr Walker’s guilty plea and his excellent riding record.

6.4 The decisions given by the Judicial Committee at Wanganui on the 12th March this year are not binding upon this Tribunal. Those decisions appear to be out of line with the consistent policy which has been followed in the northern region over the last many months. The imposition of a three (3) day suspension for careless riding would appear to be very lenient. Mr Rodley pointed to the fact that the decisions of the Judicial Committee at Wanganui on the 12th March were not appealed. Of itself that does not demonstrate that the decisions are necessarily free of criticism.

6.5 We consider that the Judicial Committee correctly appreciated the degree of carelessness. It properly took account of all relevant considerations including Mr Walker’s record. We are also satisfied that the Committee was aware of the position on the 25th April and gave that proper consideration. The fact that Mr Walker may have had important rides booked for the 25th April was not, of itself, a consideration which would justify a departure from the penalty that would ordinarily be imposed. A suspension of four (4) days is plainly the minimum that has been consistently imposed over a wide number of cases as demonstrated by Mr Oatham’s evidence. There are no grounds why the Judicial Committee should have departed from that minimum period. We are not persuaded that the Judicial Committee was in error: rather we consider that the Committee properly weighed all of the relevant considerations and that its decision was plainly right.

6.6 In the circumstances outlined here and for the reasons given the appeal is dismissed.

7. COSTS
7.1 As explained earlier there were time constraints at Matamata on the 22nd April. In those circumstances the Tribunal did not have the opportunity to hear submissions from the parties as to costs. Given that the appeal took place on a race day the NZTR representatives would almost certainly have been at that venue in any event. Moreover the rescheduling of the hearing of the appeal from the 24th April to the 22nd April came about in large part because of the change of position which NZTR adopted following the ruling on the application or a stay of proceedings. In those circumstances there will be no costs awarded to NZTR.

7.2 The hearing of this appeal was advanced in order to make Mr Walker’s position known – one way or the other – before declarations were required for the race meeting at Te Rapa on the 25th April. The JCA, at some inconvenience to the members of the Tribunal, proposed this earlier hearing date of Wednesday 22nd April.

7.3 When all the circumstances of the race at Te Aroha on the 15th April are considered, the transcript of the hearing and the decision of the Judicial Committee are analysed and the films examined it is apparent to this Tribunal that at no time did Mr Walker’s appeal ever have more than a very remote prospect of succeeding. Far too much reliance was placed upon the decisions from Wanganui on 12th March this year. It is not apparent that Mr Walker or his advisors had made any appropriate level of inquiry into the range of penalties for careless riding current in the northern region. Nor is it clear that there was an understanding of the legal principIes which govern appeals against penalties imposed by a race day Judicial Committee. In those circumstances Mr Walker will pay costs to the JCA to the sum of $500.00.  Mr Walker's deposit is forfeited.

DATED  this                         day of April 2009

__________________________________
Murray   McKechnie
Chairman

Appendix I

APPEAL HEARING : NZTR v MICHAEL WALKER

APPEALS TRIBUNAL  Mr M S McKechnie, Chairman and Mr B Rowe

RULING OF CHAIRMAN OF APPEALS TRIBUNAL 20TH APRIL 2009
  
1. NATURE OF APPEAL
1.1 Mr Walker has appealed a decision of the Raceday Judicial Committee given at Te Aroha on the 15th April this year. Mr Walker admitted a breach of Rule 871(1): a charge of careless riding. He was suspended for a period of four (4) riding days from the conclusion of racing on the 18th April until the conclusion of racing on the 25th April this year.

1.2 A hearing of the appeal has been set down for Friday of this week at the Te Rapa Racecourse.

2. APPLICATION FOR STAY
2.1 Mr Walker by his duly appointed riding agent Mr Aidan Rodley has applied for a stay of the suspension. The relevant rule is No 1306. It is in the following terms:
The filing of a Notice of Appeal shall not operate as a stay of the decision or of any disqualification or suspension appealed against unless, on written application made to it, the Appeals Tribunal or its Chairman otherwise directs.

2.2 Mr Rodley has filed brief written submissions in support of the stay application. He relies in particular upon the three (3) day suspension imposed upon the jockey Lisa Allpress by the Judicial Committee at Wanganui on the 12th March this year.

2.3 It seems fair from the tenor of Mr Rodley’s submissions that it will be contended the period of suspension should have been three (3) days rather than four (4) days.

2.4 Mr Rodley points to the premier day of racing to take place at Te Rapa on Saturday the 25th of this month. That is the fourth and last day of Mr Walker’s suspension. Nominations, acceptances and declarations of riders are required before the time which has been set for the appeal.

2.5 The application for stay is opposed by NZTR. Mr Reid Sanders the Chief Stipendiary Steward  has made submissions. These are direct and to the point. First it is said that Mr Walker admitted the breach of Rule 871(1) and that a period of suspension was inevitable. Secondly it is contended that the penalty was at the minimum end. Mr Sanders contends that it is well established that breaches of the careless riding rule in the northern region will result in a minimum period of disqualification of four (4) days.

2.6 The decision of Judicial Committee given on the 15th April 2009 has been made available to the Chairman.  First it is clear that the Stipendiary Steward on duty Mr John Oatham sought a penalty in the low to middle range. Secondly, and importantly, it is clear that the Committee considered the appropriate period of suspension by reference to the premier day’s racing on the 25th April of this month at Te Rapa. The Committee made clear that it considered the breach would warrant a five (5) day suspension but that the appropriate period having regard to Mr Walker’s record was a period of four (4) days. Plainly that was and does include the 25th April.

2.7 It was an experienced Judicial Committee and the written decision makes clear that the duration of the suspension was given very careful consideration.

3. DECISION ON STAY APPLICATION
3.1 The granting of a stay is discretionary. Commonly applications for stay are not opposed. That is often the position where the license holder has pleaded not guilty and the finding against him or her is under appeal. Here however there was an admitted breach. NZTR is correct when it says that the period of suspension imposed was in line with that which is current in the northern region. Of particular importance is the fact that the Judicial Committee on the day clearly gave anxious consideration to the position Mr Walker would be in on the 25th April. It is worth noting by reference to the racing calendar that the next premier day’s thoroughbred racing is not until the 16th May.

3.2 If the stay of proceedings were granted and the appeal failed the four (4) days racing for which Mr Walker would then be suspended would be of a quite different character from the position as it presently stands. When the grounds of appeal do not appear, prima facie, to be strong the grant of a stay might well significantly water down the character of the suspension imposed by the Raceday Judicial Committee. That is a circumstance to be avoided unless there are compelling contrary considerations. None exist here.

3.3 For the reasons expressed here the application for stay is refused.

DATED  this 20th day of April 2009

__________________________________
Murray   McKechnie
Chairman

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