Appeal – A J Calder – 27 November 2008

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hearing_title: Appeal - A J Calder - 27 November 2008

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This is an appeal by NZTR against penalties imposed upon the jockey Andrew Calder following a hearing at Riccarton on the 27^th November this year. The careless riding charge arose out of the running of the 2000 Guineas at Riccarton the 15^th November 2008. It was not possible to hear the charge on that day.

APPEAL HEARING : NZTR v ANDREW CALDER

HEARD AT WAIKATO RACING CLUB, TE RAPA RACECOURSE, HAMILTON

FRIDAY 19^TH DECEMBER 2008

APPEALS TRIBUNAL                        Mr M S McKechnie, Chairman and Mr R Seabrook

PRESENT                                              Mr J Oatham, Acting Chief Stipendiary Steward and Mr R Neal, Stipendiary Steward

                                                                Mr Andrew Calder

Mr N McCutcheon assisting Mr Calder

1.            NATURE OF APPEAL

1.1          This is an appeal by NZTR against penalties imposed upon the jockey Andrew Calder following a hearing at Riccarton on the 27^th November this year. The careless riding charge arose out of the running of the 2000 Guineas at Riccarton the 15^th November 2008. It was not possible to hear the charge on that day.

1.2          On the 27^th November Mr Calder pleaded guilty. The Judicial Committee after hearing from the Stipendiary Stewards and from Mr Calder imposed a suspension effectively of two weeks from the 4^th December until the conclusion of racing tomorrow Saturday the 20^th December. In addition Mr Calder was fined $2,800.00.

1.3          NZTR has appealed and says that both the suspension and fine were inadequate. Mr Neal has presented submissions for NZTR and Mr Oatham took the Appeal Tribunal through a number of films of the race.

2.            CASE FOR NZTR

2.1          There are two central submissions advanced. First it is said that the Committed failed to take adequate account of the prestige and status of the race. It is well known of course that the 2000 Guineas is a prestigious Group One race. This year the stake was lifted significantly to $1m. Secondly it is said for NZTR that the decision under appeal places far too much emphasis upon the decision of the Appeal Tribunal in the Spratt case. That is the Spratt case from Hawera which is a recent decision, as it happens, of this very same Appeal Tribunal.  Mr Neal points to the 4^th paragraph on the 3rd page of the judgment as indicating mistaken reasoning on the part of the Judicial Committee in speaking of the Spratt case as providing “a guideline benchmark for the level of fines...” Mr Neal points further to the provisions of Rule 1122(2) and says that although the Committee did refer to that rule in its decision it did not in fact undertake the necessary analysis of those matters set out in the rule.

2.2          Mr Neal produced a printout of fines and suspensions in major races in New Zealand since January of this year. These begin on the 8^th January with the suspension and fine imposed on the jockey Mark Du Plessis following the running of the New Zealand Bloodstock $1m 2yr old race at Ellerslie. The analysis continues through until events as recently as November of this year. Mr Neal contends that the penalties imposed in the present case are not consistent with those which are set out in the spreadsheet in particular by reference to the most prestigious of those races – the one of which we have just spoken and the suspension imposed upon the jockey Samantha Spratt following the running of the New Zealand Derby on the 8^th March this year.

2.3          Mr Neal acknowledges that where the Prosecuting Authority appeals it is necessary to plainly demonstrate that the Judicial Committee was in error and not sufficient simply to demonstrate that this Appeal Tribunal might in the same circumstances have imposed a somewhat different period of suspension or level of fine. He contends that the matters spoken of are of sufficient moment to provide a foundation for a Prosecutors Appeal. It is the NZTR position that the suspension should have been in the range of 3 – 4 weeks and that the financial penalty in the range of $5-$8,000.00.

2.4          The films have been looked at closely. Mr Oatham contends that the interference was significant and in his submission in the upper range.

2.5          It is clear to the Tribunal that there was significant interference and indeed Mr Calder acknowledged this by his guilty plea. It is apparent that Mr Calder was looking to get his horse closer to the rail and that he was looking across for some time before he made the move which caused the interference. It is the Tribunal’s view that while Mr Calder was perfectly entitled to look for a gap to move his horse into a better position he made an error of judgement in making the move at the precise time he did. It is clear that he had been planning this move for some time. His judgement was in error at the time he took his horse into the position which caused the interference to Fully Fledged. It should perhaps be said for completeness that there were essentially two parts to the move and we will say more of this later in considering Mr McCutcheon’s submissions. It was the second part of the movement which caused the interference to the horse Fully Fledged.

3.            THE CASE FOR MR CALDER

3.1          Mr Calder was represented by Mr Noel McCutcheon formerly the Chief Stipendiary Steward for New Zealand.

3.2          Mr McCutcheon took the Tribunal through the film. He contended that the horse legitimately moved in one horse width and that a second move caused the interference. While not disputing that interference occurred Mr McCutcheon emphasised that the first part of the manoeuvre was legitimate and that it was the second move which brought about the interference.  He stressed the competitive nature of riding and emphasised the need for that to be maintained.

3.3          Mr McCutcheon submitted that if penalties imposed were too harsh this would discourage competitive riding and cause jockeys to perform in what he described as “a mundane manner”.

3.4          It was contended that the careless riding, properly analysed, was in the mid-range. He emphasised that only one horse appeared to have been affected. The interference was not in the latter part of the race. Mr McCutcheon contended that the level of carelessness in this case bore comparison with that in the case of the jockey Samantha Spratt at Hawera.

3.5          On the issue of penalties Mr McCutcheon made extensive reference to the position in Australia. He spoke about the penalties imposed upon the well known jockeys Stephen Arnold, Danny Nicolic and Glen Boss during the Melbourne Cup Carnival. There suspensions were imposed but fines were not. Mr McCutcheon also drew attention to a recent incident at Rosehill in Sydney where two jockeys were guilty of careless riding in circumstances which resulted in a fall.

3.6          Further on the question of penalty Mr McCutcheon drew attention to the recent case of the jockey Chris Johnson who was suspended for two weeks and fined $3,000.00 on a charge of failing to give his horse every opportunity: Rule 866(1)(b) Mr McCutcheon contended that the charge there was more significant in that it went to the integrity of the conduct of racing.

3.7          Mr McCutcheon raised concerns about the level of penalties (both the suspension and fines) and whether this might not be a basis for contending that jockeys should be allowed representation on race day. Currently that is not the position on charges of careless riding. Mr McCutcheon drew attention to the fact that the charge faced by Mr Johnson was a charge where the proceedings were not dealt with on race day and representation was permitted and he noted the contrast between those two situations.

3.8          Mr McCutcheon had made some calculations of the sums which he says would have been lost by Mr Calder during the period of suspension even without having a winning ride in that time. The sums are considerable and the Tribunal imagines that they would be similar for other leading jockeys. It is acknowledged that Mr Calder rides at the highest level and in the part of the country where the most stake money is on offer.

3.9          It was said that there is “a new policy”. By this Mr McCutcheon was referring to the regime of suspensions coupled with fines which have been adopted by Judicial Committees and Appeal Authorities across New Zealand in more recent times. He contended that NZTR should have consulted more widely with persons in the industry and in particular with the Jockey’s Association. The position is that the regime of penalties, suspension and fines, have now been in place for some time and NZTR contends that there is now a clear pattern which is known to all licence holders.

3.10        Summing up Mr McCutcheon asked the Tribunal to have particular regard to the following:

(a)          Mr Calder’s guilty plea. He emphasised that it was accepted policy to grant a discount for such a plea;

(b)          Mr Calder’s excellent riding record. This is not in dispute. Mr McCutcheon told the Tribunal that the last suspension imposed upon Mr Calder was in March 2008;

(c)           Mr McCutcheon urged that there not be a blanket policy in penalties for careless riding.

4.            DISCUSSION

4.1          The Tribunal must have careful regard to the decision of the Judicial Committee. The hearing was adjourned from race day and it is clear both from the decision and the transcript that the matter was gone into very carefully on the 27^th November.

4.2          This Tribunal can only differ from the Judicial Committee in 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. It is settled law that considerations which justify an increase in penalty must be more compelling than those which might justify a reduction.

4.3          We are persuaded that the decision of the Judicial Committee was in large part correct. There are however parts of the decision which cause concern with a consequence which we shall later explain. In the first place the decision does not contain any real analysis of the riding in question. There is no examination of the degree of carelessness involved. Careless riding can cover a wide spectrum of conduct from very minor infractions to conduct bordering upon the dangerous or the reckless. It is very important that Judicial Committees treat each case on its own particular facts. It is not appropriate to take the findings of one careless riding case and apply those to another without careful analysis. Regrettably the decision under appeal does not contain any clear indication of the Committee’s view of the carelessness in question. While the decision does record the position taken by the Stipendiary Steward Mr Ching and also records Mr Calder’s view the Committee’s own assessment is not clear.

4.4          A second concern which the Tribunal has is the reference in paragraph 4 on page 3 to the so-called guideline benchmark to which reference was made earlier. The Spratt case from Hawera was not intended to be a guideline benchmark. The facts of that case were distinctly different from the present. The carelessness was in the latter part of the race and it was contended that it affected the placings. The Appeal Tribunal held that on a proper analysis of the position there were contributing factors to the interference apart from the carelessness of Miss Spratt. It was held that her conduct was not at the high level of seriousness which had been erroneously determined by the Judicial Committee.

4.5          In this case the Tribunal takes the view that the carelessness on Mr Calder’s part was in the mid-range. It is plain from viewing the films that he was trying to get his horse closer to the rail. The horse had drawn the widest barrier and moving the horse closer to the rail was a perfectly legitimate move to undertake but in doing that he made an error of judgement  which had a significant effect. The interference to Fully Fledged caused that horse to lose its momentum, it veered away from the rail and plainly had its running interrupted.

4.6          Thirdly we are persuaded that the Judicial Committee was in error in failing to properly emphasise the significance of the race in question. This was a race at the very highest level with very significant stake money: having been substantially raised from the previous level.

4.7          It follows from what has been said that we allow the appeal and now turn to the question of consequences.

4.8          Mr Calder was suspended for ten riding days from 4^th – 20^th December. The upcoming period of racing is very busy through Christmas and the New Year. NZTR urges a further period of suspension and a significant increase in the fine.

4.9          In cases where the Prosecuting Authority appeals it is not appropriate for the Appellate Tribunal to impose any more penalty than is absolutely necessary to acknowledge the validity of the appeal. In those circumstances and in recognising how significant a further suspension would be the Tribunal declines to impose any additional suspension. Had there been a longer period of suspension imposed by the Judicial Committee on the 27^th November that might not have been objectionable. That however is not the test which this Tribunal has to apply. We turn to the question of the fine. Here it would seem that the Committee was significantly influenced by the position in the Spratt appeal. That case is readily distinguishable from the present. It was a Group Three race and for a much lesser stake than the present. If regard is had to the penalties imposed on other occasions to which Mr Neal drew attention the fine in this case does not appear to be consistent. In the case of the jockey Mark Du Plessis in the $1m New Zealand Bloodstock 2yr old race the fine was $5,000.00. In the case of Samantha Spratt in the New Zealand Derby the fine was $4,000.00. In the case of the jockey Michael Coleman at Hawkes Bay in October in a $100,000.00 Group Two race the fine was $5,000.00. The interference in that case – well known to this Tribunal – was severe.

4.10        It is our considered view that the Judicial Committee was in error in adopting the level of fine which was imposed. Given the status and value of the race an appropriate fine would have been one much closer to those to which we have just referred. It follows that we will allow the appeal insofar as the fine is concerned and the fine of $2,800.00 will be replaced by a fine of $5,000.00. As said earlier the period of suspension remains unchanged. There will be no order for costs by either party.

DATED  at Te Rapa this  19th day of December 2008

__________________________________________

Murray   McKechnie

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Rules: 1122.2, 866.1.b

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