Appeal LA Macfarlane v RIU 30 May 2012 – Reasons for Decision dated 8 June 2012

hearingid: e3a07b3198bc5ae3a68ad9ef52a5af2e

informantnumber:

horsename:

hearing_racingtype: thoroughbred-racing

startdate: 19/05/2012

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Appeal LA Macfarlane v RIU 30 May 2012 - Reasons for Decision dated 8 June 2012

charge:

facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

APPEAL HEARING : LANCE MACFARLANE v RIU
HEARD AT WAIKATO RACING CLUB, TE RAPA RACECOURSE, HAMILTON
WEDNESDAY 30th DAY OF MAY 2012
REASONS FOR DECISION

APPEALS TRIBUNAL: Mr Murray McKechnie, Chairman and Mr Russell McKenzie

PRESENT:  Mr John Oatham, Stipendiary Steward, Mr Cameron George, Chief Stipendiary Steward, Mr Lance Macfarlane, Licensed Jockey
Mr Tony Ryan, Counsel for Mr Macfarlane Mr Warwick Robinson, Registrar

1. INTRODUCTION

1.1 At the conclusion of the hearing at Te Rapa on the 30th May 2012 the Tribunal gave a brief interim decision. This advised that the appeal against the finding of misconduct by Mr Macfarlane was dismissed. As to penalty the Tribunal made claim that suspension was appropriate. The period of suspension imposed by the Race Day Judicial Committee was reduced.

1.2 The Tribunal explained that a detailed decision would issue setting out the reasoning which has been adopted. This we now do.

2. THE CHARGE OF MISCONDUCT
2.1 The Rule is No. 340. It is expressed in the widest terms. It is set out in para. 1.1 of our Interim Decision of the 30th May 2012. It is as well to set it out again:

“A licensed person, owner, lessee, racing manager official or other person bound by these rules must not misconduct himself in any matter relating to the conduct of races or racing.”

2.2 The information as originally prepared made reference to Rule 802(1)(a). That reference was removed and replaced by the reference to Rule 340 before the raceday hearing commenced. Mr Oatham explained that he had prepared the original information but that after consultation with colleagues it was considered that Rule 340 was more appropriate.

2.3 The particulars to support the information alleged that Mr Macfarlane failed to follow a direction of the veterinary surgeon Mr Douglas Black. It was the case before the Judicial Committee that Mr Black had been near the second to last fence when Mr Macfarlane was considering re-mounting the horse Sportavian. Mr Black’s evidence was that he called out to Mr Macfarlane “Is the horse alright”. Mr Black said that Mr Macfarlane told him that the horse had blood in one nostril. Mr Black went on to say that he told Mr Macfarlane “that he should not jump the last fence”. At a later point in his evidence Mr Black said “I said you must not, you should not jump the last fence”. For his part Mr Macfarlane acknowledged that he had heard Mr Black calling out to him but said that he did not hear him say that he was not to or should not jump the last fence.

2.4 Mr Ryan submitted that Mr Black did not have authority to give a directive to Mr Macfarlane. We do not accept that. In the first place Mr Black was an official as defined in the Rules of Racing. An official is a person appointed or employed by NZTR or a Club to carry out official duties in accordance with these Rules either at a race meeting or in any matter which relates to races or racing. Secondly Rules 650 to 655 give Stipendiary Stewards and duly appointed veterinary surgeons extensive powers in relation to horse welfare. In the event, for reasons which follow, this issue becomes irrelevant to the decision we have reached.

2.5 We return to Mr Ryan’s submission that the RIU should have proceeded under Rule 802(1)(a) and not Rule 340. Rule 802(1)(a) is in these terms:

802(1) A person who commits a breach of these Rules:
(a) acts in contravention of or fails to comply with any provisions of these Rules or any regulations made there under, or any policy, notice, direction, instruction, guideline, restriction, requirement or condition given, made or imposed under these Rules.

In our view the rule is in the nature of a catch all provision. It provides for situations which may not be directly addressed in the rules. In any event the submission was founded upon the proposition that Mr Macfarlane had failed to comply with the directions of the veterinary surgeon. Whether or not that actually occurred is not determinative of the Appeal.

2.6 Regrettably the decision of the Judicial Committee does not make any clear finding as to whether or not the Committee was satisfied that Mr Macfarlane had in fact heard the advice or directions from Mr Black. It follows that there was no clear ruling by the Judicial Committee that Mr Black’s advice or directions had not been followed or disobeyed. The Judicial Committee referred to a meeting between Stipendiary Stewards and jumps jockeys at Te Rapa on the 5th of May when clear directions had been given to the jockeys that any situation which comprised horse welfare should result in the horse being withdrawn from its race. Mr Cameron George, the Chief Stipendiary Steward was present at that meeting and he gave an account to the Tribunal of what had been said. It is not in dispute that Mr Macfarlane was in attendance on that occasion. It seems clear to the Tribunal that the Judicial Committee relied principally upon Mr Macfarlane’s failure to observe what was said on that occasion rather than on a determination of whether or not Mr Macfarlane had followed what was said to him by Mr Black.

3. WHAT IS MISCONDUCT
3.1 The correct interpretation of Rule 340 was considered by the High Court in C v JCA & Others 7 December 2006 (High Court Hamilton) Rhys Harrison J. The Learned Judge emphasised that the Rule must be read in its statutory context and that it was plainly limited to misconduct in matters concerned with racing. In para. 17 of the Judgment His Honour said this:

“The rules could never confer jurisdiction on a disciplinary body to determine a complaint that did not relate to matters connected with racing. Whether or not the subject matter of a particular complaint falls within that scope will be for the Committee or the Appeal Tribunal to decide (our emphasis added). What is absolutely determinative is the clear framework of limitation of the application of the rules to “all matters connected with racing”. The offence of “misconduct in any way” can only relate back to this qualification.”

3.2 It follows that it is for a Judicial Committee or Appeal Tribunal to determine whether the conduct complained of is sufficiently concerned with racing and is of a character which properly attracts the description misconduct.

4. WAS THERE MISCONDUCT BY MR MACFARLANE
4.1 This Tribunal is confident that had there been a clear factual finding by the Judicial Committee that Mr Macfarlane heard the words directed to him by Mr Black his failure to do as directed would have amounted to misconduct. In the absence of a clear determination of credibility by the Judicial Committee this Tribunal must look to other circumstances.

4.2 The most striking evidence that was undisputed before the Judicial Committee was Mr Macfarlane’s own advice that he knew the horse was bleeding from a nostril. He could not have known the extent of the horse’s injury. Mr Ryan pointed out that it was subsequently established that the horse had an abrasion and that the injury was thus not particularly serious. After acquired knowledge does not assist in determining the appropriate behaviour by Mr Macfarlane at the time that he proposed to remount the horse. The injury could have been a great deal more serious than later proved to be the case. Mr Macfarlane took a significant risk. Not just with the horse but he also put his own safety at risk. If the horse had been seriously injured in the fall both horse and rider could have been injured when attempting to jump the last fence.

4.3 A meeting between the Stipendiary Stewards and the Jumps Jockeys at Te Rapa on the 5th of May emphasised the very issues which are set out in Rules 650 to 655. Nasal bleeding must be reported without delay. Mr Oatham drew our attention to Rule 651(1) and (2).

4.4 Mr Macfarlane upon his own admission knew that this horse was bleeding. He could not know with any degree of confidence the cause of that bleeding. It is not disputed that the horse Sportavian had taken heavy fall. There may have been internal injuries leading to a much more serious outcome.

4.5 It is our judgment that Mr Macfarlane misconducted himself when he continued to ride the horse over the last fence and to the finishing line knowing that it was bleeding from one of its nostrils. Although there was no determination by the Judicial Committee as to what Mr Macfarlane actually heard from the vet Mr Black, it seems clear to us that Mr Macfarlane must have known that the veterinary surgeon was concerned. In our view it is not necessary in order to establish the charge to determine as a matter of fact that Mr Macfarlane heard what Mr Black said. It is quite enough that Mr Macfarlane, with the knowledge he had, chose to remount the horse and continue.

4.6 The welfare of horses and jockeys is of paramount importance. Any perceived compromise of horse welfare exposes thoroughbred racing to criticism. All persons licensed under the Rules of Racing must recognise that the welfare of horses is something which must be taken seriously. Where a licensed person knows that the health of the horse has been compromised they should not take actions which might further damage the horses’ health. In the circumstances outlined here Mr Macfarlane was well aware that the horse had been injured. While we accept that he may have acted without due consideration, we are clear that in doing as he did he misconducted himself within the terms of the rule.

5. PENALTY
5.1 As noted in the interim decision of the 30th May 2012 this appears to be the first occasion upon which a charge has been brought in circumstances which relate directly to animal welfare during the conduct of a race. It is an issue of such importance that the Tribunal takes the view that a conviction will mean a suspension is almost inevitable. The length of such suspension will be determined by the circumstances of the case and the record and conduct of the licence holder who has been found in breach. Our interim decision acknowledged that Mr Macfarlane has a good record. Mr Oatham drew attention to a case which perhaps bears the closest analogy to the present. That is RIU v McG of January 2012. In that case a jockey weighed out without a vest. That clearly was directly relevant to the jockey’s safety. A suspension of six weeks was imposed.

6. COSTS
6.1 The Tribunal expressed a preliminary view in paragraph 4.1 of its interim decision of 30 May this year. Since then helpful submissions have been received on behalf of both Mr Macfarlane and the RIU.

6.2 Mr Ryan submits that Mr Macfarlane has essentially succeeded in both aspects of his appeal. This he contends is because the finding of misconduct reached by this Tribunal is based upon different grounds from those expressed by the Raceday Judicial Committee. To suggest that Mr McFarlane has succeeded on the appeal against the finding of misconduct is to seriously overstate the position. Mr Ryan then points to the reduction in penalty.

6.3 Mr Ryan has further submitted that the JCA is a body akin to a Court and that where there are unusual circumstances, as he contends is the case here, no costs award should be made. Then Mr Ryan puts forward a submission that the Appellate Tribunal does not have jurisdiction to make a costs award in favour of the JCA. He points to schedule 3 of the Racing Act 2003. Reference is made to Rule 1007(3) of the Rules of Racing which it is acknowledged appears to give the Appeals Tribunal the right to order costs in favour of the JCA. It is then said by Mr Ryan that Rule 1007(3) is ultra vires in as much as the rule conflicts with clause 22 of Schedule 3 to the Racing Act. Shortly stated Mr Ryan’s proposition is that the rules are inconsistent with the Act and that the Act must prevail. This is not an argument that the Tribunal members have previously encountered, nor is there any record of such an argument having been previously advanced. The Tribunal in this case is not prepared to become involved in a detailed analysis of the statutory provisions noted above in order to determine the ultra vires submission. That would need to be the subject of more detailed analysis on another occasion. This Tribunal is content to adopt the approach which has been followed without dispute over many years – that is to say that the Tribunal has power to award costs against parties and in favour of the JCA.

6.4 Mr Oatham on behalf of the RIU makes the valid submission that the appeal against conviction failed. He contends that because the reasoning of this Tribunal and the Raceday Judicial Committee are somewhat different that is not a consideration which tells against a costs award. As to the penalty appeal Mr Oatham submits there was a nominal modification to the penalty.

6.5 Mr Oatham quotes the judgment of the Appeals Tribunal in NZTR v McA May 2011. That decision is well known to the Tribunal. The conduct in question there was very different from that with which we are concerned. The behaviour under consideration there was entirely indefensible. Nevertheless we express our agreement with the general proposition that there is no compelling reason in principle why those persons whose conduct or behaviour leads to the initiation of disciplinary proceedings should not, within limits, bear the expense of those disciplinary proceedings. In our view it is not inconsistent with the McA decision to observe that the circumstances here are somewhat unusual. This is the first case where a Judicial Committee has had to give consideration to the conduct of a jockey where the issue was primarily animal welfare and to some extent the welfare of the jockey himself. Moreover we think it appropriate to observe that attitudes towards animal welfare have changed over time. More regard is paid to the issue now than was formerly the case.

6.6 For the reasons which we have sought to explain we think that it would be appropriate in this case if a modest costs award were made in favour of RIU having regard to the cost of preparing the transcript and a comparatively modest costs award to the JCA who have been put to the expense of the Tribunal hearing. Both Tribunal members were required to travel some distance to attend the hearing at Te Rapa on the 30th May. Mr Macfarlane will pay costs to the RIU of $130.00. This was the cost of transcribing the evidence given before the raceday Judicial Committee. He will pay costs to the JCA in the sum of $750.00.

Dated this 8th day of June 2012
_________________________________
Murray McKechnie
Chairman

Signed pursuant to Rule 920(5)
 

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Old Hearing

Rules: 340

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: