Appeal HS Tinsley v NZTR heard 1 December 2010 – Decision 7 December 2010

 

 

 

                              Mr Richard Seabrook (Member)

 

 

Date of hearing:       1 December 2010

Date of decision:      7 December 2010

The appellant, Mr Tinsley, was found to be in breach of R 638(1)(d) (careless riding) by a raceday committee in respect of his ride on MAGIC BRIAR in race 6 at the Riccarton Park meeting on 13 November last. His licence was suspended for two weeks and he was fined the sum of $1000. He appeals against both the finding that he was in breach of the rule and the penalty imposed.

[1]               A preliminary legal issue as to the nature of the appeal and the admissibility of opinion evidence was raised by the respondent.

[2]               The respondent referred to authorities as to the nature of a rehearing and contrasted this with a de novo hearing. An appeal by way of rehearing was said to proceed on the basis of the evidence as originally adduced, except that the law to be applied was as at the date of the appeal. This latter issue was irrelevant in this case. Mr Colson referred to the commentary to RR 20.11-20.18 in McGechan on Procedure and submitted that this Tribunal had to come to its conclusion, based on the material presented before the decision-making body (the raceday committee), and any further evidence that had been admitted. Harris v Caladine [1991] HCA 9, which was also cited by Mr Colson, we accept is authority for this proposition.

[3]               Mr Colson submitted that it would be inappropriate for this Tribunal to allow a complete rehearing of the original evidence and/or an expanded hearing. He further submitted that as we were a specialist Tribunal, we were perfectly capable of interpreting the video evidence without the assistance of opinion evidence. He added, however, that had no objection to the enhanced DVD shots nor to Mr Tinsley elaborating upon his earlier evidence.

[4]               Mr Brosnahan stated that the evidence that the appellant proposed to introduce was not available on raceday, and that it was in the interests of justice, and in the public interest, that it be admitted. He emphasised the appellant had had little time to prepare his defence on raceday and had only seen limited video footage. The rear-on film, which he believed was especially helpful, had not even been shown on raceday. He further said that the two experts were not being called to determine the ultimate issue but rather to assist this Tribunal by explaining matters such as how horses react and to help determine why a horse might move in sharply. He stated finally that the case was the subject of unprecedented interest, publicity, and controversy, and that this was a relevant factor when making our decision as to the admission of the expert evidence.

[5]               The Tribunal observes that the two relevant rules are subs (3) and (4) of R 1005. These provide:

(3) All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.

(4) The Appeals Tribunal shall have the same jurisdiction and authority as the Judicial Committee or other persons or body appealed from, including powers as to amendment, and shall have power to receive such further evidence, if any, as it thinks fit. Except by special leave of the Appeals Tribunal an appellant shall not argue or be permitted to argue any ground of appeal not set out in the notice of appeal.

Ruling as to admission of evidence (this was delivered orally at the hearing)

[6]               We rule pursuant to R 1005(3) and (4) that the appellant is permitted to call expert evidence from Mr Vance and Mr Wheeler. We note that Mr Brosnahan had indicated at an earlier telephone conference that he intended to call these witnesses and Mr Colson had the opportunity to respond, and has responded, in an informed fashion. We have considered his submissions, which we have found helpful.

[7]               We acknowledge the limited nature of an appeal by way of a rehearing but emphasise two matters: (1) the time constraints imposed upon a raceday hearing and, in particular, the limited time a defendant has on raceday to prepare his or her case; and (2) there is significant public interest in this particular case, and we believe it is in the interests of justice that we have the benefit of the expert evidence.

[8]               The ultimate decision is, of course, one for this Tribunal. The witnesses may assist us in the interpretation of the videos and, in particular, may draw our attention to issues surrounding the actions of horse and jockey.

[9]               After discussion with counsel it was agreed that the respondent would present his case first.

[10]           Mr George stated jockeys had two very clear obligations under R 638(1)(d): (1) they must be two lengths clear when shifting ground; and (2) they must leave sufficient room for other runners to which they are entitled. In his opinion, the appellant had breached both these obligations.

[11]           Mr George demonstrated the incident on a number of video angles. He showed the head-on and side-on videos and said there was at first insufficient room for MISS MAXIMUSS to improve between TWILIGHT SAVINGS and WE CAN SAY IT NOW. MAGIC BRIAR then shifted out under pressure near the 300 metres. In so doing, the appellant relinquished his racing position outside MISS MAXIMUSS and created a clear run for TWILIGHT SAVINGS, which had been racing hard up on the heels of MAGIC BRIAR and thus was able to move quickly into the gap that had been presented to her. He said there was clear room for three horses to maintain a clear run to the line had MAGIC BRIAR maintained a straight line. He reiterated that jockeys could not shift ground when not sufficiently clear of other runners. He emphasised a jockey could dictate the line of another runner without there being contact. He believed this was what the appellant had done in this instance.

[12]           Mr George used the marked strips on the track to demonstrate that MAGIC BRIAR was not sufficiently clear to shift back in, but alleged the appellant had allowed his mount to do so. He had continued to ride MAGIC BRIAR out and had dictated the line of TWILIGHT SAVINGS. In so doing, he reduced the room for all the horses that were racing on his inner. The onus was on the appellant to stop and straighten his mount. He did not, despite having ample time to do so.

[13]           Mr George said that had MAGIC BRIAR remained in a straight line, there was room for three runners to her inner. He said TWILIGHT SAVINGS had been taken in from a three wide position into the line of a tiring MISS MAXIMUSS and had made contact with the shoulder of that horse.TWILIGHT SAVINGS had got turned in because of this contact, which was purely the result of inwards movement from MAGIC BRIAR. These horses were left with insufficient room because of careless riding by the appellant. The onus was on the appellant to remain straight. Once TWILIGHT SAVINGS had maintained a run to the inside of MAGIC BRIAR there was never clear room for MAGIC BRIAR to shift back in. The appellant was not clear when shifting ground inwards and had not left running room for the horses on his inside. MAGIC BRIAR had moved in to such an extent that she came into the line that TWILIGHT SAVINGS had been running on. Had the appellant been a length clear, he said, the interference would not have occurred. He ended his submission by reiterating that the appellant had failed to stop riding and had not straightened his mount, and was thus in breach of the rule.

[14]           Mr Brosnahan first demonstrated that the camera angle in the head-on was not in a direct line and thus it gave a distorted view of distances from the running rail. He questioned the measurements of the mown strips and emphasised that, in his opinion, the rear-on video gave the most accurate view.

[15]           Mr Brosnahan said the reason that TWILIGHT SAVINGS had turned sideways was because Mr Innes had used his whip and had no control over his right rein. He said there was no squeezing or tightening of TWILIGHT SAVINGS by MAGIC BRIAR. There was no touching; there was always daylight between the two horses. He said he would call evidence that would show TWILIGHT SAVINGS had ducked sideways on a previous occasion when under no pressure. He said the appellant had no part in any interference to TWILIGHT SAVINGS. That horse had ducked in because of a lack of control by her jockey. He said the rear video view clearly demonstrated there was always room for three horses to the inner of MAGIC BRIAR.

[16]           The appellant gave evidence that he had had little opportunity on raceday to view the video footage and had seen only the front-on view at the protest hearing. He said he had now viewed a number of video angles and it was his belief that TWILIGHT SAVINGS had made an unprompted inwards movement, which caused interference to MISS MAXIMUSS and WE CAN SAY IT NOW. He believed there was always ample room on the inside of MAGIC BRIAR for three horses. He said in his view the front-on angle gave a false impression as to the distance between MAGIC BRIAR and the running rail. He said the raceday committee had been incorrect to base its conclusions on the lines on the grass as there was no evidence these were directly straight and were parallel to the rail.

[17]           Mr Tinsley acknowledged he had moved in at the 400 metre mark, when he believed he was clear, and had then moved out which gave room for TWILIGHT SAVINGS to come on the inside. He said between the 200 and 150 metre mark Mr Innes had taken the stick to his mount and then regained the right rein, having released it to use the stick. He said Mr Innes had released the right rein again to use the stick and the horse had at that time spontaneously started to duck left. He says that the footage demonstrates that as Mr Innes attempted to regain the rein and take control, the whip became tangled in the rein. He said there was “daylight” between his mount and TWILIGHT SAVINGS during the incident. At no stage did his horse touch TWILIGHT SAVINGS, nor was there a squeezing up of room that precluded three horses from running on the inside of that horse. He added that the stipendiary reports evidenced that TWILIGHT SAVINGS had a propensity to spontaneously duck in and out. He concluded by saying in his view TWILIGHT SAVINGS had simply ducked in for no apparent reason and that the actions of MAGIC BRIAR had nothing to do with it.

[18]           Mr Robert Vance, a retired jockey with some 22 years’ experience, was called by Mr Brosnahan. He explained he had had experience mentoring jockeys with respect to riding faults. He said he had studied the video footage of the incident on numerous occasions, including enhanced footage and frame-by-frame presentation. In his opinion, MAGIC BRIAR did not roll in or shift inwards either immediately prior to or at the time of the interference to WE CAN SAY IT NOW. He said Mr Innes, the rider of TWILIGHT SAVINGS, was using the whip on the horse and had his right hand off or out of contact with the right hand rein. TWILIGHT SAVINGS then made an erratic spontaneous inside movement ducking to the left, while Mr Innes was in the process of using the whip and trying to regain contact with the rein and the mouth of the horse. He added he did not believe MAGIC BRIAR had encroached on the racing line of TWILIGHT SAVINGS and that any inwards movement by that horse was after the interference. He further added he believed the front-on angle gave a false impression of the closing of distance between MAGIC BRIAR and the running rail. From the rear angle, he said, it “was abundantly clear that MAGIC BRIAR maintained her line throughout the incident.” There was room for three horses inside MAGIC BRIAR when TWILIGHT SAVINGS ducked in. He said the movement of TWILIGHT SAVINGS was very similar to that he witnessed when viewing a video of that horse racing a week before, again at Riccarton. He also drew this Tribunal’s attention to another incident at Masterton on 28 March last where the stipendiary reported stated TWILIGHT SAVINGS had shifted out dictating another horse over extra ground and had continued to race greenly for the remainder of the event.

[19]           In response to questioning from Mr George, Mr Vance stated he did not believe that MAGIC BRIAR had dictated TWILIGHT SAVINGS’ line. He said MAGIC BRIAR was allowed to shift in to space that had become available.

[20]           Mr John Wheeler, public trainer from New Plymouth, gave evidence that he had studied the video footage of the incident on numerous occasions. He said that in his opinion TWILIGHT SAVINGS had simply veered to the left, or ducked in between the 150 and 200 metre mark. He added there was clearly daylight between TWILIGHT SAVINGS and MAGIC BRIAR throughout the incident and there was no interaction between MAGIC BRIAR and TWILIGHT SAVINGS that could have contributed to TWILIGHT SAVINGS’ movement. He noted that when TWILIGHT SAVINGS ducked in her jockey was in the process of using the whip on her and had effectively let go of the right hand rein, with the consequence that once TWILIGHT SAVINGS went to duck in the jockey had no ability to correct the horse’s movement. He said Mr Innes was not under pressure from his outside at this time; the inwards movement by MAGIC BRIAR occurred only when that horse was taking up space on her inner. MAGIC BRIAR, in his view, was entitled to follow TWILIGHT SAVINGS in.

 

Reasons for decision (paras [23] to [28] were delivered orally at the hearing)

[21]           In contrast to the raceday committee, this Tribunal has had the advantage of viewing videos of the incident from numerous angles, at slow speed, and with enhanced technology. We have also heard more considered submissions from the parties and have listened to expert witnesses.

[22]           We believe the severity of the interference suffered by WE CAN SAY IT NOW has served only to deflect attention away from the principal inquiry, which, of course, is whether the appellant is guilty of careless riding.

[23]           We have given careful consideration to the appellant’s riding immediately prior to the interference. We are satisfied the appellant has moved inwards from a four wide position to a three wide position over the 75 metres immediately prior to TWILIGHT SAVINGS coming into contact with MISS MAXIMUSS.

[24]           A crucial matter for determination is whether the inwards movement of MAGIC BRIAR dictated the line of TWILIGHT SAVINGS. We have heard expert evidence that it did not and that MAGIC BRIAR simply followed TWILIGHT SAVINGS across as that horse moved in. It is evident from the side on view that MAGIC BRIAR was at all times ahead of TWILIGHT SAVINGS by at least a neck and was indeed further ahead, on occasion, in the run up the straight. We believe MAGIC BRIAR has dictated the line of TWILIGHT SAVINGS and was not simply following that horse in. The inwards movement of these two horses was a result of movement by MAGIC BRIAR. The consequence was that the three horses on MAGIC BRIAR’s inner, WE CAN SAY IT NOW, TWILIGHT SAVINGS and MISS MAXIMUSS came to race in ever tightening quarters. The video evidence clearly demonstrates there was never contact between MAGIC BRIAR and TWILIGHT SAVINGS. At the time of contact between MISS MAXIMUSS and TWILIGHT SAVINGS there was a clear gap between MAGIC BRIAR and TWILIGHT SAVINGS.

[25]           We are satisfied, and this is demonstrated by the rear-on video, that at the time MAGIC BRIAR was dictating TWILIGHT SAVINGS’ line that horse (TWILIGHT SAVINGS) commenced an angled inwards movement some 10 or so metres prior to the interference occurring. We viewed a video of the 2000 Guineas, which demonstrated similar inwards movement by TWILIGHT SAVINGS on the same track a week before. With respect to the race we are considering, however, TWILIGHT SAVINGS ducked in sharply at a time that her rider had a loose right hand grip on the rein as he was about to use his whip. The interference, found to have been suffered by WE CAN SAY IT NOW, then occurs.

[26]           We believe the interference to WE CAN SAY IT NOW occurred for two reasons: (1) the sudden inwards movement of TWILIGHT SAVINGS (who over-reacted to the earlier inwards movement of MAGIC BRIAR), which we see as the principal cause; and (2) the general tightening that had occurred over the preceding 75 metres as a consequence of the inwards movement by MAGIC BRIAR. This inwards movement is from the time MAGIC BRIAR had shifted out shortly after turning for home. Prior to this she had briefly come into TWILIGHT SAVINGS’ running line. In so moving out, MAGIC BRIAR had left a gap into which TWILIGHT SAVINGS was entitled to proceed. As TWILIGHT SAVINGS progressed, this run gradually closed to the point that MAGIC BRIAR dictated TWILIGHT SAVINGS’ line. The movement was slight — only a horse width — and was gradual in nature. TWILIGHT SAVINGS was required to move inwards on the track due to this gradual inwards movement from MAGIC BRIAR.

[27]           The appellant was not his required distance clear when this inwards movement occurred. We therefore uphold the finding of careless riding, but in circumstances where we would not attribute the principal responsibility for the interference that was caused to WE CAN SAY IT NOW to the actions of the appellant.

[28]           The respondent produced the appellant’s record, which he described as “good”. After placing emphasis in the status of the race, Mr George submitted that the appropriate penalty was that which had been imposed on raceday. He calculated this suspension to have encompassed eight days, including two premier days. He accepted that three days had been served before this Tribunal granted Mr Tinsley a stay.

[29]           Mr Brosnahan emphasised that this Tribunal had found the appellant’s carelessness to be at the bottom end. He also said that we had found the appellant not to be principally responsible for the interference suffered by WE CAN SAY IT NOW. To an extent, he said, we had validated Mr Tinsley’s challenge to the raceday decision. He submitted that the penalty Mr Tinsley had served (three days) was a sufficient penalty.

Decision as to penalty (this was delivered orally at the hearing)

[30]           We accept the appellant’s submission that the degree of carelessness was at the bottom of the scale. The consequences of the appellant’s carelessness were severe in that a relegation was the result but, as we have found, we do not attribute sole responsibility for the interference that occurred to WE CAN SAY IT NOW to Mr Tinsley. The status of the race and the stakes payable are also relevant factors.

[31]           We have had the appellant’s record placed before us and we agree with Mr George that this record can be viewed as good.

[32]           The circumstances in which we come to impose penalty are unusual. This decision is not to be viewed as a precedent with respect to the imposition of a penalty in a Group One race.

[33]           Mr Tinsley has to be held accountable for his actions but, as we have said, his degree of carelessness is far from being at the top end. Accordingly, we reduce the suspension to one of six days, which is to commence after racing on 5 December next and is to conclude after racing on 10 December, which is an additional three days to those Mr Tinsley has already served. The fine of $1000 is quashed.

[34]           Neither party sought an order for costs. Although the appellant has not been successful in his appeal against the finding that he rode carelessly, he has received a reduction in penalty. In these circumstances, our tentative view is that costs should lie where they fall but if either party wishes to make an application for costs they may do so within seven days of the release of this decision.

 

Professor Geoff Hall, Chairman

Mr Richard Seabrook, Member