Appeal – A Calder v NZTR 10 August 2009 decision

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hearing_title: Appeal - A Calder v NZTR 10 August 2009 decision

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APPEAL HEARING : ANDREW CALDER v NZTR

APPEALS TRIBUNAL                     Mr M S McKechnie, Chairman and Mr T W Castles

PRESENT                                         Mr Andrew Calder, Licensed Jockey

                                                           Mr Mike Dillon

                                                           Mr Alan Coles, Stipendiary Steward

                                                           Mr John Oatham, Stipendiary Steward

DECISION OF APPEALS TRIBUNAL 10^th AUGUST 2009

1.            NATURE OF APPEAL

1.1          This is an appeal by Mr Andrew Calder licensed jockey in respect of the finding of the Judicial Committee at Ruakaka on the 31^st July this year. Mr Calder was found guilty of a breach of Rule 871(1)(d) – careless riding.

1.2          In Race 5 Mr Calder was riding a horse named Mystabrett. It was alleged that near the 600m mark when not sufficiently clear he interfered with a horse Rozana ridden by Ms Samantha Spratt.

1.3          On the day in question Mr Calder did not admit the charge and there was an extended hearing. In the course of that hearing Ms Spratt gave evidence. So too the jockey Mr James McDonald who was riding a horse named Sir Cayden on the inside of Ms Spratt’s mount named Rozana. Mr Vincent Ho who was riding in the race also gave evidence before the Judicial Committee.

1.4          Mr Calder appeals against the finding only and does not challenge the penalty of the four (4) day suspension.

APPEAL HEARING : ANDREW CALDER v NZTR

APPEALS TRIBUNAL                        Mr M S McKechnie, Chairman and Mr T W Castles

PRESENT                                            Mr Andrew Calder, Licensed Jockey

                                                              Mr Mike Dillon

                                                              Mr Alan Coles, Stipendiary Steward

                                                              Mr John Oatham, Stipendiary Steward

DECISION OF APPEALS TRIBUNAL 10^th AUGUST 2009

1.            NATURE OF APPEAL

1.1          This is an appeal by Mr Andrew Calder licensed jockey in respect of the finding of the Judicial Committee at Ruakaka on the 31^st July this year. Mr Calder was found guilty of a breach of Rule 871(1)(d) – careless riding.

1.2          In Race 5 Mr Calder was riding a horse named Mystabrett. It was alleged that near the 600m mark when not sufficiently clear he interfered with a horse Rozana ridden by Ms Samantha Spratt.

1.3          On the day in question Mr Calder did not admit the charge and there was an extended hearing. In the course of that hearing Ms Spratt gave evidence. So too the jockey Mr James McDonald who was riding a horse named Sir Cayden on the inside of Ms Spratt’s mount named Rozana. Mr Vincent Ho who was riding in the race also gave evidence before the Judicial Committee.

1.4          Mr Calder appeals against the finding only and does not challenge the penalty of the four (4) day suspension.

2.            CASE FOR MR CALDER

2.1          Mr Calder was represented by his agent Mr Mike Dillon. In opening Mr Dillon pointed to a number of passages in the finding of the Judicial Committee which he contends were erroneous. In looking at the decision (the paragraphs are not numbered) Mr Dillon first drew attention to paragraph 6 which he said did not accurately record the evidence that was given. He also took issue with the decision in so far as it made reference to the line which Mr Calder had followed on Mystabrett.

2.2          Mr Dillon drew attention to what Mr McDonald had said concerning his mount at page 7 of the transcript. Further reference will be made to that later in this decision.

2.3          Mr Dillon took issue with Mr Oatham’s submission before the Judicial Committee on the 31^st July and in particular what was said by Mr Oatham at the foot of page 1 and the top of page 2 when, in effect, opening the case for the stipendiary stewards on that day. In particular Mr Dillon challenged the proposition that because Mystabrett was two off the running rail when the horses turned for home this of itself did not demonstrate that interference had been caused to Ms Spratt’s mount Rozana.

2.4          Mr Dillon acknowledged that Mystabrett was ¾ of a length or perhaps one length ahead of Rozana at the time of the incident and that under the well recognised rules the outside horse was not permitted to cross in that situation.

2.5          It was essentially Mr Dillon’s contention that there was no error of judgment on Mr Calder’s part. Rather he said that the horse Rozana was hanging out and that this was contributed to by Mr McDonald’s mount. He made something of what was meant by Mr McDonald when he made reference to this at page 7. As to Ms Spratt’s account that appears at page 4 of the transcript and more will be said of that later. In essence Mr Dillon said that Ms Spratt was obliged to ease back and this was not as a result of anything done by Mr Calder on Mystabrett.

3.                            CASE FOR NZTR

3.1          Mr Coles submitted that Mystabrett was ½ a length or perhaps ¾ of a length ahead of Rozana when the incident occurred. In essence he and Mr Dillon were of the same mind on that issue and the distance by which Mystabrett was ahead of Rozana is not in the Tribunal’s opinion determinative of this appeal.

3.2         Mr Coles says that Samantha Spratt was still travelling equally well on her mount and that she was entitled to be where she was.

3.3         Mr Coles says further that NZTR does not accept that the mount Rozana was “hanging out”. Here reference needs to be made to page 4 of the transcript where towards the foot of the page Ms Spratt says she “was hanging out a bit and I was sort of like, wasn’t...wouldn’t say I was sort of like bolting, travelling, you know”. It is not entirely clear as to what is to be made of that explanation except that it is plain to the Tribunal that Ms Spratt, who was answering a question from Mr Calder, does acknowledge that her horse was hanging out to some extent.  It will be seen from what we have said that Mr Coles does not accept that this was the position notwithstanding that Ms Spratt said this had occurred.

3.4         There is reference to what Mr McDonald had to say. This is at page 7 of the transcript. He was asked about how his horse was travelling. Mr McDonald acknowledged at page 7 of the transcript that “I might have come off a little bit but it would have been pretty marginal...” and later on he said in answer to a question from the Chairman he said “correct. He was hanging a little bit, but ...” and then the Chairman asked “very marginally”. There was no response from Mr McDonald. Mr Dillon had earlier drawn attention to the running of Mr McDonald’s horse in the straight. The Tribunal is not persuaded that there is anything of real significance in that. For his part Mr Coles emphasised that Mr McDonald had said that any movement by his mount Sir Cayden was very small.

3.5         In summary Mr Coles says that the only credible explanation for the check to Ms Spratt’s mount was Mr Calder on Mystabrett taking the line of that horse and causing Ms Spratt to check her horse out of a position where there simply wasn’t room for it.

4.            DECISION OF THE APPEAL TRIBUNAL

4.1         There were films of the race. Regrettably the quality of these was rather substandard. These were analysed in detail by Mr Dillon and Mr Oatham. Further – this does not reflect on any of the parties – the very part of the racecourse where this incident occurred is the part where the cameras are least effective. The horses were turning out of the back straight and the only views available are a back view which is not very helpful and a side view. From the side angle it is very difficult to assess where the horses were in relation to each other and the position of each in relation to the running rail.

4.2         This Tribunal has come to the view that the film does not assist in determining exactly how the check to Ms Spratt’s mount came about. It might be an inferential conclusion that the check to that horse was caused by a movement by Mystabrett but the films do not show that this occurred. The check to Ms Spratt’s mount can be seen plainly enough but the circumstances which brought that check about cannot be found by studying the films.  

4.3         In addition to what has just been said it is important in the Tribunal’s view to bear in mind the passages in the evidence given by Ms Spratt and Mr McDonald. Both acknowledged with some qualifications that their horses were moving away from the rail.

4.4         Mr Calder for his part has maintained throughout that he had not shifted his line. It is clear that when the horses turned into the straight he was two off the rail but when questioned he for some reason maintained that he was three off the rail. Mr Oatham made something of this. In the Tribunal’s view that does not assist in determining what happened at around the 600m mark. On the day in question Mr Calder said that in his opinion Ms Spratt may have pulled back quite quickly and that her horse was tired and even suggested that she may have over reacted.

4.5         In the Tribunal’s view the film cannot determine the cause of the check to Ms Spratt’s mount Rozana. When that conclusion is reached and the evidence of Ms Spratt and Mr McDonald is taken into account the explanation for the check to Rozana is unclear. For the charge of careless riding against Mr Calder to have been proved the Judicial Committee was required to make a determination on the standard of proof required – the balance of probabilities – that some action or omission by Mr Calder was responsible for the check to Rozana. This appeal is by way of rehearing. Nevertheless regard must be had to the decision of the Judicial Committee. We are conscious that it was an experienced Committee and that it heard evidence from no fewer than four (4) jockeys. That said we are clear that the evidence does not satisfy us that carelessness was established and in those circumstances it follows that the charge was not proved to the requisite standard. It may be that if the films had been better in as much as better able to pick up what was going on a fuller explanation might have been available. However we must take the evidence as we find it and we have come to the conclusion that the Judicial Committee were in error in deciding that Mr Calder was guilty of careless riding. It follows that the appeal is upheld and the finding made on the 31^st July 2009 is set aside. Mr Calder will have his deposit refunded. No issues of costs arise.

DATED  this 10^th day of August 2009

__________________________________                 _____________________________

Murray   McKechnie                                                                       T W Castles

Chairman

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Rules: 871.1.d

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