Appeal – B Herd
ID: JCA19517
Hearing Type (Code):
thoroughbred-racing
Decision: --
This is an appeal against the finding of the race day Judicial Committee of 24 March 2007 at the Waverley Racing Club's meeting at Waverley. The appellant was found to have ridden carelessly causing interference to "Pentathon" ridden by D. Walsh and "Miles" ridden by K. Collins in Race 8
--
This is an appeal against the finding of the race day Judicial Committee of 24 March 2007 at the Waverley Racing Club's meeting at Waverley. The appellant was found to have ridden carelessly causing interference to "Pentathon" ridden by D. Walsh and "Miles" ridden by K. Collins in Race 8 the Steelform Roofing Group Waverley Gold Cup. The appellant also appeals against the sentence which was a suspension of his Jockey's Licence for three riding days.
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The procedure for this appeal against conviction is governed by Rule 1205(2) and is to be by way of a rehearing based on the evidence adduced at the original race day hearing. Neither party sought to call witnesses or to introduce new evidence.
--We heard evidence from Mr Herd and Mr Goodwin and submissions from Mr Tannahill and Mr Goodwin. We also viewed the video tapes of the race, and in particular we viewed the head on video, as this gave the best view of the alleged interference. We adjourned the hearing to consider our decision. On resuming the hearing we advised that a full written decision would be given later, and we gave the following oral decision.
------"This is an appeal against the finding of the race day Judicial Committee of 24 March 2007 wherein the appellant was found to have ridden carelessly affecting the chances of "Pentathon" (D. Walsh) and "Miles" (K. Collins) in the Steelform Roofing Group Waverley Gold Cup. The appellant also appeals against the suspension of his Jockey's Licence for three riding days.
The procedure for this appeal is governed by Rule 1205. The appeal was conducted by way of a rehearing based on the evidence adduced before the Judicial Committee. We note that there is no presumption in favour of the Judicial Committee's decision, and we must reach our own decision. We must however bear in mind findings of credibility of the Judicial Committee below, and be slow to differ from them, but we are not bound to follow them. The respondent has the onus of establishing the charge.
--We have read the transcript of the race day hearing, seen the videos of the alleged interference, heard evidence from Mr Herd and Mr Goodwin, and heard submissions from both parties.
--We are satisfied that Mr Herd started from barrier 9, and moved inwards gradually until just short of the winning post. At that stage Mr Herd's horse moved inwards quite sharply. We accept the evidence of Kyle Collins ("Miles") that Mr Herd was 1? lengths clear of his horse at that stage, and note that Rule 870(2)(a) requires that a horse be at least its own length, plus another length clear before crossing another horse. We also accept the evidence of D. Walsh ("Pentathon") the he received pressure from "Miles" on his outside, which had his line dictated to by "Thee Auld Hussie" ridden by Mr Herd.
--One of the grounds of appeal was that the charge should have been dismissed because of "reasonable doubt". This is not the standard of proof in hearings of this kind, as this is not a criminal tribunal where proof beyond reasonable doubt is required. We only need to be satisfied that the charge has been proved.
--Taking all the above matters into account we are satisfied the charge has been proved, and the appeal is dismissed."
--We then heard from Mr Tannahill in relation to penalty. It was Mr Tannahill's
--submissions that a three day suspension was excessive and should be reduced to two days. It was also submitted that Mr Herd is a very busy rider and that his riding record is good.
--On behalf of the respondent Mr Goodwin agreed that Mr Herd had a good riding record considering the number of rides he had. In the last 12 months there had been a three day suspension in July 2006, and a four day suspension in February 2007. Mr Goodwin said that he believed that a three days suspension was appropriate and fair in the circumstances of this case.
--We adjourned to consider the appeal against sentence. In relation to an appeal against penalty we are satisfied that the appellant must satisfy us that the penalty imposed was manifestly excessive or inappropriate. We took into account that the interference took place in a $60,000 race and it severely affected the chances of "Pentathon", and also affected the chances of "Miles" to a lesser extent. We were firmly of the view that there was no merit in this appeal, which was dismissed. Pursuant to Rule 1213 we are therefore required to suspend the appellant's Jockey's Licence for a period commensurate with the period of suspension originally imposed.
--On resuming the hearing we advised the parties that the appeal against sentence was also dismissed. There were then discussions as to what would amount to a "commensurate" replacement suspension. The original suspension of three days was from the conclusion of racing on 24 March 2007 up to and including 5 April 2006. This suspension was stayed, but would have included two non-premier meetings and a premier meeting of the Manawatu Racing Club.
--During the stay of proceeding on this charge Mr Herd had been suspended for 5 days from after the completion of racing on 4 April 2007, until after the completion of racing on 12 April 2007. The replacement suspension therefore had to commence after the completion of racing on 12 April 2007. A three day suspension would be for the Manawatu Racing Club's meeting on 14 April 2007, the Racing Te Aroha meeting on 18 April 2007, and the Hawke's Bay Racing meeting on 21 April 2007. We were concerned that Mr Herd might be gaining an advantage in that all three of these meetings were non-premier. However, we found that the Manawatu and Hawke's Bay meetings both had two highly staked races on their programmes. We were therefore satisfied that this three day suspension would be "commensurate" with the one originally imposed.
--Accordingly Mr Herd's Jockey's Licence was suspended from the conclusion of racing on 12 April 2007 until after the conclusion of racing on 21 Aril 2007 (three days).
--Costs: The question of costs was raised with the parties. Mr Goodwin advised that the costs of Thoroughbred Racing were minimal and no costs would be sought. We indicated that there would be an order of costs to the JCA. Mr Tannahill submitted that the usual guidelines should be followed as to costs, and that an order for full costs would not be appropriate. We agreed that this was the case.
--The Tribunal has however determined that this is an appropriate case to order costs to the JCA . The most significant considerations are that the appeals were dismissed. In fixing the amount of costs we consider that Mr Herd should make a significant contribution towards the costs which have been incurred. Indemnity costs are not considered appropriate but the figure set should nevertheless reflect the real cost of the appeal process. We order that the appellant is to pay costs of $750-00 to the Judicial Control Authority.
--We finally deal with the filing fee paid by the appellant. Rule 1211 gives this Tribunal discretion as to whether this fee should be forfeited or not. As the appeals against both conviction and sentence have been dismissed, with our findings being much the same as those of the race day Judicial Committee, we were satisfied that the filing fee should be forfeited. We therefore advised the parties that the filing fee would be forfeited to Thoroughbred Racing.
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--
_______________ _______________
--J. M. Phelan R. G. McKenzie
--Chairman
Decision Date: 01/01/2001
Publish Date: 01/01/2001
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 685ec8c2669a7e35cf20a6d7f0fb7f14
informantnumber:
horsename:
hearing_racingtype: thoroughbred-racing
startdate: 01/01/2001
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Appeal - B Herd
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
--This is an appeal against the finding of the race day Judicial Committee of 24 March 2007 at the Waverley Racing Club's meeting at Waverley. The appellant was found to have ridden carelessly causing interference to "Pentathon" ridden by D. Walsh and "Miles" ridden by K. Collins in Race 8
--
This is an appeal against the finding of the race day Judicial Committee of 24 March 2007 at the Waverley Racing Club's meeting at Waverley. The appellant was found to have ridden carelessly causing interference to "Pentathon" ridden by D. Walsh and "Miles" ridden by K. Collins in Race 8 the Steelform Roofing Group Waverley Gold Cup. The appellant also appeals against the sentence which was a suspension of his Jockey's Licence for three riding days.
----
The procedure for this appeal against conviction is governed by Rule 1205(2) and is to be by way of a rehearing based on the evidence adduced at the original race day hearing. Neither party sought to call witnesses or to introduce new evidence.
--We heard evidence from Mr Herd and Mr Goodwin and submissions from Mr Tannahill and Mr Goodwin. We also viewed the video tapes of the race, and in particular we viewed the head on video, as this gave the best view of the alleged interference. We adjourned the hearing to consider our decision. On resuming the hearing we advised that a full written decision would be given later, and we gave the following oral decision.
------"This is an appeal against the finding of the race day Judicial Committee of 24 March 2007 wherein the appellant was found to have ridden carelessly affecting the chances of "Pentathon" (D. Walsh) and "Miles" (K. Collins) in the Steelform Roofing Group Waverley Gold Cup. The appellant also appeals against the suspension of his Jockey's Licence for three riding days.
The procedure for this appeal is governed by Rule 1205. The appeal was conducted by way of a rehearing based on the evidence adduced before the Judicial Committee. We note that there is no presumption in favour of the Judicial Committee's decision, and we must reach our own decision. We must however bear in mind findings of credibility of the Judicial Committee below, and be slow to differ from them, but we are not bound to follow them. The respondent has the onus of establishing the charge.
--We have read the transcript of the race day hearing, seen the videos of the alleged interference, heard evidence from Mr Herd and Mr Goodwin, and heard submissions from both parties.
--We are satisfied that Mr Herd started from barrier 9, and moved inwards gradually until just short of the winning post. At that stage Mr Herd's horse moved inwards quite sharply. We accept the evidence of Kyle Collins ("Miles") that Mr Herd was 1? lengths clear of his horse at that stage, and note that Rule 870(2)(a) requires that a horse be at least its own length, plus another length clear before crossing another horse. We also accept the evidence of D. Walsh ("Pentathon") the he received pressure from "Miles" on his outside, which had his line dictated to by "Thee Auld Hussie" ridden by Mr Herd.
--One of the grounds of appeal was that the charge should have been dismissed because of "reasonable doubt". This is not the standard of proof in hearings of this kind, as this is not a criminal tribunal where proof beyond reasonable doubt is required. We only need to be satisfied that the charge has been proved.
--Taking all the above matters into account we are satisfied the charge has been proved, and the appeal is dismissed."
--We then heard from Mr Tannahill in relation to penalty. It was Mr Tannahill's
--submissions that a three day suspension was excessive and should be reduced to two days. It was also submitted that Mr Herd is a very busy rider and that his riding record is good.
--On behalf of the respondent Mr Goodwin agreed that Mr Herd had a good riding record considering the number of rides he had. In the last 12 months there had been a three day suspension in July 2006, and a four day suspension in February 2007. Mr Goodwin said that he believed that a three days suspension was appropriate and fair in the circumstances of this case.
--We adjourned to consider the appeal against sentence. In relation to an appeal against penalty we are satisfied that the appellant must satisfy us that the penalty imposed was manifestly excessive or inappropriate. We took into account that the interference took place in a $60,000 race and it severely affected the chances of "Pentathon", and also affected the chances of "Miles" to a lesser extent. We were firmly of the view that there was no merit in this appeal, which was dismissed. Pursuant to Rule 1213 we are therefore required to suspend the appellant's Jockey's Licence for a period commensurate with the period of suspension originally imposed.
--On resuming the hearing we advised the parties that the appeal against sentence was also dismissed. There were then discussions as to what would amount to a "commensurate" replacement suspension. The original suspension of three days was from the conclusion of racing on 24 March 2007 up to and including 5 April 2006. This suspension was stayed, but would have included two non-premier meetings and a premier meeting of the Manawatu Racing Club.
--During the stay of proceeding on this charge Mr Herd had been suspended for 5 days from after the completion of racing on 4 April 2007, until after the completion of racing on 12 April 2007. The replacement suspension therefore had to commence after the completion of racing on 12 April 2007. A three day suspension would be for the Manawatu Racing Club's meeting on 14 April 2007, the Racing Te Aroha meeting on 18 April 2007, and the Hawke's Bay Racing meeting on 21 April 2007. We were concerned that Mr Herd might be gaining an advantage in that all three of these meetings were non-premier. However, we found that the Manawatu and Hawke's Bay meetings both had two highly staked races on their programmes. We were therefore satisfied that this three day suspension would be "commensurate" with the one originally imposed.
--Accordingly Mr Herd's Jockey's Licence was suspended from the conclusion of racing on 12 April 2007 until after the conclusion of racing on 21 Aril 2007 (three days).
--Costs:
The question of costs was raised with the parties. Mr Goodwin advised that the costs of Thoroughbred Racing were minimal and no costs would be sought. We indicated that there would be an order of costs to the JCA. Mr Tannahill submitted that the usual guidelines should be followed as to costs, and that an order for full costs would not be appropriate. We agreed that this was the case.--The Tribunal has however determined that this is an appropriate case to order costs to the JCA . The most significant considerations are that the appeals were dismissed. In fixing the amount of costs we consider that Mr Herd should make a significant contribution towards the costs which have been incurred. Indemnity costs are not considered appropriate but the figure set should nevertheless reflect the real cost of the appeal process. We order that the appellant is to pay costs of $750-00 to the Judicial Control Authority.
--We finally deal with the filing fee paid by the appellant. Rule 1211 gives this Tribunal discretion as to whether this fee should be forfeited or not. As the appeals against both conviction and sentence have been dismissed, with our findings being much the same as those of the race day Judicial Committee, we were satisfied that the filing fee should be forfeited. We therefore advised the parties that the filing fee would be forfeited to Thoroughbred Racing.
----
--
_______________ _______________
--J. M. Phelan R. G. McKenzie
--Chairman
sumissionsforpenalty:
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Rules: 1205.2, 870.2.a
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