Appeal – C I Anderson decsn 21 April 09

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hearing_title: Appeal - C I Anderson decsn 21 April 09

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Date of Decision: 21 April 2009
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   DECISION OF APPEALS TRIBUNAL
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This is an appeal against the finding of the race day Judicial Committee of 13 April 2009 at the Riverton Racing Club’s meeting at Riverton.  The appellant was found to have ridden carelessly causing interference to PRINCESA ridden by R. Bishop in Race 8 the Elmwood Catering Gallop South Derby.  The appellant also appeals against the sentence which was a suspension of her Jockey’s Licence for five riding days.

BEFORE AN APPEALS TRIBUNAL HELD AT CHRISTCHURCH

     IN THE MATTER OF  New Zealand Rules of Racing
 
BETWEEN   C. I. Anderson,  Appellant

AND New Zealand Thoroughbred Racing, Respondent

Appeal Tribunal: J. M. Phelan (Chairman)
                          R. M. Seabrook

Appearances:  Ms C. I Anderson – Appellant
Stipendiary Steward Mr S. C. Ching for Respondent

Date of Decision: 21 April 2009
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   DECISION OF APPEALS TRIBUNAL
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This is an appeal against the finding of the race day Judicial Committee of 13 April 2009 at the Riverton Racing Club’s meeting at Riverton.  The appellant was found to have ridden carelessly causing interference to PRINCESA ridden by R. Bishop in Race 8 the Elmwood Catering Gallop South Derby.  The appellant also appeals against the sentence which was a suspension of her Jockey’s Licence for five riding days.

The procedure for this appeal against conviction is governed by Rule 1205(2) and, unless the Appeals Tribunal otherwise direct, is to be by way of a rehearing based on the evidence adduced at the original race day hearing.  In this case Mr Ching asked that the matter be reheard in full, and the appellant did not object to this.  Neither party sought to introduce new evidence.

We heard evidence from the witnesses Mr Bishop and Mr Robinson, and this evidence was the same as recorded in the transcript of the original hearing.  Jockey M. Carston did not attend this hearing, but the appellant did not require her evidence to be repeated, as it only related to whether or not Mr Bishop had called out just prior to the incident.  We also viewed the video coverage of this incident taken from various angles.  The appellant was given the opportunity to ask Mr Bishop and Mr Robinson questions, which she did.  At the conclusion of the evidence both parties made closing submissions.  We then 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 13 April 2009 wherein the appellant was found to have ridden carelessly causing interference to PRINCESA (Ryan Bishop) and BURGUNDY PRINCESS (Lance Robinson) in the Elmwood Catering Gallop South Derby. The appellant also appeals against the suspension of her Jockey’s Licence for five riding days.

The procedure for this appeal is governed by Rule 1205(2).  The appeal was conducted by way of a full rehearing.  We note that there is no presumption in favour of the Judicial Committee’s decision, and we must reach our own decision.  In this case the respondent (“NZTR”) has the onus of establishing the charge.

We have read the transcript of the race day hearing, and we have seen videos of the alleged interference, and we have heard the evidence.

Mr Bishop gave evidence that he was moving forward at about the 500 metre mark, and that the appellant moved outwards when she was not the required distance clear.  Mr Bishop said he called out on two or three occasions.  As a result Mr Bishop’s horse clipped the heels of the appellant’s horse, and almost fell.

Mr Robinson gave evidence that he was following Mr Bishop at the time, and heard him call out.  He then saw the appellant’s horse move out sharply, with Mr Bishop’s horse clipping the heels of the appellant’s horse.   Mr Robinson’s horse ran into the back of Mr Bishop’s horse.

The video coverage of this incident was not clear.

The appellant asked questions of both witnesses.  She did not dispute that Mr Bishop’s horse had clipped the heels of her horse.  The main thrust of her questions was the effect the strong wind had.  Under questioning neither witness would agree that the wind was the cause of this incident.

The appellant gave evidence that it was the wind that caused her horse to move out into the line of Mr Bishop’s horse.  She explained that although the wind was blowing her inwards, she needed to compensate for it, and this is why she moved outwards.  In answer to questions from Mr Ching the appellant agreed that she didn’t realise she had horses outside her just prior to the incident.

Having reviewed the evidence and the video coverage, we agree that the videos are inconclusive, except to show that Mr Bishop’s horse received a severe check.

The evidence from Mr Bishop and Mr Robinson, on the other hand, was clear and concise.  We prefer this evidence to the evidence of the appellant, and find that the appellant did allow her horse to shift outwards when not clear causing a check to PRINCESA with a resultant check to BURGUNDY PRINCESS.

Taking all the above matters into account we are satisfied that the charge has been proved, and the appeal is dismissed.”

We then discussed the matter of penalty.  The appellant agreed that the original penalty of five riding days was not manifestly excessive in the circumstances.  Accordingly this appeal is also dismissed.

The appellant had been granted a stay in relation to penalty.  Rule 1213 requires this Appeals Tribunal to impose a suspension commensurate with the one originally imposed.  However in this case the original penalty was to take effect from the conclusion of racing on 20 April 2009 (yesterday).  The appellant advised that she had not made any commitments for any of the days included in the original suspension, which was to run until after the completion of racing on 2 May 2009.  We were therefore satisfied that the original suspension should remain in place.  For the record the appellant’s Jockey’s Licence is suspended from the completion of racing on 20 April 2009 until after the completion of racing on 2 May 2009, which is a five day suspension.

The question of costs was raised with the parties.  Mr Ching advised that no costs were being sought by NZTR. 

The Tribunal has however determined that this is an appropriate case to order costs to the Judicial Control Authority. The most significant considerations are that the appeals were dismissed. In fixing the amount of costs we consider that the applicant should make a reasonable 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 $600-00 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. M. Seabrook
Chairman

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