Appeal – C W Johnson – Decsn 19 Jan 09

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hearing_title: Appeal - C W Johnson - Decsn 19 Jan 09

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APPEAL HEARING : NZTR v CHRISTOPHER WILLIAM JOHNSON & CHRISTOPHER WILLIAM JOHNSON v NZTR

HEARD AT NZ THOROUGHBRED OFFICES, PETONE, WELLINGTON

THURSDAY 15^TH JANUARY 2009

APPEALS TRIBUNAL                        Mr M S McKechnie, Chairman and Mr J Phelan

PRESENT                                              Mr R Neal and Mr N Goodwin, Stipendiary Stewards

                                                                Mr C W Johnson

Mr J A Tannahill, Counsel for Mr Johnson

1.            NATURE OF APPEAL BY NZTR

1.1          This is an appeal by NZTR from the decision of a Judicial Committee given on the 22^nd December 2008 in respect of a charge against Mr Johnson under Rule 866(1)(b).

APPEAL HEARING : NZTR v CHRISTOPHER WILLIAM JOHNSON & CHRISTOPHER WILLIAM JOHNSON v NZTR

HEARD AT NZ THOROUGHBRED OFFICES, PETONE, WELLINGTON

THURSDAY 15^TH JANUARY 2009

APPEALS TRIBUNAL                        Mr M S McKechnie, Chairman and Mr J Phelan

PRESENT                                              Mr R Neal and Mr N Goodwin, Stipendiary Stewards

                                                                Mr C W Johnson

Mr J A Tannahill, Counsel for Mr Johnson

1.            NATURE OF APPEAL BY NZTR

1.1          This is an appeal by NZTR from the decision of a Judicial Committee given on the 22^nd December 2008 in respect of a charge against Mr Johnson under Rule 866(1)(b).

1.2          By the decision in question the Judicial Committee held that at Wingatui Racecourse on the 17^th October 2008 Mr Johnson had failed to take all reasonable and permissible measures to give his horse Vagabond full opportunity to win or obtain the best possible placing.  Mr  Johnson defended the charge.  He was found guilty of the allegation and was suspended from the close of racing on the 28^th December 2008 until the close of racing on the 16^th  January 2009. It can be seen that the period of suspension is soon to expire.

1.3          It is contended for NZTR that the penalty imposed was inadequate and that a significantly           greater period of suspension ought to have been imposed.

1.4          The case before the Judicial Committee was heard here at NZTR Offices at Petone in  Wellington on the 24^th November 2008. On that occasion Mr Cameron George then the Chief Stipendiary Steward conducted the case for NZTR and Mr Johnson on that occasion, as today, was represented by Mr Tannahill.  Following the finding of a breach of the rule submissions on penalty were sought. Copies of those submissions have been made available to the Tribunal today. These have been considered along with the detailed submissions which have been addressed to the Tribunal today by Mr Neal for NZTR and Mr Tannahill for Mr Johnson.  Films of the race have been watched carefully. The Tribunal has of course had the opportunity to carefully consider the decision itself which it can be seen was delivered some little time after the hearing on the 24^th November. The decision was published on the 22^nd December.

2.            CASE FOR NZTR

2.1          It is at the centre of the case for NZTR that the Committee failed to properly appreciate the        shortcomings of Mr Johnson’s ride on Vagabond. Mr Neal points in particular to a paragraph on page 3 of the written decision.

In our view Vagabond was balanced, travelling well and in the clear at the 350 metre mark. From that point Mr Johnson does not move on the horse and shows no vigour at all until about 100 metres off the line when he uses the whip 4-5 times. Vagabond takes ground off other horses as Mr Johnson opts to let it run along from the 350 metres and noticeably lifts and hits the line well when tried with the whip. We believe Mr Johnson failed to fully test or ask the question of his mount and that through his lack of vigour he failed to take all reasonable and permissible measures to give the horse every opportunity.

                Mr Neal emphasises the plain finding of the Committee that nothing was done by Mr Johnson to urge the horse forward between the 350m metre mark and the 100 metre mark.  He points to the words “shows no vigour at all until about 100 metres off the line...” It is Mr Neal’s submission that upon correct understanding of the way the race was run Mr Johnson, to use Mr Neal’s expression, “should have got going much earlier”.

2.2          Mr Neal then refers the Tribunal to the second to last paragraph of the decision under appeal. He contends that passages in this paragraph which summarise the Committee’s   findings are inconsistent with the paragraph quoted in the sub-number above. He submits that to be consistent with the earlier conclusions expressed the Committee ought to have expressed itself in significantly more critical terms. He contends that it was not appropriate to characterise Mr Johnson’s riding as “one of switching off and not committing his mount to a genuine finish...”.

2.3          As recently as the 7^th January of this year a case under the same rule came before a  Judicial Committee. The licensed jockey on that occasion was Mr Jonathan Riddell. By chance it was the same Judicial Committee as presided in the case under appeal. Mr Neal contends that the present case is comparable with the Riddell case. In that case a penalty of six (6) weeks was imposed. It follows from what we have just said that NZTR does not accept the expressed conclusion of the Judicial Committee that Mr Johnson’s lapse was not near   the top of the scale. NZTR contends that this is an erroneous assessment of the level of culpability.

2.4          Mr Neal contends that the suspension in this case might appropriately have been as much as two (2) or three (3) months. In support of this he points to the fact that the jockey Mr Riddell rides much less frequently than Mr Johnson. He also points to Mr Johnson having previously been found in breach of this rule in a period of less than two (2) years when riding the horse Futureproof. It should however be emphasised that Messrs Neal and Tannahill accept that the factual circumstances in the Futureproof case were entirely dissimilar from the present and that although the breach was under the same rule there is no valid comparison between the riding breach in these two different cases. Mr Neal emphasises that Mr Johnson is a very experienced jockey and that in such circumstances an error of this kind should not be expected from one with such experience. In fact there has been a significant break in Mr  Johnson’s riding career but it is well known to the Tribunal that Mr Johnson is an experienced jockey and has had conspicuous success over many years.

2.5          The Tribunal asked questions about the number of riding days that were covered by the  period of suspension. The decision is expressed in terms of dates on the calendar and makes no reference to the number of riding days when Mr Johnson might realistically have been engaged. After a good deal of discussion and assistance from both Mr Neal and Mr Tannahill it seems that there were fifteen (15) possible riding days available during the  period of suspension and that realistically Mr Johnson might have ridden on nine (9) or ten (10) of those days. As to where he would have ridden and with what success or otherwise Mr Tannahill made submissions and reference will be made to those later in this decision.

2.6          Finally Mr Neal contended that if no further period of suspension was to be imposed then  the present period should be accompanied by a monetary penalty. In the Futureproof case  when Mr Johnson was suspended for two (2) weeks there was also a monetary penalty. For  completeness it should be noted that discussion between counsel and the Tribunal  established that in the period of two (2) weeks suspension imposed in the Futureproof case  there were four (4) likely riding days available to Mr Johnson. The question of whether a  monetary penalty in addition to any suspension might be appropriate was not gone into  before the Judicial Committee.

3.            CASE FOR MR JOHNSON

3.1          Mr Tannahill says that this was in truth “a severe penalty”. He points to the number of race days that Mr Johnson has missed being nine (9) or perhaps ten (10). At the feature meeting  at Ellerslie Mr Johnson would have ridden the filly Putinesca from the Wayne & Vanessa     Hillis stable in Matamata. He would have taken the ride on Bulginbaah in the Railway Handicap. Mr Johnson has a long and successful association with that horse. Putinesca won its race: Bulginbaah did not but there was very significant interference in the latter  stages of that  race. Mr Johnson would have had the ride on the horse Valhallah from the Rayner stable in the Dunstan Stayers final. The horse was ridden by Mr Paul Taylor – was first past the post and subsequently relegated. Mr Tannahill also told the Tribunal  about races which would have been available to Mr Johnson at other venues with particular emphasis on his long standing relationship with the racing at Tauherenikau.

3.2          With reference to the legal test Mr Tannahill emphasised the position in the case of a prosecutors appeal and stressed that this Tribunal must find that the Judicial Committee had  been manifestly in error before substituting a different view. Reference was made to the experience of the Judicial Committee in question and the fact that there was an extended  hearing at which that Committee saw and heard all the participants.

3.3          In presenting the case for NZTR Mr Neal had his colleague Mr Goodwin go through a  number of tapes of the race. The Tribunal has looked as these carefully. Mr Tannahill in turn  commented on these tapes and gave the Tribunal details of the subsequent races in which  Vagabond had taken part. He contended that there was only a remote possibility of the horse finishing in a better position in the subject race.

3.4          A veterinary report was obtained following the race. A copy of this was made available. It is        referred to in the Judicial Committee decision. It is clear that the horse was agitated after  the race but there is no clear cut explanation as to why this was so. Mr Tannahill also made reference to the position of the trainer Mr Terry Kennedy who expressed no dissatisfaction  with the ride.

3.5          There were a number of cases to which reference was made. As noted earlier both  Messrs Tannahill and Neal are agreed that the Futureproof case was very different in that the charge there arose from what was characterised as a “decision to exercise a wrong option” by Mr Johnson. Mr Tannahill emphasised that the Higgs case from harness racing was very different in that the driver had deliberately restrained the horse. As to the Riddell case to which reference was made earlier Mr Tannahill who was counsel for Mr Riddell contended that the proven breach there was significantly more serious than in the present  case. The horse on that occasion was in a close finish. The Tribunal has read the decision of  the Judicial Committee.

3.6          As to monetary penalty Mr Tannahill reminded the Tribunal that this was not gone into before the Judicial Committee and he suggested that the imposition of any monetary penalty would be in the nature of what he described as “tinkering”.

3.7          Finally Mr Tannahill contended that there were cases, from time to time, of careless or  dangerous riding which had more significant consequences than this breach of the subject rule.

4.            DISCUSSION

4.1          It is only appropriate for the Appeal Tribunal to differ from the Judicial Committee if it is persuaded that the Judicial Committee was plainly in error or had seriously misunderstood the facts or the law. Further it is well know that considerations which justify an increase in penalty must be more compelling than those which would justify a reduction.

4.2          Alongside the considerations just mentioned this Appeal Tribunal must have careful regard to the decision of the Judicial Committee. In this case it is important to note that the hearing  before the Judicial Committee was extended and it is plain that the matter was gone into in  very considerable detail.

4.3          We have studied the films and taken time over the luncheon adjournment to consider the  detailed submissions which we have heard. In our view the Judicial Committee summation  of the degree of culpability was accurate. The conduct was not deliberate and that clearly  distinguishes the present circumstances from the Higgs case. As to the level of penalty we  are persuaded that the number of race days was significant and that the costs to Mr  Johnson have been considerable. On the calculations made earlier the penalty imposed  on this occasion is certainly more than twice the penalty imposed in respect of the breach in  relation to the horse Futureproof. We believe that the characterisation of the riding by the   Judicial Committee in the penultimate paragraph of the decision is accurate. The penalty  was appropriate.

4.4          The findings expressed have reference to the period of suspension. It is common ground that no                 issue of monetary penalty was raised before the Judicial Committee and in our view it would be quite wrong at this stage to consider the imposition of any monetary penalty. It  follows from what has been said that the appeal is dismissed and the position remains as it was set out in terms of the decision of the Judicial Committee.

5.            CROSS APPEAL BY MR JOHNSON

5.1          Mr Johnson appealed the decision of the Judicial Committee of the 22^nd December on the grounds that it was wrong both in fact and law and that the evidence was insufficient to justify the finding of guilt.

5.2          After hearing submissions earlier today the Tribunal ruled that the NZTR appeal against penalty would proceed first and that Mr Johnson and his counsel would consider the   position in relation to the cross appeal once the penalty appeal of NZTR had been determined. Doubtless Mr Johnson and Mr Tannahill had in mind the fact that the suspension imposed expires on the 16^th.

5.3          Having now pronounced the decision of the Tribunal in relation to the NZTR appeal Mr Tannahill has indicated that the appeal by Mr Johnson will not be pursued and he seeks leave to withdraw the appeal. He asks in the circumstances that Mr Johnson’s deposit be refunded. At the same time the Tribunal asked Messrs Neal and Tannahill to make brief  submissions in relation to costs on the sentencing appeal. In respect of that Mr Tannahill seeks costs and Mr Neal contends that costs should lie where they fall.

5.4          In respect of the appeal by Mr Johnson leave is granted to withdraw that appeal and an order is made that Mr Johnson’s deposit be returned to him.

5.5          In respect of the NZTR appeal against penalty which has not succeeded the parties take different positions. Mr Tannahill indicated that he thought a costs award of around $1,000.00 should be made. There has been considerable difficulty in getting this case set own for hearing particularly having regard to the expiration of the suspension on the 16^th of this month. The Tribunal has taken the view that it was important that the appeal(s) be dealt with before the 16^th January. In terms of what has been decided the importance of that has been clearly demonstrated. Mr Johnson is now free to ride on Saturday of this week and in the days following. Had it not been possible to hear these matters until some later date  the position may have been different. It is never easy around Christmas and New Year to assemble a number of professional people at the same time in the same place. Mr Johnson is domiciled in North Canterbury and he is now in Wellington for this hearing today and will not be returning to Christchurch before Saturday. In these rather unusual circumstances the Tribunal takes the view that the parties should bear their own costs and  thus there will be no order for costs either way.

__________________________________

Murray McKechnie

Chairman

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hearing_type: Old Hearing

Rules: 866.1.b

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