Appeal CW Johnson v RIU – Decision dated 27 November 2013
ID: JCA12684
Decision:
BEFORE AN APPEALS TRIBUNAL
HELD AT CHRISTCHURCH
BETWEEN CHRISTOPHER WILLIAM JOHNSON of Amberley, Licensed Jockey
Appellant
AND RACING INTEGRITY UNIT
Respondent
Appeals Tribunal: R G McKenzie, Chairman - P Williams, Tribunal Member
Mary-Jane Thomas (Counsel for the Appellant)
Ross Neal, Co-Chief Stipendiary Steward (for the Respondent)
Date of Decision: 27 November 2013
DECISION OF APPEALS TRIBUNAL
Background
[1] On 16 November 2013, at the meeting of Canterbury Jockey Club held at Christchurch, the Appellant was suspended for 6 days by the raceday Judicial Committee on a charge of careless riding in Race 8. The suspension was for the period from 24 November 2013 to 6 December 2013, both days inclusive.
[2] Mr Johnson has subsequently, through his Counsel, Ms M-J Thomas, filed a Notice of Appeal against the penalty imposed by the Judicial Committee. The grounds of appeal set out in the Notice are as follows:
“1. That the sentence imposed was manifestly excessive; and
2. That the calculation of race meetings Chris Johnson is suspended for is unreasonable.”
[3] A telephone conference was held on 22 November 2013 involving the members of the Appeals Tribunal, Mr Ross Neal, Co-Chief Stipendiary Steward for the Racing Integrity Unit, and Ms Mary-Jane Thomas, Counsel for Mr Johnson.
Ms Thomas advised that she did not wish to pursue the first ground of appeal. It was then agreed between the Tribunal, Mr Neal and Ms Thomas that the appeal could be dealt with by way of written submissions to be filed on behalf of the Appellant and the Respondent.
[4] Written submissions have now been received from both parties.
Decision of the Judicial Committee
[5] In its decision delivered on raceday, the Judicial Committee suspended the Appellant from race riding for 6 riding days - from the conclusion of racing on Saturday, 23 November 2013 at Counties until after the conclusion of racing on Friday, 6th December. The Judicial Committee went on to specify the six race meetings encompassed by the period of suspension. These were Timaru (25 November), Otaki (29 November), Whanganui (30 November), Cromwell (1 December), New Plymouth (5 December) and Canterbury (6 December).
[6] The decision of the Judicial Committee does not set out its reasons for how it arrived at those six meetings. Neither does it set out the Committee’s reasons for certain other race meetings in the period of suspension not being included. However, it is apparent from a transcript of the relevant part of the hearing that the Committee accepted Mr Neal’s submission on the day that Mr Johnson was not a “northern rider” but, rather, a “central and southern rider”.
[7] At the raceday hearing, Mr Johnson acknowledged that he rode “only occasionally” in the north. Mr Neal submitted before the Judicial Committee that, between August 2010 and August 2011, Mr Johnson had ridden at only 6 northern meetings. When asked whether he had any comment on that submission, Mr Johnson replied “No Sir”.
Submissions of Appellant
[8] It was submitted on behalf of the Appellant as follows:
The onus of proof in relation to race days was wrongly placed on the Appellant and not the Respondent. If the Respondent chose to submit that the Appellant would not have raced on certain days it was for the Respondent to prove this. It was wrong at law for the decision maker to place the onus upon the Appellant to “convince” the decision maker he “would have rides” at certain meetings in the future. It was for the Informant [sic] to prove the Appellant would not have rides.
[9] It was further submitted that the decision of the Judicial Committee as to suspension days was “factually incorrect”. It was submitted that there were opportunities for a professional jockey to ride at every race meeting, something which the Judicial Committee failed to take into account particularly in light of the fact that the Appellant is a “highly successful sought after rider”.
[10] Ms Thomas then set out details of a number of northern trainers who had indicated a willingness to have engaged Mr Johnson to ride at certain northern meetings – Cambridge on 24 November, Thames on 27 November and Waipa on 28 November. It was implicit in the Appellant’s submissions that one or more of those meetings ought properly to have been included in the six riding days for which the Appellant was suspended.
[11] Finally, Ms Thomas submitted that the approach of the Judicial Committee was inconsistent with the approach taken with three senior northern riders who recently had minor Southland days included as part of their suspensions.
Submissions of Respondent
[12] In response to Ms Thomas’ submission in paragraph [8] above, The Respondent submitted that it had provided proof and referred to the following submission by the Informant before the Judicial Committee:
Chris Johnson is not a northern rider, he has ridden in the north only on occasions where he has gone up on a special mission to ride a particular horse that he has engagements for. His riding has been restricted to the central region, central districts and southern and south island meetings. His appearance in the north is very spasmodic and very rare and I don’t know the last time that Chris has ridden at Thames particularly or other meetings up there. We do not believe he is a northern rider, we think he is a central and southern rider. . . I looked at Mr Johnson’s record about 3 months ago and, beginning the period 1 August 2010 to the end of July 2013 Chris had ridden at six northern meetings.
The Respondent submitted that Mr Johnson had not challenged those submissions at the time (see paragraph [7] above).
[13] The Respondent provided details of all of the “northern meetings” at which Mr Johnson had ridden between 19 February 2011 and 23 November 2013. There were 8 such meetings.
[14] While the Appellant has ridden in the northern region on occasions, the “excursions” have all been for a particular purpose on “days of significance”. Seven of the eight days were Premier meetings, the other was a feature meeting in which the Appellant rode in the Avondale Guineas. One of the meetings was as recently as 23 November 2013 at Counties, where Mr Johnson had 3 rides.
[15] The Respondent submitted that it had been shown that the Appellant only travelled to the northern region for a particular purpose on a day which contained a race of significance.
[16] The Respondent submitted that it has, for some considerable time, been the practice of Judicial Committees to seek from riders indications as to where they intended to ride. This enables Committees to impose penalties that are “real and meaningful”. If this practice were not in place, there would be many occasions where penalties (or days) imposed would be of no relevance to the offender for the simple reason that the days incorporated may well be meetings which they were never going to attend.
[17] The Respondent then dealt with each of the meetings referred to in the Appellant’s submissions - see paragraph [10]. The Cambridge meeting on 24 November was “a low key industry day with no races of significance”. Thames on 27 November is also an “industry day” and NZTR’s records showed that the Appellant had never ridden at that track. The Waipa meeting on 28 November is also a “low key industry day”. NZTR’s records showed that the Appellant had not ridden there since 1997.
[18] The Respondent then made reference to the Appellant’s submission in paragraph [11] regarding inconsistency. It was submitted that those cases should have no relevance as “overwhelmingly” Judicial Committees factor in appropriate dates and this should be where the focus of this Tribunal should lie.
[19] The dates imposed by the Judicial Committee were entirely appropriate given all the circumstances.
Reasons for Decision
[20] The Tribunal is satisfied that the appropriate process for considering the term of suspension for Mr Johnson’s breach of the careless riding Rule was followed by the Judicial Committee on raceday. In this appeal, the Tribunal is, effectively, being asked to determine whether the Judicial Committee was correct in fixing the 6 days that were to make up the term of the suspension.
[21] The Committee’s decision followed what, it described in its written decision, was a “robust discussion as to where Mr Johnson rode as a matter of practice, it was agreed that he rode in the South Island and in the Central Districts”. It was significant that the Committee referred to the fact that it had been “agreed”. It is clear from our reading of the transcript, and referred to in the Respondent’s submissions, paragraph [12], that Mr Johnson did not dispute, at the time, that he was a South Island and Central Districts rider.
[22] We do not accept Ms Thomas’ submission that the onus of proof was on the Respondent, the Informant before the Judicial Committee. She cites no authority for that proposition but it is the well-accepted practice of Judicial Committee’s to require the rider to satisfy them with regard to the meetings at which he or she would, realistically, be likely to be riding. The Tribunal accepts that this process works well in practice.
[23] As for Ms Thomas’ submission - see paragraph [11] - that an inconsistent approach had been taken in other cases, no proof of this has been provided to this Tribunal and, even if correct, we have no knowledge of any particular circumstances which may have existed in those cases. Of course, the circumstances of each particular case can differ greatly and we are concerned only with the circumstances of the present case.
[23] In his appeal, Mr Johnson submits that all or some of the meetings at Cambridge on 24 November, Thames on 27 November and Waipa on 28 November should have been considered by the Judicial Committee as days on which he would be likely to have accepted rides but for his suspension. We cannot accept that submission in the absence of any real evidence. Mr Johnson did not raise, before the Judicial Committee, the possibility of his securing rides at any of those meetings and the Judicial Committee did not consider that he was likely to. We believe that it has been an afterthought on Mr Johnson’s part as a means of, effectively, attempting to reduce the term of his suspension.
[24] The only meaningful submission before us in respect of those meetings was that made by the Respondent and that was the statistical evidence that Mr Johnson has ridden at only Premier or Feature meetings in the north since February 2011. None of the meetings under consideration is in that category. They are all industry days, two of them mid-week.
[25] We are satisfied that Mr Johnson would not have ridden at the meetings at Cambridge on 24 November, Thames on 27 November or Waipa on 28 November. We have assessed the likelihood of his so riding as being extremely low and we have based this assessment, principally, on the statistics provided by the Respondent which we found to be quite compelling. We have not taken into account the meetings at Te Aroha on 2 December or Pukekohe on 4 December, as those meetings were not raised in the Appellant’s submissions but, in any event, we make a similar finding in respect of those meetings.
Decision
[26] The term of suspension, as imposed by the Judicial Committee, is confirmed and the appeal is dismissed.
Costs
[27] The Appellant is ordered to pay costs to the Judicial Control Authority in the sum of $450.00. The filing fee paid by the Appellant shall be forfeited to the Judicial Control Authority.
R G McKenzie P Williams
CHAIRMAN TRIBUNAL MEMBER
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 30/11/2013
Publish Date: 30/11/2013
JCA Decision Fields (raw)
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decisiondate: 30/11/2013
hearing_title: Appeal CW Johnson v RIU - Decision dated 27 November 2013
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE AN APPEALS TRIBUNAL
HELD AT CHRISTCHURCH
BETWEEN CHRISTOPHER WILLIAM JOHNSON of Amberley, Licensed Jockey
Appellant
AND RACING INTEGRITY UNIT
Respondent
Appeals Tribunal: R G McKenzie, Chairman - P Williams, Tribunal Member
Mary-Jane Thomas (Counsel for the Appellant)
Ross Neal, Co-Chief Stipendiary Steward (for the Respondent)
Date of Decision: 27 November 2013
DECISION OF APPEALS TRIBUNAL
Background
[1] On 16 November 2013, at the meeting of Canterbury Jockey Club held at Christchurch, the Appellant was suspended for 6 days by the raceday Judicial Committee on a charge of careless riding in Race 8. The suspension was for the period from 24 November 2013 to 6 December 2013, both days inclusive.
[2] Mr Johnson has subsequently, through his Counsel, Ms M-J Thomas, filed a Notice of Appeal against the penalty imposed by the Judicial Committee. The grounds of appeal set out in the Notice are as follows:
“1. That the sentence imposed was manifestly excessive; and
2. That the calculation of race meetings Chris Johnson is suspended for is unreasonable.”
[3] A telephone conference was held on 22 November 2013 involving the members of the Appeals Tribunal, Mr Ross Neal, Co-Chief Stipendiary Steward for the Racing Integrity Unit, and Ms Mary-Jane Thomas, Counsel for Mr Johnson.
Ms Thomas advised that she did not wish to pursue the first ground of appeal. It was then agreed between the Tribunal, Mr Neal and Ms Thomas that the appeal could be dealt with by way of written submissions to be filed on behalf of the Appellant and the Respondent.
[4] Written submissions have now been received from both parties.
Decision of the Judicial Committee
[5] In its decision delivered on raceday, the Judicial Committee suspended the Appellant from race riding for 6 riding days - from the conclusion of racing on Saturday, 23 November 2013 at Counties until after the conclusion of racing on Friday, 6th December. The Judicial Committee went on to specify the six race meetings encompassed by the period of suspension. These were Timaru (25 November), Otaki (29 November), Whanganui (30 November), Cromwell (1 December), New Plymouth (5 December) and Canterbury (6 December).
[6] The decision of the Judicial Committee does not set out its reasons for how it arrived at those six meetings. Neither does it set out the Committee’s reasons for certain other race meetings in the period of suspension not being included. However, it is apparent from a transcript of the relevant part of the hearing that the Committee accepted Mr Neal’s submission on the day that Mr Johnson was not a “northern rider” but, rather, a “central and southern rider”.
[7] At the raceday hearing, Mr Johnson acknowledged that he rode “only occasionally” in the north. Mr Neal submitted before the Judicial Committee that, between August 2010 and August 2011, Mr Johnson had ridden at only 6 northern meetings. When asked whether he had any comment on that submission, Mr Johnson replied “No Sir”.
Submissions of Appellant
[8] It was submitted on behalf of the Appellant as follows:
The onus of proof in relation to race days was wrongly placed on the Appellant and not the Respondent. If the Respondent chose to submit that the Appellant would not have raced on certain days it was for the Respondent to prove this. It was wrong at law for the decision maker to place the onus upon the Appellant to “convince” the decision maker he “would have rides” at certain meetings in the future. It was for the Informant [sic] to prove the Appellant would not have rides.
[9] It was further submitted that the decision of the Judicial Committee as to suspension days was “factually incorrect”. It was submitted that there were opportunities for a professional jockey to ride at every race meeting, something which the Judicial Committee failed to take into account particularly in light of the fact that the Appellant is a “highly successful sought after rider”.
[10] Ms Thomas then set out details of a number of northern trainers who had indicated a willingness to have engaged Mr Johnson to ride at certain northern meetings – Cambridge on 24 November, Thames on 27 November and Waipa on 28 November. It was implicit in the Appellant’s submissions that one or more of those meetings ought properly to have been included in the six riding days for which the Appellant was suspended.
[11] Finally, Ms Thomas submitted that the approach of the Judicial Committee was inconsistent with the approach taken with three senior northern riders who recently had minor Southland days included as part of their suspensions.
Submissions of Respondent
[12] In response to Ms Thomas’ submission in paragraph [8] above, The Respondent submitted that it had provided proof and referred to the following submission by the Informant before the Judicial Committee:
Chris Johnson is not a northern rider, he has ridden in the north only on occasions where he has gone up on a special mission to ride a particular horse that he has engagements for. His riding has been restricted to the central region, central districts and southern and south island meetings. His appearance in the north is very spasmodic and very rare and I don’t know the last time that Chris has ridden at Thames particularly or other meetings up there. We do not believe he is a northern rider, we think he is a central and southern rider. . . I looked at Mr Johnson’s record about 3 months ago and, beginning the period 1 August 2010 to the end of July 2013 Chris had ridden at six northern meetings.
The Respondent submitted that Mr Johnson had not challenged those submissions at the time (see paragraph [7] above).
[13] The Respondent provided details of all of the “northern meetings” at which Mr Johnson had ridden between 19 February 2011 and 23 November 2013. There were 8 such meetings.
[14] While the Appellant has ridden in the northern region on occasions, the “excursions” have all been for a particular purpose on “days of significance”. Seven of the eight days were Premier meetings, the other was a feature meeting in which the Appellant rode in the Avondale Guineas. One of the meetings was as recently as 23 November 2013 at Counties, where Mr Johnson had 3 rides.
[15] The Respondent submitted that it had been shown that the Appellant only travelled to the northern region for a particular purpose on a day which contained a race of significance.
[16] The Respondent submitted that it has, for some considerable time, been the practice of Judicial Committees to seek from riders indications as to where they intended to ride. This enables Committees to impose penalties that are “real and meaningful”. If this practice were not in place, there would be many occasions where penalties (or days) imposed would be of no relevance to the offender for the simple reason that the days incorporated may well be meetings which they were never going to attend.
[17] The Respondent then dealt with each of the meetings referred to in the Appellant’s submissions - see paragraph [10]. The Cambridge meeting on 24 November was “a low key industry day with no races of significance”. Thames on 27 November is also an “industry day” and NZTR’s records showed that the Appellant had never ridden at that track. The Waipa meeting on 28 November is also a “low key industry day”. NZTR’s records showed that the Appellant had not ridden there since 1997.
[18] The Respondent then made reference to the Appellant’s submission in paragraph [11] regarding inconsistency. It was submitted that those cases should have no relevance as “overwhelmingly” Judicial Committees factor in appropriate dates and this should be where the focus of this Tribunal should lie.
[19] The dates imposed by the Judicial Committee were entirely appropriate given all the circumstances.
Reasons for Decision
[20] The Tribunal is satisfied that the appropriate process for considering the term of suspension for Mr Johnson’s breach of the careless riding Rule was followed by the Judicial Committee on raceday. In this appeal, the Tribunal is, effectively, being asked to determine whether the Judicial Committee was correct in fixing the 6 days that were to make up the term of the suspension.
[21] The Committee’s decision followed what, it described in its written decision, was a “robust discussion as to where Mr Johnson rode as a matter of practice, it was agreed that he rode in the South Island and in the Central Districts”. It was significant that the Committee referred to the fact that it had been “agreed”. It is clear from our reading of the transcript, and referred to in the Respondent’s submissions, paragraph [12], that Mr Johnson did not dispute, at the time, that he was a South Island and Central Districts rider.
[22] We do not accept Ms Thomas’ submission that the onus of proof was on the Respondent, the Informant before the Judicial Committee. She cites no authority for that proposition but it is the well-accepted practice of Judicial Committee’s to require the rider to satisfy them with regard to the meetings at which he or she would, realistically, be likely to be riding. The Tribunal accepts that this process works well in practice.
[23] As for Ms Thomas’ submission - see paragraph [11] - that an inconsistent approach had been taken in other cases, no proof of this has been provided to this Tribunal and, even if correct, we have no knowledge of any particular circumstances which may have existed in those cases. Of course, the circumstances of each particular case can differ greatly and we are concerned only with the circumstances of the present case.
[23] In his appeal, Mr Johnson submits that all or some of the meetings at Cambridge on 24 November, Thames on 27 November and Waipa on 28 November should have been considered by the Judicial Committee as days on which he would be likely to have accepted rides but for his suspension. We cannot accept that submission in the absence of any real evidence. Mr Johnson did not raise, before the Judicial Committee, the possibility of his securing rides at any of those meetings and the Judicial Committee did not consider that he was likely to. We believe that it has been an afterthought on Mr Johnson’s part as a means of, effectively, attempting to reduce the term of his suspension.
[24] The only meaningful submission before us in respect of those meetings was that made by the Respondent and that was the statistical evidence that Mr Johnson has ridden at only Premier or Feature meetings in the north since February 2011. None of the meetings under consideration is in that category. They are all industry days, two of them mid-week.
[25] We are satisfied that Mr Johnson would not have ridden at the meetings at Cambridge on 24 November, Thames on 27 November or Waipa on 28 November. We have assessed the likelihood of his so riding as being extremely low and we have based this assessment, principally, on the statistics provided by the Respondent which we found to be quite compelling. We have not taken into account the meetings at Te Aroha on 2 December or Pukekohe on 4 December, as those meetings were not raised in the Appellant’s submissions but, in any event, we make a similar finding in respect of those meetings.
Decision
[26] The term of suspension, as imposed by the Judicial Committee, is confirmed and the appeal is dismissed.
Costs
[27] The Appellant is ordered to pay costs to the Judicial Control Authority in the sum of $450.00. The filing fee paid by the Appellant shall be forfeited to the Judicial Control Authority.
R G McKenzie P Williams
CHAIRMAN TRIBUNAL MEMBER
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