Appeal – CW Johnson

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - CW Johnson

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This is an appeal by Mr Johnson from a decision of the Judicial Committee at the Timaru Racing Club meeting on Sunday 25 February 2007. Mr Johnston was found to have committed a breach of Rule 871(1)(d) in that he was found guilty of careless riding.

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN           CHRIS JOHNSON

                               Appellant

AND                      NEW ZEALAND THOROUGHBRED RACING

                              Respondent

Mr John Tannahill, with Mr Johnson, for Appellant

Mr Cameron George and Mr Fin Powrie, for Respondent

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DECISION OF APPEAL TRIBUNAL

WELLINGTON 5 MARCH 2007

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1.         This is an appeal by Mr Johnson from a decision of the Judicial Committee at the Timaru Racing Club meeting on Sunday 25 February 2007. Mr Johnston was found to have committed a breach of Rule 871(1)(d) in that he was found guilty of careless riding. He was suspended for 3 days. He has since obtained a stay of proceedings. NZTR did not oppose the stay application.

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2.         At the hearing today Mr Johnston is represented by his counsel and agent, Mr Tannahill. He submits that the case was, to use his words, borderline and should have been dismissed. If the charge is upheld it is Mr Tannahill's submission that the penalty imposed was manifestly excessive. He says that Mr Johnson was riding competitively. He acknowledges that there was some contact between the horse Show Cat of Mr Johnson and the mount of Mr Mosely. Mr Tannahill says that if Mr Johnson had not done as he did then his horse would not have finished in the first three. In fact the horse was first past the post. Mr Tannahill says further that the two horses that were inconvenienced were not likely to finish in dividend bearing places. I questioned, on behalf of the Tribunal, whether the fact that horses that may have been interfered with were going to finish in dividend bearing places or not was a relevant consideration and Mr George made a response to that which I shall relate in a moment. Mr Tannahill, when questioned about the degree of interference that might have occurred said that there was, to use his words, contact but not interference.

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3.           On the question of penalty Mr Tannahill said the careless riding was at the lowest end of the scale and could and should have been dealt with by a fine. He pointed to some historical cases where there had been fines for minor interference and when questioned by the Tribunal suggested a fine in the range of $1,000.

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4.            For NZTR Mr George first responded to Mr Tannahill's submission concerning the position in which the horse or horses which were said to have been interfered with and where they were ultimately placed. He said that it was not a relevant consideration that those horses finished out of dividend bearing places.

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5.           Mr George and Mr Tannahill took the Tribunal through the head on and slightly off centre side on tapes of the race. Mr George pointed to the mount of Mr Bullard and contended that Mr Johnson had begun to move out pointing to the position of the horse's head, that is to say the horse that Mr Johnson was riding, which he said made it clear that Mr Johnson was looking for racing room on his outside. It seems clear, and indeed the Judicial Committee found, that the horse ridden by Mr Bullard moved out. It was Mr George's contention that Mr Johnson was already committed to his move before Mr Bullard's horse moved out and that Mr Johnson continued with that move after Mr Bullard's horse began to move out. When the horse ridden by Mr Bullard began to move out Mr George contended that Mr Johnson should have checked or steadied his horse but didn?t do so and continued on the course on which he had already embarked thereby causing interference to the horses ridden by Mr Mosely and Ms Cameron. Mr George said Mr Johnson had made his own running.

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6.           On the question of penalty Mr George argued strongly against the imposition of a monetary penalty alone. He pointed to the standard penalty for careless riding which almost inevitably involves a measure of suspension. He pointed to Mr Johnson riding extensively in both the North and South Islands and put before the Tribunal Mr Johnson's riding record. That record, as the Judicial Committee noted, most recently involved a suspension at Banks Peninsula on 28 October last on a charge of careless riding ? a four day suspension on that occasion ? and that was preceded by a suspension at Ashburton on 30 September last for careless riding when a two day suspension was imposed together with a fine of $1,000.

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7.          Hearings of this character are by way of rehearing. The Tribunal has had the tape played on a number of occasions and has listened carefully to the submissions which have been made on behalf of the parties. It is the Tribunal's view that when Mr Johnson commenced this outward movement he was legitimately entitled to do so. He was looking for racing room and clearly his horse was running well. The horse in front of him when he began that movement was ridden by Mr Bullard. That horse moved out, and this is clear particularly from the head on tape. The Tribunal's view is that when that horse began to move out Mr Johnson ought to have steadied his horse but he didn?t do so and carried on with the course of action to which he was committed. It is unfortunate for Mr Johnson in some respects because, in the Tribunal's assessment, if Mr Bullard's mount had not moved then it is entirely possible that Mr Johnson's manoeuvre may have been successful. The answer to that will never be known but the fact of the matter is that once Mr Bullard's horse began to move out Mr Johnson did nothing to steady his horse and the position was that he continued with the movement to which he was clearly committed. It was in carrying on with the move that that the Tribunal believes Mr Johnson was guilty of carelessness, not in making the move in the first instance.

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8.          I pause here to say that in the Tribunal's view it is not relevant that the horses interfered with were ultimately not placed. Nobody in the course of the race, certainly at the 200 metre mark, could know who was going to finish in dividend bearing positions.

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9.          In finding that there was a degree of carelessness we agree with the finding of the Judicial Committee on the day on that issue, although with slightly different emphasis because we place more significance on the effect of Mr Bullard's mount moving than did the Judicial Committee and that will reflect in what I am about to say now on the question of penalty.

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10.         It is not appropriate to deal with this by way of a fine only. If there are to be fines only imposed for careless riding in New Zealand that would require a significant change in judicial thinking and this is not an appropriate occasion to examine that question. This is a case not unlike many others and it can be approached in the same way as most other cases of careless riding. Mr Johnson rides in the North Island and the South Island. While his historical record may contain a large number of suspensions for careless riding it is his more recent record that is relevant and in recent times, certainly since October last year, there has not been a finding of careless riding and the Tribunal knows of its own knowledge, and from what it was told, that Mr Johnson has been riding extensively since October last in both the North and South. There were significant contributing factors here but Mr Johnson was culpable in that once the horse ridden by Mr Bullard began to move out he should but didn?t take steps in relation to his own horse. The Judicial Committee itself acknowledges in the course of the transcript on page 7 that this was not serious interference in comparative terms and it is also clear from the Judicial Committee's finding, and indeed from the submissions of the Stipendiary Steward on the day, that there was acknowledgement of the involvement of the horse ridden by Mr Bullard. In these circumstances we take the view that three days was too much and two days ought to have been imposed. That might seem like an insignificant alteration but it in fact is a reduction by one-third. You can?t divide three by half Mr Johnson. The best we can do is say that we take the view that on a proper consideration of this the Judicial Committee ought to have imposed a two day suspension rather than three days.

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11.         If a two day suspension is imposed it will have to take effect following the Auckland Cup Meeting on Wednesday of this week for which riders have already been declared and Mr Johnson has mounts on that day.

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12.         We now record that the appeal against the charge of careless riding is dismissed. The appeal succeeds in part and the suspension of three days is substituted with a suspension of two days. That will commence from the close of racing on Wednesday 7 March and will conclude following racing on Saturday 10 March. On Saturday 10 March there are races listed for both Auckland and Hastings.

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13.         Mr Tannahill seeks costs. The appeal against the suspension has failed and in those circumstances an award of costs is not appropriate. The filing fee on the appeal is forfeited.

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Dated at Wellington this 5^th day of March 2007

Murray McKechnie

Chairman

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Ross Neal

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hearing_type: Old Hearing

Rules: 871.1.d

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