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startdate: 01/01/2001

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hearing_title: Appeal - D G Bradley 20 August 2008

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BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY

IN THE MATTER of the New Zealand Rules of Racing

BETWEEN Darryl G Bradley of Palmerston North, licensed jockey

Appellant

AND      New Zealand

Thoroughbred Racing

Respondent 

Appeals Tribunal:                   G Hall          Chairman

N Harris       Member

Date of hearing:                       20 August 2008

Venue:                                       Somes Room, NZTR, Petone

Present:                                     Mr D Bradley, Appellant

                                                   Messrs C George and R Neal, for the Respondent

DECISION OF THE APPEALS TRIBUNAL

The appellant, Mr Bradley, has appealed both the finding of the raceday Committee at the meeting of the Canterbury Jockey Club at Riccarton on 6 August last, that he was in breach of R 858(3) in that he weighed 0.7 kg light on RHYTHM MASTER in race 6, and the subsequent penalty of a suspension from riding up to and including 22 August 2008.  The Tribunal granted a stay of this penalty on the 11^th of August, pending the hearing of this appeal.

Rule 858(3) provides as follows:

Every rider whose weight on weighing in exceeds or is less than the proper weight as defined in and with the allowance permitted by Rule 857(3) and the trainer or other person in charge of the horse ridden by such rider commit a breach of these Rules.

Mr Bradley has not sought leave of the Committee to introduce any new evidence as to the circumstances under which he came to weigh in light. It remains as much a mystery to the Tribunal today as it was on the day to the parties and the Committee. Mr Bradley presented for inspection by the Tribunal the gear he had used on the day. He pointed out the lead weights were painted a bright colour so they could easily be seen should they be mislaid. He stated, and we accepted, as did Mr George, that the gear was in good order.

Mr Bradley took the Tribunal through the events on the day in question. He stated when he first weighed out he was a “big 1/4 kilo light”. He obtained a piece of lead, placed it in his lead bag, and reweighed. He was told he was at the correct weight and he accepted this. He was uncertain as to whether he had viewed the correct weight on the scales himself at this time. He then took his gear towards the jockeys’ room and he said he gave his gear to Ms Whittle, the strapper for the horse, outside the door to the jockeys’ room, where she was waiting. He disagreed with the suggestion from Mr George that he had taken his gear into the room itself. When he weighed in after the race he was one of the first to weigh, and he was just over ½ a kg light. He said the needle on the scales was wavering about this mark. It was suggested he stand aside and be reweighed last. He did so and he was lighter again. There was a clear space between the line, which demonstrated he was ½ kg light, and the needle. He could not (and still cannot) understand how his weight changed in that short time. He was found to be 0.7 kg under the correct weight. He said he was “floored to be so much under weight. It had never happened before.” He added he checked his gear and nothing was missing. In particular, the correct lead weights were present. He could not point to any explanation for his weighing in 0.7 kg light. He emphasised he did not attach any blame upon the actions of the strapper or the trainer of RHYTHM MASTER.

Mr Bradley referred the Tribunal to Rule 857(1) and stated that had he been aware of this Rule he would have called for further gear to be added to the scales, such as the blinkers the horse was wearing. The Tribunal drew Mr Bradley’s attention to the words in brackets in that Rule, and Mr Bradley eventually accepted that the blinkers would be covered by the exception, being notifiable racing gear pursuant to Rule 849(3)(c) and Schedule 7, and therefore could not be weighed.

Mr Bradley also referred to an incident at Gore earlier this year when Mr Todd had weighed in 0.9 kg light in the Gore Cup on 19 January last. His mount SABICRAFT, the favourite which finished second, was disqualified, but no action was taken against Mr Todd. Mr Bradley questioned why this would be.  He suggested there was an element of unfairness in his being charged when it was a maiden race and his horse was not a favoured runner, and his being penalised so severely when no action was taken against Mr Todd on a favourite in a Cup with a stake of $20,000. The Tribunal indicated it understood the point Mr Bradley was making, but emphasised that the decision as to whether or not to lay charges was clearly a matter for NZTR and the stipendiary steward stewards on the day. It was not a matter that would have been brought to the attention of the raceday committee appointed by the Judicial Control Authority, which could not instigate charges, but was tasked with determining informations placed before it for consideration on the day. Nor was it a matter upon which the Tribunal could place any weight in determining Mr Bradley’s appeal.

Mr George sought and was granted permission to produce a letter from Mr J Langan, the Racing Manager of the Canterbury Jockey Club, which stated that the scales at Riccarton Park had been checked on Saturday morning 3 August, and were found to be in good working order. Mr George said he too could offer no explanation for Mr Bradley’s weighing in light. The stipendiary stewards’ investigations had shed no light on the matter. However, he emphasised to the Tribunal the difficulties that would arise should a jockey be able to escape a finding of a breach of this Rule should he or she simply be able to say that there was no logical explanation for the breach. He said the onus under the Rules was clearly on the jockey to ensure that he or she weighed in at the correct weight.

We accept that a finding of negligence due to an identified omission or positive act is not necessary before a jockey can be found to be in breach of Rule 858(3). As Mr Bradley has been unable to point to, let alone establish to a civil standard, any exculpatory evidence for his weighing in light, we uphold the raceday Committee’s finding that there was a breach of Rule 858(3). Mr Bradley is thus unsuccessful in this aspect of his appeal.

However, Mr Bradley has also appealed against penalty. In this matter he is on firmer ground. He produced a list of penalties imposed under Rule 858. These related to both weighing in under and over weight. We have not taken notice of the over-weight penalties, as we believe this is a different issue. The most relevant penalty is that imposed on Mr J Riddell on 14 August 1999. In that case his horse finished second and was disqualified when Mr Riddell weighed in .75 kg light. In this case too, there was no explanation for the discrepancy on the day. The penalty on that occasion was a 3 day suspension and a forfeiture of the riding fee. Mr George in reference to this penalty emphasised it was imposed some 9 years ago and penalties had stiffened in the intervening years. We do not disagree with Mr George, but there is a marked disparity between a penalty of 3 days suspension and the one imposed on Mr Bradley of 2 weeks (6/7 days) and a fine of $1250.  Mr Bradley also drew our attention to the fines that had been imposed upon trainers found to be in breach of the Rule over the period 12 December 1996 to 22 December 2007. Frequently this was due to the omission of gear and, in particular, the lead bag. Fines ranging from $300 to $1000 were noted to have been imposed in circumstances where a horse had been disqualified from a dividend bearing position.

Mr George submitted that the penalty imposed by the Committee was appropriate and that the Committee had taken into account the mitigating factors. He referred the Tribunal to Rule 1122(c) and (d), namely the consequential effects upon any person or horse as a result of the breach of the Rule; and the need to maintain integrity and public confidence in racing.

We note, as did the Committee, that the Penalty Guide issued by the Judicial Control Authority suggests a penalty in the range of a suspension of 1 month and a fine of $2000. The Committee, although viewing the breach as “a serious one”, saw fit to impose a penalty “appropriate to the circumstances of the matter before [it]”, and which was substantially below that level. We agree that this was appropriate in the particular circumstances of this case. However, we differ from the Committee in the view it has taken of the breach. It is clear that the Guide encompasses situations where there has been clearly identified negligence, such as a failure to include a lead bag when saddling a horse, omitting a towel or using the wrong saddle. We have no difficulty in reaching a conclusion that such a breach would be serious and would warrant a penalty close to or at the level indicated in the Guide. However, in this case, with it being accepted by both parties that there is no obvious explanation for the breach, we view it as being at the bottom end of the scale with respect to breaches of this particular Rule in circumstances where there has been a disqualification from a dividend bearing position.

The Tribunal, unlike the Committee, has had the benefit of the comprehensive list of penalties that Mr Bradley has placed before it. It is our view that the penalty imposed upon Mr Bradley is not only inconsistent with other penalties imposed for breaches of this Rule, but it is also manifestly excessive. We have given thought to the imposition of a fine only, but believe the need to give force to Rule 1122(2) and the need to uphold the integrity and public confidence in racing and to protect the interests of the connections and those who invest in the racing product, require the imposition of a suspension in addition to a fine. We thus we do not believe that a penalty in the range of fines previously noted to have been imposed upon trainers found to be in breach of this Rule is appropriate for Mr Bradley.

Mr Bradley has commitments at New Plymouth on Saturday August 23. We suspend Mr Bradley from riding at the end of racing that day up to and including Friday August 29. We have also taken into account the fact that Mr Bradley lost the opportunity to ride at Awapuni on 14 August last due to the closeness in time between his being granted a stay of his penalty and the declaration of riders for that meeting. Trainers were simply unaware that Mr Bradley was available to ride. The fine of $1250, imposed by the Committee, is not altered.

We have heard brief submissions from both parties on the issue of costs. As Mr Bradley has been partially successful in his appeal, we order that his deposit be returned. We believe it is appropriate, however, with the Committee’s finding that there has been a breach of the Rule being upheld, that he make a contribution towards the costs of the appeal. He is ordered to pay costs in the sum of $250.

Dated at Dunedin this 27^th day of August 2008.

G Hall                         Chairman.

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hearing_type: Old Hearing

Rules: 849.3.c, 1122.c, 1122.2, 858.3, 857.3, 857.1

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