Appeal – FD Cooney

hearingid: 07df53385c4203890ac40f05f80efd1c

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Appeal - FD Cooney

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At the meeting of Auckland Trotting Club held at Alexandra Park Raceway on Friday, 22 December 2006, Mr Cooney was found guilty by a Judicial Committee of a charge of driving carelessly in Race 2 and his Open Driver's Licence was suspended up to and including the conclusion of racing on 31 December 2006.

BEFORE AN APPEALS TRIBUNAL HELD AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN          FRANCIS DUNDAS COONEY of Auckland

                       Licensed Open Driver   -   Appellant

AND                 HARNESS RACING NEW ZEALAND

                      Respondent

APPEAL TRIBUNAL:    RG McKenzie  (Chairman),    JM Phelan

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DECISION OF APPEALS TRIBUNAL

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At the meeting of Auckland Trotting Club held at Alexandra Park Raceway on Friday, 22 December 2006, Mr Cooney was found guilty by a Judicial Committee of a charge of driving carelessly in Race 2 and his Open Driver's Licence was suspended up to and including the conclusion of racing on 31 December 2006.

By a written Notice of Appeal dated 27 December 2006, Mr Cooney gave notice that he intended to appeal against the decision made by the Judicial Committee on the grounds that the decision was wrong and, also, against the penalty imposed on the grounds that it was "manifestly excessive". At the same time, Mr Cooney sought a stay of the period of suspension. The granting of a stay was strongly opposed by Harness Racing New Zealand but was granted by this Tribunal on 28 December 2006.

On 9 January 2007, Mr Cooney, through his Counsel Mr Branch, advised the Registrar of the Tribunal that the appeal was withdrawn. Rule 1206 (1) gives an appellant the right to do this. Under Rule 1206 (6), the leave of the Appeals Tribunal is required and leave is granted to Mr Cooney subject to the order for costs referred to below.

Rule 1212 provides as follows:

It is accepted by the parties that the effective term of suspension imposed by the Judicial Committee was 3 days although it was argued by Mr Muirhead, on behalf of the Respondent, that Mr Cooney would not have been driving at two of those meetings and that the only effective day's suspension was in respect of the meeting of Auckland Trotting Club on 31 December 2006. However, it was obviously the intention of the Judicial Committee that the meetings at Te Awamutu on 28 December and Cambridge on 29 December be included in the period of suspension.

Mr Cooney, his suspension having been stayed, subsequently drove at the Auckland premier meeting and Mr Muirhead has drawn the Tribunal's attention to the fact that, at that meeting, Mr Cooney had 8 drives for 3 wins and 2 second placings, including a win in the IRT Sires Stakes Fillies Championship Mobile Pace, a Group 2 race, in which the winning stake was $62,500.

Mr Muirhead has submitted to the Tribunal that Mr Cooney appealed the suspension imposed on 22 December for no other reason than to allow him to obtain a stay of penalty and drive at the meeting on 31 December and, in particular, to enable him to take the drive on ONE DREAM in the race referred to. It is a natural inference from Mr Cooney's subsequent withdrawal of the appeal that this was the case although Mr Branch has maintained on behalf of Mr Cooney that Mr Cooney believed he had good grounds for his appeal but now, for reasons of which this Tribunal is unaware, his appeal has been withdrawn.

In terms of the Rule referred to above, it is now the task of this Tribunal to impose a term of suspension commensurate with that originally imposed or so much of it has not been served. "Commensurate" simply means "being of the same or equal value" (The Reed Dictionary of New Zealand English, 3^rd Edition). In addressing this task, the Tribunal needs to arrive at an appropriate term of suspension by way of a penalty to substitute for the meeting at Auckland on 31 December at which Mr Cooney was able to drive under the stay of penalty. The Tribunal believes that it is entitled to have regard to the actual outcome of Mr Cooney's drives at that meeting. In addition, the Tribunal has had regard to the advice of Mr Muirhead that Mr Cooney has averaged 5 drives per week to date in the current season. In the 2005/2006 season, he averaged 4 drives per week.

The approach of the Tribunal in determining an appropriate term of suspension that is commensurate with that originally imposed is based on the finding that, as submitted by Mr Muirhead, the appeal was purely one of convenience to enable Mr Cooney to drive at the 31 December meeting and, as such, involved an unacceptable abuse of the appeal procedure. On that basis, and on the basis of the actual outcome of Mr Cooney's drives at the 31 December meeting, the Tribunal's decision is that Mr Cooney's Open Driver's Licence shall be suspended from after the close of racing on 14 January 2007 up to and including 6 February 2007.

This suspension period includes Northern harness meetings at Cambridge on 19 January, Thames on 21 January, Auckland on 26 January, Tauranga on 28 January, Cambridge on 1 February and Avondale on 6 February. Based on Mr Cooney's recent driving history, the Tribunal believes that he would be unlikely to be driving at Thames or Tauranga and, further, that he would be unlikely to take drives at the two Cambridge meetings.

During a 3-weeks period, Mr Cooney would be likely to have approximately 15 drives - based on his driving statistics for the current season and 2005/2006. Mr Cooney, through his appeal which we find was frivolous, was able to secure 8 very lucrative drives at the 31 December meeting which, but for obtaining a stay of penalty as a consequence of that appeal, he would not otherwise have been able to secure. The appeal procedure provided by the Rules is, surely, not intended to profit a horseman in that manner.

For the avoidance of doubt, the stay of penalty granted by this Tribunal on 28 December 2006 remains in force up to and including 14 January 2007.

Mr Muirhead did not seek costs on behalf of the Respondent. However, the Tribunal orders, pursuant to Rule 1207 (3) that costs in the sum of $500.00 be paid to the Judicial Control Authority. The filing fee is to be forfeited.

R G McKenzie

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hearing_type: Old Hearing

Rules: 1206.1, 1206.6, 1207.3

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