Appeal – G J Thomas v RIU – Decision dated 5 August 2013

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decisiondate: 30/07/2013

hearing_title: Appeal - G J Thomas v RIU - Decision dated 5 August 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL

AUTHORITY

Under the Racing Act 2003 and the New Zealand Rules of

Harness Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)

APPELLANT

AND GRAEME JAMES THOMAS of Invercargill, Licensed Horseman

RESPONDENT

Appeals Tribunal: Murray McKechnie, Chairman - Russell McKenzie

Appearances: Ms Mary-Jane Thomas, Counsel for Mr Thomas, Mr Ross Neal, Co-Chief Stipendiary Steward, Mr Barnaby Hawes, Counsel for the RIU 

DECISION OF APPEALS TRIBUNAL

DATED THIS 5th DAY OF AUGUST 2013

1. BACKGROUND

1.1 This appeal is concerned with events which occurred at Invercargill on 18 May this year. Mr Thomas was charged with a breach of the whip Rule No 869(2)(a). He pleaded not guilty. The Race-day Judicial Committee found the charge proved and issued a written warning. The RIU have appealed against the penalty. Mr Thomas has cross-appealed against the finding that he was in breach of the rule.

1.2 The Tribunal issued a minute dated the 29 May 2013. In summary that minute directed the parties to file submissions. First by the RIU, then on behalf of Mr Thomas and thirdly for the RIU to have the right of response. Comprehensive submissions have now been received in terms of that minute.

1.3 The facts which led to the charge against Mr Thomas are not in dispute. Mr Thomas was driving the horse ARANCIA in race 10. In the last 200m of the race Mr Thomas used his whip in his free hand to hit the dust sheet attached to the sulky twenty seven (27) times.

1.4 The horse ARANCIA finished 5th in race 10.

1.5 One of the matters of particular significance in this hearing is the legality and/or significance of what are known as the “use of whip guidelines” issued by Harness Racing New Zealand. Both parties have responded to the request of the Tribunal to address this issue.

1.6 The relevant Rule 869(2) is to this effect:

No horseman shall during a race;
(a) Use his whip in an unnecessary, excessive or improper manner;
(b) Use his whip in such a way that it baulks, Inconveniences, impedes or strikes another horse or horseman;
(c) Project his whip outside the sulky or draw his whip further back than the sulky seat.

2. THE POSITION TAKEN BY THE RIU

2.1 At the heart of the submissions for the RIU is the proposition that the rule and the guideline are designed to promote the public perception of racing, safety and the welfare of horses. It is said in support of this proposition that many of the rules which govern harness racing are directed at the issue of public perception. Rules in relation to prohibited substances are cited as an example.

2.2 It is acknowledged by the RIU that the guidelines are not binding. This in the sense of not having the force which attaches to a formally promulgated rule of harness racing but it is nevertheless said that the guidelines have been adopted across harness racing and have provided an accepted standard for use of the whip. The RIU submissions set out the history of these guidelines. They have been in place for some years. They were accepted and approved by New Zealand Trainers and Drivers Association. The current guidelines were published in the Harness Racing Weekly on the 17 October 2012. It is pointed out that the earlier guideline which came into effect in 2009 contained the expression “where the striking a horse, harness or sulky”. The guideline promulgated on 17 October 2012 uses the expression “on the sulky or dustsheet”. There is no explanation as to why a different form of words was adopted in 2012. In the view of the Tribunal nothing turns upon that change of language.

2.3 Plainly the cruel treatment of animals is unacceptable. Care needs to be taken however not to elevate the matter of perception beyond the primary purpose of the rule which in our view has to do with animal welfare. Proper regard for animal welfare does not however necessarily mean that the issue of perception should be overlooked. It is the relationship between the issues of animal welfare and perception which lies at the heart of these appeals.

2.4 It is accepted in the RIU response submissions that in judicial proceedings it is for the Race-day Judicial Committee to place such weight upon the guidelines as it considers appropriate. It is said that the guideline will provide significant assistance. Further that where the guidelines have been widely accepted throughout harness racing and endorsed by the New Zealand Trainers & Drivers Association it is proper for a Judicial Committee to have meaningful regard to those guidelines.

2.5 The RIU appeal is against the penalty. Mr Thomas was issued with a written warning by the Race-day Judicial Committee. It is said that the proper penalty was a fine. This submission is supported by reference to statistics in the twelve (12) months ending 31 May 2013. We were advised that there were sixty seven breaches of the rule in that time of which sixty six were for excessive use of the whip. On fifty nine occasions there were fines and on seven occasions suspensions. There were no warnings given in that period of twelve (12) months to 31 May 2013. It is pointed out that the rules of harness racing do not expressly provide for the issue of warnings: whether written or otherwise. It is said for the RIU that twenty seven strikes with the whip is near the top end of the range. The RIU position is that consistency in the imposition of penalties required the Race-day Judicial Committee to impose a fine. Mr Thomas had no relevant previous breaches of the rule. The information before the Tribunal indicates any fine in those circumstances would have been modest.

2.6 It is suggested that the Judicial Committee may have been influenced by Mr Thomas advising that he was unaware of the existence of the “use of whip guidelines”. The submissions of the RIU are sceptical of this assertion which Mr Thomas made before the Race-day Judicial Committee. That Committee saw and heard Mr Thomas give his evidence and this Tribunal will not differ from what was said on that subject by the Committee.

3. THE CASE FOR MR THOMAS

3.1 It is convenient to first consider whether the charge was proved. This necessarily involves a consideration of the relevant status of the guidelines. In that regard it is to be remembered that the RIU accepts that the guidelines do not have the same legal standing as the formally promulgated rules of harness racing.

3.2 Before going to any analysis of the guidelines it is important to look at the wording of the rule itself and to examine the purpose behind its adoption. Rule 869(2)(a) is where the focus must be. It is as follows:

No horseman shall during a race;
(a) Use his whip in an unnecessary, excessive or improper manner;

This subsection is framed in very general terms. The expression “use of the whip” is not defined. There is no reference to the horse that is being driven by the horseman. There is no attempt in the rule to define the words “unnecessary”, “excessive” or “ improper manner”. Clearly those words are disjunctive. It follows that much will depend upon the assessment of individual cases by Race-day Judicial Committees.

3.3 It is the view of the Tribunal that the sparse language of the rule is the essential reason why more definition was required. The RIU in its submission puts the position in this way:

Paragraph 11;

To this end Harness Racing New Zealand, in conjunction with the Trainers and Drivers Association, the RIU and the JCA, have taken positive initiatives to support the whip rule by producing guidelines which define how the rule should be interpreted, applied and enforced. The establishment of such guidelines and standards has greatly improved participant awareness and has led to better understanding of what is appropriate and what is not.

3.4 Ms Thomas submits that the guidelines have no standing. She contends that the Committee was wrong to have regard to the guidelines for these reasons:

• The guidelines are irrelevant and they extend liability beyond what is provided for in the rule.

• The Race-day Judicial Committee took into account irrelevant considerations, namely public perception.

• The Committee failed to consider all the circumstances around the actions complained of which were, to quote the submissions verbatim, “so insubstantial that finding the charge proved was out of all proportion”.

3.5 We focus upon the first of these submissions namely that the guidelines are irrelevant and extend liability beyond what is provided for in Rule 869(2)(a). In our judgment the guidelines do not extend the scope of the rule: rather they seek to define what may or may not be acceptable in terms of the rule which is expressed, as noted above, in the most general terms. The “use of whip guidelines” are set out on a single page but nevertheless contain significant detail. Attached as Schedule 1 to this decision is a copy of those guidelines issued on the 17 October 2012. For the purposes of this decision it is sufficient to refer to that part of the guidelines which has to do with “use of the whip”. That expression occurs in a line which reads as follows:

Stewards deem the “use of the whip” throughout the race as listed below;
• Free of the rein
• On the horse itself
• On the sulky or dustsheet
• Backhanders

The use of the word “deem” is perhaps unfortunate. It has overtones of predetermination. The determination of whether or not a breach has occurred is for the Race-day Judicial Committee. A synonym for the word “deem” – perhaps the word “consider” – would have been more appropriate.

3.6 In the Tribunal’s judgment reference to the guidelines does not extend the reach of Rule 869(2)(a). The guidelines seek to set out circumstances which may (emphasis added) constitute a breach of the rule. They provide examples. Necessarily they could not cover every circumstance which might arise but plainly address circumstances which occur with significant frequency. The application of the whip to the sulky or the dustsheet is a common practice.

3.7 Ms Thomas points to the finding of the Judicial Committee:

“… That we believe it would be obvious to all but those uneducated in industry matters, that the strikes were not sufficiently far forward of the seat of the cart to have made contact with the horse”.

This finding is the foundation for the submission that the conviction of Mr Thomas was based solely upon the grounds that the public watching the race would have been concerned about the use of the whip. That submission is, in essence, that the conviction is based entirely upon perception.

4. DISCUSSION

4.1 Rule 869(2) is the primary governing enactment. It is said for Mr Thomas that the “use of the whip guidelines” are irrelevant. That submission, if accepted, would mean that the “use of the whip guidelines” must be ignored. Further that the adoption of those guidelines throughout the harness racing industry was wrong and that reference to them has been ultra vires (unlawful) from the date of their first adoption.

4.2 The Tribunal is not persuaded that the “use of the whip guidelines” are irrelevant or of no effect. They are no more than how they describe themselves: they are a guide (emphasis added). They assist in the application of the relevant rule. They have been followed, apparently without objection, throughout the industry over many years. As explained in paragraph 3.2 above the rule itself is framed in general terms and contains little definition.

4.3 Those involved in the governance of harness racing are legitimately concerned at the public perception of how the sport is conducted. Indiscriminate or unnecessary use of the whip, whether in direct contact with the horse or not, would be bound to create an unfavourable public perception.

4.4 If the interpretation argued for by Mr Thomas were adopted it would seem that the rule could only have application when the horse was struck and any other use or movement of the whip would not be subject to sanction. In the Tribunal’s view that interpretation would be unnecessarily restrictive and unrealistic.

4.5 While acknowledging that the primary purpose of the rule has to do with animal welfare that purpose does not exclude other considerations. A valid ancillary consideration is the perception of harness racing. It is clear that for many years the “use of whip guidelines” have been in use in order to assist in the improvement of the public perception of the conduct of harness racing. For these reasons the Tribunal believes that Raceday Judicial Committees may have regard to the “use of whip guidelines” in order to assist in the interpretation of Rule 869(2).

4.6 Consistent with what has just been said the Judicial Committee on the occasion under appeal was entitled to have reference to the “use of whip guidelines”. This was an experienced Judicial Committee. Doubtless it would have had previous experience with charges laid under this rule where the whip had not been applied to the horse. The Judicial Committee was entitled to conclude that there had been a breach of the rule and accordingly the conviction must stand.

4.7 The first appeal lodged was that of the RIU against the penalty. In the Tribunal’s view it does not follow that a conviction under the relevant rule must necessarily result in a monetary penalty. In this case it appears that the Judicial Committee had regard to two (2) particular circumstances. First that Mr Thomas does not have a large number of driving engagements and secondly his advice that he was unaware of the “use of whip guidelines”. While there may be no express provision in the rules of harness racing to issue written warnings it is the Tribunal’s view that in circumstances where a monetary penalty or suspension is not considered necessary Judicial Committees may well be justified in issuing a written warning.

4.8 For the RIU it is contended that a comparison with other like cases would have led to a monetary penalty. It would seem, on the information put forward by the RIU, that where there have been breaches of the rule and the horse has not been struck modest monetary penalties of around $200.00 have been imposed. In general penalties at that level may well be appropriate. It is argued for the RIU that consistency of penalties required a monetary penalty in this case. Consistency of penalties is desirable. That desirable objective should not however lead to a rigid application of penalties when necessarily the circumstances of each case are different. Judicial Committees must make their own assessment of the degree of culpability and that will then reflect in the level of penalty imposed. It should certainly be the case that where there has been excessive use of the whip upon the horse penalties will be significantly greater than where, as here, the horse has not been struck.

4.9 After carefully reflecting upon all the considerations drawn to our attention the Tribunal is of the view that in the circumstances of this case it would not be appropriate to disturb the penalty decision of the Judicial Committee. The Tribunal has concluded that there were circumstances which can satisfactorily explain the somewhat unusual course taken by the Judicial Committee. This finding on appeal should not be seen as a criticism of the imposition of modest fines where a breach of the rule has occurred and the horse has not been struck. We would expect Judicial Committees to impose such fines except where there are exceptional circumstances. In this case the Tribunal takes the view that it should not interfere even if it would have imposed a different penalty if it had been dealing with the matter at first instance.

5. SUMMARY

5.1 The conviction of Mr Thomas under Rule 869(2) is upheld.

5.2 The appeal against the penalty brought by the RIU is dismissed.

5.3 Both appeals raised legitimate and significant issues. Neither appeal was without merit. The Tribunal thanks Ms Thomas and Messrs Neal and Hawes for their assistance.

5.4 There will be no costs awarded either to or against either party. Each party will pay $250.00 towards the costs of the JCA.

Dated this 5th day of August 2013

_________________________________

Murray McKechnie

Chairman

Signed pursuant to Rule 1207(5)

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