Appeal – JP Mulcay

BEFORE THE APPEALS TRIBUNAL

HELD AT CHRISTCHURCH

IN THE MATTER OF - New Zealand Rules of Harness Racing

BETWEEN - JP Mulcay, Appellant

AND

HARNESS RACING NEW ZEALAND, Respondent

HEARING - 15 June 2005

APPEAL TRIBUNAL - Judge J Bisphan (Chairman)

                                        Mr B Coombes

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DECISION OF APPEALS TRIBUNAL

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The appellant appeals against a decision of the Race Day Judicial Committee dated 27 May 2005. The Judicial Committee found that the appellant had committed a breach of Rule 857(3)(ii) in that he, as starter, had failed to declare a false start when MARIANNA JACCKA (J.C. Hay) broke shifting up the track, checking BAD JELLY THE WYTCH (R.P. May), prior to the start. BAD JELLY THE WYTCH, losing all chance. The Judicial Committee found the charge proved and imposed a fine of $250. The appellant appeals against both the finding and the penalty.

The procedure for this appeal is governed by Rule 1205. The appeal is by way of rehearing based on the evidence adduced before the Judicial Committee. There is no presumption in favour of the decision of the Judicial Committee. We must reach our own decision. We must bear in mind the findings of the Judicial Committee below, be slow to differ from them but we are not bound to follow them. We have read the transcript of the evidence before the Judicial Committee and the Judicial Committee's decisions and reasons therefor. This appeal hearing was conducted by the viewing of the videotapes of the start of the race. We allowed further comment from Mr McIntyre, Mr Escott and also Mr Mulcay and we heard further brief oral submissions and read written submissions from Mr Mulcay which run to 69 paragraphs. We accept that the informant has the onus on the balance of probabilities of establishing the charge.

As a preliminary issue, we note at paragraph 64 of Mr Mulcay's written submissions that there is an allegation of procedural irregularities before the Judicial Committee. We do not accept that there were such procedural irregularities. There can be no suggestion that Mr Mulcay was in any way inhibited from calling any witnesses he desired to. He was aware of the initial stewards' hearing and at the hearing before the Judicial Committee, was at liberty to ask any questions of Mr McIntyre and Mr May concerning that. Mr Mulcay was not entitled to have legal representation at the Judicial Committee hearing - see clause 17(1), schedule 3, Racing Act 2003. We also note that had Mr Mulcay desired to call further evidence before us, he could have made an appropriate application (Rule 1205(3)). Furthermore we hold that any procedural irregularities or breaches of natural justice at the Judicial Committee level are remedied by this appeal which, as we have already noted, is by way of rehearing.

The facts as we find them are that in the run up to the start of the Honda Cars Christchurch Mobile Pace at the New Zealand Metropolitan Club's meeting of 27 May 2005, the horses, MARIANNA JACCKA, driven by Mr Hay and BAD JELLY THE WYTCH driven by Mr May, were on the front line of the mobile start in positions 5 and 6, with MARIANNA JACCKA being on the inside of BAD JELLY THE WYTCH. At a point, about adjacent to the pylon indicating the entrance to the passing lane in the front straight, MARIANNA JACCKA had moved outwards from its starting place either because it was placing roughly or in a break and came back on to BAD JELLY THE WYTCH which had been hanging back a length or so causing that horse to go into a break. From the videotaped evidence, it is clear that this occurred some distance before the starting point of this race which was about a pylon and a half's distance from the passing lane pylon and which point was also evident on the outside fence in one of the videos. We accept that care must be taken in the viewing of videos particularly when they are not being run at natural speed but, in our view, the evidence was clear that Mr May's horse had been interfered with quite some distance before the imaginary line across the track which constitutes the starting point line. We also observed that the activation of the green light on this occasion took place at about the time the mobile gate arm passed the said starting point.

Rule 857(3)(d) states:

"Starting Point

The starting point will be the point approved by the stipendiary steward marked on or adjacent to the racetrack. The starter shall give the word RIGHT at the starting point and activate a green flashing light. The mechanism for closing the starting gate must be controlled by the starter."

Rule 857(3)(g) is as follows:

"There shall be no recall after the word RIGHT has been given and subject to Rule 213(1)(j) hereof, any horse regardless of its position or an accident shall be deemed a starter from the time it entered into the starter's control unless dismissed by the starter."

And finally, Rule 857(3)(I):

"Recall - Reasons For

The starter shall sound a recall for the following reasons and no other?(ii) there is interference."

Rule 857(3)(d) is so drafted that there is both audio (giving of the word "RIGHT") and visual (the green flashing light) indication that there has been a start to the race. These indications are to be given at the starting point so marked at the racetrack. We consider that Mr McIntyre is correct when he says that the race starts upon the word "RIGHT" being given by the starter and the activation of the green flashing light and that to us is a sensible interpretation. It follows that it is the starter's duty to utter the word "RIGHT" and activate the green flashing light as far as possible contemporaneously and also to coincide with the arms of the starting gate passing over the imaginary starting line as delineated by the starting point.

Sensibly read, Rule 857(3)(i)(ii) means that the interference must take place before the start, in which event the starter is obliged to sound a recall. He cannot do so if he has already uttered the word "RIGHT". We accept that it will never be possible for the three events, that we have just referred to, to occur at precisely the same time.

The thrust of Mr Mulcay's written submissions is that as there was no proof as to when the word "RIGHT" had been uttered by him, that it could not be established that the interference clearly suffered by Mr May's horse had occurred before the start to the race. Mr Mulcay contends that a start takes place only when the word "RIGHT" is uttered but we prefer Mr McIntyre's interpretation. The only evidence from Mr Mulcay as to this issue is contained in page 11 of the transcript where Mr Mulcay says:

"No one said, I would have said if the light come on, just said, I probably said right long gone before the light come on because as I said it's a manual you?re concentrating on this and you?re relying on your men inside you?"

In assessing that evidence we comment that for this start to have been in accordance with the Rules as interpreted by Mr Mulcay, i.e. prior to any interference suffered by Mr May's horse, Mr Mulcay would have had to have uttered the word "RIGHT" at a point well in advance (in fact a number of metres) of the actual starting point, and also well in advance of the activation of the green light. We do not find that probable and do not accept Mr Mulcay's evidence that he had uttered the word "RIGHT" well before he activated the green light and well before the starting point was reached.

Is there other evidence, in addition to the video evidence, from which we can conclude that the interference suffered by Mr May's horse occurred prior to the start of the race? In our view, this comes from Mr May's evidence itself where he stated that indeed his horse had been interfered prior to the start of the race. We do not agree that Mr May's evidence is lessened by the fact that he was not aware of that position at the time it had occurred. This is understandable because in the run up to the start Mr May would have been concentrating on his own horse and then when Marianna Jaccka broke, avoiding further interference and contact with his horse. Mr May was never asked whether he heard the word "RIGHT" uttered by Mr Mulcay. In the circumstances revealed by the videos, it is not tenable that Mr Mulcay uttered the word "RIGHT" at a point before or at the first interference suffered by Mr May's horse. This was quite some distance from the starting point marked on the track and the activation of the green light and we infer that the word "RIGHT" was uttered by Mr Mulcay after the interference had occurred. We are satisfied, as were the Judicial Committee, that Bad Jelly the Wytch was interfered with before the start of the race. Mr Mulcay had an obligation to observe this and order a recall. We are satisfied the charge has been proved. The appeal against the finding is dismissed.

Mr Mulcay made brief submissions as to this issue and produced his record. Bearing in mind the number of starts that he has undertaken in his career he has an extremely good record. However, we do not find that the imposition of a fine of $250 is excessive or inappropriate. In our view, it is well within the range available to the Judicial Committee. This breach of the starting rule had consequences in that the chances of Mr May's horse were extinguished before the start and there were other consequences arising out of the prior stewards' enquiry. The appeal against sentence is dismissed.

We do not propose to award costs to Harness Racing New Zealand but we consider that this is a case where some contribution of costs should be made by the appellant to the JCA. We direct that the appellant pays the sum of $250 costs to JCA.