Appeal L Allpress v RIU – 14 November 2011 – Decision 22 November 2011
ID: JCA19202
Hearing Type (Code):
thoroughbred-racing
Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN LISA ALLPRESS
Licensed Jockey
Appellant
AND RIU
Respondent
APPEALS TRIBUNAL: Professor G Hall (Chairman) - Mr R Seabrook
APPEARING: Mr P Brosnahan for the appellant, Mr J Oatham for the RIU
DATE OF HEARING: 14 November 2011
DATE OF ORAL DECISION: 14 November 2011
DATE OF WRITTEN DECISION: 22 November 2011
DECISION OF APPEALS TRIBUNAL
[1] A raceday committee (the committee) at Poverty Bay on 4 November last found that Mrs L Allpress had breached r 638(1)(d) of the Rules of Racing (careless riding) in that being the rider of MAGIC POWER she had permitted her mount to shift inwards near the 1100 metres mark when not sufficiently clear of DEMOPHON (M Cameron), which was checked. The penalty incurred was 4 days’ suspension. This is an appeal by Mrs Allpress against both the finding and the penalty.
[2] At the commencement of the hearing of the appeal, Mr Brosnahan, counsel for Mrs Allpress, stated that he was at a severe disadvantage in presenting the appellant’s case as the DVD player was not adequate for the purpose. He explained a central plank of their case was that the appellant was clear of Mr Cameron at the time she came into his running line. The only way this could be demonstrated satisfactorily to this Tribunal, he said, was for synchronised head and side-on footage to be available. Unfortunately the DVD player at the JCA office was unable to perform this function.
[3] This Tribunal with the assistance of the respondent investigated the possibility of obtaining access to the necessary equipment. None was readily available and it was agreed that the hearing continue, with Mr Brosnahan reserving his right to request an adjournment.
Counsel’s submissions
[4] Mr Brosnahan made an opening statement in which he said it was clear that MAGIC POWER had gone past DEMOPHON and that this had “excited” DEMOPHON, which had become hard to control. He said DEMOPHON had a tongue-tie on for the first time and also had blinkers and a nose-band. He said the films would demonstrate that DEMOPHON was over racing and that the horse had accelerated after the appellant had gone past and had thus closed the gap. He said the committee had failed to recognise the significance of this fact. He said Mr Bradley’s evidence on the day was that DEMOPHON was over racing and that Mr Cameron was looking to go to the fence to trail the horse which had first come across DEMOPHON, which was LEMONADE. Mr Brosnahan repeated his submission that the primary issue was how much gap was there when the appellant came across; it was a timing issue, which could not be established satisfactorily on the DVD player.
[5] Mr Brosnahan then asked the appellant to comment on the films. She stated that DEMOPHON had become unsettled and was over racing as she had crossed that horse. She accepted she was not her length and another clear but said this was because Mr Cameron was battling to keep control of his horse and, had DEMOPHON not been over racing, she would have been 2 lengths clear when she crossed.
[6] The appellant continued by stating that she was 2 lengths clear when she started to cross and, had we had synchronised film, that would evidence that fact. She said this was “crucial to her case”. She added she believed her forward momentum would have kept her clear of DEMOPHON.
[7] Mrs Allpress said the fact that Mr Cameron had taken a hold of his horse was not because she was coming across but because he was battling to keep control of DEMOPHON. She pointed out on the film where she believed DEMOPHON was over racing and throwing its head prior to her coming across.
[8] Mr Oatham said the respondent’s case was simple. The appellant was never 2 lengths clear when she came across. He emphasised that at no point during the manoeuvre was she 2 lengths clear. He demonstrated on the films that there was never more than a length or a length and a quarter gap, and the latter estimation, he said, was being generous. Any action by Mr Cameron taking hold of DEMOPHON prior to the appellant coming across was no different to the actions of the other jockeys in steadying their horses after the start of the race.
[9] Mr Oatham said this was DEMOPHON’s 11th raceday start. The horse had previously raced in blinkers and a nose-band. The tongue-tie was the only addition to its gear. There was nothing untoward, he said, with DEMOPHON’s racing manners. The horse was not over racing; it was racing keenly.
[10] Mr Oatham disagreed with Mr Bradley’s description of the movement by DEMOPHON. He said the only inwards movement by that horse was to avoid Mrs Allpress because DEMOPHON had lost its line and Mr Cameron was trying to look after other runners. He said Mr Forbes had also been in trouble briefly as he had had to check to keep off DEMOPHON’s heels.
[11] Mr Oatham added that a jockey could not make assumptions about other runners. It was the appellant’s obligation to ensure that she was 2 lengths clear when she crossed Mr Cameron. She was not.
[12] Mr Brosnahan, in reply, said Mr Oatham’s statement that DEMOPHON was not over racing was at odds with Mr Cameron’s evidence. He pointed out to this Tribunal that Mr Cameron had said to the committee that DEMOPHON was over racing before the appellant came across and that it had grabbed the bit after LEMONADE had crossed. He said the appellant would have been able to get across “quite comfortably” had DEMOPHON not over raced when she came alongside. He added Mrs Allpress was “entitled to expect to be 2 lengths clear”. DEMOPHON was over racing at the crucial time and he could establish this if the synchronised angles were available.
[13] Mr Oatham replied that the committee had considered the fact that DEMOPHON was over racing and reiterated that in his view at no time was the appellant sufficiently clear of Mr Cameron’s mount. He concluded by stating Mr Cameron was entitled to be where he was; Mrs Allpress was not.
Decision as to breach
[14] After adjourning to consider the matter we returned and informed the parties that we had not been persuaded, by either our viewing of the films, the appellant’s interpretation of them, or her counsel’s submissions, that the committee was in error. However, in view of Mr Brosnahan’s repeated submission that with synchronised head-on and side-on films we would be persuaded to reach a different conclusion, we offered the appellant the opportunity to submit that the hearing be adjourned to another day when these films would be made available. Mr Brosnahan, not surprisingly, stated that the costs of reconvening the hearing were a matter of concern to the appellant. He requested that this Tribunal consider giving a sentencing indication before the appellant made this decision. We agreed to this request and heard broad submissions from both parties as to penalty. We then indicated that we were considering a penalty in the range of 3 to 4 days.
[15] After a further adjournment the appellant stated that she wished the matter to be determined on the day. She did not wish to seek an adjournment. We then formally determined that the appeal against the committee’s finding that the breach had been proved was dismissed.
[16] We now state our reasons for so determining.
[17] The appellant has admitted both before the committee and this Tribunal that she was at no time her length and another clear when she made her inwards movement. The result was that she came into the running line of Mr Cameron who had to check with resulting interference to Mr Forbes who was racing immediately behind Mr Cameron. She attributes blame to the racing manners of DEMOPHON. We do not accept that submission. Whether or not the appellant could have come across “quite comfortably” had DEMOPHON not over raced is not the point. Her obligation under the Rules of Racing is to be 2 lengths clear of the other horse when moving into its racing line. It is not unknown for a horse that is being crossed to be hunted up at the time the jockey of the other horse makes his or her move. The obligation upon that jockey at that time is to ensure the 2 length margin. The obligation is no different if the horse being crossed, over races as a consequence of the sideways move. Mrs Allpress failed to meet this obligation.
[18] We agree with Mr Oatham’s interpretation of the film, in that the only inwards movement by DEMOPHON is that taken to avoid Mrs Allpress. We do not accept Mr Bradley’s evidence that DEMOPHON was looking for the fence prior to the appellant’s inwards movement, that Mr Cameron’s horse was starting to pull and that this was the reason that Mr Cameron decided to come back out and stay one off the fence. Nor do we accept the appellant’s statement that Mr Cameron took hold of his horse because he was struggling to control it. We are satisfied that Mr Cameron told hold of DEMOPHON when that horse was checked because the horse had lost its running line. Significantly, in response to the question from the committee: ‘What was the impact on you of Mrs Allpress coming in like she did?”, Mr Cameron stated: “Obviously I was entitled to be there at that stage and it’s just my horse is just, I just had to pull back and got a bit of a check and it’s just kind of interrupted my horses entire run. Obviously it upsets your horse when you get checked and the horse is in the air it’s just Lisa’s mount has just come across too fast and it has put me in an awkward spot obviously, my horse wasn’t happy either obviously.” Mr Brosnahan interpreted the last six words of this answer as evidence that DEMOPHON was over racing prior to the appellant coming across. Their context does not suggest that interpretation to us, merely that Mr Cameron was stating both he and (obviously) his horse were inconvenienced by the appellant’s actions. That said, we accept DEMOPHON was racing keenly at the time Mrs Allpress came across. Mr Oatham also accepts this. However, we do not believe that DEMOPHON was over racing prior to Mrs Allpress coming across into that horse’s running line.
Submissions as to penalty and costs
[19] With respect to penalty Mr Brosnahan submitted the breach was at the bottom end of the range and that the actions of Mr Cameron’s horse were a very relevant consideration. He said that when regard was had to the number of rides the appellant has in a season, her record was exceptional. Last season she had had 1022 rides, 99 more than any other jockey, and had only had 2 suspensions. (We understand the correct figure is 3.) This season she had had 285 rides and this was her first suspension. He reiterated that the appellant was at a severe disadvantage through not having synchronised films and that her decision not to seek an adjournment was a pragmatic one, which reduced the costs of the hearing of the appeal. He asked us to give weight to her co-operation and submitted a 3-day suspension was appropriate. He indicated that Mrs Allpress had taken rides up until Saturday and that she wished to take advantage of the 7-day deferment rule.
[20] With respect to costs Mr Brosnahan asked that they remain where they fall, as the appellant strongly believed she should not have been charged, that the non-availability of synchronised films was not her fault, and the costs of a reconvened hearing had been avoided through her co-operation.
[21] Mr Oatham stated he was not seeking an increase in the penalty and that the committee’s suspension of 4 days was appropriate. He said this was the penalty Mr Goodwin, the stipendiary steward on the day, had asked for and that the committee had taken sufficient account of the mitigating features. He had no objection to the appellant being granted a 7-day deferment of the commencement of the period of suspension.
[22] As to whether credit should be given for the fact that the appellant had not sought an adjournment, he said this was not appropriate as, in his view, were synchronised films available, they would have only served to strengthen the respondent’s case.
[23] Mr Oatham stated that the grounds of the appeal were not clear and asked that we award costs of $300 to the RIU for the hearing and unspecified costs for the preparation of the transcript, and $1000 for the JCA.
Decision as to penalty and costs
[24] The breach was described by Mr Goodwin, on the day, as not being high range. We agree with this assessment. Mr Brosnahan has asked us to take into account that DEMOPHON was over racing and that the appellant was entitled to believe that she could make her inwards movement and be 2 lengths clear. The films are evidence that the appellant was never 2 lengths clear and that DEMOPHON was racing keenly, but we do not believe DEMOPHON was over racing until Mr Cameron took hold of the horse when the appellant came into his running line.
[25] The appellant’s record is very good and this is a significant mitigating factor: 1022 rides last season and the last suspension being 27 August this year, with the previous one in July. Before that we have to go back to December 2010. This is a record of which we believe Mrs Allpress can be rightly proud.
[26] A further mitigating factor and the one which has principally led us to reduce the period of suspension by one day is that the appellant has forgone her right to request that the hearing be adjourned because no synchronised films are available. Mr Oatham has said this would have only strengthened his case. Mrs Allpress believes the contrary to be true. Whoever is correct, we accept that the appellant is entitled to put her best case before us and that she believes she has been denied this right.
[27] Primarily, therefore, because of her concession, but also taking into account the nature of the breach and her record, we suspend the appellant from riding after racing on the 19th of November up to and including the 24th of November.
[28] Mr Brosnahan has submitted that costs should lie where they fall and we note that Mrs Allpress has succeeded in her appeal against penalty. Mr Oatham has asked for full costs to be awarded to the RIU and the JCA. As Mrs Allpress has been only partially successful in her appeal we believe a contribution by her to the costs of this hearing is appropriate. She is ordered to pay costs of $200 to the RIU and $400 to the JCA.
Decision Date: 04/11/2011
Publish Date: 04/11/2011
JCA Decision Fields (raw)
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informantnumber:
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hearing_racingtype: thoroughbred-racing
startdate: 04/11/2011
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decisiondate: no date provided
hearing_title: Appeal L Allpress v RIU - 14 November 2011 - Decision 22 November 2011
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN LISA ALLPRESS
Licensed Jockey
Appellant
AND RIU
Respondent
APPEALS TRIBUNAL: Professor G Hall (Chairman) - Mr R Seabrook
APPEARING: Mr P Brosnahan for the appellant, Mr J Oatham for the RIU
DATE OF HEARING: 14 November 2011
DATE OF ORAL DECISION: 14 November 2011
DATE OF WRITTEN DECISION: 22 November 2011
DECISION OF APPEALS TRIBUNAL
[1] A raceday committee (the committee) at Poverty Bay on 4 November last found that Mrs L Allpress had breached r 638(1)(d) of the Rules of Racing (careless riding) in that being the rider of MAGIC POWER she had permitted her mount to shift inwards near the 1100 metres mark when not sufficiently clear of DEMOPHON (M Cameron), which was checked. The penalty incurred was 4 days’ suspension. This is an appeal by Mrs Allpress against both the finding and the penalty.
[2] At the commencement of the hearing of the appeal, Mr Brosnahan, counsel for Mrs Allpress, stated that he was at a severe disadvantage in presenting the appellant’s case as the DVD player was not adequate for the purpose. He explained a central plank of their case was that the appellant was clear of Mr Cameron at the time she came into his running line. The only way this could be demonstrated satisfactorily to this Tribunal, he said, was for synchronised head and side-on footage to be available. Unfortunately the DVD player at the JCA office was unable to perform this function.
[3] This Tribunal with the assistance of the respondent investigated the possibility of obtaining access to the necessary equipment. None was readily available and it was agreed that the hearing continue, with Mr Brosnahan reserving his right to request an adjournment.
Counsel’s submissions
[4] Mr Brosnahan made an opening statement in which he said it was clear that MAGIC POWER had gone past DEMOPHON and that this had “excited” DEMOPHON, which had become hard to control. He said DEMOPHON had a tongue-tie on for the first time and also had blinkers and a nose-band. He said the films would demonstrate that DEMOPHON was over racing and that the horse had accelerated after the appellant had gone past and had thus closed the gap. He said the committee had failed to recognise the significance of this fact. He said Mr Bradley’s evidence on the day was that DEMOPHON was over racing and that Mr Cameron was looking to go to the fence to trail the horse which had first come across DEMOPHON, which was LEMONADE. Mr Brosnahan repeated his submission that the primary issue was how much gap was there when the appellant came across; it was a timing issue, which could not be established satisfactorily on the DVD player.
[5] Mr Brosnahan then asked the appellant to comment on the films. She stated that DEMOPHON had become unsettled and was over racing as she had crossed that horse. She accepted she was not her length and another clear but said this was because Mr Cameron was battling to keep control of his horse and, had DEMOPHON not been over racing, she would have been 2 lengths clear when she crossed.
[6] The appellant continued by stating that she was 2 lengths clear when she started to cross and, had we had synchronised film, that would evidence that fact. She said this was “crucial to her case”. She added she believed her forward momentum would have kept her clear of DEMOPHON.
[7] Mrs Allpress said the fact that Mr Cameron had taken a hold of his horse was not because she was coming across but because he was battling to keep control of DEMOPHON. She pointed out on the film where she believed DEMOPHON was over racing and throwing its head prior to her coming across.
[8] Mr Oatham said the respondent’s case was simple. The appellant was never 2 lengths clear when she came across. He emphasised that at no point during the manoeuvre was she 2 lengths clear. He demonstrated on the films that there was never more than a length or a length and a quarter gap, and the latter estimation, he said, was being generous. Any action by Mr Cameron taking hold of DEMOPHON prior to the appellant coming across was no different to the actions of the other jockeys in steadying their horses after the start of the race.
[9] Mr Oatham said this was DEMOPHON’s 11th raceday start. The horse had previously raced in blinkers and a nose-band. The tongue-tie was the only addition to its gear. There was nothing untoward, he said, with DEMOPHON’s racing manners. The horse was not over racing; it was racing keenly.
[10] Mr Oatham disagreed with Mr Bradley’s description of the movement by DEMOPHON. He said the only inwards movement by that horse was to avoid Mrs Allpress because DEMOPHON had lost its line and Mr Cameron was trying to look after other runners. He said Mr Forbes had also been in trouble briefly as he had had to check to keep off DEMOPHON’s heels.
[11] Mr Oatham added that a jockey could not make assumptions about other runners. It was the appellant’s obligation to ensure that she was 2 lengths clear when she crossed Mr Cameron. She was not.
[12] Mr Brosnahan, in reply, said Mr Oatham’s statement that DEMOPHON was not over racing was at odds with Mr Cameron’s evidence. He pointed out to this Tribunal that Mr Cameron had said to the committee that DEMOPHON was over racing before the appellant came across and that it had grabbed the bit after LEMONADE had crossed. He said the appellant would have been able to get across “quite comfortably” had DEMOPHON not over raced when she came alongside. He added Mrs Allpress was “entitled to expect to be 2 lengths clear”. DEMOPHON was over racing at the crucial time and he could establish this if the synchronised angles were available.
[13] Mr Oatham replied that the committee had considered the fact that DEMOPHON was over racing and reiterated that in his view at no time was the appellant sufficiently clear of Mr Cameron’s mount. He concluded by stating Mr Cameron was entitled to be where he was; Mrs Allpress was not.
Decision as to breach
[14] After adjourning to consider the matter we returned and informed the parties that we had not been persuaded, by either our viewing of the films, the appellant’s interpretation of them, or her counsel’s submissions, that the committee was in error. However, in view of Mr Brosnahan’s repeated submission that with synchronised head-on and side-on films we would be persuaded to reach a different conclusion, we offered the appellant the opportunity to submit that the hearing be adjourned to another day when these films would be made available. Mr Brosnahan, not surprisingly, stated that the costs of reconvening the hearing were a matter of concern to the appellant. He requested that this Tribunal consider giving a sentencing indication before the appellant made this decision. We agreed to this request and heard broad submissions from both parties as to penalty. We then indicated that we were considering a penalty in the range of 3 to 4 days.
[15] After a further adjournment the appellant stated that she wished the matter to be determined on the day. She did not wish to seek an adjournment. We then formally determined that the appeal against the committee’s finding that the breach had been proved was dismissed.
[16] We now state our reasons for so determining.
[17] The appellant has admitted both before the committee and this Tribunal that she was at no time her length and another clear when she made her inwards movement. The result was that she came into the running line of Mr Cameron who had to check with resulting interference to Mr Forbes who was racing immediately behind Mr Cameron. She attributes blame to the racing manners of DEMOPHON. We do not accept that submission. Whether or not the appellant could have come across “quite comfortably” had DEMOPHON not over raced is not the point. Her obligation under the Rules of Racing is to be 2 lengths clear of the other horse when moving into its racing line. It is not unknown for a horse that is being crossed to be hunted up at the time the jockey of the other horse makes his or her move. The obligation upon that jockey at that time is to ensure the 2 length margin. The obligation is no different if the horse being crossed, over races as a consequence of the sideways move. Mrs Allpress failed to meet this obligation.
[18] We agree with Mr Oatham’s interpretation of the film, in that the only inwards movement by DEMOPHON is that taken to avoid Mrs Allpress. We do not accept Mr Bradley’s evidence that DEMOPHON was looking for the fence prior to the appellant’s inwards movement, that Mr Cameron’s horse was starting to pull and that this was the reason that Mr Cameron decided to come back out and stay one off the fence. Nor do we accept the appellant’s statement that Mr Cameron took hold of his horse because he was struggling to control it. We are satisfied that Mr Cameron told hold of DEMOPHON when that horse was checked because the horse had lost its running line. Significantly, in response to the question from the committee: ‘What was the impact on you of Mrs Allpress coming in like she did?”, Mr Cameron stated: “Obviously I was entitled to be there at that stage and it’s just my horse is just, I just had to pull back and got a bit of a check and it’s just kind of interrupted my horses entire run. Obviously it upsets your horse when you get checked and the horse is in the air it’s just Lisa’s mount has just come across too fast and it has put me in an awkward spot obviously, my horse wasn’t happy either obviously.” Mr Brosnahan interpreted the last six words of this answer as evidence that DEMOPHON was over racing prior to the appellant coming across. Their context does not suggest that interpretation to us, merely that Mr Cameron was stating both he and (obviously) his horse were inconvenienced by the appellant’s actions. That said, we accept DEMOPHON was racing keenly at the time Mrs Allpress came across. Mr Oatham also accepts this. However, we do not believe that DEMOPHON was over racing prior to Mrs Allpress coming across into that horse’s running line.
Submissions as to penalty and costs
[19] With respect to penalty Mr Brosnahan submitted the breach was at the bottom end of the range and that the actions of Mr Cameron’s horse were a very relevant consideration. He said that when regard was had to the number of rides the appellant has in a season, her record was exceptional. Last season she had had 1022 rides, 99 more than any other jockey, and had only had 2 suspensions. (We understand the correct figure is 3.) This season she had had 285 rides and this was her first suspension. He reiterated that the appellant was at a severe disadvantage through not having synchronised films and that her decision not to seek an adjournment was a pragmatic one, which reduced the costs of the hearing of the appeal. He asked us to give weight to her co-operation and submitted a 3-day suspension was appropriate. He indicated that Mrs Allpress had taken rides up until Saturday and that she wished to take advantage of the 7-day deferment rule.
[20] With respect to costs Mr Brosnahan asked that they remain where they fall, as the appellant strongly believed she should not have been charged, that the non-availability of synchronised films was not her fault, and the costs of a reconvened hearing had been avoided through her co-operation.
[21] Mr Oatham stated he was not seeking an increase in the penalty and that the committee’s suspension of 4 days was appropriate. He said this was the penalty Mr Goodwin, the stipendiary steward on the day, had asked for and that the committee had taken sufficient account of the mitigating features. He had no objection to the appellant being granted a 7-day deferment of the commencement of the period of suspension.
[22] As to whether credit should be given for the fact that the appellant had not sought an adjournment, he said this was not appropriate as, in his view, were synchronised films available, they would have only served to strengthen the respondent’s case.
[23] Mr Oatham stated that the grounds of the appeal were not clear and asked that we award costs of $300 to the RIU for the hearing and unspecified costs for the preparation of the transcript, and $1000 for the JCA.
Decision as to penalty and costs
[24] The breach was described by Mr Goodwin, on the day, as not being high range. We agree with this assessment. Mr Brosnahan has asked us to take into account that DEMOPHON was over racing and that the appellant was entitled to believe that she could make her inwards movement and be 2 lengths clear. The films are evidence that the appellant was never 2 lengths clear and that DEMOPHON was racing keenly, but we do not believe DEMOPHON was over racing until Mr Cameron took hold of the horse when the appellant came into his running line.
[25] The appellant’s record is very good and this is a significant mitigating factor: 1022 rides last season and the last suspension being 27 August this year, with the previous one in July. Before that we have to go back to December 2010. This is a record of which we believe Mrs Allpress can be rightly proud.
[26] A further mitigating factor and the one which has principally led us to reduce the period of suspension by one day is that the appellant has forgone her right to request that the hearing be adjourned because no synchronised films are available. Mr Oatham has said this would have only strengthened his case. Mrs Allpress believes the contrary to be true. Whoever is correct, we accept that the appellant is entitled to put her best case before us and that she believes she has been denied this right.
[27] Primarily, therefore, because of her concession, but also taking into account the nature of the breach and her record, we suspend the appellant from riding after racing on the 19th of November up to and including the 24th of November.
[28] Mr Brosnahan has submitted that costs should lie where they fall and we note that Mrs Allpress has succeeded in her appeal against penalty. Mr Oatham has asked for full costs to be awarded to the RIU and the JCA. As Mrs Allpress has been only partially successful in her appeal we believe a contribution by her to the costs of this hearing is appropriate. She is ordered to pay costs of $200 to the RIU and $400 to the JCA.
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