Appeal L Allpress v RIU – Decision dated 30 March 2016 – Chair, Mr T Utikere

ID: JCA17041

Hearing Type:
Non-race day

Decision:

BEFORE THE APPEALS TRIBUNAL OF THE

JUDICIAL CONTROL AUTHORITY

AT PALMERSTON NORTH

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN L ALLPRESS

Appellant

AND RACING INTEGRITY UNIT

Respondent

Appeals Tribunal: Mr Tangi Utikere (Chairman)

Mr Paul Williams (Member)

Appearances: Mrs Lisa Allpress, Licensed Jockey (as the Appellant)

Mr Brent Wall (assisting Mrs Allpress)

Mr Ross Neal, Co-Chief Stipendiary Steward (for Respondent)

Mr Michael Austin (Observer)

Registrar: Mr Gavin Whiterod

Venue: Awapuni Racecourse, Palmerston North

Hearing Date: 24 March 2016

Date of Oral Decision: 24 March 2016

Date of Written Decision: 30 March 2016

DECISION OF APPEALS TRIBUNAL

INTRODUCTION

[1] Following the running of the Wellington Guineas, a Group 2 race worth $100,000 at Trentham on Saturday 19 March 2016, Mrs Allpress was charged with a breach of the careless riding Rule – Rule 638(1)(d) – in that she permitted her mount “Shadows Cast” to shift outwards making contact with “Tomelilla” forcing that runner onto “Bella Court which was checked near the 100m”. Mrs Allpress denied the breach of the Rule but following a hearing the raceday Judicial Committee found the charge proved and imposed a penalty of a six day suspension commencing at the close of racing on Wednesday 23 March 2016 and ceasing at the close of racing on Saturday 02 April 2016.

[2] On 22 March 2016 Mrs Allpress lodged an appeal against the penalty only imposed by the raceday Judicial Committee stating in her Notice of Appeal –

“I disagree with the days been allocated. Also the last day if they don’t count Avondale should’ve been offered as a monetary fine (sic)”.

[3] The Tribunal has received a copy of Mrs Allpress’ Notice of Appeal, the Appointment of this Appeals Tribunal, the Raceday Decision from the Wellington Racing Club’s Meeting on 19 March 2016 and the transcript which contains the Penalty Submissions component of the Raceday hearing. There was no indication from either party that they wanted to refer to matters raised elsewhere in the transcript of the hearing.

[4] At the commencement of today’s Appeal the parties were advised that the Tribunal would deal with the two aspects of the Appeal separately. They were advised this was because if the Tribunal found that Wednesday 23 March 2016 – the day of the Avondale JC Meeting – should have been included in the period of suspension then the second aspect of the Mrs Allpress’ Appeal would lapse. However, if the Tribunal found that the Avondale Meeting was correctly excluded from the period of suspension we would then hear from Mrs Allpress on her request for the final day of the suspension to be replaced by a fine thus enabling her to ride at Awapuni on Sires Produce day – Saturday 2 April 2016.

[5] Both Mrs Allpress and Mr Neal had no objections to that process being followed.

THE DECISION OF THE RACEDAY JUDICIAL COMMITTEE

[6] Following Mrs Allpress being advised that the charge brought against her had been proved the Committee then sought submissions from both Mrs Allpress and the Informant – Co-Chief Stipendiary Steward Mr Neal – on penalty. As previously mentioned, the Tribunal has been given a transcript of this part of the hearing.

[7] In his submissions Mr Neal advised that Mrs Allpress had had two suspensions for careless riding in the previous 12 months – at Auckland on 20 February 2016 when she was suspended for 5 days and at Whangarei on 28 October 2015 when she was suspended for 3 days and also fined the sum of $500. Mr Neal also submitted he was aware the starting point for a breach of the Rule was a 5 day suspension but because he felt the severity of the interference was above the mid-range and in a Group 2 race an appropriate suspension would be one of between 6 and 8 days.

[8] Mrs Allpress submitted that given she rides throughout New Zealand she had a “pretty good riding record”. She also specifically commented that she had “some pretty big commitments coming up with the Sires Produce”. (The Manawatu Sires Produce meeting is being held at Awapuni on Saturday 2 April 2016).

[9] The Chair of the Judicial Committee asked Mrs Allpress what riding commitments she had in the next 7 days. Mrs Allpress said that she would like to start her suspension from the close of racing on Sunday 20 March 2016 so that the Avondale JC Meeting on Wednesday 23 March 2016 could be included in the period of her suspension. She said that she did have rides at Avondale but after speaking to her riding agent – Mr Rodley – as the rider declarations for that meeting did not close until the following Monday she could easily get off them as Mr Rodley would be able to find other jockeys for the horses that were to be ridden by her.

[10] When asked to comment, Mr Neal argued that Rule 1106 – the deferment Rule - was put in place to protect the connections of horses who had already engaged riders. He also pointed out that in a careless riding hearing immediately prior to this one the same argument (that she could get off horses that she had been engaged for at Avondale in order to commence her suspension prior to Wednesday 23 March 2016) had been put forward by Ms Johnson which had been rejected by the Stipendiary Stewards and the Judicial Committee and as such, he said, so should the same submission of Mrs Allpress.

[11] Rule 1106(2) was quoted in the Judicial Committee’s decision and states:-

Each suspension of a Rider or Rider’s License which is imposed under these Rules by the Judicial Committee during any day of a Race Meeting shall take effect as follows:

a) If, at the time the suspension is imposed, the Rider has no engagements to ride a horse in a Race during the next seven day period after that Race day, from the completion of that Rider’s engagements on that Race day; or

b) If, at the time the suspension is imposed, the Ride is engaged to ride a horse or horses in a Race(s) during the next seven day period after that Race day, then from the earlier of:

i) The completion of such engagements within that seven day period: or

ii) The completion of the seven day period

[12] In reaching a decision on the penalty to be given to Mrs Allpress the Judicial Committee said she had an obligation to fulfil her riding engagements at Avondale on 23 March 2016. The Committee added that this was consistent with the approach taken by the Committee in relation to the earlier careless riding charge against Ms Johnson. Mrs Allpress was advised she was suspended from the close of racing on Wednesday 23 March 2016 to the close of racing on Saturday 2 April 2016. The Committee added – “We are mindful that one of the days included in the suspension was of premier status”.

SUBMISSIONS FROM MRS ALLPRESS ON HER REQUEST FOR THE AVONDALE JC MEETING ON 23 MARCH 2016 TO BE INCLUDED IN THE PERIOD OF SUSPENSION

[13] Mrs Allpress identified herself as a senior jockey based out of Wanganui. She is one of New Zealand's busiest riders and currently leads the National Jockeys’ Premiership by 10 wins. She is a past national champion jockey and submitted that she ranked among the top echelon of jockeys in the country.

[14] She confirmed she was charged with careless riding at Trentham last Saturday for her ride aboard Shadow's Cast in the Group 2 Wellington Guineas and while she disagreed with the decision to charge her and defended it in a JCA hearing, she states that she accepts the JCA panel’s decision to suspend her.

[15] She submitted written submissions to the Tribunal, of which the salient points were:

My grievance today is with the penalty handed down to me, which rules me out of important meetings at Tauranga this weekend and Awapuni the following weekend, both meetings at which I had important rides organised. I accept that through the suspension I was always going to miss one of the two meetings and opted to take my suspension at the earliest possible convenience to ensure I returned in time for the Group One raceday at Awapuni.

While accepting of the six-day suspension the JCA panel handed down to me at Trentham, I cannot accept that I am unable to begin my suspension by including the Avondale meeting on March 24 and I have outlined the reasons for that below.

At this point, I want to make it clear that I had cleared myself of any commitment to ride at the Avondale meeting, with the consent of all parties before my penalty was handed down. I spoke to my agent, Aidan Rodley, by phone and let him know I was facing a careless riding charge and that I was defending the charge and though I was still hopeful of a successful outcome, Aidan engaged Opie Bosson to ride two horses at Avondale for trainers Graeme and Debbie Rogerson that I had been considered for.

That was done before I was handed down my penalty and I made it clear in the hearing that Graeme and Debbie Rogerson were happy with the arrangements had been made. Aidan spoke with Graeme Rogerson yesterday and he is happy to speak to the JCA appeals panel to confirm that position.

Rider declarations for Avondale were not till 1pm on Monday, nearly 48 hours after my penalty was handed down. While Aidan had been in discussion with trainers about me riding at Avondale, he had also been in similar discussions with trainers for the New Plymouth meeting the day after Avondale and the Tauranga meeting the following Saturday, yet the JCA decision has allowed those two meetings to be part of my suspension while denying me Avondale. While neither of those meetings had gone through the nominations stage as Avondale had, neither were close to rider declaration time either.

At this point, it needs to be noted that all races for the Avondale meeting were extended to Saturday, so there would have been many horses without rider engagements by the time my penalty was handed down later that afternoon.

Through Aidan, I requested a copy of the audio recording of the hearing so I could prove I made it clear that I had made arrangements for another jockey managed by Aidan to take over the rides I'd had discussions about.

That audio records me saying: "I have spoken to Aidan and I would like to start my suspension on Monday, so I would like to take Avondale off. Declarations for ride isn't till Monday for Avondale. [Aidan] can use his other jockeys to ride those horses at Avondale and he has spoken to Mr Rogerson and he is happy with that situation."

At that point, chief stipendiary steward Ross Neal says: "The stewards would argue that the rule in relation to suspensions and deferments is premised on the fact that it protects the connections and their engagements."

To which I reply: "But they [trainers Graeme and Debbie Rogerson] are absolutely fine with that."

While I note the deferment rule is in place to protect connections, trainers Graeme and Debbie Rogerson were understandably more than happy with the engagement of one of New Zealand's best ever jockeys as my substitute. Besides the rule is also in place to protect jockeys as well, not just trainers and owners. As with any rider engagement, both sides have to agree to the booking.

With Leith Innes booked to ride the Rogerson runners Wilijonmcbride and Ground Control, I did not ride at yesterday's Avondale meeting, foregoing the rides as I had told the Trentham hearing that I would.

In that hearing, Ross Neal said that Danielle Johnson was not permitted to take Avondale as part of her suspension days and to be consistent the same should go with me. However, Danielle rode at the Avondale meeting and I gave up my rides. And our cases were on completely different levels. Hers was a relegation in a Group One race, mine was in-running interference that didn't cost another horse a stakes placing.

Without Avondale being taken as a day deemed to be part of my suspension period, I am forced to miss the Awapuni meeting on April 2, a meeting boasting stakes of $595,000. It is a meeting that features four stakes races, including the Gr.1 Manawatu Sires' Produce Stakes. The Avondale meeting, which is of far less importance to me as it is outside my main riding jurisdiction, boasts stakes of $57,000 and has no stakes races.

The comparative status of the two meetings is black and white and I feel the decision to deny me using the Avondale meeting as a suspension day is unjust. I regularly ride at northern midweek meetings and, as previously stated, I had foregone my rides on that day, causing no ill ramifications to any connections, yet by not counting this day I am unable to take rides on one of the most prestigious days of racing in my home area, in the Central Districts.

There have been countless precedents where jockeys have foregone rides to ensure their suspension is concluded before a feature meeting.

One such example is that of Hayden Tinsley, who was suspended at Whanganui on January 15, 2015. He made the point that he had a booking for the Wellington Cup some nine days later and he was eager to fulfill that engagement so began his suspension immediately, despite him having been booked for rides at the Trentham meeting on January 19 for which nominations had closed the day before the meeting at which he was suspended. Rider declarations were on the same day as his offending. But by foregoing rides at the Monday meeting, he was able to finish a three-day suspension in time to return for Wellington Cup day on January 24.

This is only one example of many and the decision shows empathy with the plight of a jockey who otherwise would be denied the opportunity to ride at a feature meeting.

I would also like to note the careless riding suspension to Brendan Hutton from Gisborne on February 21 in which the JCA decision notes that Brendan had spoken to his manager about "his upcoming commitments and confirmed he could start the suspension after today's racing". While I was booked for rides at Waipukurau the day after my charges were heard, I also made it clear that I could start my suspension after that day's racing. In the audio record relating to penalty, I said: "I have spoken to Aidan and I would like to start my suspension on Monday." Almost identical wording.

In Brendan's decision, there was no mention of whether he had agreed to take rides midweek that week but that just shows there probably didn't need to be any further investigation to that point of not. The deferment rule, while in place to protect trainers and owners with an early booking of a jockey, is also there to allow a jockey to choose when to begin their suspension - immediately or up to seven days later. As with any rule, it is open to interpretation and has room for manoeuvrability.

As I often ride in the South Island, I could have pushed harder for the Monday meeting at Riverton to be included as part of my suspension days - I was certainly offered rides at the meeting, among them Miss Three Stars for Tommy Beckett and the pick of Peter Rudkin's team as well as an offer of one horse for Ashburton trainers Danny Champion and Kezia Murphy.

However, while I am desperate to ride at the final Group One day of the season in the Central Districts and I would take whatever outcome the JCA panel would agree to in order to reach that end goal, a focus of this appeal is on what I believe is an unjust ruling that denies me taking Avondale as the first day of my suspension. I did not ride at the meeting as I said I would forego rides there to begin my suspension early and as a regular midweek rider at northern meetings it is a meeting I am surely entitled to count as a riding day I am missing as part of my suspension.

I appeal to the JCA panel's better judgment to allow me to take Avondale as the first day of my suspension, thus allowing me to compete at Awapuni on April 2, a decision which would please many, not just myself. I have three trainers holding off a jockey booking for that day in relation to this appeal already, so it is a decision with wider-reaching ramifications than just my desire to ride on such an important day.

[16] In support of the Appellant’s submissions, Mr Wall identified Mrs Allpress as being very experienced in these matters. He confirmed that she did state that she had rides at the Avondale Meeting and that there had been a change of riders in order for her to be substituted. He did not think it was appropriate for Mrs Allpress to have the Avondale Meeting excluded from her suspension calculation when both parties gave their agreement for the contract to be broken.

SUBMISSIONS FROM MR NEAL ON MRS ALLPRESS’ REQUEST FOR THE AVONDALE JC MEETING ON 23 MARCH 2016 TO BE INCLUDED IN THE PERIOD OF SUSPENSION

[17] Mr Neal submitted that the intent that lies behind Rule 1106 is quite clear. He advised the Raceday Committee on the day that he was employed by NZTR at the time the rule was promulgated. He specifically stated that where there are engagements for horses, connections have the reliance on those engagements, and that the rule should not be manipulated to suit riders’ own purposes.

[18] He accepted that some riders had previously sought releases, but that trainers had often reported pressure and duress as the reason behind agreeing to such releases. He believed “having an engagement” did not relate specifically to nomination or declaration timeframes.

[19] Mr Neal directed the Tribunal to the transcript which identified Mrs Allpress as saying “I can quite easily get off them”. He believed this clearly established that at the time the Raceday Committee sought submissions on penalty, Mrs Allpress was still engaged for the Avondale Meeting, as she had not conveyed to the Committee that it had occurred.

[20] He believed the Raceday Committee assessed all factors relating to Mrs Allpress’s upcoming engagements and correctly applied that in their determination. The RIU rejected the subsequent inclusion of the Avondale Meeting after it had taken place.

DISCUSSION

[21] Mrs Allpress has incorporated aspects of the audio recording into her submissions to support her appeal. We have the benefit of being supplied with a transcript of the Penalty Submissions component of the hearing (Mrs Allpress also has a copy) and this Tribunal relies upon that official transcript for the purposes of our determination. It is clear to this Tribunal that the content incorporated into the appellant’s submissions, with regard to comments made, are inaccurate. This places a portion of Mrs Allpress’s submissions at odds with what the official transcript portrays.

[22] Mrs Allpress concedes, upon reflection, that she was not perhaps as clear as she could have been at the hearing. The fact that she did not ride at the Avondale Meeting as justification for it not being included is tarnished with the benefit of hindsight and as such we attach little, if any, weight to that.

[23] The basis of this component of the appeal is what is defined as an ‘engagement’. We accept that Rule 1106 is principally there to protect owners and trainers, and to a lesser extent the punter, particularly with fixed odds betting, and especially where a top rider such as the Appellant may be concerned.

[24] While we note that there may be some scope for interpretation of the term “engagement” in a wider industry sense, in relation to this specific matter we believe at the time that the penalty was imposed, the Raceday Judicial Committee were justified in believing that Mrs Allpress had engagements to ride at the Avondale Meeting. In their assessment of Rule 1106 they had correctly made the finding that an engagement did exist and subsequently that the Appellant was compelled to fulfil those engagements.

DECISION
[25] The first component of the appeal is dismissed, and the Raceday period of suspension is confirmed, subject to the outcome of the second component of this appeal.

SUBMISSIONS FROM MRS ALLPRESS ON HER REQUEST TO HAVE THE PENALTY OF 6 DAYS SUSPENSION CHANGED TO ONE OF A SUSPENSION OF 5 DAYS AND A FINE
[26] Mrs Allpress believed that she should have been considered for a fine in lieu of the sixth day of her suspension in order to allow her to ride on a Group One day, namely the Sires Produce Day at Awapuni on 2 April 2016. She submitted that this approach had occurred several times in recent months for an array of jockeys.

[27] When asked by the Tribunal as to why she had not raised this with the Raceday Committee, she identified a number of reasons.

[28] Firstly, she said she was very upset at the time. She had decided to defend the breach and she had been with the RIU in the lead up to the decision to charge her being made. She stated that she had also been advised by Senior Stipendiary Steward Mr Oatham that her matter was to be heard just before the Group 1 Oaks Race. She believed this made her even more emotive as she simply did not appreciate the pending hearing interfering with her preparation and focus for the biggest race of the day. She indicated to the stewards that she was not prepared to defend the charge at that time.

[29] Mrs Allpress stated that at the time of her Hearing she was in an upset state of mind, and was not her usual professional self. She accepted that as a result she did not handle the situation well, and believed that her behaviour was on par with someone who was very stressed.

[30] She did not have access to a Racing Calendar to look at upcoming meetings, but had indicated as part of her penalty submissions that she wanted the Committee to consider her position of wanting to return from a period of suspension in order to ride on 2 April 2016.

[31] She had previously received a combined suspension and monetary penalty within the previous six months, so knew that was a possibility. However, when it came to making her submissions on Penalty, her attention was drawn towards the discussions around the inclusion of the Avondale Meeting which seemed to take prime focus.

[32] Mr Wall submitted that the actual hearing was held late after the last race, after Ms Dannielle Johnson had also had her hearing after the last race, but prior to Mrs Allpress’. He believed that the delay meant Mrs Allpress had her hearing “quite into the evening”.

[33] Mrs Allpress submitted that her current period of suspension obviously incorporated the Group 1 day at Awapuni but also a Group 2 race at Tauranga. She indicated she had a family to support and that she considered that there did not seem to be any compromising on what the penalty might be. When she expressed her surprise at the Awapuni Meeting being included, the Committee advised her that, as a matter of process, if she had concerns with the penalty she could appeal the decision, and that was why she had paid the fee and lodged her appeal.

SUBMISSIONS FROM MR NEAL ON MRS ALLPRESS’ REQUEST TO HAVE THE PENALTY OF 6 DAYS SUSPENSION CHANGED TO ONE OF A SUSPENSION OF 5 DAYS AND A FINE

[34] Mr Neal did not refute Mrs Allpress’ recollections, confirming that the hearing was held late after the last race of the day. He also confirmed that she did not make any submissions in relation to a fine in lieu of a suspension.

[35] He was aware that there had been a number of combined suspension and fine penalties within the previous 12 months, and noted that there was some precedent for this combination, particularly if the last day of the suspension was “a day of some significance”.

[36] He believed it was unfortunate that Mrs Allpress did not raise this option on the day, as this meant it was not part of the Raceday Committee’s decision-making process.

[37] In response to a question from the Tribunal, Mr Neal confirmed that the ‘official’ position of the RIU is to oppose the combination of a suspension and monetary penalty but submitted that there were previous occasions since August 2015 where a combination penalty had been imposed. In addition to that being the case for Mrs Allpress at the Whangarei Meeting on 29 October 2015, he specified the following riders, dates and penalties (the reasoning has been added by the Tribunal):-

Coleman (14/08/15) 3 Days and $750 for a non Group/Listed race to allow Mr Coleman to ride at the Hawkes Bay Spring carnival meeting

Hannam (24/10/15) 3 Days and $500 for a non Group/Listed race to allow Mr Hannam to ride at the NZ Cup meeting

Innes (28/10/15) 3 Days and $750 for a non Group/Listed race to allow Mr Innes to ride at the NZ Cup Meeting

Cameron (13/12/15) 5 Days and $750 for a Group/Listed race to allow Mr Cameron to ride at Ellerslie on Boxing Day

Bosson (26/12/15) 10 Days and $1,000 for a non Group/Listed race to allow Mr Bosson to ride at the Wellington Cup Meeting

Collett (01/01/16) 4 Days and $1,000 for a non Group/Listed race to allow Ms Collett to ride at the Wellington Cup Meeting

Colgan (01/01/16) 4 Days and $1,000 for a Group/Listed race to allow Mr Colgan to ride at the Wellington Cup Meeting

Collett (05/03/16) 3 Days and $1,000 for a non Group/Listed race to allow Ms Collett to ride at the Auckland Cup meeting

DISCUSSION

[38] The Tribunal has considered all of the submissions placed before it.

[39] Whilst Mrs Allpress advised the raceday Judicial Committee of commitments on Sires Produce day the question of a monetary penalty in lieu of the final day of suspension was not raised before them, and it is not their obligation to necessarily raise it for consideration, which the Appellant concedes.

[40] We must stress that the decision of the Raceday Judicial Committee, based on the information placed before it, was sound and appropriate in the circumstances.

[41] There have been a considerable number of decisions over the past 15 months where, if the penalty for a breach of the careless riding rule has been a suspension and the last day of the suspension is a Premier day, the Committee have reduced the period of suspension by 1 day but added a fine to the penalty to compensate for the 1 day reduction. Mrs Allpress has used this in her submissions before the Tribunal.

[42] We note that the official position of the RIU is that they oppose the imposition of a penalty of a suspension and a fine, however, we also note that Mr Neal conceded there have been many precedents in recent times for such a penalty, several of which he has detailed to us in the hearing.

[43] As it is clear that there are precedents for such a combination, we turn to why Mrs Allpress did not raise this option during the Raceday hearing before the Committee.

[44] She has advanced a number of reasons which relate to her individual experiences on the day. These can be summarised as: the events that led up to the hearing; the timing of the hearing; her stressed state of mind; and the overshadowing of the focus of including the Avondale Meeting within the period of suspension.

[45] Viewed individually, these reasons may stand in isolation. However, when taken collectively, they potentially establish the real possibility that legitimate reasons exist as to why the Appellant did not place the combined penalty option before the Raceday Committee as part of her submissions.

[46] R1005(4) states (emphasis added):-

The Appeals Tribunal shall have the same jurisdiction and authority as the Judicial Committee or other persons or body appealed from, including powers as to amendment, and shall have power to receive further such evidence, if any, as it thinks fit.

[47] In the context of this Rule, we determine the further evidence from Mrs Allpress is that she overlooked to ask the Raceday Committee for consideration of a fine in lieu of the sixth day of her suspension.

[48] After considering the submissions on this point, we accept that happened because it was the end of a very long day for Mrs Allpress and

Appeal Decision: NO LINKED APPEAL DECISION

Decision Date: 30/03/2016

Publish Date: 30/03/2016

JCA Decision Fields (raw)

Dmitry: This section contains all JCA fields migrated from the raw data.

Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.

hearingid: c5b1de57f9132aebd564eaaa19ff80d6

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 30/03/2016

hearing_title: Appeal L Allpress v RIU - Decision dated 30 March 2016 - Chair, Mr T Utikere

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision: