Appeal – L Innes Feb 2006

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startdate: 01/01/2001

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hearing_title: Appeal - L Innes Feb 2006

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On the 21st January 2006 at Wellington the Judicial Committee accepted a plea of guilty to a breach of Rule 871[1)(d) the Careless Riding rule, by Mr Leith Innes.

Mr Innes appealed and sought a stay of the suspension.

Mr L Innes -Appellant

Mr A Shaw -Counsel for Mr. Innes.

Mr LN McCutcheon for New Zealand Thoroughbred Racing -Respondent

Mr MG Colson Counsel for NZTR.

Judge NF Smith -Chairman.

Professor GG Hall -Member

After hearing the parties the Judicial Committee suspended Mr. Innes from riding from the close of racing on the 25th January 2006 until the close of riding on the 12th February 2006.

Mr Innes appealed and sought a stay of the suspension, which was denied and because of the Appeal Tribunal's decision to allow Mr. Shaw's application to adduce new evidence, the appeal was heard de novo on the above date.

Having heard the evidence of Mr Innes and Mr JA Grant who had been summoned at the request of Mr Shaw, the submissions of both Counsel and having viewed the video evidence, the Appeal tribunal delivered the following oral decision:

"For reasons that will be reduced to writing and delivered as soon as possible, we have found no grounds that would warrant our imposing our discretion over that of the Judicial Committee on the day.

We do not believe that the penalty imposed was manifestly excessive or inappropriate.

In terms of rule 1207[2][a] we confirm the penalty and disallow the appeal.

The filing fee is forfeited.

Counsel are directed to file with the Executive Officer for JCA and exchange memoranda as to costs within 20 days of the date hereof."

A major thrust of Mr Shaw's submissions in support of the appeal was that the Judicial Committee took irrelevant considerations into account.

In this regard Counsel, required the Appeal Tribunal to summons Mr JA Grant, the Chairman of the Judicial Control Authority, to enable Counsel for the Appellant to examine him on statements attributed to him and published in the Dominion Post on the 23rd January 2006, where it is recorded:

"However, the Judicial Control Authority chairman John Grant said committees had been instructed to be more severe on jockeys who cause interference in group races."

Mr Grant in his evidence would not admit that he had used the word "instructed" but did state that the panel of people from whom the raceday committees were selected were given guidance at seminars, through the booklet entitled: Guide for Judicial Committees [commonly referred as the Green Book] and by circular letters issued from time to time by the Authority over the signature of the Chairman.

Mr Shaw took particular issue first, with the statements contained in page 31 of the Green Book, namely:

" The Rules of both codes draw the attention of Judicial Committees to the following matters relevant in fixing penalties:

the status of the race;

the stake payable for the race;

any consequential effects upon any person or horse as a result of the breach of the Rules;

the need to maintain integrity and public confidence in thoroughbred and harness racing."

Further, Mr Shaw raised the statements made at page 36 of the Green Book relating to the deferment of penalties, namely:

Secondly, Mr Shaw addressed the "JCA Newsletter January 2005" issued over the hand of Mr. Grant. Particular attention was given to those extracts from the Newsletter relating to "Tougher penalties" and "No deferment for major races"

With respect to the former, the passage stated that:

" The Rules of Racing and the Rules of Harness Racing both require tougher penalties in the following circumstances:

When the breach occurs in a race of higher status [e.g. Listed and Group races]

When the breach occurs in a race with a higher stake;

When the breach results in a fall, injury, a relegation, or the extinguishment of a horse's chances.

[Thoroughbred Rule 1122[2]; Harness Rule 1114[2]."

Although Mr. Shaw argued that the Rule referred to makes no reference to "Tougher penalties" it should be obvious to even the most uninitiated that in drawing the attention of the Committee to those matters set out in the Rules it would be expected that a Judicial Committee, in fixing penalty, would apply some weight to the matters referred to and that the penalty imposed would reflect the impact of those matters.

On the matter of deferral, the Newsletter stated that suspensions of riders or horsemen in upcoming major races should not be deferred to allow those engagements to be kept unless acceptances for the major race close on or before the day the suspension is made [Thoroughbred racing] or the time for declarations of drivers for the major race have closed [Harness racing].

The Newsletter went on to state that the fact that riders or horsemen have engagements in upcoming major races is not a reason to substitute one or more days with a fine to enable the engagements to be kept. That option should be reserved for exceptional circumstances such as in the Bosson case.

For the record, in that case, Mr Bosson was engaged to ride in an international rider's competition and his suspension was deferred to enable him to fulfil that engagement.

The authority for Judicial Committees in Thoroughbred racing matters to defer a suspension, is set out in Rule 1305 [2] which states:

"Every suspension of a rider or rider's licence which is imposed under these Rules by the Judicial Committee during any day of a race meeting shall, unless that Judicial Committee otherwise directs, take effect from the completion of that rider's engagements on that day provided that if the Judicial Committee is aware that the time for acceptances or deemed acceptances of horses for races at any other race meeting, or on any later day of the same race meeting at which the subject rider is to compete, is during or before the day on which the suspension is imposed then it shall defer the commencement of his suspension until such time after the scheduled completion of that other race meeting or the latter day of the same race meeting as it thinks fit."

Counsel for the Appellant argued that neither the Green Book nor the Newsletter had any authority in law and should not have been considered by the Committee of the day. In so far as they had been made aware of the respective publications and were expected to have abided by the directions contained therein Mr. Shaw claimed that they had relied on and been influenced by extraneous matters sufficient for the Appeal Tribunal to intervene and vary or quash the penalty.

Having heard Mr Grant's explanations relating to the Green book and the Newsletter both of which were products of the Authority and not merely the Chairman, and having heard his denial that he had "Instructed the Committee" we do not accept the arguments of Counsel on those points. The Green Book and Newsletter are accepted as guidance material available to Judicial Committee, largely reciting the relevant portions of the Rules and permitting the Committees to exercise their discretion within those rules.

Counsel for the Appellant, to a lesser extent, challenged the penalty imposed, under the provisions of the New Zealand Bill of Rights Act 1990 because of the heavy financial impact the suspension had on Mr Innes.

We are moved by the comments of Counsel for the Respondent on the impact of the Bill of Rights and reject this argument.

The claim by Mr Shaw that the Judicial Committee failed to give sufficient weight to certain matters namely:* What he claimed to be "the appellant's exemplary riding record in New Zealand";

* The punitive effects of a three week suspension because of the "number, extent and importance of the rides that the appellant would miss";

* The effect that the suspension would have on fixed odds betting on mounts expected to be ridden by Mr. Innes;

* The fact that the connections of a number of horses booked the appellant as a rider in up and coming Premier and Group races;

* Failed to give any consideration to the imposition of a fine rather than suspension or both.

This Appeal tribunal is unable to accept these submissions in light of the comments made by the Judicial Committee on the day as recorded in the decision.

The decision of the Committee records on page 2:

By way of mitigation the Judicial Committee went on to say:

" In determining that period [the period of suspension] the Committee took into account and extended mitigation for Mr Innes' frank admission of the matter, his good riding record and his observations about WAHID'S racing manners. The Committee also reflected on his request to be allowed to ride at the Wellington Cup meeting but found the matters put it to be insufficiently exceptional for such a concession. The Committee also had regard to the feature racing programme over the next few weeks." [The emphasis has been added.]

In so far as the Committee referred to " the Wellington Cup meeting" rather than just the "Wellington Cup", we accept that the Committee was acknowledging the other rides that Mr Innes had referred to as recorded at the foot of page 2 and the top of page 3 of the transcript.

Clearly the Committee, in deliberating on the term of suspension to be imposed, applied itself to all the relevant matters referred to by Mr Shaw.

Turning now to the evidence and submissions opposing the appeal, the Appeal Tribunal after viewing the videos of the incident accepted without any doubts, the evidence of Mr McCutcheon, the informant, that the breach was a serious incident of careless riding. Mr Innes clearly turned his mount first across the line of that of Mr Seamer, forcing him to check, and then across the line being taken by Mr Cooksley who was mounting a charge through a gap which he was entitled to take on the inside of Mr Innes. Thus, the chance of Mr Cooksley to finish in a better position was extinguished.

Not only did Mr Innes cross over and take the line of both horses when not one length and another length clear, he did so while riding vigorously with the whip and, by his own admission, knowing that Mr Seamer was inside him.

For the above reasons we believe that the Committee had not been "instructed" in any way by Mr Grant, that the Committee was not swayed by any extraneous matters and had properly applied itself to those matters set out within the rules in reaching its decision.

We are satisfied too that the breach was a serious matter and in terms of those matters set out in Rule 1122[2] to be addressed by a Judicial Committee the penalty was not manifestly excessive or inappropriate.

We have considered penalties imposed for breaches of a similar nature e.g. C Ormsby [21 October 2004] and K Myers [21 December2005] including one at a Premium meeting, M Walker [3 January 2005] and hold that, while at the top end of the range available to the committee, the penalty imposed on Mr Innes was nevertheless within range. In so determining we have not over looked the fact that Mr Innes was last suspended in New Zealand on the 9th December 2004 when he incurred a 3 day suspension. He had been suspended twice during the 2004/2005 season prior to that time. Since that suspension we are told that he has had 583 rides, including 98 in Hong Kong. During his time in that country he was suspended twice and fined HK$10,000 on each occasion. This reflects a very good record [we do not accept Mr Shaw's submission that it is "superlative" or "exemplary"] but has to be balanced against the gravity of the breach.

The Penalty was therefore confirmed and the appeal dismissed.

Dated at Tauranga this 7th day of February 2006.

(Judge NF Smith)

Chairman

(Professor GG Hall)

Member

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hearing_type: Old Hearing

Rules: 871.1.d, 1207.2.a, 1122.2, 1114.2, 1305.2

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