Appeal L Magorrian v RIU – Decision dated 21 July 2015

hearingid: 9976fb89edaa7ac19f1c85ee6d6cca1c

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 22/07/2015

hearing_title: Appeal L Magorrian v RIU - Decision dated 21 July 2015

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE AN APPEALS TRIBUNAL OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred

Rules of Racing

BETWEEN LEE MAGORRIAN, Licenced Jockey

APPELLANT

AND THE RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Mr Richard Seabrook

Present: Mr Lee Magorrian, Licensed Jockey

Mr Shaun Clotworthy, Employer of Mr Magorrian

Mr Mark du Plessis, Licenced Jockey

Mr John Oatham, Senior Stipendiary Steward

Mr Alan Coles, Registrar

DECISION OF APPEALS TRIBUNAL

HEARING AT TE RAPA RACECOURSE 18 JULY 2015

REASONS FOR DECISION DATED THIS 21 DAY OF JULY 2015

1. NATURE OF APPEALS

1.1 The Tribunal has been convened to consider appeals by the apprentice jockey Mr Lee Magorrian. On 4 July this year Mr Magorrian was found guilty of careless riding in Race 4 at the Taumarunui Racing Club meeting at Te Rapa. He had pleaded not guilty to the charge. The Raceday Judicial Committee found the charge proved and imposed a suspension of six (6) days. Mr Magorrian appealed in both the finding of guilty of careless riding and the period of suspension.

1.2 The hearing of the appeal took place at Te Rapa on Saturday 18 July in advance of the race meeting that was scheduled on the course later that day. At the conclusion of the hearing there was not sufficient time before the commencement of the first race for the Tribunal to give a fully reasoned decision. The Tribunal did however make known its decisions and gave a brief statement of reasons.

1.3 It was explained by the Tribunal that a more detailed decision with reasons would follow and that is now set out.

2. LEGAL PRINCIPLES

2.1 An appeal of this kind is by way of rehearing. The Appeals Tribunal must reach its own decision upon its view of the evidence. It must however have regard to the decision of the Raceday Judicial Committee and the reasons which are to be found in the Committee’s decision. Proof of a charge under the Rules of Racing is the civil standard of proof on the balance of probabilities. The more serious the allegation then the more compelling the evidence must be for the allegation to be found proven. The leading authority in relation to the standard of proof required at professional disciplinary proceedings is the judgment of the Supreme Court in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1.

2.2 Proof of an alleged breach is upon the RIU as informant. A licence holder is not required to prove his or her innocence. In the transcript of the hearing before the Raceday Judicial Committee at page 9 there is a passage where the Chairman is recorded as having said “… looking at the films, can you, because you have got to convince this Committee that you are not guilty, because you have defended it…”. That passage is an unfortunate and erroneous statement of the legal position. The burden of proof remains with the informant throughout a hearing. We are nevertheless satisfied that the Raceday Judicial Committee did apply the correct standard of proof and as advised at the conclusion of the hearing on Saturday 18 July the Tribunal dismissed both of the appeals by Mr Magorrian.

2.3 The Tribunal carefully considered the extended transcript of evidence taken on 4 July and has closely analysed the films. Messrs du Plessis and Oatham made detailed submissions by reference to both the head on and side on films.

3. THE CASE FOR MR MAGORRIAN

3.1 Mr du Plessis a senior and experienced jockey currently not riding due to injury told the Tribunal that he was Mr Magorrian’s advocate. Also present was Mr Clotworthy Mr Magorrian’s employer. The Tribunal permitted Messrs du Plessis and Clotworthy to advance submissions. The Tribunal also heard briefly from Mr Magorrian.

3.2 Mr de Plessis in his opening submissions contended that there was careless riding by another jockey Mr Shaun McKay whose mount was immediately inside Mr Magorrian’s mount. Mr du Plessis acknowledged that there was some blame attaching to Mr Magorrian but contended that he was not solely responsible for the interference which was caused to Mr McKay’s mount SINO HEIGHTS and the other horses to the inside and further back in the field. It was explained by the Tribunal that if there were some measure of fault by another jockey that did not of itself excuse Mr Magorrian. The films vividly demonstrate that Mr Magorrian’s mount COOL HAND DUKE was not adequately clear of Mr McKay’s mount SINO HEIGHTS. It was Mr Magorrian’s responsibility to ensure that COOL HAND DUKE was sufficiently clear of SINO HEIGHTS before crossing towards the rail. Mr Magorrian is seen to look several times to his inside. He made a misjudgement. Horses to the inside to SINO HEIGHTS were checked. There was something of a chain reaction with five (5) horses being affected, SINO HEIGHTS, STELLA, HIGHLY LIKELY, DIVISSIMA and HIGH TAIL IT.

3.3 Mr Clotworthy emphasised that Mr Magorrian was an apprentice rider and submitted that some allowance ought to be made on that account. In determining whether or not there has been a breach of the Careless Riding Rule the standard of care and competence that is required applies equally to all riders. It may be that the relative inexperience of an apprentice rider can properly be considered when determining penalty but it is not a relevant consideration when considering the circumstances of the alleged breach of the rule.

3.4 For the reasons set out above which are essentially the same as those of the Raceday Judicial Committee we are satisfied that there was a breach of Rule 638(1)(d).

4. PENALTY

4.1 Mr Oatham categorised the level of carelessness as being at the lower end. That is the same submission which he advanced before the Raceday Judicial Committee.

4.2 For Mr Magorrian it was contended that because the breach was categorised at the lower end six (6) days was an excessive period of suspension.

4.3 The Tribunal now sets out its reasons for upholding the six (6) day suspension and essentially repeats what was said at the conclusion of the hearing at Te Rapa on 18 July.

4.4 The Raceday Judicial Committee remarked upon a number of relevant considerations in fixing the penalty. It began with the starting point for careless riding being five (5) days. That is the recommended penalty in the guide published to all in the industry. The Raceday Judicial Committee remarked on Mr Magorrian’s record over the last twelve (12) months. The occasion on 4 July was the sixth time within twelve (12) months that Mr Magorrian had been found guilty of careless riding. In addition he has received numerous warnings for careless riding and other breaches of the rules. The Committee on the day also commented on there not being any discount available to Mr Magorrian on account of his having pleaded not guilty. The Tribunal for its part does not consider that Mr Magorrian should be penalised by reason of his pleading not guilty. It does not appear that the Raceday Judicial Committee proceeded in that way. The circumstances of the interference were somewhat complicated and as earlier set out it could perhaps be accurately described as a chain reaction that resulted from the careless riding on Mr Magorrian’s part. In the circumstances the starting point was correctly identified as five (5) days. The reason in our judgment that the Raceday Judicial Committee lifted the starting point of five (5) days to six (6) days was on account of Mr Magorrian’s most unattractive record for careless riding over the last twelve (12) months. That record was a significantly aggravating factor. It was a legitimate consideration for the Raceday Judicial Committee to take into account. Given the number of breaches of the Careless Riding Rule in the last year a suspension greater than six (6) days might well have been justified. We are not prepared to disturb the penalty. It follows from what has been said that the period of six (6) days suspension was upheld and the appeal against penalty was dismissed.

4.5 There was some discussion with Mr Oatham and Mr du Plessis in relation to costs. Mr Oatham indicated that the only cost to the RIU was the typing of the transcript. Holding the appeal hearing on a race day where the RIU members are going to be in attendance in any event is one way of reducing the costs that would occur if it were the case that the appeal was heard on a non-raceday. There will be costs to be paid by Mr Magorrian to the RIU of $155.00 being the cost to prepare the transcript. As to the costs payable to the JCA the Tribunal takes the view that Mr Magorrian’s appeal was not meritless, there were some valid considerations which were brought to the Tribunal’s attention and in those circumstances a relatively modest costs award will be made. The figure to be paid towards the costs of the JCA will be $200.00.

4.6 Mr Magorrian advised that he had rides at Te Rapa on the day of the hearing, at Matamata on Wednesday 22 July and a confirmed ride in the Ryder Stakes which is a listed race at Otaki on 25 July and sought a stay of the suspension to that date. This is not opposed by the RIU. The six (6) day suspension will come into effect following the racing on Saturday 25 July. There is then racing at Rotorua on 26 July and meetings on 29, 30, 31 July and 1 & 6 August in the North Island so the period of suspension will expire at the conclusion of racing on 6 August 2015.

DATED THIS 21 DAY OF JULY 2015

MURRAY MCKECHNIE

Chairman

Signed pursuant to Rule 1007(5)

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: