Appeal LA Macfarlane v RIU 30 May 2012 – Interim Decision

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hearing_title: Appeal LA Macfarlane v RIU 30 May 2012 - Interim Decision

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APPEAL HEARING : LANCE MACFARLANE v RIU
HEARD AT WAIKATO RACING CLUB, TE RAPA RACECOURSE, HAMILTON
WEDNESDAY 30th DAY OF MAY 2012
INTERIM DECISION

APPEALS TRIBUNAL Mr Murray McKechnie, Chairman and Mr Russell McKenzie

PRESENT Mr John Oatham, Stipendiary Steward, Mr Cameron George, Chief Stipendiary Steward, Mr Lance Macfarlane, Licensed Jockey
Mr Tony Ryan, Counsel for Mr Macfarlane, Mr Warwick Robinson, Registrar

1. NATURE OF APPEAL
1.1 This is an appeal by the licensed jockey Mr Lance Macfarlane against a finding of misconduct and suspension imposed upon him following the Waikato Racing Club meeting in Te Rapa on 19 May this year. By a decision issued that day and a penalty decision issued soon afterwards Mr Macfarlane was found guilty of a breach of rule 340. That is the misconduct rule and is in the following terms:
“Á licensed person, owner, lessee, racing manager official or other person bound by these rules must not misconduct himself in any matter relating to the conduct of races or racing.”

The period of suspension was for one month concluding on the 21st June this year.

1.2 In the running of the Waikato Steeplechase Mr Macfarlane had the mount on the horse Sportavian. There were five horses in the race. Prize money was payable to the first five horses to finish. Approaching the second last fence Sportavian was running last. He fell heavily and Mr Macfarlane was dislodged. The horse was seen to be bleeding from the nose. The Club Vet, Mr Douglas Black, was nearby. More will be said of the bleeding and the role of Mr Black in our detailed reasons for the decision. Mr Macfarlane remounted Sportavian jumped the last fence and finished the race. Mr Macfarlane told the Race Day Judicial Committee that he was aware that the horse was bleeding from the nose. In acting as he did the Judicial Committee found that Mr Macfarlane had misconducted himself in terms of Rule 340.

1.3 Mr Macfarlane in his notice of Appeal sought a stay of proceedings. Subsequently at a telephone conference with his Counsel, Mr Ryan, that was not pursued. It was explained that Mr Macfarlane did not have rides at meetings between the date when the suspension was ordered and the hearing today.

1.4 The issue before the Appeal Tribunal is unique in as much as the conduct alleged against Mr Macfarlane does not appear to have been the subject of consideration by any Judicial Committee or Appeal Tribunal on any prior occasion. One of the issues raised on Mr Macfarlane’s behalf was whether the charge was appropriately brought under rule 340 rather than rule 802(1)(a). A further complication is that there having been no charges previously preferred for conduct of the sort alleged here the issue of what is an appropriate penalty was very much at large.

2. DECISION
2.1 The Tribunal has come to the view that the Appeal must be dismissed and that Mr Macfarlane was guilty of misconduct on the 19th May this year. This Tribunal takes the view that the reasons why the actions of Mr Macfarlane constitute misconduct are significantly different from those expressed by the Race Day Judicial Committee in its decision. It is of course open to this Tribunal to reach the same conclusion but by a different process of reasoning. That is in fact the position.

2.2 We shall issue a detailed written decision within the next few days which will set out why we have come to the view which has just been explained.

3. PENALTY
3.1 Now we turn to the question of penalty. Mr Ryan submitted that a financial penalty would be appropriate. He referred us to a number of cases. Most of those had to do with licence holders behaving inappropriately towards colleagues or other persons involved in racing. This case today centres around issues of animal welfare and there is little or no precedent to guide the Tribunal as to what penalty might be appropriate.

3.2 The issue of animal welfare particularly in relation to jumping races is a topic of interest not just in New Zealand but also in Australia and the United Kingdom. Only recently the running of the Grand National in Aintree in the UK drew a good deal of publicity – much of it unfavourable. In our view a monetary penalty would not be adequate to meet the seriousness of what we consider took place.

3.3 We recognise Mr Macfarlane’s good record and the extensive references which we have had placed before us. As things presently stand Mr Macfarlane is suspended until the 21st June. With assistance from Mr Oatham and Mr Ryan we have identified that there are jumping races available for Mr Macfarlane on the 4th of June at Ellerslie, Highweight Races at Matamata on the 6th of June, a possibility of jumps races at Wellington on the 9th of June, jumps races at Te Aroha on the 13th June and the possibility of jumps races being the Manawatu Steeples and the Awapuni Hurdles at Awapuni on the 16th of the June. We take the view that the period of suspension that was imposed was longer than need be the case given this is the first time conduct of this kind has been considered by a Judicial Committee and indeed by an Appeals Tribunal. It is appropriate to give notice to licence holders that suspensions will follow for breaches of proper conduct in respect of animal welfare. Mr Macfarlane also took risks with his own safety by resuming the ride on a horse that should have been retired from the race.

3.4 Moving back to the issue of the period of suspension it would be sufficient if that were to conclude on Saturday the 9th of June. That means that Mr Macfarlane would be free to take rides at Te Aroha on the 13th of June and also there is the opportunity for jumps rides at Awapuni on the 16th of June.

3.5 That concludes the dictation today. We cannot tell you precisely when the more detailed written decision will issue gentlemen but it will be in the space of a few days and given that this has not been an easy matter it will be a little involved. Mr Macfarlane you are the first person to come up on a charge of this kind. We recognise you have a good record but for better or for worse other people in the future are going to be looking at this case so we have got to go away and dot the I’s and cross the T’s.
Thank you all for your help.

4. COSTS
4.1 We invite you to let us have, gentlemen, Mr Ryan and Mr Oatham briefs submissions on the question of costs. You need not go past a page or a page and a half, whether there should be any costs in the circumstances. We do not have a settled view about it but given the rather unique circumstances of this case it might be one of those instances where at least as between the parties there need not be a costs award. Please let us have your views on that and we will incorporate a costs ruling in the reserved judgment.

Thank you

Dated 30th day of May 2012.

Murray McKechnie
Chairman
 

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