Appeal – M Yusof v NZTR 26 June 2009

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hearing_title: Appeal - M Yusof v NZTR 26 June 2009

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APPEAL TRIBUNAL HEARING : MOHAMMED YUSOF v NZTR
HEARD AT WAIKATO RACING CLUB, TE RAPA RACECOURSE, HAMILTON
FRIDAY 26TH JUNE 2009

APPEALS TRIBUNAL  Mr M S McKechnie, Chairman and Mr R G McKenzie
PRESENT   Mr Mohammed Yusof, Licenced Jockey with Mr Paul Moroney, Trainer
                      For NZTR Mr John Oatham, Deputy Chief Stipendiary Steward
                                         Mr Matthew Williamson, Stipendary Steward

DECISION OF APPEAL TRIBUNAL
  
1. NATURE OF APPEAL
1.1 Mr Mohammed Yusof, Licenced Jockey appeals from a decision of the Judicial Raceday Committee given at the Whangarei Racing Club on the 27th May this year.
1.2 Mr Yusof was charged with a breach of the Careless Riding Rule R871(1)(d).  The charge was found to be proved. Mr Yusof challenges that finding. There is no appeal in respect of the suspension imposed.  On 27th May Mr Yusof was represented by Mr Paul Moroney, Licenced Trainer and Mr Moroney appears today on Mr Yusof’s behalf.
1.3 On the 27th May Mr Williamson conducted the case for NZTR and called Mr Coles, the Stipendiary Steward to give evidence during the course of that hearing. Mr Coles is not present at the hearing of this appeal.
1.4 Mr Yusof was riding a horse called Street Law. It was said that he shifted in on that horse when not clear of a horse named Sweet Symphony ridden by Ms Natasha Collett. The mount of Ms Collett clipped the heels of Street Law and Ms Collett was dislodged. The precise sequence of events is of importance and will be analysed later in this decision.
1.5 The Race Day Judicial Committee found the charge to be proved and Mr Yusof was suspended from the 1st June until the 14th June this year. He has been subsequently suspended on a later charge of careless riding and is currently serving that period of suspension which will expire on Wednesday next. The circumstances of that subsequent appearance are of no relevance whatever to the proceedings today.
1.6 The hearing on the 27th May began before the last race was run and extended after the running of the last race. The hearing took something over one hour. The transcript runs to seventeen (17) pages. The decision of the committee begins at the foot of page 14 and continues for the first several lines of page 15. Thereafter the transcript is concerned with issues relating to penalty which are of no relevance today. Subsequently on the 3rd June the Committee issued a more detailed written decision.

APPEAL TRIBUNAL HEARING : MOHAMMED YUSOF v NZTR
HEARD AT WAIKATO RACING CLUB, TE RAPA RACECOURSE, HAMILTON
FRIDAY 26TH JUNE 2009

APPEALS TRIBUNAL  Mr M S McKechnie, Chairman and Mr R G McKenzie
PRESENT   Mr Mohammed Yusof, Licenced Jockey with Mr Paul Moroney, Trainer
                      For NZTR Mr John Oatham, Deputy Chief Stipendiary Steward
                                         Mr Matthew Williamson, Stipendary Steward

DECISION OF APPEAL TRIBUNAL
  
1. NATURE OF APPEAL
1.1 Mr Mohammed Yusof, Licenced Jockey appeals from a decision of the Judicial Raceday Committee given at the Whangarei Racing Club on the 27th May this year.
1.2 Mr Yusof was charged with a breach of the Careless Riding Rule R871(1)(d).  The charge was found to be proved. Mr Yusof challenges that finding. There is no appeal in respect of the suspension imposed.  On 27th May Mr Yusof was represented by Mr Paul Moroney, Licenced Trainer and Mr Moroney appears today on Mr Yusof’s behalf.
1.3 On the 27th May Mr Williamson conducted the case for NZTR and called Mr Coles, the Stipendiary Steward to give evidence during the course of that hearing. Mr Coles is not present at the hearing of this appeal.
1.4 Mr Yusof was riding a horse called Street Law. It was said that he shifted in on that horse when not clear of a horse named Sweet Symphony ridden by Ms Natasha Collett. The mount of Ms Collett clipped the heels of Street Law and Ms Collett was dislodged. The precise sequence of events is of importance and will be analysed later in this decision.
1.5 The Race Day Judicial Committee found the charge to be proved and Mr Yusof was suspended from the 1st June until the 14th June this year. He has been subsequently suspended on a later charge of careless riding and is currently serving that period of suspension which will expire on Wednesday next. The circumstances of that subsequent appearance are of no relevance whatever to the proceedings today.
1.6 The hearing on the 27th May began before the last race was run and extended after the running of the last race. The hearing took something over one hour. The transcript runs to seventeen (17) pages. The decision of the committee begins at the foot of page 14 and continues for the first several lines of page 15. Thereafter the transcript is concerned with issues relating to penalty which are of no relevance today. Subsequently on the 3rd June the Committee issued a more detailed written decision.

2. PRELIMINARY ISSUE
2.1 Mr Moroney in opening the case for Mr Yusof drew attention to passages in the transcript and contrasted those with passages in the written decision. He also pointed to the decision pronounced on the day. In particular Mr Moroney said that there were passages in the transcript, that is to say, evidence given before the Committee which was plainly at odds with the pronounced decision set out at pages 14 and 15. In particular he said that it was a culpable error of fact that Ms Collett was seen to be dislodged before Street Law clipped the heels of the horse in front of it. That horse was named Royal Dude and was the mount of Mr Troy Harris. The Tribunal is satisfied that the position as stated in the decision is not correct. The horse Street Law clipped the heels of Royal Dude some two or three strides before Sweet Sympony clipped the heels of Street Law and Ms Collett was dislodged.
2.2 Mr Moroney contended that in the circumstances just outlined the decision under appeal was so plainly wrong that the appeal should be granted. He also pointed to certain matters of fact where Mr Coles had been mistaken as to the identity of the jockey on the horse Royal Dude. That is a matter of no particular consequence.
2.3 The Appeal Tribunal is required to conduct a rehearing. That requires the Appeal Tribunal to make its own assessment of the evidence and reach a decision independent of the decision reached by the Race Day Judicial Committee. While Mr Moroney’s submission was valid in as much as there does appear to have been an error of fact that is not something which of itself would be sufficient for the Appellant to succeed.

3. THE LEGAL PRINCIPLES GOVERNING THIS APPEAL
3.1 As noted earlier appeals of this kind are by way of rehearing. Nevertheless the Appeal Tribunal must have regard to the decision of the Committee which has been appealed and must look carefully at the evidence which was called before the Committee and the reasons for the decision arrived at. That is particularly so when, as here, there were a number of witnesses called before the Judicial Committee. There was an extended hearing and as noted a transcript running to many pages. A number of the persons who were called to give evidence before the Judicial Committee were not present here today. Mr Yusof was of course present and he was invited to comment by the Tribunal and did so. Nothing which he said today materially differs from the account which he gave on the 27th May.
3.2 The approach to the hearing of appeals within the New Zealand legal system has recently been the subject of a unanimous judgment of our Supreme Court in Austin Nicols & Co v Stichting Lodestar [2008] 2 NZLR 141. This decision given by the Chief Justice sets out the approach which an Appellate Court must take and involves a significant change from the previously understood position. By reference to paragraph 5 of the judgment it is made clear that an Appellate Court must arrive at its own assessment of the merits of the case. Reference can also usefully be made to paragraphs 13 and 16 of the judgment. In summary it is necessary that the Appeal Court (Tribunal) be persuaded that the decision under appeal is wrong and in reaching that view no deference is required beyond the customary caution appropriate when seeing witnesses and assessing credibility.

4. THE CASE FOR MR YUSOF
4.1 Mr Moroney contends that there were a number of factors which contributed to the fall of Ms Collett’s mount Sweet Symphony. He points to the following:
• The horse Street Law shifted out from the running rail as the horses left the straight. There was some discussion concerning the positioning of the running rail and horses having difficulty at that corner.

• Mr Moroney emphasised that this horse was not an easy ride. The film shows the horse moving its head up and to the left as the field negotiates the bend out the straight. There had been a change in the horse’s bit. Previously the horse was raced with a lugging bit. That had been removed on this occasion. Inexplicably this information was not passed to Mr Yusof.

• It was pointed out that Mr Harris’ mount Royal Dude was also having difficulty in negotiating the corner out of the straight and that it was under some restraint.
4.2 After the horses had negotiated the corner there appears to the Tribunal to have been a settling of the field and Street Law was no longer skying its head. At this time the horse was one out from the rail. The evidence established that Ms Collet’s mount was on the inside and behind Street Law.
4.3 It is Mr Moroney’s contention that as the horses continued down the back straight Royal Dude, the mount of Mr Harris, was restrained. He said this happened on two occasions. This can be seen on the film. On the first occasion, says Mr Moroney, Mr Yusof was obliged to restrain his horse and on the second occasion he says this was more pronounced and that this immediately preceded the critical events. In between the first and second occasions it appears that Mr Yusof contemplated taking his horse outside Mr Harris’ mount and the head of Street Law is alongside the hindquarters of Royal Dude.
4.4 It is Mr Moroney’s contention that on the second occasion that Royal Dude was restrained Mr Yusof had no alternative but to in turn restrain his horse and that in doing so Street Law moved inwards towards the running rail. He says that there was no intentional movement by Mr Yusof in that direction. It is clear that at this time Ms Collet’s mount was inside Mr Yusof’s mount but a little behind. The Tribunal is satisfied that Street Law clipped the heels of Royal Dude before the mount of Ms Collett came in contact with Street Law.
4.5 It is Mr Moroney’s contention that Mr Yusof was in effect a victim of circumstances and that there was nothing else that he could reasonably have done in the circumstances. He disputes that Mr Yusof made an intentional move to the inside. He says – by reference to the contributing factors mentioned earlier – that the position was made much worse by the fact that Street Law clipped the heels of Royal Dude and that it was the front-off leg – that nearest to the running rail –and that this had the result of making the horse veer inwards to a much greater extent that might otherwise have occurred.
4.6 It is Mr Moroney’s contention that Mr Yusof was trapped by the circumstances in which he found himself. It is said that his riding did not fall below the standard expected of a competent rider and that there was nothing in his conduct which amounted to carelessness: either in the sense of taking positive action or in the sense of failing to take action which he ought to have followed but did not.

5. THE CASE FOR NZTR
5.1 Mr Oatham took the Tribunal through the films. Mr Moroney had earlier done that and after some time Messrs Oatham and Moroney then engaged in discussion between themselves as to the correct interpretation. The Tribunal has now seen the films from a hind view and a side view on a number of occasions. The horses go out of sight for a short period on the rear view shot but we are satisfied that nothing of significance has been lost.
5.2 Mr Williamson summed up the case for NZTR. In short it is the NZTR position that there was not sufficient room for Mr Yusof to take his horse back towards the rail. It is said that the horse had clearly taken up a position one out from the rail and should have held that position unless the jockey was satisfied that there was sufficient room on the inside. It is said for NZTR that Mr Yusof could not be satisfied of that because he must have known (and had acknowledged in evidence) that he was aware of the presence of Ms Collett on the inside. Further NZTR says that a proper appreciation of the film shows that after the first occasion when Mr Harris’ mount was restrained  Mr Yusof moved Street Law towards the outside and to have continued in that direction would have been legitimate. Alternatively he should have held his position behind Royal Dude.
5.3 It is contended for NZTR that the correct understanding of the films is that Mr Yusof made a conscious decision to move back towards the inside. Mr Oatham in analysing the films pointed to Ms Collett being in difficulty on her mount some strides before Mr Yusof’s mount clipped the heels of the horse Royal Dude ridden by Mr Harris. The Tribunal has observed that and there is some force in what Mr Oatham has to say.

6. DISCUSSION
6.1 Mr Moroney was right to point out that there were a number of circumstances at play on this occasion. That has made the necessary analysis difficult and the decision which we have come to is as a result of our best analysis of what we have seen and heard.
6.2 In the first place it is clear that the horse Royal Dude was restrained on two occasions and that this had some effect on the horses behind. There was nothing improper in that manoeuvre but it clearly caused some tightening amongst horses behind. It is also clear that Street Law moved away from the rail when the horses came round the corner out of the straight and after leaving the corner was racing one out from the rail. It is also clear in our view that Ms Collett had the legitimate running one off the rail and we are satisfied that Mr Yusof knew that she was in that position.
6.3 Reference was made earlier to Ms Collett being in some difficulty on her horse Sweet Symphony before Street Law had clipped the heels of Royal Dude. That is evident from the films and can only have occurred if Street Law was moving back towards the rail and taking the running of that horse.
6.4 With reference to Street Law clipping the heels of Royal Dude we are satisfied that this circumstance made the position worse in as much as it caused Street Law to move towards the inside in a way that was more pronounced that would probably otherwise have been the case.
6.5 On our analysis of the position we are satisfied, having regard for the standard of proof required, that Mr Yusof did make an election to go back to the inside. The most telling evidence in support of this conclusion is that some time earlier he had clearly moved towards the outside of Mr Harris’ mount Royal Dude and then appears to have decided, for reasons which may have been legitimate at that time, not to carry on with that move. He restrained his mount and it then resumed its position behind Royal Dude. Thereafter and following  the second occasion in which Royal Dude was restrained we are persuaded that Mr Yusof made a conscious election to go back to the inside. That in our view was an error of judgment. It is to that extent that Mr Yusof’s conduct is culpable and this in our view meets the test required to establish the careless riding charge. That is carelessness in the sense that in making his decision Mr Yusof did not exercise the skill and judgment which would reasonably be expected of a competent jockey in the circumstances as they existed at that moment.
6.6 Mr Moroney has emphasised that these events which we have just been analysing occurred in a very short time frame. That is true. The movement of the horse in front and the position of Ms Collett’s horse may have contributed to the events which culminated in the fall of that horse. Having said that and understanding that this put Mr Yusof in a difficult position we are nevertheless satisfied that he chose to take an inside line when he ought not to have done so. He had little time but could have maintained the line which he had. It is in failing to do this that we believe there was carelessness on his part and for those reasons the appeal cannot succeed.

7. DECISION
7.1 In accordance with what has just been said and for the reasons set out the appeal fails and it is dismissed.
7.2 This has been a difficult case and there were certainly aspects of this matter which merited inquiry on appeal: the more so when the decision under appeal – for the reasons set out earlier – is in part not readily understood.

8. COSTS
8.1 NZTR seeks costs in the sum of $250.00. That is to do principally with the typing up of the transcript and travel costs.
8.2 The usual practice at Appeal Hearings where the Appellant is unsuccessful is to require him or her to pay some costs towards the expenses of the JCA. On this occasion Mr McKenzie has had to travel from the South Island. The need to bring a member of the Tribunal from the South Island is not Mr Yusof’s responsibility in as much as it was necessary in order to ensure that the Tribunal was and appeared to be made up of persons not recently acquainted with Mr Yusof’s alleged breaches of the rules. It follows that additional costs incurred by the JCA should not go against him.
8.3 Mr Moroney says that in the light of the Tribunal’s finding that the appeal had real merit the costs should reflect that circumstance. There is some force in that. The Tribunal has remarked that some appeals which are taken under the NZTR rules appear to have little substantive merit. That was not the case here today. The analysis of the circumstances of this race involved quite a deal of time and care and the Tribunal was assisted by Mr Oatham and Mr Williamson from NZTR and by Mr Moroney who is a very experienced horse trainer and race analyst.
8.4 In all these circumstances Mr Yusof will pay the costs to NZTR of $200.00 and towards the cost of the JCA of $400.00. The deposit paid by Mr Yusof will be forfeited.

9. SUSPENSION
9.1 Mr Yusof, as noted earlier, is currently suspended in respect of a careless riding charge that post-dated the 27th May this year. The Tribunal is told the suspension expires on Wednesday 1st July. It follows that the suspension imposed on the 27th May will take effect from the 2nd July and will conclude at the end of racing on the 15th July 2009.

DATED  this 29th day of June 2009

__________________________________
Murray   McKechnie
Chairman

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