Appeal – Miss K Myers
ID: JCA21107
Hearing Type (Code):
thoroughbred-racing
Decision: --
On the 17th December 2005 at the Manawatu Racing Club the judicial committee found that Miss Kelly Myers had breached rule 871(1)(d) of the rules of racing, the careless riding rule, in relation to her ride on EATNSCHEETN at the Manawatu Racing Club meeting on 10th December 2005.
--
BEFORE THE APPEALS TRIBUNAL
--HELD AT CAMBRIDGE
--BETWEEN - Kelly Myers (Appellant)
--AND - NZ Thoroughbred Racing (Respondent)
--HEARING DATE - 28 December 2005
--APPEAL TRIBUNAL - Judge NF Smith (Chairman), Mr NO Harris
--PRESENT - Miss K Myers (Appellant) Mr GA Rogerson (Assisting)
--Mr LN McCutcheon for NZTR
--.....................................................................................................
--On the 17th December 2005 at the Manawatu Racing Club the judicial committee found that Miss Kelly Myers had breached rule 871(1)(d) of the rules of racing, the careless riding rule, in relation to her ride on EATNSCHEETN at the Manawatu Racing Club meeting on 10th December 2005.
--The committee suspended her from riding from the conclusion of racing on Wednesday 21st December 2005 until the conclusion of racing on Wednesday the 11th January 2006.
--Kelly Myers filed an appeal against both the finding of careless riding and the suspension.
--An appeal hearing was set down for the 23rd December 2005, but Miss Myers' employer, Mr GA Rogerson, who wished to appear for her, was in Australia and unable to attend. He made application for an adjournment to a later date and also for a stay of the suspension.
--Mr Rogersons' application was declined and he then sought a conference call to enable him to make submissions. That was arranged for the 21st December with the presiding appeal judge, Mr Rogerson for Miss Myers, and Mr N McCutcheon for the respondent.
--At the conclusion of that hearing it was agreed between the parties that a stay of suspension should be granted until the close of declaration of riders for the Ellerslie meeting on Thursday 29th December 2005. The appeal hearing was adjourned to Hamilton for hearing at 10.30am on Wednesday the 28th December 2005.
--At the conclusion of the hearing on the 28th December 2005, the appeal tribunal delivered the following oral decision ?
--"We have taken into account the submissions by Mr Rogerson and Mr McCutcheon and have viewed the film of the incident but find that the evidence and admissions made establish that Miss Myers was in breach of Rule 871(1)(d) in that she crossed over when not the required length and another length in front of the following horse.
--We see no reason why we should impose our discretion over that of the experienced judicial committee on the day.
--The appeal against finding of careless riding is dismissed.
--On the matter of penalty we are satisfied that the committee took all relevant matters into account in fixing the penalty and again we decline to interfere.
--That appeal is dismissed also.
--We re-impose the suspension imposed by the judicial committee on the 17th December as modified by the stay granted on the 21st December, to the intent that the suspension will run from the close of racing on the 29th December 2005 until the conclusion of racing on the 11th January 2006.
--The filing fee is forfeited.
--Costs of $500 are fixed on each of the appeals.
--Full written submissions for the above decision including addressing the submissions made as to the contribution of Mr Cameron and his horse's racing manner will be released as soon as possible."
--The reasons relied upon by the Appellate Tribunal are as set out below.
--Mr Rogerson in his submission traversed and challenged in some detail much of the evidence put before the committee, endeavouring to promote the proposition that the circumstances giving rise to Mr Tinsley's horse falling and Mr Rogers being dislodged from his horse were largely due to the manner in which the mount of Mr Cameron was racing. It was claimed that it was racing greenly, awkward in its action and throwing its head in the air, and had crowded the mount of Mr Tinsley before Miss Myers' crossed.
--Mr Rogerson also submitted that Miss Myers was entitled to assume that Mr Cameron's mount would ease back when taken hold of, thus putting her clear.
--The evidence of Assistant Stipendiary Steward Bateup, and that of Miss V Johnson, a rider who rode in the race from which the alleged offence arose was challenged by Mr Rogerson.
--Mr Rogerson dissembled their evidence in an effort to establish that their interpretation of events could not be relied on given the position from which they respectively viewed the incident.
--While we did not read anything compelling from the evidence of Miss Johnson, we note that the judicial committee made no reference to it in the summing up.
--We do, however, find the evidence of Mr Bateup relevant and compelling and find that his evidence is corroborated by the evidence of Mr Cameron the comments made by Mr Calder who appeared for Miss Myers at the hearing and the clear and unequivocal evidence from the film.
--Having regard to the evidence from Mr Bateup, Mr Cameron, the admissions by Mr Calder appearing for Miss Myers, and the visual evidence provided from the film we are satisfied that Miss Myers did change ground while not being the required one length, plus another length clear of Mr Cameron's mount and as such did breach the rule as charged.
--A breach of the rules of racing is a matter of strict liability and any claim that there has been some contribution by some other rider or horse can only go towards a plea in mitigation in respect of penalty.
--We dot accept the proposition that the purported racing action of Mr Cameron's mount in any way caused Miss Myers to breach the rule.
--Whatever the circumstances, riders must at all times be conscious of their position in the field and ensure that before changing ground the required one length, plus another length, is available.
--For the above reasons we dismissed the appeal against the breach.
--On the question of penalty, Mr Rogerson argued that Miss Myers had ridden more horses during the current season than any other rider whether apprenticed or not, and yet this was her first offence. The period of suspension was too long for a rider with her record.
--On the issue of penalty Mr Rogerson also took exception to the statement attributed to Mr McCutcheon and recorded in the transcript of the hearing on the final page - "?..the penalty does need to be significant to send a clear message, not only to Miss Myers, but to all other riders, the importance of being two lengths clear before changing ground."
--In light of that statement and the fact that Mr McCutcheon had informed the judicial committee that although this was Miss Myers first offence, she had been warned at Ashburton on the 5th September 2005, Mr Rogerson claimed that Mr McCutcheon was unfairly seeking to make an example of Miss Myers. In support of his argument that the issue of a warning should not be taken into account in determining the penalty Mr Rogerson cited the case in Australia of jockey J Cassidy who had taken this matter to Court where it was ruled that the issued of a warning was not evidence of the commission of an offence and is not to be regarded when determining penalty.
--Mr Rogerson further claimed that the judicial committee, in imposing penalty, had overlooked the fact that the period of suspension included the lucrative Christmas carnival and was therefore unduly harsh.
--He cited examples of penalties for careless riding where lesser terms were imposed, in particular a recent suspension for 10 meetings imposed on Darren Beadman in Australia.
--Mr McCutcheon too referred to recent suspensions imposed in New Zealand for terms not dissimilar to that set by the judicial committee in this matter.
--We do not accept that the riding of Mr Cameron or the racing action of his horse are matters which would mitigate against the penalty imposed.
--We have perused the decision of the judicial committee where it is recorded that the committee addressing Miss Myers stated - "?.we have taken into account your excellent record and also that this is your first offence." We must accept therefore that the committee did address the concerns expressed to us by Mr Rogerson. We note that the committee recorded the date of the commencement and end of the suspension as being from December to January and must accept that the members of the committee were aware of the Christmas carnival intervening.
--The argument that the period of suspension was too long is countered by the comments of the judicial committee relating to the fact that the breach resulted in the fall of two riders who will not be riding for a period of weeks "due to the injuries sustained." We accept that the committee was justified in extending the term of suspension for that reason.
--For the above reasons the appeal against penalty was dismissed also
Decision Date: 01/01/2001
Publish Date: 01/01/2001
JCA Decision Fields (raw)
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hearingid: a3af708bd3ad8463d6820d0a1f8b9d4e
informantnumber:
horsename:
hearing_racingtype: thoroughbred-racing
startdate: 01/01/2001
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Appeal - Miss K Myers
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
--On the 17th December 2005 at the Manawatu Racing Club the judicial committee found that Miss Kelly Myers had breached rule 871(1)(d) of the rules of racing, the careless riding rule, in relation to her ride on EATNSCHEETN at the Manawatu Racing Club meeting on 10th December 2005.
--
BEFORE THE APPEALS TRIBUNAL
--HELD AT CAMBRIDGE
--BETWEEN - Kelly Myers (Appellant)
--AND - NZ Thoroughbred Racing (Respondent)
--HEARING DATE - 28 December 2005
--APPEAL TRIBUNAL - Judge NF Smith (Chairman), Mr NO Harris
--PRESENT - Miss K Myers (Appellant) Mr GA Rogerson (Assisting)
--Mr LN McCutcheon for NZTR
--.....................................................................................................
--On the 17th December 2005 at the Manawatu Racing Club the judicial committee found that Miss Kelly Myers had breached rule 871(1)(d) of the rules of racing, the careless riding rule, in relation to her ride on EATNSCHEETN at the Manawatu Racing Club meeting on 10th December 2005.
--The committee suspended her from riding from the conclusion of racing on Wednesday 21st December 2005 until the conclusion of racing on Wednesday the 11th January 2006.
--Kelly Myers filed an appeal against both the finding of careless riding and the suspension.
--An appeal hearing was set down for the 23rd December 2005, but Miss Myers' employer, Mr GA Rogerson, who wished to appear for her, was in Australia and unable to attend. He made application for an adjournment to a later date and also for a stay of the suspension.
--Mr Rogersons' application was declined and he then sought a conference call to enable him to make submissions. That was arranged for the 21st December with the presiding appeal judge, Mr Rogerson for Miss Myers, and Mr N McCutcheon for the respondent.
--At the conclusion of that hearing it was agreed between the parties that a stay of suspension should be granted until the close of declaration of riders for the Ellerslie meeting on Thursday 29th December 2005. The appeal hearing was adjourned to Hamilton for hearing at 10.30am on Wednesday the 28th December 2005.
--At the conclusion of the hearing on the 28th December 2005, the appeal tribunal delivered the following oral decision ?
--"We have taken into account the submissions by Mr Rogerson and Mr McCutcheon and have viewed the film of the incident but find that the evidence and admissions made establish that Miss Myers was in breach of Rule 871(1)(d) in that she crossed over when not the required length and another length in front of the following horse.
--We see no reason why we should impose our discretion over that of the experienced judicial committee on the day.
--The appeal against finding of careless riding is dismissed.
--On the matter of penalty we are satisfied that the committee took all relevant matters into account in fixing the penalty and again we decline to interfere.
--That appeal is dismissed also.
--We re-impose the suspension imposed by the judicial committee on the 17th December as modified by the stay granted on the 21st December, to the intent that the suspension will run from the close of racing on the 29th December 2005 until the conclusion of racing on the 11th January 2006.
--The filing fee is forfeited.
--Costs of $500 are fixed on each of the appeals.
--Full written submissions for the above decision including addressing the submissions made as to the contribution of Mr Cameron and his horse's racing manner will be released as soon as possible."
--The reasons relied upon by the Appellate Tribunal are as set out below.
--Mr Rogerson in his submission traversed and challenged in some detail much of the evidence put before the committee, endeavouring to promote the proposition that the circumstances giving rise to Mr Tinsley's horse falling and Mr Rogers being dislodged from his horse were largely due to the manner in which the mount of Mr Cameron was racing. It was claimed that it was racing greenly, awkward in its action and throwing its head in the air, and had crowded the mount of Mr Tinsley before Miss Myers' crossed.
--Mr Rogerson also submitted that Miss Myers was entitled to assume that Mr Cameron's mount would ease back when taken hold of, thus putting her clear.
--The evidence of Assistant Stipendiary Steward Bateup, and that of Miss V Johnson, a rider who rode in the race from which the alleged offence arose was challenged by Mr Rogerson.
--Mr Rogerson dissembled their evidence in an effort to establish that their interpretation of events could not be relied on given the position from which they respectively viewed the incident.
--While we did not read anything compelling from the evidence of Miss Johnson, we note that the judicial committee made no reference to it in the summing up.
--We do, however, find the evidence of Mr Bateup relevant and compelling and find that his evidence is corroborated by the evidence of Mr Cameron the comments made by Mr Calder who appeared for Miss Myers at the hearing and the clear and unequivocal evidence from the film.
--Having regard to the evidence from Mr Bateup, Mr Cameron, the admissions by Mr Calder appearing for Miss Myers, and the visual evidence provided from the film we are satisfied that Miss Myers did change ground while not being the required one length, plus another length clear of Mr Cameron's mount and as such did breach the rule as charged.
--A breach of the rules of racing is a matter of strict liability and any claim that there has been some contribution by some other rider or horse can only go towards a plea in mitigation in respect of penalty.
--We dot accept the proposition that the purported racing action of Mr Cameron's mount in any way caused Miss Myers to breach the rule.
--Whatever the circumstances, riders must at all times be conscious of their position in the field and ensure that before changing ground the required one length, plus another length, is available.
--For the above reasons we dismissed the appeal against the breach.
--On the question of penalty, Mr Rogerson argued that Miss Myers had ridden more horses during the current season than any other rider whether apprenticed or not, and yet this was her first offence. The period of suspension was too long for a rider with her record.
--On the issue of penalty Mr Rogerson also took exception to the statement attributed to Mr McCutcheon and recorded in the transcript of the hearing on the final page - "?..the penalty does need to be significant to send a clear message, not only to Miss Myers, but to all other riders, the importance of being two lengths clear before changing ground."
--In light of that statement and the fact that Mr McCutcheon had informed the judicial committee that although this was Miss Myers first offence, she had been warned at Ashburton on the 5th September 2005, Mr Rogerson claimed that Mr McCutcheon was unfairly seeking to make an example of Miss Myers. In support of his argument that the issue of a warning should not be taken into account in determining the penalty Mr Rogerson cited the case in Australia of jockey J Cassidy who had taken this matter to Court where it was ruled that the issued of a warning was not evidence of the commission of an offence and is not to be regarded when determining penalty.
--Mr Rogerson further claimed that the judicial committee, in imposing penalty, had overlooked the fact that the period of suspension included the lucrative Christmas carnival and was therefore unduly harsh.
--He cited examples of penalties for careless riding where lesser terms were imposed, in particular a recent suspension for 10 meetings imposed on Darren Beadman in Australia.
--Mr McCutcheon too referred to recent suspensions imposed in New Zealand for terms not dissimilar to that set by the judicial committee in this matter.
--We do not accept that the riding of Mr Cameron or the racing action of his horse are matters which would mitigate against the penalty imposed.
--We have perused the decision of the judicial committee where it is recorded that the committee addressing Miss Myers stated - "?.we have taken into account your excellent record and also that this is your first offence." We must accept therefore that the committee did address the concerns expressed to us by Mr Rogerson. We note that the committee recorded the date of the commencement and end of the suspension as being from December to January and must accept that the members of the committee were aware of the Christmas carnival intervening.
--The argument that the period of suspension was too long is countered by the comments of the judicial committee relating to the fact that the breach resulted in the fall of two riders who will not be riding for a period of weeks "due to the injuries sustained." We accept that the committee was justified in extending the term of suspension for that reason.
--For the above reasons the appeal against penalty was dismissed also
sumissionsforpenalty:
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hearing_type: Old Hearing
Rules: 871.1.d
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