Appeal RIU v A Denby – Decision dated 17 May 2012

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decisiondate: 24/05/2012

hearing_title: Appeal RIU v A Denby - Decision dated 17 May 2012

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

IN THE MATTER of the Rules of Racing

AND

IN THE MATTER of an Appeal by the Racing Integrity Unit

Appellant

v

AMELIA DENBY, Apprentice Jockey

Respondent

1. INTRODUCTION
1.1 At the Riverton Racing Club’s meeting on 7 April 2012, the Stipendiary Stewards carried out an inspection of the jockeys’ body protectors.

1.2 Jockeys are required to wear body protectors at all relevant times.
Rule 610, inter alia, states:
“2. A rider shall, when mounted on a horse, wear:
a) A properly fastened body protector of a type and standard approved by NZTR which shall be in a satisfactory condition and shall have attached to it a manufacturer’s label that states that it complies with the relevant type and standard approved by NZTR.
The sole responsibility for wearing a body protector ........in accordance with these rules, and for ensuring that the body protector .......is in a satisfactory condition, is that of the rider, provided that where the rider is an apprentice jockey such apprentice jockey’s employer, or a representative of the employer who is in charge of the apprentice jockey, at any relevant time, is also responsible for the apprentice jockey wearing such body protector in accordance with these rules and for ensuring such body protector is in a satisfactory condition.

4. A rider may not wear or have in their possession a body protector .......that has been modified in any way.”

1.3 Apprentice Jockey, Ms Amelia Denby, was found to have been wearing or having in her possession, a body protector that had been modified, by having had two tabs (or pads) removed. As a consequence was charged by the Stipendiary Stewards with having breached Rule 610(4).

1.4 Ms Denby admitted the charge.

1.5 The Judicial Committee heard evidence from the Stipendiary Stewards, from Ms Denby, and from her employer, Mr Michael Pitman, Licensed Trainer, as to the background and also heard submissions on the question of penalty.

1.6 After taking into account the background evidence and the submissions on penalty, the Judicial Committee elected not to impose a penalty.

1.7 The Racing Integrity Unit appeals against that decision.

2. SUMMARY OF SUBMISSIONS AT THE RACEDAY HEARING
2.1 Ms Denby told the hearing that the body protector in question was the first one that she had bought at the commencement of her riding career. She purchased it in the North Island from an unnamed person, and had ridden wearing it, in her career which she started over three years ago. She said that it had been checked in Australia and in the North Island. She said that when it had been checked (probably six or seven times) in New Zealand or Australia, that the focus seemed to be on the brand and by looking at the back of the vest, from which view it cannot be seen to have anything wrong with it. She said that she had not been riding very much of recent times, having resumed her apprenticeship before Christmas 2011.

2.2 The Stipendiary Stewards confirmed that the checking of body protectors had been more stringent since early 2011. Mr Mark Davidson, Stipendiary Steward, could not recall if he had carried out a check on Ms Denby’s body protector in recent times.

2.3 The Stipendiary Stewards drew the Judicial Committee’s attention to the fines that had been imposed of recent times which ranged from $500 to $100. They also advised the hearing that Ms Denby had a clear record.

2.4 In response, Mr Pitman, on the issue of penalty said: “If you get $100 you’re doing well. I tell you.”

3. JUDICIAL COMMITTEE’S DECISIONS
3.1 On the day of the hearing, the chairman of the Judicial Committee gave an unusual decision. Amongst other things, he said (quoted verbatim):
“We are quite clear in our own minds that obviously the vest is not safe under the Rule. There is no issue around that. In the sense of the strictness of the Rule as it is. However there are an array of mitigating circumstances to the extent we don’t see on this occasion anything dishonest about what we are intending to achieve and clearly she has been riding in the vest for 2 years and clearly it has been checked in the North Island by our stipendiary stewards comments and she hasn’t been pulled up and that is concerning in its own sense under that particular rule in that the modified rule has been more stringent in the last nine months. Appreciate that negligence of the rule is not actually a defence to be fair. However we believe there is a little bit of an anomaly in that Rule in the way it is said and on this occasion we are going to use our extreme discretion. We are actually, as far as the charge goes we are going to withhold (sic) the charge but on this occasion and we are just going to give you a warning. Alright. So the best in this situation has to be either to hand it back in or weigh that in our decision, we will do that, or you obviously have to get a new vest. Alright. So we are using our discretion in the situation – understanding the health and safety, understanding we are supporting the stipendiary stewards in bringing the case to you, which we do, and we will have that in our decision but on this occasion just to accept while there are mitigating circumstances we will give you the benefit of the doubt on this occasion and not charge you, not fine you as such".

3.2 A written decision followed, which was published on the Judicial Control Authority’s website on 11 April 2012.

3.3 Rather curiously, the written decision records a number of findings which do not appear in the transcript of the evidence, the most significant of which appear in the section “Submissions for Decision”:
“Both Stipendiary Stewards Mr M Davidson and Mr J McLaughlin agreed that the shape of the ‘Zilco’ body protector that was worn by Ms Amelia Denby was no different than the ‘Viper’ body protector that was now commonly used.”

3.4 In the written decision it is stated:
“Ms Denby had admitted the breach thus the Committee finds the charge proved.”

This finding is at odds with the oral decision which states:
“We are going to withhold the charge – we are just going to give you a warning.”

4. THE APPELLANT’S CASE
4.1 The Appellant submits that the decision of the Judicial Committee not to impose any penalty was wrong in all the circumstances. Also, the Appellant contends that the reasons provided by the Judicial Committee in both its oral and written decision, defending its determination, were incorrect and not consistent with the facts.

4.2 The Appellant draws this Appeals Panel’s attention to the fact that the Judicial Committee afforded Ms Denby credit with respect to her experience. In the written decision, there was a finding that Ms Denby is an Apprentice Jockey who has a career record of limited race day opportunities. The Appellant advises that Ms Denby has been licensed to ride in races since 2009 and has ridden in over 350 races, achieving reasonable success. Thus, the Appellant contends that Ms Denby is a very experienced rider, and whilst she may not be termed a busy rider, she nevertheless has considerable experience in matters pertaining to conducting herself as a professional rider. The Appellant contends that the Judicial Committee drew its own assumption that Ms Denby was an inexperienced rider, and regarded this as a mitigating factor in determining not to impose any penalty. The Appellant submits that had this been a matter in issue to take into account so far as penalty is concerned, that the Stipendiary Stewards on the day would most certainly have contested any findings that “Ms Denby was inexperienced”.

4.3 The Appellant submits that the Judicial Committee was of the view that Ms Denby’s vest had been checked in recent times in the North Island and found compliant. The Appellant observes that the Judicial Committee stated in the hearing that “Clearly she has been riding in the vest for two years and clearly it has been checked in the North Island by our own Stipendiary Stewards.” And then, under the heading “Reasons for Penalty” in the written decision, it is said that:
“Ms Denby’s body protector has been checked in the North Island, New Zealand, and had not been picked up as non-confirming, therefore it may be reasonable for Ms Denby to assume that her body protector was conforming".

The Appellant submits that these findings were the result of the Judicial Committee drawing an inaccurate conclusion from what was adduced at the hearing. The Appellant observes that whilst Ms Denby has ridden in the North Island that this was at the beginning of her career and that she has not ridden in the North Island, since December 2009. Therefore, while her vest may have been checked when she was domiciled in the North Island, it has not been checked in the last two and a half years. The Appellant submits that whilst Ms Denby has not been subject to a vest check she should nevertheless have been well aware of the attention directed by the Racing Integrity Unit towards non-compliant vests and as such, she should also have been aware that any modification was not permissible.

4.4 The Appellant also submits that the Judicial Committee in its oral decision stated:
“We are quite clear in our own minds that obviously the vest is not safe under the Rule.”

In the written decision, the Judicial Committee appears to have departed from this position by saying:
“The Committee found it also interest to note from a Health & Safety aspect that the ‘Zilco’ body protector and the ‘Viper’ body protector are both similar in shape, but the ‘Viper’ body protector has no flaps. Clearly, therefore, there appears to be no physical difference between the body protectors.”

4.5 The Appellant submits that whilst the Judicial Committee recognises that the vest is non-compliant that the Committee has determined that the flap is somewhat of an unnecessary appendage that is of little or no consequence. Thus, the Appellant submits that it can only be assumed that the Judicial Committee found that the modifications to the vest were of nominal significance and in essence, cosmetic only. The Appellant submits that the Judicial Committee was not technically qualified to make such determinations, and should not have done so.

4.6 The Appellant finally submits that the Judicial Committee referred to there being an anomaly in the Rule and that that “anomaly” has obviously been a factor in the Committee making the determination not to impose any penalty on Ms Denby. The Appellant submits there is no such anomaly in the Rule and says that the Rule is clear and unequivocal and can be easily and objectively tested. The Rule is clear. A rider must not have in their possession a vest that has been modified.

4.7 The Appellant advises that in the past fifteen months, the Racing Integrity Unit has taken a positive initiative towards ensuring compliance with riding and racing gear. Over this period there have been 24 vests detected which have been modified, with the outcome being that in all cases, offenders have been fined a modest sum. The Appellant advises that the average fine over the period is $180.

4.8 The Appellant submits that in this case the appropriate penalty should have been a modest fine, as opposed to no penalty at all.

5. THE APPELLANT’S CASE
5.1 Mr Pitman, in his short submission, questioned how the Judicial Committee could be found to be manifestly incorrect after taking all factors into account including her demeanour and the presentation of facts at the race day hearing.

5.2 Mr Pitman further submitted that the penalty should have been no greater than the $50 fines imposed on Apprentice Jockeys K C Walters and Ms C van der Werf when they were charged for their first offence at the Waimate Racing Club’s meeting on 3 July 2011. Mr Pitman said that after hearing all of the evidence, that the Committee found

Ms Denby guilty but chose not to fine her for the many reasons that were presented.

6. DECISION
6.1 The breach of Rule 610(4) is a strict liability offence. Ms Denby rode or had in her possession, a body protector that had been modified.

6.2 Ms Denby admitted the charge. Thus, the charge should have been deemed to have been “proved” on race day. Perhaps the Chairman, in his oral decision, when saying “We are going to withhold the charge” meant to say that we are going to “uphold the charge”.

However, nothing turns on this point, as Ms Denby admitted the charge and therefore that is the end of the issue of “proved or not proved”.

6.3 The issue for this Appeal Panel to determine is whether or not the Judicial Committee erred by not imposing a penalty.

6.4 It is not known whether or not the Judicial Committee of the day had reference to the penalty data base which is available to all Judicial Committee Chairman and Panellists. Had the Panel had reference to that data base, they would have seen that commencing on 30 June 2011, up until recent times, that the Racing Integrity Unit has been active in enforcing the Rule, and that there have been a number of riders charged for riding in modified body protector with the fines ranging from $50 when Apprentice Jockeys KCW and CW were fined $50, up to a fine of $500 imposed on Licensed Jockey PH on 7 September 2010. That fine appears to be out on its own as the remainder of the fines range from $350 down to $50.

6.5 Therefore, we are bound to consider whether or not Ms Denby’s culpability should have been minimised to the extent that it was by the Judicial Committee. As a result of the Racing Integrity Unit’s more stringent approach over the last year or so, Ms Denby should have, perhaps, been more vigilant concerning the condition of her body protector. We note that Rule 610(2) also refers to the fact that where a rider is an Apprentice Jockey, such Apprentice Jockey’s employer is also responsible for the Apprentice Jockey for wearing a body protector and for ensuring that such body protector is in a satisfactory condition. There was no evidence of any discussion around this point at the hearing.

6.6 Be that as it may, having regard to the submission by the Appellant that Ms Denby is not an inexperienced rider, which submission we uphold, the fact of the matter is that Ms Denby should have been more vigilant in ensuring that the body protector that she uses is compliant.

6.7 Mr Pitman submits that a fine of $50 should be imposed which would be consistent with the fines imposed on Apprentice Jockeys Walters and van der Werf on 30 June 2011. For the reasons set out above, it is our finding that Ms Denby’s culpability should not have been minimised to the extent that it was. We therefore reject that submission. Mr Pitman’s submission is also at odds with his submission to the Judicial Committee when he said “If you get $100 you’re doing well.”

6.8 Having given consideration to all matters, it is this Appeal Committee’s finding that the Judicial Committee erred by not imposing a penalty on Ms Denby. In making that finding, we do not question Ms Denby’s integrity and her good record. However, the fact of the matter is that she should have been more vigilant. She has had plenty of opportunity over recent months of ensuring that her body protector complies with the Rules.

6.9 Therefore, it is this Appeal Committee’s decision that appeal is upheld and that a fine should be imposed.

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7. PENALTY
7.1 Ms Denby is fined $100.

8. COSTS
8.1 Submissions as to costs are to be filed with the Executive Officer of the Judicial Control Authority within seven days of the issue of this Appeal Decision.

KG HALES
Chairman
 

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RULING AS TO COSTS

1. The appellant has advised that as it has not incurred costs, that it does not seek an order as to costs.
2. The respondent has not made a submission as to costs but in the light of the successful appellant’s submission, submissions from the respondent are not required.
3. Accordingly, there is no order as to costs.

KG Hales
Chairman
 

28 May 2012

hearing_type: Non-race day

Rules: 610(4)

Informant: Cameron George - Representing the Racing Integrity Unit

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Respondent: Miss A Denby - Apprentice Jockey

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