Appeal RIU v T Moseley – Written Decision of Appeals Tribunal dated 31 October 2016 – Chair, Prof G Hall
ID: JCA18032
Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Appellant
AND MR TERRY MOSELEY
Licensed Class A Jockey
Respondent
INFORMATION NO. A3249
TRIBUNAL: Prof G Hall (Chairman)
Mr G Thompson (Member)
APPEARING: Mr J McLaughlin for the RIU
The respondent in person
DATE OF ORAL DECISION: 22 October 2016
DATE OF WRITTEN DECISION: 31 October 2016
DECISION OF APPEALS TRIBUNAL
[1] The appellant, the Racing Integrity Unit (RIU), has appealed against the penalty decision of the raceday Judicial Committee on 15 October 2016 at the Ashburton RC race meeting at Ashburton where in Race 7 Mr T Moseley was found to be in breach of r 638(1)(d) of the New Zealand Thoroughbred Racing Rules of Racing and was suspended for four South Island days.
[2] Rule 638(1)(d) states: “A rider shall not ride a horse in a manner which the Judicial Committee considers to be careless.”
Appellant’s submissions
[3] Mr McLaughlin made brief oral submissions. He stated at the outset that the informant was seeking a six-day suspension, which was the penalty that the RIU had sought on raceday. A three-week South Island suspension was the “absolute minimum” that the RIU believed was appropriate.
[4] The RIU submitted that the breach was mid to high-end careless, with the consequences of the breach being high, in that a well-supported horse fell. The collarbone of Ms Morris, the rider of that horse, was broken, and there were injuries to her lumber vertebrae. It was anticipated she would not be able to return to riding for some six to 12 weeks.
[5] Ms Bennett was also dislodged from her horse when it ran into the fallen horse. She was not injured. Both horses appeared to have recovered from their falls.
[6] Mr McLaughlin produced a list of penalties imposed where horses had fallen as a consequence of careless riding. The penalties ranged from 18 days for Mr Grylls to seven days for Ms Thornton. Our research identified two South Island cases, Callaway and Black where there were lesser penalties. However, the culpability with respect to each of these breaches was described in the respective reports as being towards the lower end. Mr McLaughlin emphasised the RIU would not describe the respondent’s breach in these terms. He thus believed the penalties on the list he had provided were a more helpful guide to this Tribunal.
[7] Mr McLaughlin accepted the fact that the respondent was a South Island rider should be factored into the sentencing equation. This was the reason the RIU were only seeking six days.
[8] The Tribunal questioned Mr McLaughlin as to what he believed was an appropriate starting point. He responded six to eight days, but whatever point was chosen, there had to be a substantial uplift from the three-day starting point in the JCA Penalty Guide.
[9] When asked to comment on the Judicial Committee’s assessment of the respondent’s record as being a neutral factor, he replied that he did not disagree with this aspect of their decision.
[10] Mr McLaughlin demonstrated the incident on a number of video angles. These demonstrated that near the 350 metres, MADAM COURTNEY, ridden by Mr Moseley, was in an approximate one to two off position with RUBY ROW, ridden by Ms J Morris, racing on his outer and approximately 3/4 of a length behind him. Mr Moseley, when looking to improve, shifted outwards to obtain clear running. In so doing, he shifted into the line of RUBY ROW, which clipped a heel and fell.
Respondent’s submissions
[11] Mr Moseley first expressed his dismay at the fact that his actions had caused another horse to fall. He emphasised the high priority he placed on horse and rider safety. He described a number of safety initiatives in which he had been involved over the years. He said he had been very proactive in this regard and had put time and effort back into the industry. He said he was well aware of his responsibilities as a senior jockey and he felt “sick” about the fall.
[12] Mr Moseley submitted that the four-day penalty was “right”. He first drew a careful parallel with the penalty imposed recently on Mr Hannam, whom he described as being a similarly experienced jockey who rode principally in the Central Districts. He stated the 12-day penalty in Mr Hannam’s case had been able to be served in a little less than three weeks, whilst a six-day penalty in this case would extend over three weeks and would include a Premier day at Riccarton.
[13] The respondent identified North Island venues at which he had ridden. The Tribunal informed Mr Moseley that the recent decision of an Appeals Tribunal in Riddell had made it clear that days of a suspension were to be genuine days and we also noted that the JCA Penalty Guide itself emphasised this under the heading “Calculation of days”. We indicated we proposed to treat the respondent as a South Island jockey, as had the Judicial Committee on the day. Mr Moseley did not seek to press this matter further.
[14] Mr Moseley presented a list of dates detailing the opportunities for South Island riders in the past three or four months. This demonstrated that on average there were only four meetings a month. He thus emphasised his earning capacity in this time was very limited, despite the fact he agreed with the Tribunal that he had had a stellar season in the South Island riding ranks. He noted there were only seven Premier days in the South Island in the past season.
[15] Mr Moseley reiterated his remorse for his actions. He said he had rung Ms Morris and offered his sincere apologies. He said it was a misjudgement on his part. He had come off the fence as the horses rounded the bend and was not aware when he shifted wider on the track that Ms Morris was there. He said he heard her call but it was too late. He said he looked around just before the contact. He acknowledged the responsibility for the fall lay with him. No one else was at fault. He said although Ms Bennett fell, her horse was not in contention at the time.
[16] With reference to the extent to which he had moved, Mr Moseley accepted this was possibly two horse widths, but he did believe that this was significant as it only took a small miscalculation to cause a fall. He emphasised he would not have moved at all had he realised Ms Morris was there.
[17] Mr Moseley said he did not have a mount in the 2000 Guineas on the first day of the Premier Meeting but he had a ride on KAHARAU in a $75000 race, which was a lead up race to the New Zealand Cup.
[18] Mr Moseley concluded by stating he believed he had been punished enough and reiterated that he was truly remorseful.
Summing up
[19] Mr McLaughlin summed up by re-affirming the RIU believed the breach was mid to high range and that a three-week suspension, which incorporated a Premier day, was appropriate. He acknowledged that the respondent had always been very professional in his dealings with the RIU. He also accepted that Mr Moseley was very upset at the fact that he had put Ms Morris “on the deck”.
[20] Mr Moseley reiterated that it was hard for South Island jockeys to make a living. There were few opportunities for them and he emphasised that even the supporting races on a Premier day had significantly higher stakes than those that were on offer on other race days. He believed the four-day suspension was appropriate.
Decision
[21] We are satisfied on viewing the videos that the breach is correctly described as at the higher end of mid range. Shortly after straightening for the run home, the respondent has shifted out two horse widths before clipping heels with Ms Morris. The videos demonstrate that Mr Moseley was not the required distance clear of Ms Morris when shifting into the running line of her mount, RUBY ROW.
[22] Mr Moseley’s outwards movement is both sharp and extensive, in that he moved out two horse widths. We accept he was not aware Ms Morris was there but it is evident from the videos that she had not made a sudden forward movement to his outside. She had been up outside Mr Moseley for some distance. The video is evidence that he only looked after contact had been made and probably because Ms Morris had called out to him.
[23] The issue of the appropriate starting point for this breach clearly was of concern to the Judicial Committee on the day. They adopted the South Island three-day starting point and then added two days for the gravity and consequences of the breach. After a discount for the admission of the breach, the final penalty was four days’ suspension.
[24] During the course of the hearing the need for a differentiation between the two Islands when setting a starting point, as provided in the Penalty Guide, was questioned. We note that the starting point is intended to reflect the gravity of the breach and the culpability of the offending rider. We fail to understand how that differs depending on the location of the breach (ie whether it be North or South Island). We understand the need to take into account the limited riding opportunities for South Island riders but believe this is better done at the point of the penalty calculation where personal mitigating factors are being considered. As this issue is not fundamental to our decision-making in this case, we merely note this matter is one that may warrant further consideration. (We also note that the Guide, after identifying aggravating factors — including the fact there was a fall — states: “Where more than one of these features is present, then the starting point should be adjusted upwards.” We are of the view it was intended that this read: “Where one or more of these features is present….”)
[25] The JCA Penalty Guide states in the first paragraph under the Thoroughbred Racing heading:
Although starting points are listed for those breaches of the Rules that are likely to arise on raceday, a judicial committee retains the ability to consider matters specific to the breach before it. For example, where the breach is in a stakes race, emphasis must be given to this fact. It might not be uncommon for a committee to determine that the interests of denunciation, deterrence and the integrity of racing in these particular circumstances (the status of the race) warrant a substantial penalty. But this factor must not deflect the committee from its principal task of assessing the gravity of the breach and the culpability of the defendant.
[26] We give both credence and weight to the matters identified in this paragraph from the Penalty Guide. We believe the three-day South Island starting point has little relevance in the context of this particular breach of the Rules. The incident itself is a serious example of a breach of the careless riding rule. As we have found, the respondent shifted out sharply over a significant distance at a crucial point in the race and was simply not aware that Ms Morris was racing outside him. He should have been so aware. She was racing outside his mount, although about 3/4 of length behind him, for a distance that we would estimate to be some 40 to 50 metres. He looked, but only after contact was made with Ms Morris’s mount.
[27] Having regard to the gravity of the breach and Mr Moseley’s culpability, and placing weight on the fact that the respondent’s actions resulted in a fall, we believe a starting point of eight days is appropriate. Like Mr McLaughlin, we accept that the lower culpability in the cases of Black and Callaway has the effect that these decisions are of little assistance in this case, other than being examples of where short periods of suspension (together with fines) have been imposed upon South Island riders where there have been falls.
[28] There are no aggravating personal circumstances. We differ from the appellant and the Judicial Committee in that we believe two breaches of the careless riding rule in a one-year period is not a neutral factor when consideration is had to the fact that Mr Moseley is a very busy South Island rider. We would regard his record as good (the breaches were eight and 11 months ago, respectively) and give a one-day discount for this factor. When a further day is given for the respondent’s admission of the breach and his obvious remorse, the final penalty is a six-day South Island suspension.
[29] The RIU’s appeal is successful. The suspension imposed by the Judicial Committee on 15 October last is extended to include Wingatui on 1 November and Riccarton on 5 November. This is six South Island days.
[30] The matter was heard on raceday. The RIU made no submissions as to costs.
[31] We see no reason in the particular circumstances of this appeal to require that the unsuccessful respondent make a contribution to the costs of the JCA.
Dated at Dunedin this 31st day of October 2016.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 31/10/2016
Publish Date: 31/10/2016
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 31/10/2016
hearing_title: Appeal RIU v T Moseley - Written Decision of Appeals Tribunal dated 31 October 2016 - Chair, Prof G Hall
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Appellant
AND MR TERRY MOSELEY
Licensed Class A Jockey
Respondent
INFORMATION NO. A3249
TRIBUNAL: Prof G Hall (Chairman)
Mr G Thompson (Member)
APPEARING: Mr J McLaughlin for the RIU
The respondent in person
DATE OF ORAL DECISION: 22 October 2016
DATE OF WRITTEN DECISION: 31 October 2016
DECISION OF APPEALS TRIBUNAL
[1] The appellant, the Racing Integrity Unit (RIU), has appealed against the penalty decision of the raceday Judicial Committee on 15 October 2016 at the Ashburton RC race meeting at Ashburton where in Race 7 Mr T Moseley was found to be in breach of r 638(1)(d) of the New Zealand Thoroughbred Racing Rules of Racing and was suspended for four South Island days.
[2] Rule 638(1)(d) states: “A rider shall not ride a horse in a manner which the Judicial Committee considers to be careless.”
Appellant’s submissions
[3] Mr McLaughlin made brief oral submissions. He stated at the outset that the informant was seeking a six-day suspension, which was the penalty that the RIU had sought on raceday. A three-week South Island suspension was the “absolute minimum” that the RIU believed was appropriate.
[4] The RIU submitted that the breach was mid to high-end careless, with the consequences of the breach being high, in that a well-supported horse fell. The collarbone of Ms Morris, the rider of that horse, was broken, and there were injuries to her lumber vertebrae. It was anticipated she would not be able to return to riding for some six to 12 weeks.
[5] Ms Bennett was also dislodged from her horse when it ran into the fallen horse. She was not injured. Both horses appeared to have recovered from their falls.
[6] Mr McLaughlin produced a list of penalties imposed where horses had fallen as a consequence of careless riding. The penalties ranged from 18 days for Mr Grylls to seven days for Ms Thornton. Our research identified two South Island cases, Callaway and Black where there were lesser penalties. However, the culpability with respect to each of these breaches was described in the respective reports as being towards the lower end. Mr McLaughlin emphasised the RIU would not describe the respondent’s breach in these terms. He thus believed the penalties on the list he had provided were a more helpful guide to this Tribunal.
[7] Mr McLaughlin accepted the fact that the respondent was a South Island rider should be factored into the sentencing equation. This was the reason the RIU were only seeking six days.
[8] The Tribunal questioned Mr McLaughlin as to what he believed was an appropriate starting point. He responded six to eight days, but whatever point was chosen, there had to be a substantial uplift from the three-day starting point in the JCA Penalty Guide.
[9] When asked to comment on the Judicial Committee’s assessment of the respondent’s record as being a neutral factor, he replied that he did not disagree with this aspect of their decision.
[10] Mr McLaughlin demonstrated the incident on a number of video angles. These demonstrated that near the 350 metres, MADAM COURTNEY, ridden by Mr Moseley, was in an approximate one to two off position with RUBY ROW, ridden by Ms J Morris, racing on his outer and approximately 3/4 of a length behind him. Mr Moseley, when looking to improve, shifted outwards to obtain clear running. In so doing, he shifted into the line of RUBY ROW, which clipped a heel and fell.
Respondent’s submissions
[11] Mr Moseley first expressed his dismay at the fact that his actions had caused another horse to fall. He emphasised the high priority he placed on horse and rider safety. He described a number of safety initiatives in which he had been involved over the years. He said he had been very proactive in this regard and had put time and effort back into the industry. He said he was well aware of his responsibilities as a senior jockey and he felt “sick” about the fall.
[12] Mr Moseley submitted that the four-day penalty was “right”. He first drew a careful parallel with the penalty imposed recently on Mr Hannam, whom he described as being a similarly experienced jockey who rode principally in the Central Districts. He stated the 12-day penalty in Mr Hannam’s case had been able to be served in a little less than three weeks, whilst a six-day penalty in this case would extend over three weeks and would include a Premier day at Riccarton.
[13] The respondent identified North Island venues at which he had ridden. The Tribunal informed Mr Moseley that the recent decision of an Appeals Tribunal in Riddell had made it clear that days of a suspension were to be genuine days and we also noted that the JCA Penalty Guide itself emphasised this under the heading “Calculation of days”. We indicated we proposed to treat the respondent as a South Island jockey, as had the Judicial Committee on the day. Mr Moseley did not seek to press this matter further.
[14] Mr Moseley presented a list of dates detailing the opportunities for South Island riders in the past three or four months. This demonstrated that on average there were only four meetings a month. He thus emphasised his earning capacity in this time was very limited, despite the fact he agreed with the Tribunal that he had had a stellar season in the South Island riding ranks. He noted there were only seven Premier days in the South Island in the past season.
[15] Mr Moseley reiterated his remorse for his actions. He said he had rung Ms Morris and offered his sincere apologies. He said it was a misjudgement on his part. He had come off the fence as the horses rounded the bend and was not aware when he shifted wider on the track that Ms Morris was there. He said he heard her call but it was too late. He said he looked around just before the contact. He acknowledged the responsibility for the fall lay with him. No one else was at fault. He said although Ms Bennett fell, her horse was not in contention at the time.
[16] With reference to the extent to which he had moved, Mr Moseley accepted this was possibly two horse widths, but he did believe that this was significant as it only took a small miscalculation to cause a fall. He emphasised he would not have moved at all had he realised Ms Morris was there.
[17] Mr Moseley said he did not have a mount in the 2000 Guineas on the first day of the Premier Meeting but he had a ride on KAHARAU in a $75000 race, which was a lead up race to the New Zealand Cup.
[18] Mr Moseley concluded by stating he believed he had been punished enough and reiterated that he was truly remorseful.
Summing up
[19] Mr McLaughlin summed up by re-affirming the RIU believed the breach was mid to high range and that a three-week suspension, which incorporated a Premier day, was appropriate. He acknowledged that the respondent had always been very professional in his dealings with the RIU. He also accepted that Mr Moseley was very upset at the fact that he had put Ms Morris “on the deck”.
[20] Mr Moseley reiterated that it was hard for South Island jockeys to make a living. There were few opportunities for them and he emphasised that even the supporting races on a Premier day had significantly higher stakes than those that were on offer on other race days. He believed the four-day suspension was appropriate.
Decision
[21] We are satisfied on viewing the videos that the breach is correctly described as at the higher end of mid range. Shortly after straightening for the run home, the respondent has shifted out two horse widths before clipping heels with Ms Morris. The videos demonstrate that Mr Moseley was not the required distance clear of Ms Morris when shifting into the running line of her mount, RUBY ROW.
[22] Mr Moseley’s outwards movement is both sharp and extensive, in that he moved out two horse widths. We accept he was not aware Ms Morris was there but it is evident from the videos that she had not made a sudden forward movement to his outside. She had been up outside Mr Moseley for some distance. The video is evidence that he only looked after contact had been made and probably because Ms Morris had called out to him.
[23] The issue of the appropriate starting point for this breach clearly was of concern to the Judicial Committee on the day. They adopted the South Island three-day starting point and then added two days for the gravity and consequences of the breach. After a discount for the admission of the breach, the final penalty was four days’ suspension.
[24] During the course of the hearing the need for a differentiation between the two Islands when setting a starting point, as provided in the Penalty Guide, was questioned. We note that the starting point is intended to reflect the gravity of the breach and the culpability of the offending rider. We fail to understand how that differs depending on the location of the breach (ie whether it be North or South Island). We understand the need to take into account the limited riding opportunities for South Island riders but believe this is better done at the point of the penalty calculation where personal mitigating factors are being considered. As this issue is not fundamental to our decision-making in this case, we merely note this matter is one that may warrant further consideration. (We also note that the Guide, after identifying aggravating factors — including the fact there was a fall — states: “Where more than one of these features is present, then the starting point should be adjusted upwards.” We are of the view it was intended that this read: “Where one or more of these features is present….”)
[25] The JCA Penalty Guide states in the first paragraph under the Thoroughbred Racing heading:
Although starting points are listed for those breaches of the Rules that are likely to arise on raceday, a judicial committee retains the ability to consider matters specific to the breach before it. For example, where the breach is in a stakes race, emphasis must be given to this fact. It might not be uncommon for a committee to determine that the interests of denunciation, deterrence and the integrity of racing in these particular circumstances (the status of the race) warrant a substantial penalty. But this factor must not deflect the committee from its principal task of assessing the gravity of the breach and the culpability of the defendant.
[26] We give both credence and weight to the matters identified in this paragraph from the Penalty Guide. We believe the three-day South Island starting point has little relevance in the context of this particular breach of the Rules. The incident itself is a serious example of a breach of the careless riding rule. As we have found, the respondent shifted out sharply over a significant distance at a crucial point in the race and was simply not aware that Ms Morris was racing outside him. He should have been so aware. She was racing outside his mount, although about 3/4 of length behind him, for a distance that we would estimate to be some 40 to 50 metres. He looked, but only after contact was made with Ms Morris’s mount.
[27] Having regard to the gravity of the breach and Mr Moseley’s culpability, and placing weight on the fact that the respondent’s actions resulted in a fall, we believe a starting point of eight days is appropriate. Like Mr McLaughlin, we accept that the lower culpability in the cases of Black and Callaway has the effect that these decisions are of little assistance in this case, other than being examples of where short periods of suspension (together with fines) have been imposed upon South Island riders where there have been falls.
[28] There are no aggravating personal circumstances. We differ from the appellant and the Judicial Committee in that we believe two breaches of the careless riding rule in a one-year period is not a neutral factor when consideration is had to the fact that Mr Moseley is a very busy South Island rider. We would regard his record as good (the breaches were eight and 11 months ago, respectively) and give a one-day discount for this factor. When a further day is given for the respondent’s admission of the breach and his obvious remorse, the final penalty is a six-day South Island suspension.
[29] The RIU’s appeal is successful. The suspension imposed by the Judicial Committee on 15 October last is extended to include Wingatui on 1 November and Riccarton on 5 November. This is six South Island days.
[30] The matter was heard on raceday. The RIU made no submissions as to costs.
[31] We see no reason in the particular circumstances of this appeal to require that the unsuccessful respondent make a contribution to the costs of the JCA.
Dated at Dunedin this 31st day of October 2016.
Geoff Hall, Chairman
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