hearingid: 5011c031626b8ab8b2ded58682c26a1f

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry NZTR - J L Rathbone - 29 June 2010 - Decision

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Decision:

NON-RACEDAY JUDICIAL COMMITTEE DECISION

Informant: M J Williamson, Stipendiary Steward

Defendant: J L Rathbone, Licensed Jockey

Information No: 7662

Meeting: Auckland Racing Club

Date: 7^th June 2010

Venue: Ellerslie Racecourse, Auckland

Race: 4

Rule No: 636 (1) (b)

Judicial Committee: R G McKenzie, Chairman – N Moffatt, Panellist

Plea: Not Admitted

Also present:

Mr D Myers, Lay Advocate for Miss Rathbone

Mr C J George, Chief Stipendiary Steward, representing New Zealand Thoroughbred Racing

Mr P Williams, Registrar

FACTS:

Miss Rathbone was the rider of HO DOWN In Race 4, K S Browne Hurdle (3350m), at the meeting of Auckland Racing Club held at Ellerslie Racecourse, Auckland, on Saturday, 7 June 2010. HO DOWN finished in 4^th placing in the race, the official margins being 1¼lengths, a short head and 1½ lengths. 

The Stipendiary Stewards carried out an investigation on the day into Miss Rathbone’s ride on HO DOWN and, subsequently, an information was filed by Stipendiary Steward, Mr M J Williamson, alleging a breach of Rule 636 (1) (b) in that Miss Rathbone had:

 “failed to take all reasonable and permissible measures throughout the race so as to give HO DOWN full opportunity to win the race or to obtain the best possible placing in the field in that when [she] was racing some 5 lengths off the body of the field between the 500 metres and the 100 metres [she] failed to ride [her] mount with sufficient vigour to give HO DOWN every opportunity to improve its position when it was reasonable and permissible for [her] to do so [her] failure to do this in the opinion of the Stipendiary Stewards has prevented HO DOWN from obtaining the best possible finishing position”.

Rule 636 provides as follows:

(1)     A person:

(b)     being the Rider of a horse in a Race, must take all reasonable and permissible measures throughout the Race to ensure that a horse is given full opportunity to win the Race or to obtain the best possible finishing place.

The hearing of the information took place at Awapuni Racecourse, Palmerston North, on Tuesday, 29 June 2010.

Miss Rathbone was present at the hearing of the information and indicated that she did not admit the breach.

Mr George produced to the Committee a letter signed by the Chief Executive of New Zealand Thoroughbred Racing pursuant to Rule 903 (2) d) (“Exhibit 1”).

SUBMISSIONS:

Submissions by Mr George

At the commencement of the hearing, Mr George produced a number of other exhibits – a transcript of a raceday interview with the trainer of HO DOWN, Mr P S Nelson, and Miss Rathbone by the Stipendiary Stewards (“Exhibit 2”), a DVD of the race (“Exhibit 3”), a printout of the official result of the race with a photo finish (“Exhibit 4”) and a veterinary report by N E Houston BVSc MACVSc (“Exhibit 5”).

In respect of the transcript of interview referred to above, Miss Rathbone confirmed that it was a true and correct record of her interview by the Stipendiary Stewards on raceday.

Mr George stated that, following the race, the Stewards were concerned with Miss Rathbone’s ride on HO DOWN, particularly over the latter stages. Following an investigation by the Stewards and after consideration of the statements of Mr Nelson and Miss Rathbone and the video replay of the race, this charge was brought by the Stewards.

Mr George alleged that Miss Rathbone’s ride on HO DOWN fell well short of fulfilling a rider’s obligation under the Rules of Racing. Rule 636 (1) (b) is very clear, he submitted. He stressed the requirement to take all reasonable and permissible measures throughout all stages of the race. This requires a rider to, at all times during a race, to consider any opportunity that may become available and to take such opportunity if it is reasonable or permissible.

In the present case, at all stages between the 500 metres and the 100 metres, it was reasonable for Miss Rathbone to apply vigour to HO DOWN because that is what is expected of her. Furthermore, Mr George submitted, it was permissible to apply an acceptable amount of vigour – at no stage was it not permissible. There was no risk of Miss Rathbone breaching the Rules at this stage of the race. The Stewards were satisfied that, had Miss Rathbone fulfilled her obligations, HO DOWN would have finished in a higher position.  

Evidence of Matthew John Williamson

Mr Williamson said that he is a Stipendiary Steward employed by Thoroughbred Racing New Zealand. He has been a full-time Steward for 3½ years and prior to that was an Assistant Steward for 1 year. He had been a jockey for 17 years and had ridden in 5 different countries. He had had approximately 9,000 career rides and rode over 700 winners. 

Mr Williamson said that he was the Chair of Stewards at the meeting of Auckland Racing Club on 7 June 2010. He was aware that HO DOWN was favourite for the race just prior to the start of Race 4. It had eventually started as 2^nd favourite. It is the practice for the better supported runners to come under closer scrutiny by the Stewards during a race. He said that it was noticed that, passing the 1,000 metres, the pace had quickened and HO DOWN had given a little ground. It was further noticed that, after the jump by the 1,000 metres, Miss Rathbone appeared to have relaxed her ride on HO DOWN, maintaining a position some 5 lengths from the body of the field. She showed no apparent vigour until inside the final 100 metres when she did show “a little urgency” by “pushing” the horse. The horse, thereafter, made up “a tremendous amount of ground”.

The Stewards ordered a veterinary examination of the horse immediately following the race. The report (which had earlier been produced as Exhibit 5) stated that “the horse had been hosed down and appeared to be recovering normally. The heart had a normal rate and rhythm for post race recovery. No abnormalities were noted”.

Mr Williamson said that the Stewards expected all competitors in a race to be tried, especially when the pressure goes on in the final 600 metres of a staying contest. It was not a case of HO DOWN not responding and losing ground. HO DOWN had not lost any ground from the body of the field between the 500 and the 100 metres, when no vigour had been applied to it.

Mr Williamson stated that, in his opinion, had HO DOWN been “kept up to its work” during that part of the race, there is no doubt that it would have finished in a better position.

Cross-examined by Mr Myers, Mr Williamson acknowledged that no two horses could be ridden in identical fashion, but each ride is approached differently. The jockey is in the best position to make the decision as to how a horse is travelling. Mr George conceded that safety is always a factor.

The Video Evidence

Mr George showed a video replay of Race 4 in its entirety. He pointed out that HO DOWN had lost touch with the body of the field from about the 900 metres. He asked the Committee to, firstly, note the distance between HO DOWN and the body of the field between the 500 and the 100 metres and, secondly, the vigour shown by the other riders in the race, as opposed to that shown by Miss Rathbone.

Even upon clearing the final hurdle, Miss Rathbone had not  “urged her horse along in the slightest fashion”. At the 100 metres she applied “some pressure” and Mr George pointed out the ground that the horse made up from that point.

Mr George alleged that, at no point, was there any reason to think that Miss Rathbone’s safety was in jeopardy. She was on a well-favoured runner that was not out of contention or losing ground, but she “asked nothing” of the horse. He likened the effort of HO DOWN between the 500 and the finish to a “barrier trial”.  The horse had won its next start by 5 lengths, Mr George said. When Miss Rathbone finally showed some vigour, though still not a lot, the horse made up “many lengths”. 

Mr George submitted that a member of the betting public who had invested on HO DOWN would have no confidence in the industry after watching Miss Rathbone’s ride on the horse.  

Further Submissions by Mr George

Mr George referred to the transcript earlier produced as Exhibit 2. He made specific reference to the following statement by Mr Nelson (page 2):

“Yeah, the vet came to him and he just shook his head and said I don’t need to be here any longer, he’s recovered amazingly well.

He then referred to a question to Miss Rathbone by Stipendiary Steward, Mr Oatham, as to whether she had any concerns with the horse’s action to which Miss Rathbone replied:

No, he felt all right.

Later in the interview:

Mr Oatham:

You can understand that last bit doesn’t look good

Miss Rathbone:     

Exactly what I though [sic], when I pulled up, I mean, exactly what I said to Paul like I mean, he was flat and I tried him … and I couldn’t believe he actually did that, but I don’t think he was so much actually going past rather than carrying on the same speed as he was and everything else slowing down, but like I was just going backwards around the corner … I completely understand what you are saying and like if I could ride the race again I wouldn’t have … I would have kept riding him the whole way, I don’t know if it would have made any difference cause I was going backwards when I was riding him , maybe that’s what makes him go backwards, I don’t know … never ridden the horse before.

Submissions on behalf of the Defendant  

Mr Myers submitted that Miss Rathbone rode the horse “with the best intentions in the world” of providing it with an opportunity to win the race. He added that her style was different from that of other jockeys and she was engaged by trainers because of her unique style.

In the subsequent next-start winning run of HO DOWN referred to by Mr George, the horse was ridden back in the field by a jockey who had ridden it many times. Against the style of its normal way of racing, Miss Rathbone had been asked to ride HO DOWN at Ellerslie forward and in a prominent position. Mr Myers also submitted that HO DOWN has paid a dividend only once in the nine occasions on which it has been ridden by a female jockey.

Mr Myers referred to the transcript and submitted that on 6-7 occasions Mr Williamson had used the words “guess” and “suppose”. On page 6, Mr Williamson states “I guess our point of view is…” and “I suppose irrespective of price anyway…”. He referred to a statement of Mr Oatham on page 7: “Well if we just sort of look…”. And again Mr Williamson on page 11: “I guess our biggest concern is why you didn’t hit the horse with the whip behind the saddle, I suppose that is our biggest concern the horse was never tried”.            

Mr Myers then referred to the matter of safety and pointed out that Miss Rathbone was not asked, when interviewed post-race by the Stewards, whether there were any other matters that could have provided a reason for her to adopt the tactics she did in the part of the race to which the charge relates.

Mr Myers attempted to introduce hearsay evidence of a telephone conversation between himself and a staff member at Occupational Health and Safety relating to safety issues affecting a jockey while riding in a race. The point that he was trying to make was that only the jockey can make a decision during the course of a race as to what is safe. Mr George objected to the introduction of such evidence and the Committee upheld such objection.

Mr Myers submitted that safety is an issue in jumping events. He referred to the recent Waikato Steeplechase and to recent Rule changes in Australia.

Mr Myers advised that he did not wish to use the video replays in presenting Miss Rathbone’s defence to the charge.

Evidence of Miss Rathbone

Miss Rathbone stated that she had the horse up handy in the race and then, going down the back, it began to drift and she had to urge it to keep up. At the fence near the 1000 metres, she rode the horse hands and heels, slapped it on the shoulder and used her spurs. The horse continued to lose ground. Upon jumping the fence near the 700 metres, the horse “made a bit of a noise”. It may have been holding its breath, she said. She tried to keep the horse going but she was not comfortable. She stated that she then decided to use “reasonable force” on the horse to urge it on. When asked by the Chairman, Miss Rathbone said that she was “very surprised” at the ground the horse had made up over the final 100 metres.

Cross-examined by Mr George, Miss Rathbone said that, before the 700 metres, she had been losing ground but continued to ride hands and heels. She continued to ride the horse from that point but he did not make any ground. She did not know what was wrong with the horse.  She was concerned for the well-being of herself and the horse. Mr George put it to Miss Rathbone that, notwithstanding her concerns, she made the horse jump the final two fences. To have done so was detrimental to the safety of the horse and herself, Mr George suggested. Miss Rathbone admitted to Mr George that she had not ridden the horse out between the 500 metres and the 100 metres because it was not travelling well and she did not know what was wrong with it. Mr George suggested to Miss Rathbone that, having made the decision to continue in the race, she had an obligation to ride the horse in the manner expected of her – that is to say, to ride the horse out. 

Closing Submissions of Mr George

Mr George urged the Committee to consider Miss Rathbone’s actions prior to and after the 100 metres and to look at the response of HO DOWN. Miss Rathbone had given evidence that she had elected to continue in the race because she wished to finish the race. With that decision, comes her obligations as a licensed rider. A jockey cannot be permitted to compete in a race and to choose when and where he or she wishes to try. It is an obligation under the Rules, to try at all stages throughout a race.

Mr George submitted that Miss Rathbone’s failure to fulfil her obligations had heightened the chances of HO DOWN not finishing in the highest possible position.

The standard of proof, Mr George submitted, was on a balance of probabilities and not beyond reasonable doubt. Nor is it necessary to prove any intent on Miss Rathbone’s part not to allow the horse to finish in a higher position.

Mr George referred to statements made in two previous cases under the Rule or a similar Rule. Firstly, the statement by the Appeal Panel in the Australian case of Sheehan (2004) as follows”

The racing and, in particular, the betting fraternity is entitled to expect that any race jockey, in particular senior and experienced race jockeys, will handle any mount to the best of his or her ability on every occasion. The racing and betting fraternities are entitled to expect that every horse will be ridden so as to ensure it will be provided every opportunity to perform to its best capacity. In the ordinary run of events it will be no excuse for any race rider to point to extraneous circumstances to explain poor rides.

Secondly, Mr George referred to the case of Harness Racing New Zealand v H (2005) where it was stated by the Judicial Committee:

The Rule requires demonstration of tactics which can, by objective standards, be said to be both reasonable and permissible. These have to be tactics which can be seen by not only the Stipendiary Stewards but also by those present at the race track , and in particular by the betting public, to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The informant does not have to prove any deliberate intent not to win the race . . . There may be circumstances in which a driver’s manner of driving may amount to merely a permissible error of tactics but, when that error of tactics amounts to bad judgement, that results in disadvantage to his horse, then such manner of driving falls within the terms of this Rule.

Mr George stated that evidence had been given that Miss Rathbone had elected to continue in the race and, therefore, her tactics are captured by the Rule. The punting public have an expectation, when placing a bet. The betting public now includes overseas markets and our racing is now exposed daily on an international level. Expectations of riders are high and so should they be – the future of the sport depends on wagering and it cannot afford a drop in confidence.

All the Stewards require of a rider is to ride his or her mount, at all stages throughout the race, without query. Of course, a rider may make an error or mistake in a race and it is for the Stewards to determine the culpability of that error, he said. A mere error of judgement may not breach the Rule but a calculated error or negligence may be a breach, especially for a senior rider.

Miss Rathbone is a very experienced rider. She has had 721 rides (163 flat rides and 558 jumping rides). She should have ridden HO DOWN during the relevant part of the race with, at least, some vigour. Had she done so, the Stewards have no doubt the horse would have finished in a higher position. It was a “bad ride” by Miss Rathbone on this occasion.

Closing Submissions of Mr Myers

Mr Myers submitted that Miss Rathbone had fulfilled her obligations under the Rule having showed “all reasonable efforts”. He submitted that she had shown vigour during the relevant part of the race but the Stewards were not aware of the doubts going through her mind regarding the horse being able to do the best it could. She chose, at the time, to continue on in the race, to keep “nudging away” at the horse to encourage it to improve its position “slowly but surely”, then negotiate the remaining obstacles and, finally, to fulfil her obligation to finish in the best possible place. Because HO DOWN had jumped the penultimate fence in “slovenly” fashion, Miss Rathbone had to ensure that the horse jumped the last fence safely before continuing to the winning post.

In the circumstances, Miss Rathbone had done all she could to allow the horse to finish in the best possible place, given all of the circumstances.

Finally, he submitted that there was no case to answer and the charge should be dismissed.

REASONS:

The Committee had listened to the evidence and submissions of both parties and had carefully viewed the video replays shown by Mr George.

Mr George’s submission was that Miss Rathbone had fallen short of fulfilling her obligation under the Rule to take all reasonable and permissible measures to give HO DOWN full opportunity to win or finish in the best possible position.

The Committee heard evidence from Mr Williamson, an experienced Stipendiary Steward and a former leading rider. Mr Williamson said that, after the jump near the 500 metres, Miss Rathbone had relaxed her ride when only 5 lengths from the body of the field and, thereafter, showed no apparent vigour until the 100 metres over which the horse made up “a tremendous amount of ground”.

Mr Williamson stated that it was his belief that, if Miss Rathbone had used some vigour  on the horse during the relevant part of the race – that is to say, between the 700 metres and the 100 metres – it would have finished in a better position.

Mr George showed a video replay of the race, focussing on the final 700 metres.

Mr Myers, on behalf of Miss Rathbone, submitted that Miss Rathbone had ridden HO DOWN with the best intention in the world to give the horse every opportunity to win the race. He advanced a number of factors as possible reasons for the horses’s performance in the relevant part of the race. He referred to her unique style of riding races, the fact that she was asked by the trainer to ride the horse in a unfamiliar, prominent position and that it was the first time she had ridden HO DOWN in a race. Mr Myers also suggested that HO DOWN tended not to run well for female jockeys and that it was racing right-handed for the first time.

Mr Myers stressed the safety aspect, implying that Miss Rathbone was concerned for her safety at the time as there may have been something amiss with the horse.

The Committee noted Mr George’s submission as to the standard of proof applicable in this case. He submitted that the standard was that of a balance of probabilities and not beyond reasonable doubt. We think that the appropriate standard is somewhere between the two, taking into account that the charge is a serious one. Having heard the evidence and viewed the video replays, the Committee is satisfied, on more than a balance of probabilities, that the charge against Miss Rathbone has been proved.

The betting public, who are the lifeblood of the racing industry, are entitled to expect more from a rider than Miss Rathbone gave on this occasion. We have no difficulty finding that Miss Rathbone’s ride on HO DOWN fell well short of an acceptable standard – her lack of vigour between the 500 metres and the 100 metres was quite clear. Furthermore, we do not accept her explanation for her lack of vigour.

The Committee accepts that Miss Rathbone is a very experienced and successful jumps rider. However, she let herself down quite badly on this occasion in showing very poor judgement. Essentially, her explanation was that it felt to her like something was amiss with the horse. The subsequent veterinary inspection established that there was nothing wrong. Notwithstanding her concern that something was amiss, Miss Rathbone elected to continue in the race and, having made that election, it was incumbent upon her to, at the very least, try the horse either with a hands and heels ride or with the whip. She failed to do either until inside the final 100 metres of the race and, even then, her vigour was minimal. The amount of ground that HO DOWN made up over the final 100 metres, which was obvious to see, was quite telling against Miss Rathbone.

Miss Rathbone’s lack of vigour was probably best highlighted when viewing her ride on HO DOWN alongside the rides of the other riders in the race over the final 500 metres of the race. Those riders were all showing the vigour expected of them over the final stages of a hurdles event when the runners were commencing to tire.

The Committee finds that Miss Rathbone did fail to take all reasonable and permissible measures throughout the race (and in particular between the 500 metres and 100 metres as alleged in the information) to give HO DOWN full opportunity to win the race or to obtain the best possible placing in the field.

DECISION:

The charge was found proved.

SUBMISSIONS ON PENALTY:

Mr George produced a copy of the Riders Performance Summary and Rider Offence Listing for Miss Rathbone (Exhibit 6). The latter showed that, since August 2005, Miss Rathbone had received only one 3-days’ suspension for careless riding and fines of $150 and $300 for two other breaches. As mentioned earlier, she has had a total of 721 career rides.

Mr George submitted that a breach of Rule 636 (1) (b) is regarded as a serious one. Public confidence in the industry and its integrity must be maintained at the highest possible level at all times. It was for the Committee to impose penalties that will deter others from offending.

Mr George referred to the decision in the case referred to earlier of HRNZ v H (2005) where the Judicial Committee stated:

A breach of this particular Rule is one that invariably jeopardises the integrity of harness racing for reasons which are self-evident. Harness races are based on the requirement that all contestants in a race are given every possible opportunity by their drivers and that, when the race has been run, all contestants have been fully tested and have been asked to do the best that they can. This has to be the case in order that the betting public, so important to the industry, can have confidence that they have had a run for their money when they have invested their money on contestants in a harness race. Any suggestion that a horse has not been given every possible opportunity and has not been asked to do the best that it can, for whatever reason, will result in loss of public confidence in harness racing. As stated, it is the primary function of Judicial Committees, in dealing with penalty, to “maintain integrity and public confidence in harness racing”.

Mr George referred to the status of the race day and the stake for the race of $23,500. The Stewards strongly believe that every rider must ride his or her horse “without query”. That did not occur on this occasion, he said, and the ramifications of that may have been that some punters were denied the best possible run for their investment and, also, their confidence was “dampened”.

He submitted that the appropriate penalty for this particular breach was a period of suspension of between 3 and 5 weeks.

Miss Rathbone was a “very clean rider”, Mr George said, who never gives much trouble, if any, to the Stewards and that was apparent from her record which he had produced. She should be given credit for her record, he said.

Mr Myers asked the Committee to consider that the raceday Stewards could have brought the charge on the day and, thus, have avoided the delay in the matter’s being heard. He submitted that the “Melbourne Cup” part of a jumps rider’s season was coming up. Had the charge been heard on the day, with the same outcome, the penalty would have been behind her, with the big races still to come. The time for a jumps jockey to earn “reasonable money” was limited. He asked the Committee to consider a fine or a fine and suspension.

Mr Myers submitted that Miss Rathbone is a “national rider” who rides th

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