Non Raceday Inquiry RIU v DJ Walker – Decision dated 25 September 2014

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decisiondate: 19/09/2014

hearing_title: Non Raceday Inquiry RIU v DJ Walker - Decision dated 25 September 2014

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred

Rules of Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)

INFORMANT

AND DAVID JAMES WALKER, Licenced Jockey

DEFENDANT

Judicial Committee: Murray McKechnie, Chairman - Noel McCutcheon, Committee Member

Present: Mr Ross Neal, Co-Chief Stipendiary Steward

Mr David Walker, Licenced Jockey

DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

HEARING 18 SEPTEMBER 2014 AT TRENTHAM RACECOURSE

WRITTEN DECISION DATED THIS 25 DAY OF SEPTEMBER 2014

1. BACKGROUND

1.1 A hearing took place before this Non-Raceday Judicial Committee on 18 September 2014. At the conclusion of that hearing late in the afternoon 18 September the Committee issued a decision in respect of the charges preferred against Mr David Walker.

1.2 The Committee indicated on the 18 September that a more detailed written decision would issue. It was explained that the Committee considered that the parties should know the position at the conclusion of the hearing on 18 September and that the written decision that would follow would in substance repeat what had been said and provide further explanation and detail of the Committee’s reasoning. That written decision now follows.

2. BURDEN OF PROOF

2.1 The first matter which needs to be addressed is the burden of proof which must be satisfied in respect of charges under the Rules of Racing. The burden of proof is the civil standard of proof. That is proof on the balance of probabilities. It is not, as Mr Walker vigorously submitted the criminal standard of proof; proof beyond reasonable doubt.

2.2 The position has been made clear in a number of decisions. The leading judgment is that of the New Zealand Court of Appeal in Z v The Complaints Assessment Committee [2008] 1 NZLR 65. It is also clear from decided judgments of the Courts that while the civil standard of proof is appropriate it is to be borne in mind that the more serious the allegation that is made the more compelling the evidence is required to be in order that proof of misconduct is made out. Here the charges which Mr Walker faces are very serious and the Committee is conscious that the evidence must be compelling if the charges are to be proved.

3. CHARGES

3.1 The first charge laid against Mr Walker related to his ride on 16 August 2014 at the Otaki Maori Racing Club meeting held at Awapuni in Race 3. He is charged that he laid a bet against the horse that he was riding, that is that he laid a head -to -head bet on a horse called ST RANSOM when he was riding a horse called WATCH YOUR MAN and that he deliberately rode WATCH YOUR MAN to finish behind ST RANSOM. Alternatively he is charged with a betting breach under Rule 707(1).

3.2 The second two (2) charges relate to events which occurred earlier on 31 July 2014 at the Waverley Racing Club meeting. As those charges were laid later we shall deal with the August charges first.

4. THE 16th AUGUST AT AWAPUNI

4.1 The principal evidence for the RIU was from Mr Mathew Williamson who was the senior stipendiary steward on duty on 16 August 2014 at Awapuni. The stewards on the day were very concerned by the way in which the horse WATCH YOUR MAN had been ridden and an extensive interview was conducted with Mr Walker. That was played in evidence and a transcript had been made available to all the parties. Mr Williamson spent some considerable time carefully analysing the films of the race to demonstrate what he submitted were the deliberate actions of Mr Walker to ensure that WATCH YOUR MAN finished behind ST RANSOM. In particular Mr Williamson emphasised the following. First the way the horse was hard held in the early part of the race. Secondly the failure to place the horse in an advantageous position when this could have been done during the course of the race. Mr Williamson submitted that the horse should have been taken away from the rail. Further that when the horse was briefly encouraged in the middle stages it responded to that and was then held back by Mr Walker. Thirdly and importantly Mr Williamson pointed to the significant lack of vigour by Mr Walker in the straight and submitted that WATCH YOUR MAN was being restrained.

4.2 Mr Walker, in explanation for what had occurred, made reference to the difficulty of riding this horse. He pointed out that the horse pulled and then he made reference to his having suffered cramp in his right hand. At some stage the explanation was confined to the hand, at other stages in the course of the investigation and in his evidence Mr Walker spoke of the cramp being in his hand and his arm. More will be said of that later.

4.3 Mr Williamson played films of other races which had taken place on 16 August 2014 in which Mr Walker had ridden. The first of these was Race 1 in which Mr Walker rode KIWI ROSE. That horse Mr Williamson contended had been ridden competitively and with appropriate vigour in the concluding stages. As explained earlier, the race which gave rise to the charge was Race 3. In Race 4 Mr Walker rode the horse DANNY BOY. A film of that race was played; the horse was last in the early stages of the race and was then moved from the rail to be put in a challenging position and finished powerfully under a vigorous ride from Mr Walker to be the winner. Mr Williamson emphasised the difference in the approach that Mr Walker took in Race 3 on WATCH YOUR MAN and the approach that he took in Race 4 on DANNY BOY.

4.4 Mr Walker, in questioning Mr Williamson, asked about dehydration and he referred Mr Williamson to a report issued by the stipendiary stewards following the racing at Taupo on 20th August this year. This report was put before the Committee. That report suggests on the face of it that Mr Walker’s explanation given on race day had been accepted. That document is in no way conclusive and little weight can attach to it.

4.5 The next witness for the RIU was Mr Neil Grimstone. He is the manager of integrity assurance in the Racing Integrity Unit and is a former Detective Sergeant of Police. He gave evidence of inquiries which began on 21 August 2014 and which led to a meeting with Mr Walker in Marton on 27 August this year. At that meeting Mr Grimstone recorded in his own handwriting the questions he asked of Mr Walker and the answers that were made. That statement which was put in evidence as Exhibit 2 goes to eight (8) pages. It is signed by Mr Walker who in his own handwriting wrote the words “this statement is true and correct”.

4.6 Mr Walker, for his part, repeatedly emphasised that he felt bullied and intimidated by Mr Grimstone and Mr Grimstone’s colleague who accompanied him on the occasion of the interview. Mr Walker said that he did not read the statement before he signed it. He said he could not read it but in answer to questions from the Tribunal he acknowledged that he had only made a cursory attempt to read it. The statement was before the Committee and Mr Grimstone’s handwriting is not difficult to read. In any event that statement is largely concerned with Mr Walker’s betting activities in respect of which he has acknowledged his culpability and the statement has little bearing on the riding charges which Mr Walker faces. In the statement Mr Walker acknowledged the betting on both the 31st July and the 16th August. Mr Walker claimed that the interview should have been recorded. He went so far as to say that it had been but when asked by the Committee if he had seen any recording device said that he had not seen any such item. There is nothing in the Rules of Racing which require interviews undertaken by investigators to be recorded. In as much as Mr Walker suggested that the interview had been covertly recorded and not made available to him we reject that allegation. Mr Walker also claimed that there had been some breach of the New Zealand Bill of Rights. He was unable to provide any particulars of that claimed breach. There was no credible evidence put before the Committee to suggest any misconduct or impropriety on the part of Mr Grimstone.

4.7 Returning then to the events at Awapuni on 16 August 2014. The film coverage of the race was extensive. Mr Walker held the horse back in the early stages. In the straight he made no attempt to improve the horse’s position. There were two cursory taps on the horse with the whip. That was in the early part of the straight. From there to the winning post the horse appeared to be held and was given no rein. Mr Walker did not make any movement of his body to encourage the horse’s performance. He appeared to be holding the horse in its place and ensuring that it did not improve. ST RANSOM the horse which he had bet upon to beat his own mount was only some two (2) lengths ahead of WATCH YOUR MAN in the last 250m of the race. We accept Mr Williamson’s analysis. It is not to be overlooked that Mr Walker had a significant motive to follow a course of conduct which led to his mount finishing behind ST RANSOM. It is the Committee’s view that Mr Walker intentionally restrained the horse in the early stages of the race, that he failed to give the horse adequate opportunity to take up a more favourable position in the middle stages of the race when he ought to have done so and that this decision was deliberate. As to the events in the straight Mr Walker told the Committee that the cramp he claimed to suffer was in the last 200 or 250 metres of the race. Refer to paragraph 4.10. It is the Committee’s view on a careful viewing of the tapes that Mr Walker could and should have done more in the straight and that he deliberately chose not to do so. He held the horse back.

4.8 Mr Walker called the jockey Mr Shannon Doyle to give evidence. Mr Doyle had ridden WATCH YOUR MAN in his first race and told the Committee that the horse was a difficult ride. In answer to questions of him Mr Doyle acknowledged that he had ridden the horse later and that its manners had significantly improved.

4.9 Mr Walker drew attention to rules 636(1)(b) and 636(1)(d). He contended that these rules were in conflict. Prima facie (at first glance) the two rules do not appear to be in harmony. That circumstance does not however provide any defence for Mr Walker. Reference might usefully be made to rule 636(1)(a). That is as follows:

“A person shall not run a horse, or cause or permit a horse to be run, other than on its merits;”

4.10 The cramp explanation is unsupported by any independent corroborative evidence. Mr Walker claimed he spoke of it to people after the race but there was no independent verification from any person with medical or first aid qualifications. The evidence of the doctor submitted by affidavit speaks of injuries to Mr Walker’s right hand over a period of years. It does not speak of any medical condition which might explain cramp in the arm as well as the hand. In any event, as just observed, the Committee takes the view that before cramp was felt, if in fact that happened, Mr Walker was already riding his horse deliberately so as to ensure that it would finish behind the horse ST RANSOM. Further and interestingly Mr Walker told Mr Neal in cross examination that he had never previously suffered cramp during the course of a race. As observed earlier, in the very next race Mr Walker rode a horse with pronounced vigour which went from last to first. The ride on that occasion bears a striking contrast with what occurred in Race 3. We do not accept the cramp explanation. We consider that Mr Walker’s actions were deliberately designed to ensure that the horse which he had placed money upon finished ahead of the horse which he was riding.

4.11 It follows that in respect of the first charge on 16 August 2014 under Rule 801(1)(m) the charge is made out to the higher, if we may so describe it, standard of proof required in respect of an allegation as serious as that which is made here.

4.12 In the circumstances outlined it is not necessary to consider the alternative betting charge in relation to 16 August 2014.

5. THE 31st JULY AT WAVERLEY

5.1 Turning to the events on 31 July 2014 at the Waverley Racing Club it is the position of the RIU that on this occasion Mr Walker riding the horse LIL MER deliberately rode in a way to ensure that this horse finished behind the horse SAM I AM upon which Mr Walker had placed bets.

5.2 The films at the race at Waverley are much less comprehensive than the films of the race at Awapuni on 16 August 2014. In particular there is limited vision of LIL MER in the concluding stages of the race. For the RIU it was Mr Neal’s submission that Mr Walker had deliberately restrained the horse to the back of the field so as to ensure that SAM I AM was always ahead of LIL MER and then took no appropriate action to advance LIL MER into the race when there were opportunities to do so.

5.3 Mr Walker said that LIL MER was difficult to ride and that the track conditions were not favourable for her on that day. Further that his mount had drawn wide and should not have been pushed forward early in the race.

5.4 There is no dispute, indeed Mr Walker admits, that he backed SAM I AM to beat LIL MER. That is of itself a highly suspicious circumstance. The more so when it is now known that within little more than a fortnight he did the same thing again at the Awapuni meeting on 16 August. Suspicion however is not proof. In our view the films of the race at Waverley do not demonstrate sufficiently plainly that Mr Walker acted deliberately to ensure that his horse ran behind the horse SAM I AM. While as we have said there is high degree of suspicion there is not in our judgment proof to the necessary standard. Accordingly in relation to that charge the allegation has not been made out and the charge is dismissed.

5.6 In relation to the second charge arising out of 31 July 2014 the betting charge under Rule 707(1) Mr Walker has acknowledged his guilt in relation to that and the plea of guilty is entered.

6. SUMMARY OF FINDINGS

6.1 It follows from what has been said ladies and gentlemen that in respect of the events on 16 August 2014 Mr Walker is convicted on the charge under Rule 801(1)(m). The alternative charge is dismissed. In respect of the events on 31 July 2014 at Waverley the principal charge under Rule 801(1)(m) is dismissed and Mr Walker is convicted on the second charge under Rule 707(1).

6.2 The Committee had requested submissions from the parties on penalty in the knowledge that Mr Walker had indicated pleas of guilty to the betting charges and in the event that any of the riding charges were found to be proved. The Committee explained that it would give its penalty decision the following day 19 September 2014. Mr Walker told the Committee that he was unlikely to attend on 19 September. Mr Neal handed forward detailed submissions on behalf of the RIU. Those submissions were considered by the Committee and reference is made to them in the separate written penalty decision which has also issued today 25 September 2014.

DATED this 25 day of September 2014

MURRAY MCKECHNIE

Chairman

Signed pursuant to Rule 920(5)

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