Non Raceday Inquiry – RIU v G Small – Decision dated 23 June 2013
ID: JCA16498
Decision:
Non Raceday Hearing: RIU v G Small 21 June 2013 at Alexandra Park, Auckland
Rule: 502A (2)
Information Number: A5298
Informant: Mr N McIntyre (Co-Chief Stipendiary Steward)
Defendant: Mr G Small (Licensed Public Trainer)
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN The Racing Integrity Unit (RIU), Mr N McIntyre
Informant
AND
Mr G Small
Defendant
JUDICIAL COMMITTEE: Mr G Jones and Mr B Scott
VENUE: Alexandra Park, Auckland
PRESENT: Mr McIntyre, Ms P Kinsey (Assistant Stipendiary Steward), Mr Small, Mr B Lichter (Journalist) and Judicial Committee
DATE OF HEARING: 21 June 2013
DATE OF ORAL DECISION: 21 June 2013
DATE OF REASONS FOR DECISION: 23 June 2013
The Charge:
1) This charge arises from the Woodlands Stud 4YO Diamond (Group 1), race 1 at the Ashburton Trotting Club meeting on 1 June 2013.
2) An Information was filed following race 1 against Mr Small (the “Defendant”) by the Co-Chief Stipendiary Steward, Mr McIntyre (the “Informant”) alleging that:
As the trainer of Meet Me In Mayfair, you did present Georgia’s Jury to race as that horse with this error being noticed in the birdcage.
3) A judicial hearing was opened on 1 June 2013 at Ashburton. Mr Small was present at the hearing, but he declined to enter a plea to the charge. On that basis and due to the nature of the charge the Chairman of the Judicial Committee (the "Committee"), elected to adjourn the hearing for a date to be set by the Judicial Control Authority (JCA). With the agreement of all parties the JCA set the hearing for prior to the commencement of racing at the Thames Harness Club meeting at Alexandra Park on 21 June 2013.
4) At the beginning of the adjourned hearing the charge was put to Mr Small who acknowledged its nature and substance. He advised the Committee that he denied the breach. He also confirmed that relevant documents had been disclosed to him. Mr Small said he accepted the contents of the documents and consented to the contents being admitted as evidence. Mr McIntyre was also agreeable for the documents to be admitted as evidence. The proposed procedure for the conduct of the hearing was explained to the Informant and the Defendant. They confirmed that they had no concerns or objections.
5) The documents admitted by consent included Job Sheets of Stipendiary Stewards Mr C Allison, Mr N Ydgren and Mr S Renault. In essence they contained information outlining what they saw and did on 1 June 2013 in relation to the circumstances that gave rise to this charge. The documents also included transcribed interviews conducted by Stipendiary Stewards of Mr Small, Mr S Lawson and Mr J Whittaker. The net result of allowing these documents to be admitted by consent is that it has avoided the need for some or all of these witnesses to be called and heard in person, and at the same time it has enabled their contents to be considered by the Committee as part of the overall evidential package. It also avoids the significant travel costs that would have otherwise been incurred had the witnesses been required to appear at the hearing in person.
6) Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rules 502A and 1003(1):
Rule 502A (2) provides that:
The trainer and person in control of the horse at the race meeting shall ensure that the correct horse is presented to start in the race in which it is entered.
Rule 1003(1) relates to general penalties and provides that:
Every person who commits a breach shall be liable to:
a) a fine not exceeding $10,000.00; and/or
b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
c) disqualification for a period not exceeding 12 months.
Evidence for the Informant:
7) Mr McIntyre confirmed that Mr Small is a licensed Public Trainer and Open Horseman and that MEET ME IN MAYFAIR was correctly entered to race.
8) Mr McIntyre said that that all runners entered in race 1 were presented into the birdcage for pre-race checking prior to going onto the track. He said that Stipendiary Steward Mr Allison inspected the brand on horse number 5, which should have been MEET ME IN MAYFAIR. The brand number on the horse presented was 09Z6722 which is the brand number of GEORGIA'S JURY, who had been entered for race 3. At this point the brand was re-inspected by Stipendiary Steward Mr S Renault and it was confirmed that the incorrect horse had been presented.
9) Mr McIntyre said that GEORGIA'S JURY was returned to the stabling area where it was established that MEET ME IN MAYFAIR was still in its stall.
10) Meet Me In Mayfair was eventually geared up and presented to race. Mr McIntyre said that Stewards spoke to Mr J Whittaker who advised that Mr S Lawson was supposed to be in charge of Mr Small's team, but due to his flight being delayed he was not on course. As a result Mr Whittaker mistakenly geared up GEORGIA'S JURY to race.
11) Mr McIntyre said that the error resulted in the race starting four minutes late.
12) Under cross examination Mr Small asked Mr McIntyre to re-read rule 502A (2) and also to confirm which horse went to the start and completed its preliminary. In response Mr McIntyre read the relevant rule and stated that MEET ME IN MAYFAIR eventually started in the race.
13) The Committee asked Mr McIntyre to explain his interpretation of what ‘present to race’ meant. Mr McIntyre said that a horse was presented once it entered the birdcage / assembly area and that the assembly area is defined within the rules.
14) The Committee noted that Assembly Area is defined within the rules as “the Birdcage, Parade Ring or other area where horses are assembled prior to entering the track for the purpose of a race” s105 (1) (NZ Rules of Harness Racing).
15) Mr McIntyre further stated that the obligation is not on Stewards to check that the correct horse is presented to race. The obligation rests with the trainer.
Evidence for the Defendant:
16) Mr Small opened his case by stating that he agreed in principle with the evidence that had been presented thus far, but he felt that he has been charged under the wrong rule. He stated that the most appropriate rule was R 858(b) which requires horses to be on the race track at least ten minutes before the time of starting, and at the post ready to start at least five minutes before the time of starting.
17) Mr Small stated that in his view in order to meet start time obligations horses go through four stages, which include (1) the horse leaves the stalls, (2) the horse enters the birdcage, (3) the horse completes its preliminary on the track, and (4) the horse goes to the start. Mr Small said that he believed that once a horse leaves the birdcage and goes onto the track they are effectively at the start.
18) Mr Small advised the Committee that he believes he has no case to answer under R 502A (2) and that if he did have to answer a charge, R 858(b) is the most applicable under the circumstances because effectively his horse was late arriving into the Parade Ring.
19) Mr Small concluded his evidence by advising the Committee that the key issue is how the term ‘presented to race’ is interpreted. He said that ultimately the right horse, i.e. MEET ME IN MAYFAIR was presented to start in the race and in fact did take part in the race.
20) In response Mr McIntyre stated that the RIU have a different interpretation than Mr Small in terms of the rules.
Summing up – Informant:
21) In summing up Mr McIntyre submitted that there were over 4000 patrons on course and they would have reasonably expected that MEET ME IN MAYFAIR was the correct horse in the birdcage. He said that as far as the Stewards are concerned the wrong horse was presented in the birdcage prior to going to the start of the race.
Summing up – Defendant:
22) In summing up Mr Small submitted that he concedes that the wrong horse was presented to race in the assembly area, but the correct horse, namely MEET ME IN MAYFAIR was presented to start.
23) Mr Small reaffirmed there are four components to be considered comprising of a horse leaving the stalls, entering the birdcage, completing a preliminary and starting the race. Mr Small urged the Committee to accept that the correct horse completed its preliminary and started in the race. And on that basis he submitted that he has no case to answer. But he does accept the fact that the wrong horse was initially paraded.
Reasons for Decision:
24) The Committee has carefully assessed the oral evidence, submissions and other material that has been placed before us by of both the Informant and Defendant. In this case the Committee is required to determine, on the balance of probabilities whether or not the Defendant as the trainer of MEET ME IN MAYFAIR, a starter in race 1, presented the correct horse to start the race.
25) We have listened to the arguments concerning what constitutes ‘presented to start’ as opposed to ‘presented to race’. We do not propose to get too side-tracked on this issue, but for the sake of completeness we note that rule 502A (2) refers to ‘the correct horse presented to start’ and the information, upon which we believe Mr Small takes issue, refers to ‘presented to race’.
26) On this issue we have taken a rational approach and to some extent we are guided by the definition of Assembly Area and the context of which it and the words 'presented to race and start' are used in a number of NZ Rules of Harness Racing, for example R 865(2) states that “every horse entered in a totalisator race shall be presented in the assembly area prior to the race .......”. And as noted at paragraph 14 Assembly Area is defined within the rules as “the Birdcage, Parade Ring or other area where horses are assembled prior to entering the track for the purpose of a race”. On that basis the Committee takes the view that presented to start does encompass presented in the assembly area to race and start. Therefore the Committee believes that the race as it has been used in the context of the charge, i.e. presented to race, can be used interchangeably presented to start. Further we believe that the words in the information ‘present to race’ are in conformity with spirit the words ‘presented to start’ as they appear in rule 502A(2). For these reasons we believe that the wording of the charge within the Information is sufficient and clear as to content and particularity. On this point we differ from Mr Small’s interpretation.
27) Based on the evidence, the Committee is satisfied that GEORGIA'S JURY was presented in the birdcage to race in race 1, whereas MEET ME IN MAYFAIR should have been presented. Therefore the correct horse was not presented and it was only after the error had been detected and remedied that MEET ME IN MAYFAIR eventually was presented to start in the race.
Decision:
28) The elements of the charge are proven to the requisite standard in that Mr Small the trainer of MEET ME IN MAYFAIR, who was correctly entered to race in race one at Ashburton, did not ensure that the correct horse was presented to start.
29) The Committee is fully aware of a number of mitigating factors that contributed to this and these will be taken into account when the penalty is determined.
Submissions as to Penalty:
In relation to penalty Mr McIntyre submitted that:
30) Mr Small is an experienced trainer who in his career has prepared 5950 horses to race. He has never previously breached this rule.
31) There is no evidence or suggestion that the breach was anything other than a mistake and there was no intent to deceive.
32) It is the trainer’s obligation to ensure that the right horse is presented to race.
33) The start of the race was delayed by 4 minutes as a result of this incident.
34) It was a premier meeting and Group Race.
35) The RIU recommends a fine with a starting point at $1000 and submitted a number of decisions in support of the recommended penalty including NZTR v A (1998) fined $1,800, NZTR v L (2001) fined $2,000, NZTR v H (2011) and HRNZ v C (2007) fined $2,500.
In relation to penalty Mr Small submitted that:
36) There are a number of mitigating circumstances in his favour.
37) He had an expectation that Mr Lawson, who was delayed for reasons outside his control, would have ensured that the correct horse was presented, had he been able to arrive on course without being delayed.
38) The horse had only been in the care of Mr Whittaker for 3 days, and he was not totally familiar with Mr Small's horses.
39) Although GEORGIA'S JURY was presented in the birdcage it did not go onto the track and did not compete in the race and no-one was hurt by the mistake.
40) The breach does not warrant a $1,000 fine as submitted by the RIU.
41) The cases referred to by the RIU are different in that GEORGIA'S JURY did not start in the race, whereas in those cases the wrong horse did start in the race.
42) The right gear was mistakenly placed on the wrong horse.
43) Horses at Jewels race meetings in the past have traditionally been blooded pre-race and on this occasion they were not. The error may well have been identified at an earlier stage had pre-race blooding been in place.
Costs:
44) Mr McIntyre on behalf of the RIU made application for costs, namely $91 for transcription fees relating to the initial hearing and $600 for air transport from Dunedin to Auckland to enable him to attend the hearing.
45) Mr Small objected to the payment of costs to the RIU on the basis that he agreed to the adjourned hearing taking place on a race night in order to avoid costs. Mr Small also submitted that the matter could have been dealt with on raceday had one of the Committee members removed himself.
Reasons for Penalty:
46) The Committee has carefully considered the evidence and submissions lodged by both the Informant and Defendant.
47) The Committee has noted that a breach of this particular Rule is not included in the Penalty Guide for Judicial Committees. This is probably because this rule is not often breached. However the Committee has taken guidance from a limited number of comparable decisions and penalties resulting from breaches of this or similar Rules. In particular we have noted similarities and points of difference. We believe that the NZTR cases which have been submitted to us for consideration are substantially different because in each of those cases the wrong horse started in the race.
48) The case HRNZ v C (2007) is particularly helpful because it establishes a useful benchmark and the circumstances of that case in our opinion contain more aggravating features than this breach. This is because in HRNZ v C the wrong horse did start in the race and there was evidence of an intention to deceive. Whereas we have assessed this breach as a mistake, there was no intention to deceive and once the error was identified it was corrected and the right horse started in the race.
49) The Committee has noted the reference in HRNZ v C to two other cases where the wrong horse was accidently taken to the racecourse, namely S (1990) and C (2004) and in both cases a fine of $500 was imposed.
50) The Committee has also taken cognisance of Rule 1003(1) which establishes general penalties. The Committee has given due regard to the status of race and the race meeting, the consequences of the breach and the need to maintain integrity and public confidence in Harness Racing. In terms of these factors we note that it was a Premier meeting and it was a Group Race, but this is tempered by the fact that the wrong horse did not start in the race. The main consequence of the breach was that the race was delayed four minutes and the issue around public confidence is more about perception. On this point the Committee emphasises that this breach occurred as a result of a mistake and there was absolutely no intention to deceive the authorities or the public.
51) Because there are sound pre-race checking processes in place the wrong horse did not start. The public should have confidence that because these systems and controls are sound and are applied with considerable due diligence the likelihood of a failure or of underhand practices going undetected is minimal.
Penalty:
52) For reasons set out above we impose a fine of $550.
53) Due to this matter being heard on a raceday the JCA are not seeking any costs. The JCA Practice Note on Costs and Filing Fees (Nov 12, Para 5) provides that costs should not be awarded in proceedings where the hearing commences during a race meeting and is adjourned to be heard during another race meeting at which a Judicial Committee is appointed to preside.
54) No costs in favour of the RIU are awarded, but the Committee has given careful consideration to the RIU’s application. Our reasons for not awarding costs are primarily that this hearing was opened at a race meeting on 1 June 2013 and adjourned to another race meeting. This Committee has no evidence that the RIU objected to the adjournment and in fact we understand that all parties agreed to the hearing date, time and venue.
55) As to costs for transcribing interviews the Committee believes that because all parties allowed the transcribed material to be admitted by consent it avoided the need for one or more witnesses to be called to give their evidence in person. As such it reduced the hearing time, enabled the matter to be dealt with expediently on race night and saved all parties the burden of unnecessarily incurring additional travel costs.
G Jones and B Scott
Judicial Committee
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 24/06/2013
Publish Date: 24/06/2013
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
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.
hearingid: bc4a480b2ee47f3572f407fe1e3896e3
informantnumber: A5298
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 24/06/2013
hearing_title: Non Raceday Inquiry - RIU v G Small - Decision dated 23 June 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
Non Raceday Hearing: RIU v G Small 21 June 2013 at Alexandra Park, Auckland
Rule: 502A (2)
Information Number: A5298
Informant: Mr N McIntyre (Co-Chief Stipendiary Steward)
Defendant: Mr G Small (Licensed Public Trainer)
Decision:
BEFORE A JUDICIAL COMMITTEE HELD AT AUCKLAND
IN THE MATTER of Harness New Zealand Rules of Racing
BETWEEN The Racing Integrity Unit (RIU), Mr N McIntyre
Informant
AND
Mr G Small
Defendant
JUDICIAL COMMITTEE: Mr G Jones and Mr B Scott
VENUE: Alexandra Park, Auckland
PRESENT: Mr McIntyre, Ms P Kinsey (Assistant Stipendiary Steward), Mr Small, Mr B Lichter (Journalist) and Judicial Committee
DATE OF HEARING: 21 June 2013
DATE OF ORAL DECISION: 21 June 2013
DATE OF REASONS FOR DECISION: 23 June 2013
The Charge:
1) This charge arises from the Woodlands Stud 4YO Diamond (Group 1), race 1 at the Ashburton Trotting Club meeting on 1 June 2013.
2) An Information was filed following race 1 against Mr Small (the “Defendant”) by the Co-Chief Stipendiary Steward, Mr McIntyre (the “Informant”) alleging that:
As the trainer of Meet Me In Mayfair, you did present Georgia’s Jury to race as that horse with this error being noticed in the birdcage.
3) A judicial hearing was opened on 1 June 2013 at Ashburton. Mr Small was present at the hearing, but he declined to enter a plea to the charge. On that basis and due to the nature of the charge the Chairman of the Judicial Committee (the "Committee"), elected to adjourn the hearing for a date to be set by the Judicial Control Authority (JCA). With the agreement of all parties the JCA set the hearing for prior to the commencement of racing at the Thames Harness Club meeting at Alexandra Park on 21 June 2013.
4) At the beginning of the adjourned hearing the charge was put to Mr Small who acknowledged its nature and substance. He advised the Committee that he denied the breach. He also confirmed that relevant documents had been disclosed to him. Mr Small said he accepted the contents of the documents and consented to the contents being admitted as evidence. Mr McIntyre was also agreeable for the documents to be admitted as evidence. The proposed procedure for the conduct of the hearing was explained to the Informant and the Defendant. They confirmed that they had no concerns or objections.
5) The documents admitted by consent included Job Sheets of Stipendiary Stewards Mr C Allison, Mr N Ydgren and Mr S Renault. In essence they contained information outlining what they saw and did on 1 June 2013 in relation to the circumstances that gave rise to this charge. The documents also included transcribed interviews conducted by Stipendiary Stewards of Mr Small, Mr S Lawson and Mr J Whittaker. The net result of allowing these documents to be admitted by consent is that it has avoided the need for some or all of these witnesses to be called and heard in person, and at the same time it has enabled their contents to be considered by the Committee as part of the overall evidential package. It also avoids the significant travel costs that would have otherwise been incurred had the witnesses been required to appear at the hearing in person.
6) Harness Racing New Zealand (HRNZ) Rules (“the Rules”) relevant to this hearing are Rules 502A and 1003(1):
Rule 502A (2) provides that:
The trainer and person in control of the horse at the race meeting shall ensure that the correct horse is presented to start in the race in which it is entered.
Rule 1003(1) relates to general penalties and provides that:
Every person who commits a breach shall be liable to:
a) a fine not exceeding $10,000.00; and/or
b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
c) disqualification for a period not exceeding 12 months.
Evidence for the Informant:
7) Mr McIntyre confirmed that Mr Small is a licensed Public Trainer and Open Horseman and that MEET ME IN MAYFAIR was correctly entered to race.
8) Mr McIntyre said that that all runners entered in race 1 were presented into the birdcage for pre-race checking prior to going onto the track. He said that Stipendiary Steward Mr Allison inspected the brand on horse number 5, which should have been MEET ME IN MAYFAIR. The brand number on the horse presented was 09Z6722 which is the brand number of GEORGIA'S JURY, who had been entered for race 3. At this point the brand was re-inspected by Stipendiary Steward Mr S Renault and it was confirmed that the incorrect horse had been presented.
9) Mr McIntyre said that GEORGIA'S JURY was returned to the stabling area where it was established that MEET ME IN MAYFAIR was still in its stall.
10) Meet Me In Mayfair was eventually geared up and presented to race. Mr McIntyre said that Stewards spoke to Mr J Whittaker who advised that Mr S Lawson was supposed to be in charge of Mr Small's team, but due to his flight being delayed he was not on course. As a result Mr Whittaker mistakenly geared up GEORGIA'S JURY to race.
11) Mr McIntyre said that the error resulted in the race starting four minutes late.
12) Under cross examination Mr Small asked Mr McIntyre to re-read rule 502A (2) and also to confirm which horse went to the start and completed its preliminary. In response Mr McIntyre read the relevant rule and stated that MEET ME IN MAYFAIR eventually started in the race.
13) The Committee asked Mr McIntyre to explain his interpretation of what ‘present to race’ meant. Mr McIntyre said that a horse was presented once it entered the birdcage / assembly area and that the assembly area is defined within the rules.
14) The Committee noted that Assembly Area is defined within the rules as “the Birdcage, Parade Ring or other area where horses are assembled prior to entering the track for the purpose of a race” s105 (1) (NZ Rules of Harness Racing).
15) Mr McIntyre further stated that the obligation is not on Stewards to check that the correct horse is presented to race. The obligation rests with the trainer.
Evidence for the Defendant:
16) Mr Small opened his case by stating that he agreed in principle with the evidence that had been presented thus far, but he felt that he has been charged under the wrong rule. He stated that the most appropriate rule was R 858(b) which requires horses to be on the race track at least ten minutes before the time of starting, and at the post ready to start at least five minutes before the time of starting.
17) Mr Small stated that in his view in order to meet start time obligations horses go through four stages, which include (1) the horse leaves the stalls, (2) the horse enters the birdcage, (3) the horse completes its preliminary on the track, and (4) the horse goes to the start. Mr Small said that he believed that once a horse leaves the birdcage and goes onto the track they are effectively at the start.
18) Mr Small advised the Committee that he believes he has no case to answer under R 502A (2) and that if he did have to answer a charge, R 858(b) is the most applicable under the circumstances because effectively his horse was late arriving into the Parade Ring.
19) Mr Small concluded his evidence by advising the Committee that the key issue is how the term ‘presented to race’ is interpreted. He said that ultimately the right horse, i.e. MEET ME IN MAYFAIR was presented to start in the race and in fact did take part in the race.
20) In response Mr McIntyre stated that the RIU have a different interpretation than Mr Small in terms of the rules.
Summing up – Informant:
21) In summing up Mr McIntyre submitted that there were over 4000 patrons on course and they would have reasonably expected that MEET ME IN MAYFAIR was the correct horse in the birdcage. He said that as far as the Stewards are concerned the wrong horse was presented in the birdcage prior to going to the start of the race.
Summing up – Defendant:
22) In summing up Mr Small submitted that he concedes that the wrong horse was presented to race in the assembly area, but the correct horse, namely MEET ME IN MAYFAIR was presented to start.
23) Mr Small reaffirmed there are four components to be considered comprising of a horse leaving the stalls, entering the birdcage, completing a preliminary and starting the race. Mr Small urged the Committee to accept that the correct horse completed its preliminary and started in the race. And on that basis he submitted that he has no case to answer. But he does accept the fact that the wrong horse was initially paraded.
Reasons for Decision:
24) The Committee has carefully assessed the oral evidence, submissions and other material that has been placed before us by of both the Informant and Defendant. In this case the Committee is required to determine, on the balance of probabilities whether or not the Defendant as the trainer of MEET ME IN MAYFAIR, a starter in race 1, presented the correct horse to start the race.
25) We have listened to the arguments concerning what constitutes ‘presented to start’ as opposed to ‘presented to race’. We do not propose to get too side-tracked on this issue, but for the sake of completeness we note that rule 502A (2) refers to ‘the correct horse presented to start’ and the information, upon which we believe Mr Small takes issue, refers to ‘presented to race’.
26) On this issue we have taken a rational approach and to some extent we are guided by the definition of Assembly Area and the context of which it and the words 'presented to race and start' are used in a number of NZ Rules of Harness Racing, for example R 865(2) states that “every horse entered in a totalisator race shall be presented in the assembly area prior to the race .......”. And as noted at paragraph 14 Assembly Area is defined within the rules as “the Birdcage, Parade Ring or other area where horses are assembled prior to entering the track for the purpose of a race”. On that basis the Committee takes the view that presented to start does encompass presented in the assembly area to race and start. Therefore the Committee believes that the race as it has been used in the context of the charge, i.e. presented to race, can be used interchangeably presented to start. Further we believe that the words in the information ‘present to race’ are in conformity with spirit the words ‘presented to start’ as they appear in rule 502A(2). For these reasons we believe that the wording of the charge within the Information is sufficient and clear as to content and particularity. On this point we differ from Mr Small’s interpretation.
27) Based on the evidence, the Committee is satisfied that GEORGIA'S JURY was presented in the birdcage to race in race 1, whereas MEET ME IN MAYFAIR should have been presented. Therefore the correct horse was not presented and it was only after the error had been detected and remedied that MEET ME IN MAYFAIR eventually was presented to start in the race.
Decision:
28) The elements of the charge are proven to the requisite standard in that Mr Small the trainer of MEET ME IN MAYFAIR, who was correctly entered to race in race one at Ashburton, did not ensure that the correct horse was presented to start.
29) The Committee is fully aware of a number of mitigating factors that contributed to this and these will be taken into account when the penalty is determined.
Submissions as to Penalty:
In relation to penalty Mr McIntyre submitted that:
30) Mr Small is an experienced trainer who in his career has prepared 5950 horses to race. He has never previously breached this rule.
31) There is no evidence or suggestion that the breach was anything other than a mistake and there was no intent to deceive.
32) It is the trainer’s obligation to ensure that the right horse is presented to race.
33) The start of the race was delayed by 4 minutes as a result of this incident.
34) It was a premier meeting and Group Race.
35) The RIU recommends a fine with a starting point at $1000 and submitted a number of decisions in support of the recommended penalty including NZTR v A (1998) fined $1,800, NZTR v L (2001) fined $2,000, NZTR v H (2011) and HRNZ v C (2007) fined $2,500.
In relation to penalty Mr Small submitted that:
36) There are a number of mitigating circumstances in his favour.
37) He had an expectation that Mr Lawson, who was delayed for reasons outside his control, would have ensured that the correct horse was presented, had he been able to arrive on course without being delayed.
38) The horse had only been in the care of Mr Whittaker for 3 days, and he was not totally familiar with Mr Small's horses.
39) Although GEORGIA'S JURY was presented in the birdcage it did not go onto the track and did not compete in the race and no-one was hurt by the mistake.
40) The breach does not warrant a $1,000 fine as submitted by the RIU.
41) The cases referred to by the RIU are different in that GEORGIA'S JURY did not start in the race, whereas in those cases the wrong horse did start in the race.
42) The right gear was mistakenly placed on the wrong horse.
43) Horses at Jewels race meetings in the past have traditionally been blooded pre-race and on this occasion they were not. The error may well have been identified at an earlier stage had pre-race blooding been in place.
Costs:
44) Mr McIntyre on behalf of the RIU made application for costs, namely $91 for transcription fees relating to the initial hearing and $600 for air transport from Dunedin to Auckland to enable him to attend the hearing.
45) Mr Small objected to the payment of costs to the RIU on the basis that he agreed to the adjourned hearing taking place on a race night in order to avoid costs. Mr Small also submitted that the matter could have been dealt with on raceday had one of the Committee members removed himself.
Reasons for Penalty:
46) The Committee has carefully considered the evidence and submissions lodged by both the Informant and Defendant.
47) The Committee has noted that a breach of this particular Rule is not included in the Penalty Guide for Judicial Committees. This is probably because this rule is not often breached. However the Committee has taken guidance from a limited number of comparable decisions and penalties resulting from breaches of this or similar Rules. In particular we have noted similarities and points of difference. We believe that the NZTR cases which have been submitted to us for consideration are substantially different because in each of those cases the wrong horse started in the race.
48) The case HRNZ v C (2007) is particularly helpful because it establishes a useful benchmark and the circumstances of that case in our opinion contain more aggravating features than this breach. This is because in HRNZ v C the wrong horse did start in the race and there was evidence of an intention to deceive. Whereas we have assessed this breach as a mistake, there was no intention to deceive and once the error was identified it was corrected and the right horse started in the race.
49) The Committee has noted the reference in HRNZ v C to two other cases where the wrong horse was accidently taken to the racecourse, namely S (1990) and C (2004) and in both cases a fine of $500 was imposed.
50) The Committee has also taken cognisance of Rule 1003(1) which establishes general penalties. The Committee has given due regard to the status of race and the race meeting, the consequences of the breach and the need to maintain integrity and public confidence in Harness Racing. In terms of these factors we note that it was a Premier meeting and it was a Group Race, but this is tempered by the fact that the wrong horse did not start in the race. The main consequence of the breach was that the race was delayed four minutes and the issue around public confidence is more about perception. On this point the Committee emphasises that this breach occurred as a result of a mistake and there was absolutely no intention to deceive the authorities or the public.
51) Because there are sound pre-race checking processes in place the wrong horse did not start. The public should have confidence that because these systems and controls are sound and are applied with considerable due diligence the likelihood of a failure or of underhand practices going undetected is minimal.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
52) For reasons set out above we impose a fine of $550.
53) Due to this matter being heard on a raceday the JCA are not seeking any costs. The JCA Practice Note on Costs and Filing Fees (Nov 12, Para 5) provides that costs should not be awarded in proceedings where the hearing commences during a race meeting and is adjourned to be heard during another race meeting at which a Judicial Committee is appointed to preside.
54) No costs in favour of the RIU are awarded, but the Committee has given careful consideration to the RIU’s application. Our reasons for not awarding costs are primarily that this hearing was opened at a race meeting on 1 June 2013 and adjourned to another race meeting. This Committee has no evidence that the RIU objected to the adjournment and in fact we understand that all parties agreed to the hearing date, time and venue.
55) As to costs for transcribing interviews the Committee believes that because all parties allowed the transcribed material to be admitted by consent it avoided the need for one or more witnesses to be called to give their evidence in person. As such it reduced the hearing time, enabled the matter to be dealt with expediently on race night and saved all parties the burden of unnecessarily incurring additional travel costs.
G Jones and B Scott
Judicial Committee
hearing_type: Non-race day
Rules: 502A(2)
Informant: Mr N McIntyre - Co-Chief Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Ms P Kinsey - Assistant Stipendiary Steward, Mr B Lichter - Journalist
Respondent: Mr G Small - Licensed Public Trainer
StipendSteward:
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