Non Raceday Inquiry RIU v K & A Tyler – Reserved Decision dated 12 December 2018 – Chair, Prof G Hall

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hearing_title: Non Raceday Inquiry RIU v K & A Tyler - Reserved Decision dated 12 December 2018 - Chair, Prof G Hall

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Decision:

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

AT CROMWELL

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Thoroughbred Racing Rules of Racing

BETWEEN-RACING INTEGRITY UNIT (RIU)

Informant

AND---KELVIN & AIMEE TYLER

Licensed Class A Trainers

Respondents

INFORMATION NO.-A8629

COMMITTEE:-Prof G Hall (Chairman)

Mr M Conway (Member)

APPEARING:-Mr M Davidson Stipendiary Steward, for the RIU

Mr K Tyler for the respondents

DATE OF HEARING: -2 December 2018

RESERVED DECISION OF JUDICIAL COMMITTEE

[1]-The informant, the Racing Integrity Unit (RIU), has alleged "that on Monday, 8 October 2018 at Riverton Racecourse Trainers K and A Tyler used an unregistered trackwork rider. This is an alleged breach of r 308 of the NZ Rules of Thoroughbred Racing."

[2]-Rule 308 provides:

A Trainer must not allow a non-Licensed Person to be involved in the care, control or training of any horse notified to NZTR pursuant to r 326(1) as being in his charge for the purposes of being trained.

[3]-The penalty provision is r 803(1) which states:

A person who, or body or other entity which, commits or is deemed to have committed a breach of these Rules or any of them for which a penalty is not provided elsewhere in these Rules shall be liable to:

(a) be disqualified for a period not exceeding 12 months; and/or

(b) be suspended from holding or obtaining a Licence for a period not exceeding 12 months. If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c) a fine not exceeding $20,000.

[4]-Mr Davidson produced a letter from Mr M Godber, General Manager of the RIU, pursuant to r 903(2)(d), dated 5 November 2018, authorising him to lodge the information.

[5]-Mr K Tyler indicated on the information and at the hearing that the respondents admitted the breach. We thus find the breach proved.

[6]-Mr Davidson stated that on 8 October 2018 Mr Sumer Singh was riding track work at Riverton Racecourse when he was dislodged from a horse and fractured both his ankles. Mr Singh was riding a horse for his then employers, trainers K and A Tyler.

[7]-Mr Singh required surgery which resulted in metal rods being inserted into both ankles. He was in hospital for a couple of weeks in Invercargill. Because of his injuries, the Tylers were unable to care for Mr Singh and he was advised he would have to leave Riverton.

[8]-Mr Singh was currently recuperating at the staff accommodation of Peter and Dawn Williams’ stables at Byerley Park in Auckland. He was being cared for by a friend who works for the Williams. It was expected that Mr Singh would not be able to ride a horse for a number of months and he has a medical certificate that excludes him from work until April 2019. He has had to change his visa status due to his not being employed.

[9]-Inquiries by the RIU revealed that Mr Singh had been with the Tylers for 8 days. He had been granted a visa to work specifically for the Tylers and came to New Zealand as an experienced track work rider. He had recently been riding track work in Dubai. Mr Singh spoke very little English.

[10]-When making inquiries with NZTR the RIU found that Mr Singh was not a registered person as required by the NZTR rules. When spoken to, Mr Tyler advised that he had not yet got around to getting Mr Singh registered prior to the accident.

[11]-All of Mr Singh’s medical costs so far had been covered by ACC.

[12]-Mr Davidson explained that Mr Singh was an Indian national. His visa status had changed as a consequence of the accident and he was now on a visitor’s visa. He stated that Mr Singh was not going to work for the Williams’ stable. He was only there because he had a very good friend there.

[13]-Mr Davidson stated that no one saw the fall. It was possible the horse had shied or slipped and fallen. Mr Singh had fallen on both ankles.

[14]-Mr Davidson said there was no one observing at the time. When questioned as to this, he said most clubs do have someone observing track work. He believed it was a NZTR requirement of clubs, but smaller venues might not have an observer. He understood that Work Safe NZ and OSH were not involved at present. He said it was up to the Riverton Racing Club to record and report the matter.

[15]-In response to questioning by the Committee, Mr Davidson said he understood that once the application form was faxed to NZTR complete with signature and passport photo, it would take a couple of days for it to be turned around.

[16]-Mr K Tyler spoke on his own and his daughter, Ms A Tyler’s behalf. He stated that he had employed Mr Singh after someone had told him that he had a friend who had ridden in Dubai and was interested in riding track work. He said he had satisfied himself that Mr Singh was a good rider. He said Mr Singh “just hopped on anything we had pretty much. He was a good rider." He added later, “He's come to me as an experienced trackwork rider with references and experience. It's not as if I've just got someone off the street.”

[17]-Mr Tyler had not realised that Mr Singh did not speak English. On 30 September he picked Mr Singh up at Queenstown airport. He discovered Mr Singh spoke about 4 or 5 words of English.

[18]-On Thursday 4 October he had left Riverton to go to the Riccarton races in Christchurch. They were due to be held on Saturday 6 October but were cancelled and reprogrammed to the Tuesday. He did not arrive back in Riverton until the Wednesday.

[19]-With respect to the accident, he said another trainer, Ms A Frye, was in the tie-ups at the time. She was walking out to the track on another horse. While she did not see the accident, she did not believe the horse had fallen. The horse was THE BUMPER, which was an experienced and quiet horse. Mr Tyler thought the horse may have stumbled and that Mr Singh may have jumped off. That would explain why both ankles were broken.

[20]-Mr Tyler explained he was in the process of registering Mr Singh when the accident occurred. He had downloaded the application form the day Mr Singh arrived. Mr Singh was living with the Tylers and they were looking after him.

[21]-Mr Singh had an appointment at the bank on the day of the accident. He explained Mr Singh needed a bank account before applying for an IRD number. Paperwork wise, he acknowledged he had not started filling in the registration form. Mr Singh had had to get a new passport photo and this could only be done in Invercargill, which was a 30 minute drive away. Mr Tyler said he did not have the time to this before going to Riccarton as he was busy preparing their team.

[22]-Mr Tyler accepted he had had 3 days to register Mr Singh but once he was at Riccarton he was unable to do anything until he returned. He described this as “the fly in the ointment”. He knew he had to do the paperwork and was in the process of doing it, but had not had the time to do it. He explained he had been using a Google Translate application on his phone or Mr Singh’s friend up north to converse with Mr Singh who spoke only Hindi. This, of course, took time.

[23]-Mr Tyler said he had visited Mr Singh regularly in hospital. Mr Singh could not walk and spoke very little English. It was very difficult as Mr Singh was crying and saying he did not want to go home. Mr Singh would either have to go back to India or stay at the Williams. He explained his partner had taken Mr Singh to the Williams but Mrs Williams had not realised when she agreed that Mr Singh could stay, that he had two broken ankles and was in a wheelchair, but provision had been made for Mr Singh’s wheelchair.

[24]-Mr Tyler submitted that whether Mr Singh was or was not registered would have made no difference on the day. He put the accident down to the training track being rough in places.

[25]-Mr Tyler emphasised that Mr Singh was an experienced track work rider. In the short time Mr Singh had been at Riverton, there were no issues with his riding ability. He had ridden in Dubai and India for some 5 years.

Informant’s submissions as to penalty

[26]-Mr Davidson produced the respondents’ record which was clear under this rule.

[27]-Mr Davidson said there were few precedents to which the Committee could refer. There had been 2 charges since 2010 where fines of $50 and $100 had been imposed under this rule but the circumstances were different as they related to unregistered persons leading horses around at the races. He recalled some years ago Ms King being fined $200 for having an unlicensed rider ride track work. He believed she had previously been told to ensure only licensed persons rode track work.

[28]-Mr Davidson said he believed that Mr Singh’s visa would only let him stay in New Zealand for 12 months. Then he would have to leave the country or find an employer. The Williams were not currently looking to employ anyone.

[29]-Mr Davidson submitted that a clear message had to be sent that all track work riders had to be registered. The use of unregistered riders was causing harm to the industry. A fine of $500 was necessary in the interests of general deterrence.

[30]-Mr Davidson said he understood Mr Tyler’s frustration with the language difficulties but he understood it was a simple form to fill out and Mr Tyler had had 3 days to do it. Mr Singh was simply not registered to ride a horse.

Respondents’ submissions as to penalty

[31]-Mr Tyler expressed surprise at the level of the penalty the informant submitted was appropriate. He accepted he would be need to be held accountable but emphasised that Mr Singh was an experienced and capable track work rider.

[32]-Mr Tyler said he put a lot back into racing. Because of the location of his stable he probably did the most travelling of any trainer in New Zealand. He had been at Riccarton at the time. It was “just a timing thing, the [registration] process had started”.

[33]-Mr Tyler concluded by stating he cared for his staff. He was “a very hands on trainer and safety was number one for him”.

Decision

[34]-The charge has arisen out of a very unfortunate accident suffered by Mr Singh, who at the time was not registered to ride a horse in track work.

[35]-Mr Singh had been in the country only 8 days and was living with the respondents. He had a visa that enabled him to work for the Tylers, and, we are told, the Tylers only. The consequence of the accident was that Mr Singh broke both ankles and is in a wheelchair. He will not be able to return to riding for some months. His ability to remain in New Zealand is not certain. Mr Singh wishes to be able to stay.

[36]-The charge does not allege any fault on the respondents’ behalf with respect to the accident itself other than the fact they permitted a non-licensed person to be involved in the control of any horse. In simple terms, they allowed an unregistered person to ride track work.

[37]-Mr Davidson submits a fine of $500 is appropriate. The general penalty provisions apply. The maximum penalties offer us little guidance, as does the JCA Penalty Guide. The penalty for this rule we believe is fact specific. We must have regard to the seriousness of the breach and the respondents’ culpability.

[38]-Mr Singh is an experienced track work rider with 5 years’ experience in India and Dubai. This is accepted by both parties. Mr Tyler had taken care to ensure that Mr Singh was a capable rider. Unfortunately, the same care was not taken with the registration process.

[39]-When questioned by the Committee as to the steps he had taken to register Mr Singh, Mr Tyler freely admitted he had only downloaded the form and he had not started to complete it. A passport photo was required and that entailed a 30 minute drive each way. There were language difficulties. Mr Tyler was employing a third party living in the North Island or a Google Translate app to communicate with Mr Singh. So there were real difficulties, but these were not insurmountable. Mr Tyler has acknowledged that he had picked Mr Singh up on 30 September from the airport and was in Riverton until 4 October before travelling to the Riccarton races. He thus had 3 clear days in which to register Mr Singh. He chose not to. As he explained, he was busy preparing his team for Riccarton.

[40]-We emphasise the Tylers’ culpability lies not only in the failure to fill out and to post the form but also in allowing Mr Singh, despite Mr Singh not being registered, to ride track work, and on this occasion, at least, in Mr Tyler’s absence. The issue of there not being any supervision of Mr Singh at the time he was riding trackwork was not directly raised with us but we are told that there was no Club official or other employee of Mr Tyler present and, although another trainer, Ms Frye, was in the tie-ups, she was not tasked with watching Mr Singh.

[41]-Mr Tyler is correct in his acknowledging he must be held accountable and Mr Davidson is right when he says there is a need for general deterrence and that the incident has not shown the industry in a good light. The penalty we impose thus also needs to uphold the integrity of thoroughbred racing.

[42]-We have not found any helpful precedents. Mr Davidson has referred us to a decision of some years ago in King where the breach involved an unlicensed track work rider and the penalty was $200. We have found Ranui 20 August 2008 where after an incident that occurred during trackwork at Avondale Racecourse, it was discovered that the trackwork rider employed by a licensed trainer, was an unregistered person. The nature of this “incident” is not disclosed but the fine was $100. A week after this penalty was imposed Ms Ranui allowed an unregistered person to lead a horse around before a race. She was fined $200 on this occasion. These are clearly lesser breaches than the one before us and, having regard also to their historical nature, they offer little guidance as to the level of penalty.

[43]-We have regard to Mr Davidson’s submission that a fine of $500 is appropriate. We take as a starting point a fine of $600. In so doing we have had regard to the seriousness of the charge and the respondents’ degree of culpability. There are no personal aggravating factors. Mitigating factors are the co-operation of the respondents with the RIU’s inquiry, their remorse including their efforts to assist Mr Singh (as evidenced by Mr Tyler’s partner travelling from Riverton to the Williams’ property with him), admission of the breach and, of course, their clear record.

[44]-We believe a discount of $200 is appropriate for these factors. The fine is one of $400.

[45]-The matter was heard on raceday. There is no order for costs.

Dated at Dunedin this 12th day of December 2018.

Geoff Hall, Chairman

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