Non Raceday Inquiry – RIU v N Chilcott – heard 27 January 2013 at Tauranga – Decision dated 7 February 2013

hearingid: b358377d2e8a403c607139d8c83831d3

informantnumber: A4626

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decisiondate: 30/01/2013

hearing_title: Non Raceday Inquiry - RIU v N Chilcott - heard 27 January 2013 at Tauranga - Decision dated 7 February 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

NON RACEDAY INQUIRY
RIU v MS N CHILCOTT

RULES: 869(2)(a)

INFORMATION: A4626

INFORMANT: Mr JM Muirhead, Stipendiary Steward

RESPONDENT: Ms N Chilcott, Open Horsewoman

ALSO PRESENT: Mr MD Branch - Counsel for Ms Chilcott

HELD: Sunday 27th January 2013 at Gate Pa Racecourse, Tauranga

JUDICIAL COMMITTEE: BJ Scott, Chairman - AL Godsalve, Committee Member

DECISION OF JUDICIAL COMMITTE

Evidence:

An Information was lodged by Stipendiary Steward Mr JM Muirhead against Open Horsewoman Ms N Chilcott alleging that Ms Chilcott used her whip excessively when driving PILOT OFFICER over the concluding stages of the race. The race concerned was Race 2 of the Wanganui Trotting Club’s Meeting on the 16th of December 2012.

The Information had been adjourned on the 20th of December 2012 for a date to be fixed for a Hearing.

At the outset of the Hearing the Committee asked Mr Muirhead why a charge such as the one before it that arose in Race 2 at the Wanganui Trotting Club’s Meeting on the 16th of December 2012 is being dealt with at Tauranga on the 27th of January 2013. Mr Muirhead pointed to difficulties in arranging a Hearing date. The Committee however were more concerned as to why the charge was not dealt with on the day. Mr Muirhead referred to the Stewards being very busy on that day and also referred to the fact that they had been inquiring into a Protest in Race 1. It was pointed out to Mr Muirhead that the Protest was in Race 4.

Following further enquiry from the Committee Mr Muirhead advised that the charge against Ms Chilcott was as a result of a written complaint from a Member of the Public. Mr Muirhead did not produce a copy of that complaint at the Hearing.

Mr Muirhead showed to the Committee the appropriate authority from the General Manager of the RIU to pursue the charge against Ms Chilcott.

The Committee then raised with Mr Muirhead the issue of him being Prosecutor and also giving evidence as Witness. This issue had been raised at a prior Non Raceday Hearing and the Committee advised Mr Muirhead that it expected that the RIU would have taken steps to correct that situation. Mr Muirhead objected on the basis that this was the way these charges were normally dealt with. Mr Branch advised the Committee that he would be making submissions on that point.

Mr Muirhead’s Evidence:

1.1 Mr Muirhead then demonstrated the incident by use of the video films and showed where PILOT OFFICER had lead from the start and was in front upon the home turn and was still in front about halfway along the home straight. It finally finished third, one length behind the second horse and one and three quarter lengths ahead of the fourth horse.

1.2 Mr Muirhead said that he counted 21 strikes with the whip although when the film was being further shown he thought it might have been 22 or 23.

1.3 Mr Muirhead said that the Stewards were not only concerned with the amount of times Ms Chilcott used the whip but also the force and vigour with which she used it. He said that this was unacceptable and combined with the number of times that it was used, the Stewards considered that to be excessive.

1.4 Mr Muirhead also read out the Whip Guidelines to the Committee and particularly the definition in those Guidelines that “use of the whip simply means too much and relates to the number of times and/or the force in which the whip is used”.

1.5 Mr Branch then cross examined Mr Muirhead and in answer to Mr Branch’s questions he said that he was present on the day and that the Stewards communicate by walkie talkie. He said that the other Stewards did not notice anything on the day.

1.6 He also agreed that it was the Steward’s job to review the films and he did say that on the day the Stewards were busy dealing with a Protest in Race 1 although when it was pointed out to him that the Protest was in Race 4 he acknowledged that that was correct.

1.7 In answer to a further question, Mr Muirhead said that neither he nor the other Stewards noticed anything on the day. He said that it is their job to deal with breaches of the Rules and he said that on the day he didn’t pick it up.

1.8 Mr Muirhead confirmed that the charge arose as a result of a complaint from a Member of the Public.

1.9 In respect to the charge Mr Muirhead was asked what the term “concluding stages” meant. He said that he thought it was the last 400 or 500 metres of the race.

1.10 Mr Muirhead was asked if the continuous use of the whip was a key part of the Guidelines. He said that it was important for a Driver to pause when using the whip but continuous was only part of the elements in the Guidelines.

1.11 Mr Branch then asked Mr Muirhead if he told Ms Chilcott in a telephone call that it was not excessive if the use of the whip was no more than 20 strikes in the last 400 metres. Mr Muirhead in response said that with 16-20 strikes the Stewards must review the incident but 20 or more then they must charge. He disputed saying 400 metres.

1.12 Mr Branch then asked Mr Muirhead to look at the film and point out where the 400 metre mark was but it could not be identified on the films.

1.13 Mr Branch then asked Mr Muirhead if he thought that the racing characteristics of the horse were relevant in a charge of Excessive Use of the Whip. His answer was “no”.

Ms Chilcott’s Evidence:

2.14 Ms Chilcott then gave evidence and she said that at its previous start the horse had over raced and she had suggested to the Trainer to change its gear. He had done so but he had also put earplugs in which meant that the horse was lazy and she had to use the whip on it.

2.15 Ms Chilcott said that although she was driving the horse with the whip down the straight, she did have distinct pauses and she did rock forward in the sulky a number of times. She said that somewhat short of the line another horse ran past her into second and she could see that she was clearly going to be third so she sat up on her horse and stopped driving it.

2.16 Ms Chilcott said that she rang Mr Muirhead and that he had clearly said that for excessive use of the whip it had to be 20 or more strikes in the last 400. She said that she had counted the number of strikes and didn’t get to 20.

2.17 Mr Muirhead questioned Ms Chilcott on her recollection of the phone call. He disputed that he said the last 400 metres although Ms Chilcott was quite clear in her recollection.

Submissions by Mr Muirhead

3.1 Mr Muirhead referred to the evidence that had been presented. He referred also to the Whip Guidelines and said that he had counted Ms Chilcott using the whip at least 21 times in a manner that was excessive. He said that the force with which she used the whip was too much and that the number of times she used the whip was too many and that accordingly it was excessive.

Submissions by Mr Branch

4.1 Mr Branch firstly made submissions concerning Mr Muirhead’s position as Prosecutor and Witness.

4.2 He said that as Prosecutor, Mr Muirhead is given the task by his bosses to win the case. Mr Branch then said that Mr Muirhead in his capacity as a Witness cannot concede any point to the defence because he is protecting his position as Prosecutor.

4.3 Mr Branch then submitted that in being Prosecutor and Witness Mr Muirhead has a clear conflict of interest.

4.4 Mr Branch produced to the Hearing a Decision from the Superior Court of Justice in Ontario being R v Graham. He drew the Committee’s attention to the following paragraph in that Decision:

“When Counsel appears as a Witness on a contentious matter, it causes two problems. First, it may result in a conflict of interest between Counsel and his Client. That conflict may be waived by the Client, as indeed, was done in this case. The second problem relates to the administration of justice. The dual roles serve to create a conflict between Counsel’s obligations of objectivity and detachment, which are owed to the Court, and his obligations to his Client to present evidence in as favourable a light as possible. This is a conflict that cannot be waived by the Client as the conflict is between Counsel and the court/justice system.”

4.5 Mr Branch said that this was a Non Raceday Hearing and as such any Defendant should get the benefit of a separation of the roles of Prosecutor and Witness. He said that two other Stipendiary Stewards were present, one of which who could have acted as Prosecutor if Mr Muirhead wanted to be the Witness.

4.6 Mr Branch then made submissions as to the merits of the charge. He submitted that the Stewards did review the race on Raceday and that there was no charge on Raceday because the Stewards did not think that Ms Chilcott had done anything wrong on that day.

4.7 He also said that there was no evidence presented to the Committee as to where the 400 metre mark was located. This was important because of the definition of concluding stages of the race and also Ms Chilcott’s conversation with Mr Muirhead. Mr Branch believed that the straight at Wanganui was in excess of 400 metres.

4.8 In respect to the merits of the charge, Mr Branch also submitted that not only had Ms Chilcott paused between strikes of the whip but that she had rocked the sulky as Drivers often do. It was not a continuous movement and he said that the only continuous part of it was for about four strikes in the home straight. He also submitted that Ms Chilcott did the correct thing in sitting up on her horse when she realised she could not finish better than third.

4.9 Mr Branch submitted that the onus was on the Stewards to prove the charge and he believed that it had not been made out to the required degree.

Reasons for Decision:

5.1 The Committee listened to the evidence presented to it and has also viewed the films on a number of occasions.

5.2 Ms Chilcott by virtue of leading for most of the race and leading for at least half of the home straight was clearly visible to anyone viewing the film of the race.

5.3 The Committee is aware that one of the tasks of the Stipendiary Stewards on Raceday is to review the films of each race and to deal with any matters that are apparent. The Stewards on any review could not have missed seeing Ms Chilcott. The Committee has been told that the Stipendary Stewards did not notice anything in this race and the natural conclusion to be drawn from that is that they were happy with Ms Chilcott’s actions in driving PILOT OFFICER. Clearly they reviewed the race, and were satisfied with Ms Chilcott’s actions and as we are aware they took no action on Raceday. There has not been anything presented to us today to tell us otherwise.

5.4 It also follows that if a complaint had not been made then Ms Chilcott would not have been charged. We are also told that there is only one complaint which was in writing (although it was not produced to us) but importantly there was not a number of complaints.

5.5 Mr Muirhead had demonstrated the incident to us by use of the video films and has also produced the Whip Guidelines to us. He tells us that the Stewards were concerned that Ms Chilcott used the whip with considerable force although this does not seem to have been an issue on Raceday. Our view is that the Stewards cannot have it both ways in that they had accepted the use of the whip by Ms Chilcott on Raceday so now they cannot say that they are not happy with the force with which Ms Chilcott used the whip.

5.6 We have been told in evidence about the words “concluding stages” that are set out in the charge and there has also been some debate as to where the 400 metre mark was. Those are side issues as far as we are concerned.

5.7 We have also been told of Ms Chilcott’s telephone conversation with Mr Muirhead about a week after the Race Meeting. Mr Muirhead disputed that he referred to “400 metres” although Ms Chilcott was very clear in her evidence as to her recollection of the conversation.

5.8 The racing manners of the horse were also brought into issue in this Hearing in respect to a charge of Excessive Use of the Whip. Mr Muirhead and Ms Chilcott both have different views and we have to say that we prefer Mr Muirhead’s view. We do not believe the racing manners of a horse are relevant in a charge of Excessive Use of the Whip.

5.9 In arriving at our decision we have taken into account the lack of any action by the Stewards on Raceday. We have already said that that lack of action leads to the assumption that the Stewards were happy with Ms Chilcott’s drive on that day. That is our conclusion today.

5.10 Ms Chilcott had also used the whip about 19-20 times over a considerable distance. Mr Muirhead referred to the force with which Ms Chilcott used the whip but clearly, in our view, she did not use excessive force with all the strikes of the whip. There were distinct pauses, she did rock forward in the sulky a number of times and when she saw that she could not finish second and was clearly third she sat up on her horse. These are mitigating factors as far as a charge of this Committee is concerned.

5.11 The conclusion that we have come to is that although Ms Chilcott has used the whip approximately 20 times the evidence presented to us leaves us to the view that the use of the whip was not excessive.

5.12 We also deal with the issue of Mr Muirhead being Prosecutor and Witness. We agree with Mr Branch that as this is a Non Raceday Hearing the Defendant should get the benefit of a separation of those roles. We recommend to the RIU to have separate people in those roles at future Hearings.

Decision:

We order that the charge against Ms Chilcott is dismissed.

 
BJ Scott         Mr AL Godsalve
Chairman      Committee 
 

sumissionsforpenalty:

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hearing_type: Non-race day

Rules: 869(2)(a)

Informant: Mr JM Muirhead - Stipendiary Steward

JockeysandTrainer:

Otherperson:

PersonPresent: Mr MD Branch - Counsel for Ms Chilcott

Respondent: Ms N Chilcott - Open Horsewoman

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