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Appeal B Allen v RIU - Decision of Appeals Tribunal dated 15 March 2018 - Chair, Mr M McKechnie

Created on 20 March 2018

BEFORE AN APPEALS TRIBUNAL OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BEN ALLEN, Apprentice Jockey

APPELLANT

RACING INTEGRITY UNIT

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Mr Richard Seabrook

Present : Mr Ben Allen

Mr Matthew Hyland, Advocate for Mr Allen

Mr John Oatham, Chief Stipendiary Steward representing the Racing Integrity Unit

Mr Matthew Williamson, Registrar

DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY

DATED THIS 15th DAY OF MARCH 2018

1. BACKGROUND

1.1 The Tribunal has today heard an appeal by Mr Ben Allen. Mr Allen is an apprentice jockey based in Melbourne, Australia.

1.2 As recorded in the minute issued following the teleconference on the 8th day of March Mr Allen rode the Australian horse CIVIL DISOBEDIENCE in the Vodafone New Zealand Derby at Group 1 level on the 3rd day of March this year. The race took place at Ellerslie Racecourse in Auckland. Following the running of the race Mr Allen was charged with careless riding pursuant to Rule 638(1)(d). The rule provides:

A rider shall not ride a horse in a manner which the Judicial Committee considers to be careless.

1.3 As recorded in the minute of the 8th day of March Mr Allen pleaded guilty to the careless riding charge and following a hearing before the Raceday Judicial Committee Mr Allen was suspended for a period commencing after racing on the 10th day of March 2018 and to conclude after racing on the 24th day of March 2018. Mr Allen was granted a deferment of the suspension pursuant to Rule 1106(2) which permitted him to ride up to and including the 10th day of March 2018.

1.4 At the teleconference on the 8th day of March directions were given for the filing of submissions and the procedure for the conduct of the hearing. Mr Hyland filed written submissions on behalf of Mr Allen and Mr Oatham submissions on behalf of the RIU. A video link was set up and that has worked satisfactorily enabling the Tribunal to view the race and to see both Mr Hyland and Mr Allen.

2. LEGAL PRINCIPLES ON APPEAL

2.1 The Courts in New Zealand have set out the basis upon which an Appellant must proceed at an appeal hearing. Reference is made to the judgment of the Supreme Court in Green v Green [2017] 2NZLR 321 and more recent decision of the Court of Appeal in Hughes Limited v Lyall & Bennett CA331/2017 [2018] NZCA 28, 1 March 2018. It is for the Appellant to persuade the Appeals Tribunal to reach a different conclusion from that arrived at by the Raceday Judicial Committee. In discharging that onus the Appellant must identify the respects in which the decision under appeal is said to be in error. The Appeals Tribunal must exercise its own independent judgment.

2.2 The Tribunal has carefully considered the decision of the Raceday Judicial Committee. That decision identified the level of carelessness as being mid-range. Mr Hyland on behalf of Mr Allen does not take issue with that description of the careless riding. The Judicial Committee identified the status of the race and the consequence of that in terms of the rules. On the day the Judicial Committee did not have access to Mr Allen’s riding record. That has now been made available. Mr Oatham submitted on behalf of the RIU that the record is essentially neutral. Regrettably the material supplied from Australia setting out Mr Allen’s record is not easy to follow but the Tribunal will proceed on the basis that Mr Allen’s riding record is as described being neutral. The Raceday Judicial Committee elevated the period of suspension on account of the status of the race but then correctly took account of Mr Allen’s plea of guilty.

3. THE CASE FOR MR ALLEN

3.1 Mr Hyland emphasised Mr Allen’s inexperience. In answer to questions from the Tribunal it was made known that Mr Allen had ridden previously at Ellerslie on some seven (7) occasions.

3.2 The Tribunal knows of its own knowledge that Mr Allen is a senior and successful apprentice jockey in Australia.

3.3 At the heart of Mr Hyland’s submission was the consequence in Australia of the period of suspension imposed in New Zealand. Mr Hyland submitted that the period of suspension imposed involved some seventeen (17) race days in Australia that may have been available to Mr Allen. After some questioning it emerged that he might have been able to ride in perhaps something like twelve (12) of those race days. Further Mr Hyland made reference to upcoming engagements that Mr Allen wished to fulfil in a group race in Australia.

3.4 Reference was made to the reciprocity of decisions imposed upon jockeys in New Zealand and Australia. Mr Hyland recognised that decisions made in New Zealand have effect in Australia and likewise decisions made in Australia have effect in New Zealand.

4. THE CASE FOR THE RIU

4.1 Mr Oatham in his written submissions and in his presentation today supported the decision of the Raceday Judicial Committee. The film of the race was played to the Tribunal and it is clear that there was significant interference to a number of horses. This occurred as the horses were leaving the straight at Ellerslie and climbing the rise before entering the back straight.

4.2 Mr Oatham pointed to a number of recent comparable decisions which he submitted were consistent with the decision of the Raceday Judicial Committee under appeal. With reference to the reciprocity of decisions in New Zealand and Australia Mr Oatham drew attention to the longstanding position in relation to international riders. This is that an international rider in New Zealand should be deemed to be a New Zealand national rider and that the New Zealand Racing Calendar must be the appropriate reference point for the calculation of riding days. The Tribunal can readily understand why such a rule is in place. It would be extremely difficult if not impossible for Raceday Judicial Committees to make inquiries into how an overseas rider might be affected when he or she returns to their place of domicile by reference to the number of meetings or rides that could be available in the immediate future. The position would obviously be different from state to state in Australia and might again be different in places such as Singapore and Hong Kong.

5. DECISION

5.1 The Tribunal cannot identify any error in the approach taken by the Raceday Judicial Committee. That decision is consistent with other contemporary decisions. The appropriate uplift was applied for the Derby being a Group 1 race with a stake of $1M. Likewise an appropriate allowance was made for Mr Allen’s plea of guilty.

5.2 While the loss of opportunities for Mr Allen in Australia is unfortunate the penalty imposed in New Zealand must be recognised and given effect to in Australia. As noted earlier those reciprocal arrangements apply to penalties imposed in Australia when New Zealand jockeys are suspended.

5.3 The Tribunal does not accept that Mr Allen’s status as an apprentice jockey entitles him to any special recognition. In the first place he is a senior and experienced apprentice. Secondly he has ridden at Ellerslie on previous occasions. Thirdly the Rules of Racing apply equally to all jockeys at whatever level seniority they may be placed. It was recognition of Mr Allen’s ability and comparative seniority that he was engaged to ride in a race of such significance as the Vodafone New Zealand Derby.

5.4 For the reasons which are set out the Tribunal is not persuaded that the Raceday Judicial Committee was in error and the appeal is dismissed.

6. COSTS

6.1 Mr Oatham advised that the RIU would not seek costs. That is a generous position to take.

6.2 The RIU have incurred the cost of hiring the venue being $100 and the cost of hiring the video link at a cost of $220. Those figures plus GST come to $368. There will be an order that Mr Allen pay the sum of $368 to the JCA in respect of those matters. In respect of the other costs incurred by the JCA in assembling the Tribunal members and the costs involved Mr Allen will be ordered to pay the sum of $700. That is a contribution towards the costs not an indemnity figure.

6.3 Finally the Tribunal would like to thank Mr Hyland and Mr Allen for the approach that they have taken and for the submissions made and likewise Mr Oatham for the RIU.

DATED this 15th day of March 2018

Murray McKechnie

Chairman

Signed pursuant to Rule 1007(5)

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