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Appeal J McDonald v RIU - Decision of Appeals Tribunal dated 31 January 2020 - Chair, Hon J W Gendall QC

Created on 03 February 2020

Before an Appeals Tribunal of the Judicial Control Authority for Racing

IN THE MATTER OF an Appeal against

a decision of a Judicial Committee made at

Ellerslie on 30 January 2020

BETWEEN JAMES MCDONALD - Class A Licensed Rider

Appellant

AND THE RACING INTEGRITY UNIT

Respondent

Information: A13403

HEARING AT WELLINGTON ON 30 JANUARY 2020

Appeals Tribunal:

Hon J W Gendall QC (Chair)

Mr L N McCutcheon (Member)

Attendance by telephone link:

Dr L Molloy (Lay Representative for Mr McDonald)

Mr J Oatham (Chief Stipendiary Steward for the RIU)

DECISION

1. Mr McDonald was charged with Careless Riding in breach of Rule 638(1)(d) following the running of the Karaka Million 3yo Classic at Ellerslie on 25 January 2020. He pleaded guilty. His licence to ride was suspended for 9 national New Zealand riding days, (to commence after racing on 27 January 2020) and he was fined $750.

2. He has appealed against the penalties imposed. Because his lay representative (on the Appeal) contended the period of suspension was running it was urgent that the Appeal be heard and the Tribunal requested, and received, written submissions on behalf of the Appellant and Respondent, and afforded the representatives the opportunity of expanding those, if they wished, by oral submissions in the telephone link.

3. The Tribunal, however, did not proceed to determine the merits, or otherwise, of the Appeal because it had granted Mr McDonald the benefit of a rehearing for the following reasons:

(a) Through Dr Molloy he has contended that he only pleaded guilty to the charge because he believed he would only receive a lesser penalty than that was imposed.

(b) Dr Molloy has advanced argument as to reasons why Mr McDonald had such belief. He alleged that the rider “should really never have entered a guilty plea as this was a minor indiscretion, but he was seduced into doing so with the promise of a light penalty.” He alleged that advice given to him by the Chief Stipendiary Steward as to the possible process of the Judicial Committee led him to believe “he was about to receive a 4 day penalty.”

(c) We record that Mr Oatham adamantly rejects the contention and any comments attributed to him as asserted by Dr Molloy, are incorrect. At best, he said, Mr McDonald may have misconstrued any comments that were offered.

(d) We were in no position to resolve the disputed facts and do not do so. If Mr McDonald’s guilty plea was not genuinely made as an informed admission of the charge, even though unwisely made and surprising for a senior rider, we concluded that he ought to have the opportunity of a rehearing if he wished. We were advised that that was his wish. So in the interests of fairness to the parties and in order for justice to be seen to be done, we have:

(a) Allowed him to change his plea to not guilty.

(b) Granted Mr McDonald a rehearing of the charge.

(c) Fixed the date of Tuesday 4 February at 11.30am at Ellerslie Racecourse for the charge to be heard.

(d) As a consequence the findings of liability and penalty are quashed. But we emphasise this is not because the Appeal was allowed (as we have not determined that), but solely to ensure that justice may be seen to be done.

4. We have made it clear to the parties that the charge (and if proved, penalty) is to be heard de novo and all options as to outcome (dismissed, proved, and if so relevant penalty, costs) remain open.

5. The granting of a rehearing in no way suggests error on the part of the Judicial Committee who properly conducted the hearing based on the guilty plea.

Dated at Wellington this 31st day of January 2020

J W Gendall QC (Chair)

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