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Appeal M Purdon, T Chmiel, B Barclay, N Rasmussen, R May and G Smith v RIU - Written Decision dated 30 June 2018 - Chair, Mr G Thompson

Created on 02 July 2018

BEFORE AN APPEALS TRIBUNAL OF

THE JUDICIAL CONTROL AUTHORITY

FOR RACING UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Harness Racing

BETWEEN MARK PURDON

TERRY CHMIEL

BRENT BARCLAY

NATALIE RASMUSSEN

RICKY MAY

GAVIN SMITH

Appellants

AND RACING INTEGRITY UNIT

Respondent

Appeals Tribunal: Mr Garry Thompson, Chairman

Mr Russell McKenzie, Member

Written decision issued on the 30th June 2018

It was ordered by consent that the appeals be dealt with on the papers.

DECISION OF THE APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

1. INTRODUCTION

1.1 Each Appellant was charged under Rule 857(7) which states

“no horseman shall fail to come up into and/or maintain his position”

1.2 The Rule referred to above is normally dealt with as a minor offence being listed in the Minor Infringement Schedule but the Race meeting at which this was held being the Waikato Bay of Plenty Harness Racing Club (Harness Jewels meeting) meeting on 2nd June 2018 at Cambridge Raceway had every race carrying a stake of $40,000 or greater being what is described in the Penalty Guide as a major race.

1.3 Accordingly, the RIU stewards sought to uplift the penalty amount which had a standard penalty of $100 and therefore filed the charge with the raceday Judicial Committee.

1.4 The Stewards submitted that a 100% increase in the normal penalty be imposed since in all cases these were major races. They therefore submitted that a penalty of $200.00 or an equivalent suspension was appropriate.

1.5 The Judicial Committee, however, in all cases imposed higher penalties. Messrs Smith, May and Purdon were fined $400. Ms Rasmussen was fined $500 because she had been warned earlier in the day. Mr Barclay was fined $200 and his licence was suspended for one day and Mr Chmiel had imposed on him a three day suspension. All have appealed.

2. THE APPEAL

2.1 It is necessary for the Appeals Tribunal to form its own decision on the matters placed before it and in this case the Tribunal has directed that this be dealt with on the papers.

3. SUBMISSIONS FOR THE APPELLANTS

3.1 Mr Lawson submitted that what the Stewards submitted by way of penalty was appropriate and that the penalties imposed by the Judicial Committee were excessive.

3.2 Mr Lawson raised a number of relevant matters including the fact that it was not suggested that the penalties had previously been manifestly inadequate, the losing driving fees after 6th position were the same as any other meeting, the visual aspects of knowing where 1609m starting point was created a difficulty and the mobile barrier moved faster than normal because of the distance of the race and the quality of the horses.

3.3 Mr Lawson admitted that the penalties should all be $200.00 except that Mr Barclay who received a one day suspension as well as a $200 fine simply have this replaced by a $200 fine only and Mr Chmiel who received a three day suspension, but no fine have his suspension reduced to two days.

4. SUBMISSIONS FOR THE RESPONDENT

4.1 Mr Ydgren submitted that a 100% increase on $100 being the standard penalty to $200 was appropriate except in the case of Mr Chmiel who had a previous breach of the rule so his penalty it was submitted be a two day suspension which had already been served.

4.2 Mr Ydgren explained the allowance horsemen have of half a length grace and stated that drivers are required to know where the starting position is on the track and that in the circumstances all the horseman either made a simple error and misjudged their position or were unaware of where the actual starting point was.

5. DECISION

Having considered the submissions on behalf of the Appellants and the Respondent we are satisfied that a 100% increase in the penalty prescribed by Minor infringement Scheme is appropriate in the circumstances this being the submission of the RIU stewards at the Race Day Hearing.

The onus is on the Appellants to show that the penalty imposed by the Judicial Committee was manifestly excessive and in our view the Appellants have discharged that onus.

6. PENALTIES

We impose a penalty of $200 fine on Mark Purdon, Gavin Smith, Ricky May and Natalie Rasmussen. We impose a penalty of a two day suspension on Terry Chmiel he having had a previous breach of this rule and since two days have already been served there is no further penalty.

Brent Barclay was issued with a fine of $200 and had his licence suspended for one day and his penalty is reduced to the fine of $200 only.

7. COST AND FILLING FEE

Mr Lawson has made no application for costs and submits that costs should lie where they fall. He has submitted that the $250 filing fee be refunded. We agree with both those submissions. The penalties we are imposing are what were submitted by the RIU at the hearing and the Respondent should not be penalised because the appeal is successful. The Appellants should not be out of pocket as they were successful.

Dated this 30th June 2018

Garry Thompson

CHAIRMAN

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