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Appeal N Williamson v RIU - Reserved Decision of Appeals Tribunal dated 20 September 2017 - Chair, Mr D Jackson

Created on 22 September 2017

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL

AUTHORITY FOR RACING UNDER

THE RACING ACT 2003

IN THE MATTER of an appeal the

New Zealand Rules of Harness Racing

BETWEEN NATHAN WILLIAMSON

Appellant

AND THE RACING INTEGRITY UNIT (“RIU”)

Respondent

Date of Hearing: 19 September 2017

Venue: Addington Raceway, Christchurch

Judicial Committee: D Jackson (Chair)

R McKenzie (Member)

Present: Mr N Williamson, Open Horseman

Mr S Renault, Stipendiary Steward

Mr R Quirk, Registrar

Date of Decision: 20 September 2017

RESERVED DECISION OF APPEALS TRIBUNAL

Introduction

1. Mr Williamson appeals a suspension of four days imposed on him on 7 September 2017 by a Judicial Committee following a defended race day hearing at Winton. Race 7 was the Macca Lodge Handicap Pace. Mr Williamson drove the winner of that race, Tas Man Bromac, a horse which he also trains.

2. Following the race, the RIU charged Mr Williamson with a breach of Rule 869(2)(a) in that he “…used his whip in an excessive manner over the concluding 400 metres.”

3. That Rule reads:

“No horseman shall during any race:

(a) use his whip in an unnecessary, excessive or improper manner.”

4. The whip guidelines issued under the Rules of Harness Racing and effective from 1 December 2016 read:

“Stewards deem the ‘use of the whip’ throughout the race as listed below:

 Free of the rein
 On the horse itself
 On the sulky or dust sheet
 Back handers

Excessive use of the whip simply means “too much” and relates to the number of times and/or force with which the whip is used. The whip shall not be used more than 10 times in the last 400 metres of a race, otherwise this will be deemed excessive use pursuant to these guidelines.

At no stage of a race will stewards permit the continuous use of the whip, horseman must show distinct pauses between the whip being used. The horseman shall interrupt the use of his/her whip by using any of the suggested alternative actions:

 Running the reins over the horse’s rump
 Running the whip through the horse’s tail
 Holding the whip on the horse’s tail or rump
 A rein in each hand while using the whip – not continuous”.

5. Mr Williamson did not admit the charge, which was heard by the Judicial Committee on race day.

6. The Judicial Committee determined on the video evidence available that the charge was proven and found as a fact that Mr Williamson struck Tas Man Bromac 21 times continuously over the final 200 metres.

7. The Judicial Committee heard submissions as to penalty and determined, having regard to those submissions and the JCA Penalty Guidelines, that the starting point was a three day suspension, which it uplifted by one day to four days for Mr Williamson’s recent prior breach of the Rule at Oamaru on 21 May 2017. Accordingly, the Judicial Committee suspended Mr Williamson for 4 days from the completion of racing on 7 September 2017 up to and including 28 September 2017.

8. Mr Williamson appeals the Judicial Committee’s decision as to penalty only. In short, Mr Williamson contends that it is too long for a breach of this kind and prevents him from driving Tas Man Bromac in the Hannon Memorial at Oamaru this Sunday 24th September 2017.

The Appeal

9. The provision for appeals is set out in Rules 1202-1207 of the Rules. Rule 1206 directs the Appeals Tribunal to schedule 5 of the Rules. Clauses 47-53 describe the procedure and in particular clause 44 which directs the appeal to be heard by way of a re-hearing unless the Tribunal directs otherwise.

10. Prior to commencing the appeal, the Tribunal explained to Mr Williamson how the re-hearing was to be conducted and the order of parties’ submissions.

11. Mr Williamson accepted the proposed order of hearing was appropriate.

12. In an appeal it is for the Appeals Tribunal to form its own decision as to penalty on the evidence and submissions before it.

The position of the RIU

13. Mr Renault replayed the video evidence shown to the Judicial Committee. He submitted that Mr Williamson had clearly struck his horse 21 times and disclosed to the Appeals Tribunal that subsequent to the hearing before the Judicial Committee, Mr Williamson had acknowledged to Mr Renault that his use of the whip on this occasion was outside what was permitted under the guidelines.

14. Mr Renault submitted that this was Mr Williamson’s second breach of the rule in the last 6 months, Mr Williamson having been suspended at Oamaru on the 21st of May 2017 for 2 days and also fined $300. He explained that this combination penalty enabled Mr Williamson to drive at the Harness Jewels meeting at Ashburton this year, which he would otherwise have missed had he been suspended for 3 days as contemplated by the Judicial Committee on that occasion.

15. Mr Renault added that Mr Williamson was fined $300 for a breach of the rule at Roxburgh on 4 January 2017. This means this is Mr Williamson’s third breach of the Rule in a nine month period.

16. Mr Renault submitted that the 21 strikes used by Mr Williamson was at the higher end of the scale for a breach of this Rule having regard to the Steward’s rule of thumb that 16 or more strikes is high end culpability. In the circumstances Mr Renault submitted that the number and nature of the strikes, being continuous and with little respite, warranted an uplift in penalty - the repetitive nature of the strikes being an aggravating factor.

17. Mr Renault then submitted that whilst the Hannon Memorial is a time honoured and notable race, it is not what can be described as an “exceptional” race. Rather, he pointed to the fact that it was a Group 3 race carrying a stake of $25,000 as indicative of its less heralded status these days. Mr Renault submitted that were an Appeals Tribunal to reduce the length of a suspension in order for a senior horseman to drive in such a race, it would set a dangerous precedent. There are many such races throughout the course of any season, he said, as part of a submission that in effect Mr Williamson was seeking to halve his 4-day suspension noting the Oamaru meeting fell on what would otherwise be the 3rd day of the suspension under appeal.

18. Mr Renault submitted that to impose a 2-day suspension and a fine would be to ignore the JCA penalty guidelines and would be to adopt a starting point which was not available to the Appeals Tribunal under those guidelines.

19. Mr Renault submitted that the Appeals Tribunal should be mindful of the fact that any penalty imposed for a repeat breach of this rule ought to be a meaningful one and that Mr Williamson had already garnered leniency from a Judicial Committee by virtue of his being allowed to drive in the Harness Jewels at Ashburton earlier this year.

20. Mr Renault submitted that he could find only two decisions in the last 18 months where a driver facing a second or subsequent breach was fined, namely Ms Rasmussen on the 27th of January this year (where she was fined $1,250 in order to allow her to meet committed drives in Australia) and Mr Williamson (to allow him to drive in the Harness Jewels as described).

21. All things considered, Mr Renault submitted that as a matter of fairness and consistency Mr Williamson was dealt with fairly by the Judicial Committee on this occasion.

The position of the Appellant

22. Mr Williamson submitted that he was a senior horseman who had built up a good number of drives and that whilst he had breached this rule twice prior to the Winton suspension, his prior breaches were different in kind. Mr Williamson developed this submission and explained that on his first breach at Roxburgh earlier this year he had struck his drive on that occasion 11 times free of the rein, whereas on the second occasion at Oamaru, he had consciously modified his whip action in order to flick his drive on that occasion but also free of the rein.

23. Mr Williamson’s argument is that he has consciously adapted his whip action throughout the course of the year in order to meet his understanding of the guidelines. He suggested that his adaptations were evidenced by his drive at Winton during which he continually changed his action mixing 3 or 4 strikes with a hand free of the whip with what he described as an ‘urging motion’, holding the whip in a rein hand and striking the horse. There were small pauses between strikes he said. It was the urging motion which prompted Mr Williamson to defend the charge on raceday.

24. To his credit, Mr Williamson explained that he had since spoken to Mr Renault and had otherwise taken advice from senior horsemen known to him, all of whom counselled him that his breach of the rule was there to be seen.

25. Mr Williamson then turned to the significance of Hannon Memorial Day at Oamaru to him and his family. Mr Williamson submitted that the Hannon Memorial was a feature race to be run on Sunday and was a ‘once in a lifetime opportunity’ to train and drive a horse in that race.

26. He pointed out that Tas Man Bromac was a horse primed for the Hannon Memorial and that, were it not for his suspension, he may have even started that horse in the New Brighton Cup at Addington last Saturday. Mr Williamson explained that he had considered running another horse, Poppymalda, in the Ordeal Trot at Addington last Saturday but determined not to because of his suspension and the expense to owners of bringing the horse to Canterbury to race with a new driver.

27. Mr Williamson submitted that the suspension had therefore cost him two drives in races worth $25,000 and $18,000 and suggested that that was a significant sanction in and of itself.

28. Mr Williamson submitted that other drivers, like Ms Rasmussen, had avoided suspension on previous occasions and in similar circumstances and he referred at length to a Judicial Committee decision of 12 May 2017 where Ms Rasmussen was fined $1000 for improper use of the whip. The Appeals Tribunal notes that Ms Rasmussen was fined on that occasion for what was her first breach of the improper use rule.

29. Mr Williamson reiterated that his excessive use was different in comparison to Ms Rasmussen who had struck her horse approximately 19 times in the last 150 metres of the race.

30. The Appeals Tribunal asked Mr Williamson to explain what he meant by that submission with reference to the video and he did so describing that there were differences between his strikes, flicks, urging motions and so on. Mr Williamson acknowledged that with the benefit of hindsight he would have turned his whip around and simply used his reins to urge the horse and that he was otherwise mindful not to cross his reins during the run home in order to allow him to strike the horse.

31. The Chair asked Mr Williamson if he had read the guidelines. He conceded that he had not read them but explained that he was aware of them and in particular that he was aware of the need to break up any whip action in order to avoid continuous use. It was all a matter of public perception he submitted.

Discussion

32. The Appeals Tribunal has no difficulty in agreeing with the submission made by the RIU that a suspension was warranted on this occasion and that any suspension must be meaningful.

33. Mr Williamson’s use of the whip, 21 times in all, was excessive and plainly so. The Appeals Tribunal has listened to Mr Williamson’s careful explanation of his actions and determined that Mr Williamson’s admitted failure to read and understand the guidelines and apply them to his drives has been his undoing. If Mr Williamson’s drive at Winton was the result of his careful adaptation and modification then it underscores his lack of understanding of the rule and the guidelines. He struck the horse 21 times in breach of the guidelines. That he did so, in slightly different ways, is irrelevant. It was continuous. There was no respite. It was not a punishing misuse of the whip however.

34. The result is that while we agree with a suspension, we must determine whether the penalty imposed is open to challenge. On the ground that the suspension ought to be reduced to allow Mr Williamson to drive at Oamaru this Sunday, that can be dealt with easily. The race is not a feature race and there is strength in Mr Renault’s submission that a senior and busy horseman cannot circumvent the penalty guidelines in order to drive in such events. The cases referred to by Mr Williamson, involving Ms Rasmussen, are of no assistance in fixing a penalty here. Ms Rasmussen had firm commitments to drive a team of horses in group 1 races in Sydney. There was no element of speculation whereas Mr Williamson’s reference to the loss of the Poppymalda drive in the Ordeal and Tas Man Bromac in the New Brighton Cup was speculative. Ms Rasmussen had firm commitments being a matter of public knowledge at the time. The other charge referred to was for improper use, not a subsequent excessive use. They can be put to one side.

35. The JCA Penalty Guidelines provide that for a second or subsequent breach of the excessive whip rule the starting point is a suspension of three to five days. We agree with the Judicial Committee that the starting point is three days. In doing so we accept Mr Williamson’s submission that this was not the worst excessive use of its kind and that the number of strikes do not warrant an uplift having regard to the fact that all strikes were with the whip in the rein hand.

36. We disagree with the Judicial Committee that there ought to be an uplift of one day for Mr Williamson’s prior breach of the Rule at Oamaru. That is because the prior breach is already factored into the starting point under the JCA Penalty Guidelines. In other words, but for his prior breach at Oamaru, Mr Williamson would be looking at a fine. By virtue of the Winton breach he is looking at a starting point of three to five days suspension (subject to the culpability analysis carried out in paragraph 35 above). Accordingly, if this was Mr Williamson’s second breach of the rule then, in our view, there is no basis for an uplift for his prior breach. It was factored into the starting point under the guidelines.

37. However, this is not Mr Williamson’s second breach. It is his third breach in nine months. The guidelines provide that:

“With respect to excessive use of the whip where a driver is a repeat offender, a separate starting point is recommended for a 2nd breach (within 6 months) of a suspension of 3-5 days. Note that a driver’s record in relation to this rule only will reset after 6 months has elapsed from the date of their last breach of the rule.”

38. Accordingly, we consider that we cannot disregard his January breach. We have determined that an uplift of one day is necessary for his record of three breaches (which record has not reset under the guidelines). In other words, there will be an uplift of one day for both his January and May breaches.

39. Mr Williamson defended the charge. He should not have and was wise not to appeal that aspect of the decision. Because he defended the charge, he is not entitled to any credit and there will be no deduction for mitigating factors.

40. The net result is that the appeal is dismissed and Mr Williamson’s four day suspension stands as ordered by the Judicial Committee.

41. The hearing of this appeal was convened under urgency and involved Mr Williamson travelling from Oamaru to Christchurch. He has been unsuccessful in his appeal but was co-operative and showed insight into what he needs to address in his driving. He is a trainer and driver who is held in high regard. Mr Renault confirmed that his record is otherwise excellent. On that basis and in light of the Appeals Tribunal’s approach to penalty, we do not propose to make any orders as to costs. Should any party wish to be heard on the issue of costs then they are to file submissions with the Registrar of the JCA by 5pm Friday 22nd September 2017.

D Jackson      R McKenzie
(Chair)          (Member) 

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