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Appeal R Elliot v RIU - Decision of Appeal Tribunal dated 6 July 2019 - Chair, Mr M McKechnie

Created on 10 July 2019

BEFORE AN APPEAL TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER OF THE NEW ZEALAND THOROUGHBRED RACING RULES

BETWEEN RYAN ELLIOT

Apprentice Jockey

APPELLANT

AND THE RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie Chairman & Mr Gavin Jones

Present: Mr Ryan Elliot, Appellant

Mr Graeme Rogerson, Licensed Trainer

Mr John Oatham, Chief Stipendiary Steward

Mr Alan Coles, Stipendiary Steward

Mr Matthew Williamson, Registrar

DECISION OF APPEAL TRIBUNAL DATED THIS 6TH DAY OF JULY 2019

1. INTRODUCTION

1.1 The Appeal Tribunal is considering an appeal by Mr Ryan Elliot currently, as the present season comes to a conclusion, New Zealand’s leading apprentice. This appeal arises from a penalty imposed on race day at Hastings on 29 June 2019. Mr Elliot was charged with careless riding following the running of Race 2. It was said that he allowed his mount, Beauty Star, to be angled out when not clear of the horse, Valhexa, near the 300m mark.

1.2 Mr Elliot pleaded guilty to the charge of careless riding. On that day at Hastings, Mr Noel Harris, the former leading jockey and now the jockey mentor employed by New Zealand Thoroughbred Racing was on course. The evidence we have heard today establishes that there was some discussion between Mr Harris and Mr Elliot, during which the latter indicated that he thought he would be charged. Further, there was some conversation between the stipendiary steward, Mr Alan Coles and Mr Harris. In the event when Mr Elliot appeared before the Raceday Judicial Committee, Mr Harris was not present. We have established, as a result of a question directed to Mr Elliot, that he was asked if he wished to have representation and he indicated that he did not.

Perhaps upon reflection that was unwise. The reasons for that will be more apparent when we set out the evidence which Mr Harris has given before the Tribunal today. The Rules provide that apprentice jockeys should be given the opportunity of representation but the rule is not expressed in mandatory terms.

2. THE CASE FOR MR ELLIOT

2.1 Mr Elliot is represented today by his employer the prominent trainer, Mr Graeme Rogerson. Mr Rogerson contends that had he been present on the day at Hastings, Mr Elliot would have been advised to plead not guilty. Mr Rogerson made detailed reference to the transcript of the Raceday hearing, with particular emphasis upon the contact and pushing said to have occurred. The Tribunal has been shown films of the race from various angles. Some of these films are not easy to reconcile. One of the films which was taken from the winning post looking down the straight, would indicate that there was no contact between Mr Elliot’s mount and Valhexa, the mount of Charlotte O’Beirne. Other films, and in particular the rear view film, suggest that there may have been contact. In the event it is the Tribunal’s view that there is no conclusive evidence that there was contact between the two horses. Mr Rogerson was also critical of the passage in the transcript where there is reference by the stipendiary steward on duty that day, Mr Balcombe, that Miss O’Beirne’s mount was pushed out some three horse widths.

2.2 Mr Rogerson acknowledges that the guilty plea cannot be revisited but he urges the Tribunal to see this as careless riding at the very lowest range. Mr Rogerson was referred by the Committee to the passage in the transcript where the Chairperson of the Raceday Judicial Committee made reference to the submission for the RIU that the carelessness was “mid-range”. It was put to Mr Elliot on race day that it was “mid-range” and Mr Elliot accepted that it was a “mid-range breach”. Plainly upon a reconsideration of the position both Mr Elliot and Mr Rogerson resile from that concession made by Mr Elliot on the day.

2.3 Mr Jimmy Cassidy was called as a witness to support the appeal. Mr Cassidy is a retired former champion jockey on both sides of the Tasman. He drew attention to the fact that Mr Elliot had looked to his right three times before moving his mount towards the outside. He suggested that Mr Elliot was thus being careful and he further said that Miss O’Beirne was “willing to go out”. Mr Cassidy, on looking at the films, contended that the horse being ridden by Miss O’Beirne was clearly tiring while Mr Elliot’s mount Beauty Star was running on. Mr Cassidy went so far as to say that in his view no charge of careless riding should have been laid. The Tribunal is not persuaded by Mr Cassidy’s evidence. There was a measure of carelessness by Mr Elliot. He recognised that with his guilty plea. It is the measurement of the degree of carelessness which the Tribunal must establish in order to fix the appropriate period of suspension.

2.4 Mr Noel Harris to whom reference was made earlier, was called as a witness for Mr Elliot. He spoke of the discussion with Mr Coles referred to above, and in answer to questions from the Tribunal, it was established that he had conversation with both Mr Coles and Mr Elliot before the charge of careless riding was preferred. It was Mr Harris’ position on analysis of the films, that there was some degree of carelessness of the part of Mr Elliot. It was Mr Harris’ view that this should have resulted in a warning or at worst, a charge of careless riding at the very lowest level. Mr Harris described what he saw as riding which was “low-range or involving a warning”.

2.5 Mr Rogerson, in summing up the case for Mr Elliot, again acknowledged that the guilty plea could not be revisited but submitted that the mid-range characterisation by the Raceday Judicial Committee was seriously mistaken and that it was at worst low-range and the appropriate suspension would have been for a period of three days.

3. THE CASE FOR THE RIU

3.1 Mr Coles, a senior and very experienced stipendiary steward, analysed the films and pointed out that the mount of Miss O’Beirne was forced wider than it had clearly been intending to go. Further, he pointed out that the side-on film demonstrated that when Mr Elliot took his mount forward he was not sufficiently clear of Valhexa. Mr Coles by reference to the side-on film demonstrated that Beauty Star was not two lengths clear of Valhexa.The Tribunal, on its assessment of the films, takes the view that plainly Mr Elliot, despite looking to his right on three occasions, was not two lengths clear of the Valhexa and at best perhaps a length and a half clear at most.

4. DISCUSSION

4.1 It is the view of the Tribunal that the carelessness on the part of Mr Elliot was at a comparatively low level. He looked to his right. He clearly made an assessment of the position and that distinguishes this sort of careless riding from that where a jockey does not make an assessment of the position before moving his or her mount. In the Tribunal’s view Mr Elliot did make an assessment of the position but there was a measure of misjudgement on his part.

4.2 The Tribunal is concerned that the Raceday Judicial Committee may have been influenced by the belief that there was contact made – reference page two of the transcript. Further, that the Raceday Judicial Committee may have been of the view that the horse Valhexa had been pushed out, possibly three horse widths. That is not confirmed by the Tribunal’s assessment of the films.

4.3 In the result it is the Tribunal’s view that the carelessness was at what might accurately be described as low to mid-range. We are conscious that appeals under the rules of New Zealand Thoroughbred Racing are a re-hearing and that the Appeals Tribunal must reach its own assessment of the evidence. That evidence today was more comprehensive than was before the Raceday Judicial Committee. That is no criticism of the Committee. Where a jockey pleads guilty to a careless riding charge it is not necessary, nor is it the accepted practice to call other jockeys who may have been involved to give evidence. In as much as Mr Rogerson was critical of the Raceday Judicial Committee not calling Miss O’Beirne, we do not see any validity whatever in that submission.

4.4 Adopting the assessment of low to mid-range carelessness, the Tribunal considers that a starting point for the suspension would have been appropriate at seven days. Mr Elliot was given an acknowledgement by the Raceday Judicial Committee that he has a very good recent record and that he had pleaded guilty. On account of those two considerations the Raceday Judicial Committee reduced the period of suspension by two days. That was in our view entirely appropriate. Given the assessment that the Tribunal has made of the evidence, a starting point for the suspension would appropriately be seven days. If two days are granted for the good recent record and the guilty plea, that takes the period of suspension to five days. It follows that the suspension imposed will commence – has already commenced – on 5 July 2019 and will conclude following racing on 13 July 2019.

5. NOTE

5.1 In the course of delivering the decision an inadvertent mistake was made as to the dates. It was said that the suspension would run from 4 July and conclude on 12 July. Mr Elliot had been permitted to ride on 4 July and did so. A five day suspension will commence on 5 July and conclude following racing on 13 July 2019. At the hearing at Te Rapa none of the parties present were aware of this inadvertent mistake with dates. It has since been corrected and Mr Elliot has been advised through his employer, Mr Rogerson.

6. RESULT

6.1 The result of that is that the period of suspension has been reduced by one day. It is not the usual practice of Appeal Tribunals to make minor adjustments to periods of suspension. The more so when that period of suspension has been imposed, as here, by a senior and experienced Raceday Judicial Committee. The circumstances here are however somewhat unique as we have sought to explain. The result means that Mr Elliot can resume riding on 14 July 2019.

7. COSTS

7.1 The usual practise, but not followed invariably, is that a party who is successful in an appeal has costs awarded in their favour. Here Mr Rogerson, very generously, does not seek a costs award in favour of Mr Elliot. That is appropriate given that the matter under consideration was finely balanced. For the RIU Mr Coles points out that the sum of $100.00 has been incurred in preparing the transcript and we make an Order that Mr Elliot pay $100.00 to the RIU for the transcript.

7.2 We turn to the costs of the JCA in assembling this Appeal Tribunal. In the first place Mr Jones is on duty today with the Raceday Judicial Committee at Te Rapa. The Chairman of the Tribunal has travelled from Rotorua and will remain on course for part of the meeting although not involved in raceday hearings. In those circumstances and having regard to the way this hearing has developed and the result that we have set out, the Tribunal takes the unusual course of not requiring either party to pay any costs towards the JCA.

DATED this 6th day of July 2019

Murray McKechnie

Chairman

Signed pursuant to Rule 1007(5)

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