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Appeal R Elliot v RIU - Decision of Appeals Tribunal dated 26 April 2017 - Chair, Mr M McKechnie

Created on 27 April 2017

BEFORE THE APPEALS TRIBUNAL

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN RYAN ELLIOT apprentice jockey

APPELLANT

AND RACING INTEGRITY UNIT

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Mr Noel McCutcheon

Present: Mr Mathew Williamson for the Racing Integrity Unit

Mr Ryan Elliot

Mr Graeme Rogerson advocate for Mr Elliot

Mr Brady Jones Registrar

DECISION OF APPEALS TRIBUNAL

DATED THIS 26 DAY OF APRIL 2017

1. NATURE OF APPEALS

1.1 Mr Elliot, who is an apprentice jockey, appeals two (2) decisions given by the Raceday Judicial Committee at Tauranga on 15 April 2017.

1.2 Following the running of Race 3 Mr Elliot was charged with a breach of Rule 638(3)(b)(ii) alleging that he used his whip excessively with reference to his mount IN A MINUTE. Mr Elliot pleaded guilty to the charge. The Raceday Judicial Committee suspended Mr Elliot for a period of seven (7) days from racing on 25 April 2017 up to and including 5 May 2017. The start date for the suspension of 25 April was put in place because Mr Elliot, only the week before, had been suspended at Trentham for a breach of the same rule.

1.3 Following Race 7 on the same day at Tauranga Mr Elliot was again charged with a breach of the whip rule in relation to his ride on the mount QUEEN EL JAY. He pleaded guilty and following a hearing the Raceday Judicial Committee imposed a suspension of nine (9) riding days from 5 May 2017 up to and including 24 May 2017.

1.4 Mr Elliot is represented today by his employer Mr Graeme Rogerson a very experienced and senior licenced trainer in New Zealand. Mr Rogerson was present at Tauranga for the hearing following Race 3. He was not present at the hearing following Race 7 as he had had to leave the racecourse to attend to other business. At the hearing following Race 7 Mr Elliot was assisted by the former senior jockey and jockey mentor Mr Noel Harris.

2. SUBMISSIONS FOR MR ELLIOT

2.1 Mr Rogerson submits that the penalties were severe and not warranted. He told the Tribunal that Mr Elliot has been the busiest apprentice in New Zealand this season.

2.2 With reference to Race 3 and the ride on IN A MINUTE Mr Rogerson drew attention to the submissions which had been made by the RIU on race day. That day the RIU were represented by Mr Mathew Williamson himself a former senior jockey and Mr Williamson has appeared today on behalf of the RIU. Mr Williamson on race day categorised the offending as being “low end”. Further Mr Rogerson pointed out that not a lot of force had been applied by Mr Elliot. The Tribunal has carefully viewed the film of the race and agrees that the offending was at the lower end and that the application of the whip was not with a great measure of force.

2.3 The Raceday Committee were told that Mr Elliot had rides on horses from the Rogerson stable arranged at the Blenheim Races on 28 and 30 April 2017. Those two race days were taken into account in fixing the period of suspension of seven (7) days. Today Mr Rogerson has told the Tribunal that Mr Elliot had rides arranged for 26 April at Otago, 4 May at Riverton, 10 May at Ashburton, 14 May at Wairio, 19 May at Canterbury and 21 May at Riverton. In support of this he put before the Tribunal a letter dated 18 April 2017 from the well-known South Island trainer Mr Michael Pitman. In answer to questions from the Tribunal Mr Rogerson acknowledged that he did not tell the Raceday Judicial Committee of the arrangements that had been made with the Pitman stable. He explained that by saying that he did not believe that Mr Elliot was going to receive any more than four (4) days suspension and therefore it was not necessary to go into the arrangements that had been made with the Pitman stable. In considering Mr Elliot’s position the Raceday Judicial Committee took account of the fact that Mr Elliot had ridden in the South Island only once in the previous three (3) months. Mr Rogerson contended that Mr Elliot was what is sometimes known as a national rider. The Tribunal does not accept that submission.

2.4 There is reference in the Raceday Judicial Committee decision to Mr Elliot’s previous record for breaches of the whip rule. As noted earlier Mr Elliot was due to commence a suspension for a breach of that rule from 16 April up to and including 25 April. There is also reference in the decision to Mr Elliot’s record for breaches of this rule during the last twelve (12) months. Inclusive of the breach referred to on 8 April there had been no fewer than five (5) breaches of the rule in that period.

2.5 Mr Rogerson contended that the Raceday Judicial Committee did not adequately take account of Mr Elliot’s admission of the breach. There is a direct reference to the Committee considering that admission to be a mitigating factor but there is no explanation as to just how much credit or account was given in that regard.

2.6 Mr Rogerson contended that the appropriate penalty was a four (4) day suspension and that this should have been reduced by one (1) day of the account of plea of guilty.

3. THE POSITON OF THE RIU

3.1 Mr Williamson in his detailed written submissions affirmed what was said on race day namely that the breach was at the lower end. The Tribunal having seen the films of the race accepts that this was a breach very much at the lower end and that it perhaps may not have attracted the attention of the RIU but for the fact that Mr Elliot, as earlier explained, has an unenviable record for breaches of the whip rule.

3.2 Mr Williamson quite properly in our view did not put before the Raceday Judicial Committee a figure for the number of race days that would have been appropriate for the period of suspension. He did draw the Tribunal’s attention to suspensions that had been imposed upon a number of other jockeys in circumstances which would appear to be not dissimilar from those under consideration here.

4. DISCUSSION

4.1 The question for the Tribunal to determine is whether the period of seven (7) days suspension was appropriate. The Raceday Judicial Committee’s decision is detailed and remarked upon Mr Elliot’s previous unenviable record. It records Mr Rogerson’s submission that the number of strikes was only just in excess of what was permitted and that these were not aggressive.

4.2 The Raceday Judicial Committee in reference to Mr Elliot’s previous record characterised that as a significant aggravating factor and one which was of real concern.

4.3 In the Tribunal’s view the offending in Race 3 at Tauranga on 15 April this year was at the lower end and the penalty to be assessed should have been measured primarily by reference to what occurred in that race. It may be that the Raceday Judicial Committee was perhaps understandably influenced by Mr Elliot’s recent record and in particular by the suspension which had been imposed at Trentham only a week earlier.

4.4 It is the Tribunal’s view that when the breach of the rule in relation to IN A MINUTE is looked at it is so plainly at the lower end that the penalty should primarily have reflected that consideration. The previous poor record of Mr Elliot is a consideration but not of the same significance. Also of relevance is the admission of the breach. The Tribunal has already noted that this was expressly referred to by the Raceday Judicial Committee but not quantified.

4.5 Weighing all the relevant considerations the Tribunal takes the view that an appropriate period of suspension in all of the circumstances would have been five (5) days, not seven (7) and accordingly the appeal against penalty is upheld in as much as the suspension will now be five (5) days beginning on 27 April at Tauranga. The period of suspension will thus commence after the suspension that was imposed at Trentham, which is after racing on 25 April and will conclude following racing at Matamata on 3 May.

4.6 For completeness the Tribunal should say that it is not persuaded that Mr Elliot had put before the Raceday Judicial Committee anything to persuade them that he had rides from the Pitman stable as listed in Mr Pitman’s letter. Nothing was said of the arrangements with Mr Pitman at either the hearing after Race 3 when Mr Rogerson was present or after Race 7 when Mr Harris was assisting Mr Elliot.

5. RACE 7

5.1 In Race 7 Mr Elliot was riding QUEEN EL JAY. He pleaded guilty to the breach of the whip rule and was suspended for a period of nine (9) days from 5 May up to and including 24 May this year. The 5th May was the last day of the suspension imposed following Race 3 and which was the subject of the reduction in suspension which is referred to earlier in this decision.

5.2 The films demonstrate that the use of the whip in Race 7 was somewhat stronger than had been the case in Race 3. Nevertheless Mr Williamson very fairly acknowledged that the offence did not fall into what he described as the “serious classification”. He did however, and quite correctly, point to the frequency of Mr Elliot’s offending. The Tribunal knows of no other occasion when a jockey has been charged twice on one race day with a breach of this rule. In the decision of the Raceday Judicial Committee at page 3 there is real concern expressed as to Mr Elliot’s record which is said to have reached “the appalling category and unquestionably is a major concern”. For his part Mr Rogerson pointed to a number of the breaches of the rule that had occurred in the last twelve (12) months where he contended that Mr Elliot was unlucky or unfortunate. The precise circumstances of those breaches are not known to this Tribunal and for the purposes of the hearing on race day and today the record must speak for itself. It is not an attractive record and the frequency of the breaches is rightly a matter of real concern.

5.3 The Tribunal having seen the film accepts that the breach in Race 7 was not in the serious classification and was perhaps best described as mid to low range. Given that this breach was the second on the same day and the offending was more serious than had been the case in Race 3 the Tribunal is not persuaded that the Raceday Judicial Committee was in error in imposing the period of nine (9) days suspension. The appeal in respect of Race 7 does not succeed. Given that the suspension imposed in relation to Race 3 at Tauranga will now expire on 3 May a calculation of nine (9) relevant race days from that date means that the period of suspension in relation to the ride on QUEEN EL JAY in Race 7 will expire at the conclusion of racing at Otaki on 18 May 2017.

6. COSTS

6.1 Mr Williamson for the RIU advises that the cost of getting up the transcripts of the hearings from Tauranga and the decisions was around $180.00. He acknowledged that one of the appeals has been successful and the other has not and in those circumstances seeks costs in favour of the RIU of $90.00. There will be an order that Mr Elliot pay the sum of $90.00 in respect of the costs of the RIU but no other costs to the RIU beyond that.

6.2 The JCA has of course incurred significant costs in relation to this appeal. It is not the practice of the JCA to seek to recover all of its costs from parties to appeals. The amount that is ordered is to reflect the success or otherwise of the appeal and to make some contribution towards the expenses that the JCA incurs in conducting appeal hearings. Mr Elliot lodged two (2) appeals – one has succeeded and the other has not. In respect of the appeal that was successful there will be no order for costs. In respect of the appeal that was unsuccessful Mr Elliot will be required to make a contribution of $300.00 towards the costs of the JCA. Mr Rogerson drew attention to the deposit that was paid in respect of the appeal. It is not and has not been the policy of the JCA for many years to have appeal deposits refunded and that is the rule irrespective of the outcome of the appeal. Here of course, as noted above, there were two (2) appeals heard together – one succeeded and the other did not.

DATED this 26 day of April 2017

Murray McKechnie Chairman

Signed pursuant to Rule 920(4)

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