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Appeal R Hutchings v RIU 10 August 2012 - Decision dated 21 August 2012

Created on 23 August 2012

Rules:
638(1)(d)
Information Number:
A5364
Informant
Mr R Hutchings - Apprentice Jockey
Repondent(s)/Other parties:
Mr J Oatham - on behalf of the Racing Integrity Unit
Name(s):
Mr G Rogerson - on behalf of Mr R Hutchings
Decision:

[1] The appellant, Mr Hutchings, appealed against the decision of a Judicial Committee at Riccarton racecourse on 4 August last that he rode carelessly in race 8 at the Canterbury Jockey Club’s meeting. He also appealed against the penalty of four days’ suspension. His grounds of appeal were that the respective decisions were “wrong”.

[2] We explained that we would view the appeals as being on the grounds that his riding was not careless and that the penalty was excessive. Mr Rogerson, who assisted Mr Hutchings, agreed that this was appropriate.

[3] Rule 638(1)(d) provides:

A Rider shall not ride a horse in a manner which the Judicial Committee considers to be careless

[4] We commenced the hearing by viewing the two video angles of the alleged incident. We asked Mr Oatham to identify the respective horses but not to make any submissions at this time.

Submissions as to finding of careless riding:

[5] Mr Rogerson presented the case on behalf of the appellant. He emphasised he believed the racing manners of KHEMOSABI were a significant part of the causing of the interference at this particular point in the race (the 1100 metre mark). He believed KHEMOSABI was “attacking the horse [I AM SAM] that had crossed him”.

[6] Mr Rogerson first questioned why decisions at Wingatui, Taumarunui and New Plymouth were stated on the JCA website to be “related decisions”. He said there was nothing similar in the various cases. (We explained that this was computer generated and stated that we would draw to the attention of the JCA that neither party viewed this form of linking to other decisions on the site to be useful, and indeed that it was confusing.)

[7] That the incident occurred at the 1100 metre corner, Mr Rogerson said, was significant. There was also a buckle in the running rail at this point. These matters had been overlooked in the Judicial Committee’s decision. Nor had the Committee referred to KHEMOSABI’s racing manners in its “Reasons For Decision”. This he believed had resulted in a “one-sided decision”. He said 99% horses come back when restrained; KHEMOSABI did not and Mr Parkes had had to take a “severe hold” 100 metres before the incident.

[8] Mr Rogerson submitted that the interference was caused by KHEMOSABI and, in this regard, Mr Oatham had misled the Judicial Committee. He said Mr Parkes was always going to come out and had taken hold before Mr Hutchings crossed, and that the check was because Mr Parkes pulled KHEMOSABI out.

[9] Mr Rogerson referred to Mr Robinson’s evidence that the check he received was caused by movement from PINZEE. Mr Rogerson did not believe this was down to the actions of Mr Hutchings. He said Ms Myers had taken hold of her horse before KHEMOSABI came out, although he did acknowledge that she could see that KHEMOSABI was over-racing and was going to come out. He said these horses were all sprinter/1400 metre horses that were hard on the bridle and the riders were all trying to relax their horses, as this was a 1600 metre race. He re-emphasised KHEMOSABI had contributed to the interference. However, he did also accept that Mr Parkes had been “shortened up a bit” and that Mr Hutchings was “one stride way” from being one length and another clear. At “normal speed” he thought the appellant would have been “okay”. He said Mr Hutchings was “going away” when he crossed, although he added Mr Hutchings “may have erred when crossing with another horse charging.”

[10] Mr Rogerson pointed out on the video that in his view Mr Parkes was well aware that the appellant was intending to lead and that between the 1150 and 1100 metres KHEMOSABI was starting to charge despite Mr Parkes endeavouring to hold him. He said Mr Parkes’ intention was to trail the appellant. He asked us to consider whether Mr Parkes was put in an awkward spot by Mr Hutchings or by KHEMOSABI. He answered his own question by stating that Mr Parkes had had to ease off I AM SAM’s heels because KHEMOSABI was charging forward into the corner. He added Mr Parkes had had to shift out because KHEMOSABI was not hard on the bridle.

[11] Mr Rogerson concluded his submission by stating KHEMOSABI was racing against his jockey and had gone from pulling hard to charging into the corner. KHEMOSABI had come out because Mr Parkes had had a hold.

[12] Mr Oatham refuted the fact that he had misled the Judicial Committee. He disputed whether KHEMOSABI was racing as fiercely as Mr Rogerson had submitted. He pointed out on the videos that KHEMOSABI was racing keenly down the back straight. He said Mr Parkes, the rider of KHEMOSABI was “happy enough” to let the appellant cross. He pointed out that Mr Parkes had said in his evidence to the Committee that “he was shortened a little bit” and this was supported, he believed, by the video evidence. He said Mr Parkes had become awkwardly placed on the heels of I AM SAM. He said he did not believe that Mr Parkes intended to come out and was simply taking a hold of KHEMOSABI.

[13] Mr Oatham further demonstrated on the videos that the appellant was never his length and another length clear. He said it was a bare one length to a length and a quarter. As a consequence, the appellant was never sufficiently clear to cross KHEMOSABI and therein lay the appellant’s carelessness. He added he did not believe the kink in the rail that Mr Rogerson had identified had played any part in the breach. It had never been raised before the Judicial Committee by any party.

[14] The respondent said that in his view both KHEMOSABI and I AM SAM were 1400 metre horses who were trying to run 1600. In their previous start over 1400 metres, KHEMOSABI had led and I AM SAM had been outside the leader. The fact that KHEMOSABI was racing keenly was acknowledged by all parties, including Mr Hutchings, who thus should have taken care to ensure he was two lengths clear.

[15] With respect to the interference itself, Mr Oatham emphasised that Mr Parkes had become awkwardly placed on the heels of I AM SAM. He said Ms Myers had anticipated what was going to happen and had moved wider on the track as a consequence. While she had suffered only minor interference, her actions had caused Mr Robinson to take hold of his mount suddenly and it was fortunate there was no clipping of heels.

[16] Mr Oatham demonstrated on the head-on video that both PINZEE and KHEMOSABI were running in a straight line prior to PINZEE being taken out by KHEMOSABI when it was restrained to avoid the heels of I AM SAM. He further demonstrated on both films that when Mr Parkes took hold of KHEMOSABI and the horse’s head was turned out, the appellant was only a bare length clear.

Decision:

[17] We believe Mr Oatham did not mislead the Judicial Committee and that the Committee’s decision was correct. The video evidence is compelling. Mr Hutchings was not his length and another clear when he crossed Mr Parkes. Mr Rogerson is right when he says KHEMOSABI contributed to the incident. However, we do not accept his submission that the Committee overlooked this fact. Mr Parkes was trying to settle the horse, which was racing keenly, but this was only exacerbated when the appellant came across when not sufficiently clear. We accept Mr Rogerson’s submission that had Mr Parkes been able to take hold of KHEMOSABI immediately there would have been less chance of the concertina effect occurring. However, PINZEE and KHEMOSABI were both racing in a straight line prior to Mr Hutchings crossing KHEMOSABI. Ms Myers had seen that KHEMOSABI was racing ungenerously, and that Mr Hutchings was determined to cross that horse to get to the rail and thus to the lead. In her evidence before the Committee she said that her horse was racing “all right” and that she could see what was going to happen and had eased her mount back a little bit. She said Mr Parkes had come out in front of her and had dictated her outwards. In these circumstances, she cannot be criticised for taking evasive action during the course of which she came into contact with COMANCHE GOLD.

[18] We agree with Mr Oatham that the kink in the rail had had no bearing on the appellant’s carelessness. We also do not accept Mr Rogerson’s description of KHEMOSABI “charging” up the back straight. The horse was racing keenly, and as we have said, it could be described as racing ungenerously, but this was evident to all at the time, including Mr Hutchings, who can clearly be seen to look as he is moving across. He may well have thought, as Mr Rogerson submitted, that he had given KHEMOSABI sufficient room but the racing manners of KHEMOSABI were all the more reason for Mr Hutchings to take care to ensure that he was his length and another clear of Mr Parkes. He did not.

[19] We thus dismiss Mr Hutchings’ appeal against the Judicial Committee’s finding that he rode carelessly.

Submissions as to penalty:

[20] Mr Rogerson focused solely on the gravity of the alleged breach and the Judicial Committee’s finding that the appellant’s record was an aggravating factor.

[21] The description of KHEMOSABI charging to the front, which we have discounted in our decision as to breach, was to the fore in the appellant’s submissions on this issue as well.

[22] Mr Rogerson emphasised that two of Mr Hutchings’ previous breaches were minor. He said at previous hearings the appellant’s record had been viewed as a mitigating factor and that it was a huge and unwarranted step for the Committee on the day to regard his record as aggravating. He said the appellant should have got one day off for his record and, when the difficulties the rider was having in controlling KHEMOSABI were considered, a warning was appropriate.

[23] Mr Rogerson also produced a letter dated 8 August 2012 that Mr Hutchings had received from Mr Peter Hutt, Chairman of the Training and Development Committee of NZTR. This letter stated that Mr Hutchings was the top apprentice jockey for the northern region and was the recipient of a scholarship to travel and work in Australia. Mr Rogerson noted one of the three criteria for the award was a clean riding record or only minor infringements. He questioned if the appellant’s record was only fair, as the Committee had stated, would he have received this award. He added it was his view that Mr Hutchings, who was only 17 years 4 months old, would prove to be the youngest apprentice to outride his apprentice allowance.

[24] Mr Oatham acknowledged the appellant had received an award and agreed he was a top apprentice. He said he struggled to see the relevance of this to the charge of careless riding.

[25] Mr Oatham produced the appellant’s record. This evidenced that Mr Hutchings had started riding on 26 March 2011 and had had 894 rides, including 704 this last season. This was over 100 more than any other apprentice. There had been six charges of careless riding during his riding career, including the charge under consideration. He added that there had been a number of warnings issued and that this had been a factor in proceeding with this charge even though it was low end. He acknowledged that Judicial Committees did not take warnings into account when determining penalty and he did not seek to suggest that we should on appeal.

[26] Mr Oatham stated that the RIU believed the penalty was appropriate. He said he had described the breach as low end on the day, despite the fact three riders had been inconvenienced, and he had described Mr Hutchings’ record as “reasonable”. He said he was still of this view, having regard to the fact that the appellant was a very busy rider. Significantly, he agreed with Mr Rogerson that an increase in the penalty for the appellant’s record was not appropriate. He had not sought this in his submissions to the Committee. He said that he did not think the Judicial Committee’s description of the record as “fair”, which Mr Rogerson had questioned, was very different to the word he had used. He said he had not submitted that an increased penalty was necessary because of the status of the race. He said he now believed that an increase could be justified as it was a Group Race and one of only a few on the winter calendar. He asked us to uphold the four-day suspension on this basis.

Penalty:

Decision as to penalty and costs:

[27] We have not found the decision as to penalty to be as easy as that dismissing the appellant’s appeal against the finding that his riding was careless.

[28] Mr Rogerson has been very forthright, indeed passionate, in his submission that Mr Hutchings’ record has been unfairly viewed as an aggravating factor. In fact he went so far as to state that this was the principal reason for the bringing of the appeal. He was adamant that the appellant had been unfairly treated. Mr Oatham disagreed that there had been any unfair treatment, but did not seek to support the Committee’s reasoning that Mr Hutchings’ record was an aggravating factor.

[29] We have looked at the previous decision where a penalty (four days) was imposed upon Mr Hutchings for careless riding. This was at Waikato on 19 May last where the stipendiary steward, Mr Oatham, described his record as “reasonably good”. The Committee adopted that description and stated it took it into account in Mr Hutchings’ favour. In other words, his record was viewed as a mitigating factor.

[30] The number of times the appellant has breached the careless riding rule has to be considered in the context that he is the country’s busiest apprentice jockey. There is no reference to this fact in the “Reasons For Penalty” in the raceday decision. In our view the number of rides a jockey has in a season is a significant factor when determining the weight to be attached to his or her record.

[31] Had we comprised the raceday Judicial Committee, we believe we would have considered the imposition of a three or four day penalty, after making an allowance for the fact that (as both parties agree) the breach is low end. However, the Judicial Committee has expressly stated that the appellant’s record is an aggravating factor. In our view, having regard to the frequency with which Mr Hutchings rides, it is not. Nor, as we have noted, has Mr Oatham endeavoured to support this aspect of the Committee’s decision. While we would not be disposed to give any discount for Mr Hutchings’ record, equally we would not impose a penalty above the starting point because of this factor. In short, we would view it as a neutral factor.

[32] Mr Rogerson has identified an error in the reasoning of the Committee. The Committee did not view the status of the race as meriting a one-day increase from the five-day starting point. Rather they said the two factors (record and status) in combination justified the increase. We refrain from accepting Mr Oatham’s invitation to attach greater weight to the status of the race than had the Committee, especially when on the day he had not submitted that that factor was aggravating.

[33] In these circumstances a one-day reduction in the appellant’s penalty is appropriate. We accept we may be seen to be “tinkering” with the penalty. In response, we note two matters: we believe an Appeals Tribunal should take a principled approach where an error at first instance has been identified; and a 25% reduction in penalty is far from being insubstantial. Mr Hutchings is suspended from the end of riding Saturday 11 August up to and including 16 August. This is three riding days.

[34] Mr Oatham submitted that the only costs that the RIU sought were the expense of the transcription of the raceday hearing. However, he added that he believed an award of costs for the JCA was appropriate.

[35] Mr Rogerson responded that the appellant definitely had a case, and that the appeal was not frivolous. He emphasised that Mr Hutchings was not trying to ride and had not sought a stay.

[36] We accept Mr Hutchings’ appeal is not frivolous but it has only been partially successful. We have contemplated a limited award of costs at perhaps the 30% level. However, were we to make such an award this would place the appellant in no better a financial position than had we not reduced his penalty. In these circumstances we have decided to let costs lie as they fall. 

Geoff Hall - Appeals Tribunal Chairman
Richard Seabrook - Appeals Tribunal Member

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