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Appeal RIU v C R Ferguson - Reserved Decision of Appeals Tribunal dated 30 June 2020 - Chair, Mr R G McKenzie

Created on 30 June 2020

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN V G MUNRO, Stipendiary Steward for the Racing Integrity Unit

Appellant

AND CRAIG RUSSELL FERGUSON of Wyndham, Licensed Open Driver

Respondent

Tribunal: R G McKenzie (Chairman)

D J Anderson

Date of Decision: 30 June 2020

RESERVED DECISION OF APPEALS TRIBUNAL

Background

[1] At the meeting of Invercargill Harness Racing Club held at Ascot Park Raceway on Saturday, 13 June 2020, Mr Ferguson was the driver of HANS IDEAL in Race 2, Ward & Sinclair Fillies and Mares Mobile Pace.

[2] HANS IDEAL finished in 2nd placing in the race, the official margin from the winner being a nose.

[3] Following the race, Mr Ferguson was charged by Stewards with a breach of Rule 869(2) and the Use of the Whip Regulations in that “he used his whip on more occasions than permitted by Clause (b) of the use of the Whip Regulations”.

[4] Mr Ferguson admitted the charge before the raceday Judicial Committee and, following a hearing, he was fined the sum of $200 by the Judicial Committee.

[5] The Appellant has appealed against that penalty on the grounds, as set out in the Notice of Appeal, “that the penalty was manifestly light in terms of the JCA penalty guide. It was a second offence within the six-month period and therefore a term of suspension, to ensure consistency is required”.

Procedure for Appeal

[6] The “Rules of Practice and Procedure for the Judicial Committee and Appeals Tribunal” are contained in the Fifth Schedule to the New Zealand Rules of Harness Racing.

[7] The provisions relevant to this Appeal are:

44.1 All Appeals are by way of rehearing except to the extent that the Appeals Tribunal otherwise directs.

46.1 Where an Appeals Tribunal is satisfied it is appropriate, any Appeal may be determined solely on the basis of the documents and evidence filed by the parties, without the need for an oral hearing.

[8] At a teleconference held on 18 June 2020, it was agreed that this Appeal could be heard “on the papers” and the Tribunal issued a Minute of the same date directing accordingly. Written submissions have been received from the Appellant and the Respondent as directed by the Tribunal.

The Rule and the Regulation

[9] Rule 869 of the New Zealand Rules of Harness Racing provides:

(2) No driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board [of HRNZ].

[10] The Use of the Whip Regulations made by the Board pursuant to Rule 869(2), effective 30 November 2017, provide that the following shall be a breach of the Regulations:

(b) No driver is permitted to use their whip in a striking motion on more than ten occasions inside the final 400 metres. This is inclusive of “backhanders” and the use applies to the horse, harness and/or sulky.

[11] The Regulations contain a “Penalty Guide” which provides for a “sliding scale” of penalties for breaches of paragraph (b), according to the number of strikes and the record of the driver, as follows:

“1st offence:

- 11-13 $200
- 14-16 $300
- 17+ $500

2nd offence within 6 months:

- 3-5 day suspension”.

Submissions of the Appellant

[12] The written submissions filed by the Appellant are as follows:

Facts:

1. At the Invercargill HRC meeting on 13th June 2020, Open Horseman, Mr Craig Ferguson, admitted an alleged breach of Rule 869(2) and the Use of the Whip Regulations.

2. Mr Ferguson accepted that he used his whip on 14 occasions.

3. The penalty handed down to him by the Judicial Committee was a fine of $200.

Reasons for Appeal:

4. The penalty is not consistent with the JCA Penalty Guide and is, in the opinion of the Appellant, manifestly inadequate. The penalty guide is a document which has provided all involved persons with an idea of expected penalty for a good period of time. In this case, the Committee has completely vacated itself from any recommendation noted in that Guide. There is a significant disparity between what is recommended in the penalty guide (3-5 days suspension) and what was imposed in this instance.

5. The penalty is not consistent with what has been imposed on other horsemen for comparable offences.

6. The JCA Committee in making their decision appear to have placed a considerable amount of weight on the financial impact and the personal circumstances of Mr Ferguson as a result of COVID-19 which, we say, is erroneous for a breach laid under this Rule.

7. An RIU approach to penalties ‘post-COVID’ was created and disseminated to Stewards, the JCA and the Trainers and Drivers Association prior to the return to racing. This document agreed that the financial impact of COVID and a horseman’s consequent personal circumstances could be taken into consideration except for “serious racing offences and a breach of the Use of the Whip Regulations”. The RIU accept that the JCA are not bound by the creation of such a document. However, this document was approved by Harness Racing New Zealand and discussed with the JCA prior to its circulation.

8. In imposing a fine of $200, the JCA have effectively reset Mr Ferguson's penalty record. The RIU submit that it was not appropriate to disregard that previous penalty breach of Mr Ferguson. This breach was only 28 drives ago, on the 1st of March.

Submissions:

9. As mentioned earlier, Mr Ferguson has a previous breach of this Rule on his record from the 1st March 2020, where he was fined $200, this being a low-end breach [an agreed 11 strikes]. Therefore, the breach subject to this Appeal is Mr Ferguson's second within the last six months.

10. In those circumstances, the penalty guide recommends a starting point of a 3-5 days suspension.

11. Mr Ferguson has had only 28 drives since the last breach.

12. Any penalty imposed for a breach of the whip Rules needs to act as a deterrent, especially with the emphasis on animal welfare in these times.

13. The RIU respectfully submit that the appropriate penalty is that of a 4-meetings suspension.

Submissions of the Respondent

[13] The following written submission was received from the Respondent:

“I have admitted the breach and have since made a conscious effort to change my whip action to avoid further breaches of the whip Rule in the future.

Coming back from the COVID-19 break from racing, a 4-day suspension would be crippling financially. As I train from a public facility, COVID-19 meant I had to turn out all of my horses, leaving me without any income at all, but still with all of the associated cost of running a stable – wages, rent, power, insurance etc.

Southland race only once a week unlike Canterbury, for example, where they have twice as many meetings. A 4-day suspension for those drivers is over in a fortnight whereas, myself, without the possibility of driving more than once a week, it will mean a month without any income from driving. Added to that month is the time it will take to regain drives, after such a lengthy time away, as I am a freelance driver without any real affiliations with any large teams.

I would like to ask for a fine of some description, as any more time away from racing this season will see me having to start virtually from scratch. I feel a fine will act as enough of a deterrent, but leave me able to continue driving and, once the fine is paid off, leave me to earn some money from driving and get back on track after COVID-19.”

Background to Rule and Regulations

[14] The previous Rule 869(2) was repealed in August 2017 and replaced with the current Rule. The previous Rule provided as follows:

“No horseman shall during any race:-

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

[15] Under that former Rule, Harness Racing New Zealand had issued a set of “guidelines”, which were applied by Stipendiary Stewards and Judicial Committees and were familiar to drivers but, it is important to note, they were merely guidelines.

[16] In August 2017, Rule 869(2) was replaced by the current Rule (see above). Following that amendment, the Board of HRNZ introduced the Use of the Whip Regulations effective from 30 November 2017 which, as mentioned earlier, contained a “Penalty Guide” - a sliding scale of penalties according to the number of strikes and the record of the driver. The Regulations replaced the guidelines that had been operative until then.

[17] The Regulations were introduced to define the standards expected of drivers regarding use of the whip, so that drivers were put on notice as to what is and is not permitted, by specifying limitations on use of the whip.

[18] The Regulations have the binding force of a Rule because they implement the Rule.

[19] Another purpose of the Regulations is, clearly, to achieve consistency in the imposition of penalties for breaches as set out therein. 

[20] It is significant that the penalties set out in the Regulations are referred to as a “Penalty Guide”. Every case will depend on its own particular facts and, as a “guide” only and, as with any judicial task, the final decision on penalty lies with the Judicial Committee. The penalties in the Regulations have been consistently applied by Judicial Committees as being in the nature of minimum penalties, and those penalties have been uplifted from time to time, in particular, in cases of breaches in major races. It has been rare for a Judicial Committee to impose a lesser penalty than that prescribed by the Regulations.

[21] Furthermore, the prescriptive nature of the Regulations, in relation to breaches, requires an approach to penalty reasoning that does not take into account what might otherwise be regarded as being mitigating factors, such as previous good record and/or admission of the breach. The Tribunal accepts that such factors should not lead to a lesser penalty than that prescribed in the Penalty Guide in the Regulations.

[22] The current regime under the Regulations has led, in the main, to consistent penalties for breaches of the whip Rule, a situation which is desirable.

Reasons for Decision of Tribunal

[23] The facts, in this case, are simple. The number of alleged strikes by the Respondent in the final 400 metres of the race is 14. According to the written decision of the Judicial Committee, Mr Munro accepted, at the raceday hearing, that Mr Ferguson’s use of the whip had been “broken up”. That decision does not tell us whether Mr Ferguson accepted the alleged count of 14 strikes, but he does not dispute that in his penalty submissions filed with this Tribunal. The Tribunal has viewed a video replay of the final 400 metres of the race and is satisfied that the alleged count of 14 was accurate. The official result of the race shows that HANS IDEAL finished in 2nd placing, a nose from the winner.

[24] The Appeal is by way of a rehearing. However, it is useful to consider the reasons given by the Judicial Committee for the penalty of a $200 fine. They are brief:

“This is Mr Ferguson’s second breach of the Rule since March 1st this year. While the JCA Penalty Guide recommends a suspension for a second breach, the Committee has a discretion when considering a penalty. In this instance, given that Mr Ferguson’s ability to earn an income has been affected by circumstances beyond his control (COVID-19 pandemic), a suspension would be an excessive penalty. However, Mr Ferguson did breach the Rule and a fine at the lower end of the scale is appropriate.”

[25] Whilst we agree that a Judicial Committee always has a discretion when it comes to penalty, this must be looked at in the light of the Tribunal’s observations in paragraphs [20] and [21] above. The Regulations are a code, setting out standards adopted by Harness Racing New Zealand that govern how the Rule 869(2) should be enforced.

[26] Accepting, as we do, that the “Penalty Guide” in the Regulations prescribes minimum penalties, irrespective of mitigating factors, the appropriate penalty for the present breach, Mr Ferguson’s second breach within 6 months, is a “3-5 day suspension”. We cannot contemplate that a fine of $200 is appropriate for a second breach, only 28 drives since the previous breach, involving 14 strikes. We note the matters of mitigation advanced by Mr Ferguson in his submissions, in particular the effect of COVID-19, but we are satisfied that they do not, even in totality, warrant a departure from the Penalty Guide, which prescribes a term of suspension.

[27] The wording of the Penalty Guide for a second offence within 6 months – a “3-5 day suspension” – does, we believe, give Judicial Committees and this Tribunal some small room for the exercise of a discretion. In the present case, the breach is in the mid-range, based on 14-16 strikes, which places it in the mid-range, by implication, in the Penalty Guide (11-13 being the lower range, and 17+ being the higher range).

[28] The Tribunal finds that the present breach is in the mid-range and, on that basis, we have taken the 3-5 day suspension as being the starting point for penalty in this case. Having assessed the breach as being mid-range, we find that the appropriate starting point is a suspension in the middle of that range – that is to say, 4 days.

[29] Mr Ferguson’s submissions do have some merit but, whilst we have some sympathy, the current climate of animal welfare is such that breaches of the whip Rule must be met with appropriate penalties to uphold the integrity of harness racing. It is the task of the integrity bodies to ensure that the Rule and Regulations regarding use of the whip are enforced and that appropriate penalties are imposed for breaches.

[30] Having said that, the effect of the COVID-19 lockdown on Mr Ferguson, as on most industry participants, cannot be ignored. The Tribunal accepts that a 4-day suspension, in Mr Ferguson’s case will, effectively, be a suspension of his horseman’s licence for a period of one month which, in the circumstances, would be unduly punitive.

[31] We repeat that the Tribunal is satisfied that the penalty prescribed in the regulations of a “3-5 day suspension” does give it some room to accommodate the matters raised by Mr Ferguson in his submissions.

[32] We referred earlier to a starting point of a 4-day suspension for this breach. We avoid the use of “mitigating factors”, but accepting that the COVID-19 lockdown has had a significant impact on Mr Ferguson’s training and driving activities, the Tribunal is prepared to grant a discount from its starting point of a 4-day suspension. That discount, we fix at 1 day. The final penalty of a 3-day suspension is still within the 3-5 day period prescribed by the regulations.

Decision

[33] The Appeal is upheld.

[34] The penalty of a $200 fine imposed by the raceday Judicial Committee is quashed and replaced with a 3-day suspension of Mr Ferguson’s Open Drivers licence. Drivers have been notified for the meeting of Invercargill HRC on 2 July. The term of suspension is to commence after that date and is to be up to and including 23 July 2020. That period encompasses the three meetings of Invercargill HRC on 9, 16 and 23 July.

Costs

[35] There will be no order for costs.

R G McKenzie

CHAIRMAN 

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