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Appeal RIU v D Hirini - Reserved Decision of Appeal Tribunal dated 9 October 2019 - Chair, Hon J W Gendall QC

Created on 10 October 2019

BEFORE AN APPEAL TRIBUNAL OF THE NEW ZEALAND JUDICIAL CONTROL AUTHORITY

BETWEEN

Mr D Balcombe, Stipendiary Steward

Appellant

AND

Ms Danielle Hirini, Licensed Apprentice Rider

Respondent

Hearing held at Awapuni Racecourse, Palmerston North, on 4 October 2019

Appeal Tribunal

Hon J W Gendall QC – Chair

Mr T Utikere – Member

Appearances

Mr J Oatham representing Mr D Balcombe (also in attendance)

Ms D Hirini assisted by Ms K Clapperton – Apprentice Rider Mentor

RESERVED DECISION OF APPEAL TRIBUNAL

[1] This was an appeal by Stipendiary Steward Mr D Balcombe against a decision of a race day Judicial Committee on 5 September 2019 at New Plymouth dismissing a charge under Rule 638(3)(b) of Excessive Use of the Whip brought against apprentice rider Ms D Hirini.

[2] After hearing the appeal including submissions of the parties, the content of the decision of the Committee, and viewing the film of the race, we reserved our decision which we now deliver in writing.

[3] Ms Hirini was the rider of the horse “Handsome Blue” which won Race 1 at the Taranaki Jockey Club meeting held at New Plymouth on 5 September 2019. Following the race she was charged by stipendiary steward Mr D Balcombe with excessive use of the whip in that prior to the 100 metre mark she struck the horse 9 times – at first 3 times, then a break of 3 strides, and then 6 further strikes, this being outside the published guidelines.

[4] At first Ms Hirini indicated that she admitted the charge but she did so to Mr Balcombe when she did not have the assistance of Ms Clapperton. The Committee was concerned that as an apprentice she had a fundamental right to such assistance, and allowed her to change her “plea” and the matter proceeded on a defended basis.

EVIDENCE BEFORE THE COMMITTEE

[5] The evidence comprised the race film, Mr Balcombe’s analysis of it, his submission on the application of the guidelines which he said ‘are clear and had been breached.’ The Committee heard evidence from Ms Hirini and Ms Clapperton. This confirmed that the whip had been applied to the horse the number of times alleged by Mr Balcombe and shown on the film. Ms Hirini’s evidence or explanation was that the horse was hanging, had previously displayed that tendency, and she was only trying to “keep it straight so used the whip to ‘tickle him up a bit’.” Ms Clapperton’s evidence was that the horse was “very awkward to ride, hanging all the time,” was in contention to win , and that in her opinion Ms Hirini only used the whip to keep the horse running straight and not to “beat it up.” Her opinion was that the use was in a slapping motion and was not used aggressively . She expressed her view that Ms Hirini “did a very good job trying to keep the horse from running about when in a challenging position.” Mr Balcombe said that the horse had a “tendency to hang out but nevertheless the whip had to be used within the guidelines.

THE DECISION OF THE JUDICIAL COMMITTEE

[6] After outlining preliminary matters and the evidence and submissions of Mr Balcombe and Ms Clapperton, the Committee’s essential findings were recorded as follows:

(a) It was necessary to look at the overall picture and circumstances surrounding the charge as ”there is far more to consider than just counting the number of strikes of the whip”.

(b) The horse was “slapped” with only minimal force used.

(c) The horse had previously hung when ridden by Ms Hirini when strong pressure on the (inside) rein had not assisted, so the rider had tried to do something different (slapping down the shoulder) in this race.

(d) The number of “slaps” totalled 9 as alleged, 2 being behind the saddle.

(e) As outlined by the stipendiary steward, the whip was used 9 times, being “slapped” 3 times, with a break of 3 strides, then a further 6 times. The Committee said that it “emphasised the word “slapped” as that is all that it was, with only minimal force used”.

[7] The Committee’s final conclusion is recorded as follows:

“Taking all those matters into account the Committee determined that the whip use was only just outside the Guidelines. The Guidelines are just that: guidelines only and as shown today there are other matters to be taken into consideration, such as force or lack thereof. Whilst Ms Hirini used her whip in a slapping motion a total of 9 times, it was the Committee’s opinion that the manner in which she used it did not constitute excessive”

[8] As a consequence the charge was dismissed.

SUBMISSIONS OF THE PARTIES

[9] These largely paralleled those made to the Committee. Mr Oatham, for the appellant, emphasised that the whip guidelines are clear and well known to all riders and had to be followed in the interest of racing. The welfare of horses was vital so as to maintain the credibility and reputation of the industry. He said that there had been a clear breach of the Guidelines; there had been 10 (rather than 9) strikes although accepted that this was not a major point , but that the number of strikes were about double that permitted in the guidelines, and he submitted that “that clearly constitutes a breach of the Rule {sic}”.

[10] Ms Clapperton repeated the submissions she had made to the Committee and to which we have referred in para [5] above.

THE TRIBUNAL’S REASONS

[11] The starting point must be the Rule 638 (3) (b) which provides:

“A Rider shall not strike a horse with a whip in a manner, or to an extent which is;

(i) Unnecessary

(ii) Or excessive

(iii) Or improper

[12] Guidelines issued by the NZTR described as “Acceptable Use of the Whip” say;

“Without affecting the generality of Rule 638(3)(b), a rider may be penalised if their whip use is outside the following Guidelines”

These are well known to all riders, Stewards and Judicial Committees. Relevant to this matter, they essentially say that inside 600 metres of the finish the horse may be struck up to 5 times, with there then be a ceasing of whip use for a minimum of 5 strides, before the horse is struck again, this restriction to apply before the final 100 metres of the race.

[13] There was no argument before the Judicial Committee that Ms Hirini applied the whip 3 times, with a break of 3 strides, and then a further 6 times . It was implicit in Mr Oatham’s argument that the number of 10 strikes were double that permitted, that he regarded the cessation for 3, not 5, strides as determinative in reaching that figure so, he submitted, the Committee erred in stating the whip use was only just outside the guidelines.

[14] The sole issue is whether in the circumstances of this case the whip use was excessive so as to breach Rule 638 (3)(b). The appellant says because the “extent” was outside permitted guidelines, and “excessive” means “too much” and 9 -10 strikes must be too much.

[15] As the Committee observed the Guidelines are only that. They are designed to assist riders and others what is or is not “acceptable. It has to be kept in mind;

(a) they only say a rider MAY be penalised if the use is outside the guide – they do not say MUST, and they cannot do so unless they are a RULE, which must prevail

(b) they specifically say that they do not affect the general application of Rule 638(3)(b)

(c) they do not constitute the charge as that could only be, and was pursuant to the Rule but naturally assistance may be gained from the Guide as to what is “excessive”. (see below para [18] for our discussion on the “Directive” from NZTR to take effect from 7 October 2019)

[16] The crucial words when looking at Rule 638(3) are the words “ A rider shall not …. strike a horse with a whip in a manner or extent which is … etc.” It is the word “STRIKE” which is telling. “Strike” has the ordinary meaning of “To hit forcibly and deliberately”. Slapping has a different connotation. We accept that the Committee was correct in describing the use as “slapping and with minimal force being used.” That fact may in some circumstances be one of the things a Judicial Committee is entitled to consider when having to decide whether the whip use was excessive striking- as it must in terms of the rule – or something different or less. Without there being “striking “, the Rule, as well as the Guidelines” have no application, so a respite for 3 and not 5 strides is not a breach of the Guidelines. The manner of use may be relevant in a consideration by a Judicial Committee if there was excessive striking. – and of course the extent or number of applications of the whip is very important. But here the Committee found on the evidence that the use was “slapped … with only minimal force used and “the manner in which she used [the whip] did not constitute excessive [striking]“ so as to breach Rule 638(3)(b).

[17] In our view, the Committee did not err, and was right to consider, as it said it did, the “manner” of use, as one of the circumstances in deciding whether the charge was established . As we have said, the charge is under the Rule, not the Guidelines, although they may naturally assist. The Committee rightly adopted the view that in deciding whether there was striking with the whip excessively so as to breach the rule, it had to look at all the circumstances including manner of use, and there were other issues than just counting the number of times the whip was applied.

[18] We comment upon what appears will become the position after 7 October 2019. NZTR has issued a Directive which changes, and we think simplifies, the whip guidelines. It still says they do not affect the generality of Rule 638(3)(b). It concludes by saying that a trainer, owner or agent must not give instructions to a rider that might result in breach of the whip use guidelines, and refers to Rule 106(b). That Rule says that every person commits a breach of the Rules who fails to comply with any ”direction” given, made or imposed under the Rules. We surmise the comment has been intended to apply only to trainers/owners. But could it equally apply to riders?

[19] We do not know what is to follow should charges be brought against a rider under Rule 106 (b) for failing to comply with a Direction” rather than for excessive use of the whip under Rule 638(3)(b)? And the Guide, as it relates to riders, repeats that it does not affect the generality of the “excessive use“ rule. Some clarification that it is not intended that riders will be charged under 106(b) - if is that is to be the case - – may be desirable. It is not relevant to this case as the charge was brought for excessive use and not for failing to comply with a directive.

FINDING

[20] From reviews of the evidence, film and the submissions of the parties, we are fully satisfied that the Committee did not err in its conclusion. The Committee was alive to the relevant and essential issues and was entitled to reach the conclusion that it did, namely there had not been excessive striking of the horse so as to breach Rule 638(3)(b). As appeals are by way of rehearing, we have come to the same conclusion.

[21] It follows that the appeal is dismissed. Ms Hirini has not incurred any legal costs so in terms of the general principle she is not entitled to an award of costs. We do not consider any award against the appellant to contribute towards the JCA costs is appropriate.

Dated at Palmerston North this 9th day of October 2019

Hon J W Gendall QC – Chair

Mr T Utikere – Member

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