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Appeal T Harris v RIU - Decision of Appeals Tribunal dated 13 February 2019 - Chair, Mr M McKechnie

Created on 15 February 2019

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER OF THE NEW ZEALAND THOROUGHBRED RACING RULES

BETWEEN TROY HARRIS

Class A Jockey

APPELLANT

AND THE RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie Chairman & Mr Gavin Jones

Present: Mr Troy Harris

Mr Dean Williams

Mr Darin Balcombe

Mr John Oatham Registrar

DECISION OF APPEALS TRIBUNAL

DATED THIS 13TH DAY OF FEBRUARY 2019

1. NATURE OF APPEAL

1.1 At the Hawkes Bay Racing Club meeting on 30 January 2019, following Race 2, Mr Harris was charged with a breach of Rule 638(1)(d): Careless riding. It was said that he had allowed his mount Virtuoso Lad to shift inward over the final stages of the race when not clear.

1.2 Mr Harris denied the charge of careless riding. There was an extended hearing before the Raceday Judicial Committee. The jockeys Robert Hannam and Mrs Lisa Allpress gave evidence at the hearing. The RIU case at the hearing was presented by the stipendiary steward Mr Darin Balcombe. The Appeal Tribunal has carefully considered the detailed written decision of the Raceday Judicial Committee and also examined closely the extended transcript of the evidence which runs to some 24 pages.

1.3 Today Mr Harris has been supported by his manager, Mr Dean Williams as a lay advocate. Mr Balcombe has presented the case for the RIU.

1.4 It is appropriate to record that following the filing of the appeal, Mr Harris was granted a stay of proceedings which allowed him to ride at Te Rapa on Saturday. He had considerable success riding the winners of two group races.

2. LEGAL PRINCIPLES

2.1 Appeals under the rules of New Zealand Thoroughbred Racing (NZTR) are by way of rehearing. The Tribunal must have regard to the decision of the Raceday Judicial Committee but it is for the Tribunal to make its own determination upon the evidence presented.

2.2 In disciplinary proceedings the standard of proof is akin to the civil standard of proof on the balance of probabilities. The more serious the allegation, the more compelling the evidence must be in order for the allegation to be found proven. The leading authority is the judgement of the Supreme Court NZ v Dental Complaints Assessment Committee 2009 (1NZLR) 1.

3. THE CASE FOR MR HARRIS

3.1 The notice of appeal succinctly sets out the position put forward for Mr Harris. That is as follows:

A. The movement inwards of Mr Harris’ mount was slight and did not make contact with (or force/dictate) the line of Mr Hannam’s mount so as to amount to interference causing buffeting between Mr Hannam and Mrs Allpress;

B. The outward movement from the mount of Mrs Allpress significantly contributed to the incident as to raise doubt;

C. The rail not being straight at or about the 100m mark also contributed to the incident when all three runners were racing in tight quarters.

3.2 Mr Williams took the Tribunal through the films. There is a head-on film, a side-on film and rear-view film and it is possible for some of these to be played at the same time. It is acknowledged that Virtuoso Lad did move inwards from the top of the straight but it is essentially the case for Mr Harris that that movement was gradual and did not result in interference to the runners on the inside of Virtuoso Lad, namely Mr Hannam’s mount, Miss Oahu or the mount of Mrs Allpress, Mcphoebe.

3.3 The Tribunal is satisfied that Mr Harris did allow his mount to move in from the top of the straight when some four-wide to a position significantly closer to the running rail and this became acute as the three horses essentially racing in line, reached the 100m mark. That mark is easily identified by the red painting of the running rail. What the Tribunal has to determine is whether that inward movement resulted in hampering Miss Oahu and in turn, Mrs Allpress’ mount Mcphoebe. Mr Williams pointed that Mr Hannam said that Virtuoso Lad did not touch his horse. He also submitted that Mcphoebe had moved out from the running rail and that there was sufficient space between Miss Oahu and the running rail for Mcphoebe to gallop without being checked.

3.4 As to the positioning of the running rail, the Tribunal does not consider that this was a material consideration in the events although we are clear that at one point the mount of Mrs Allpress does seem to have moved towards Mr Hannam’s mount, Miss Oahu.

4. THE POSITION OF THE RIU

4.1 Mr Balcombe for the RIU adopts the same position that was taken before the Raceday Judicial Committee. Essentially it is said that Mr Harris allowed his mount to move inwards in such a way that this caused Miss Oahu to move towards the rail and that this was the principle circumstance which led to the check of Mcphoebe. It was said for the RIU that Mr Harris was not sufficiently clear of Miss Oahu when this inward movement occurred. The Tribunal is satisfied that Mr Harris knew that there was some tightening because the film – particularly the head-on film, does demonstrate that Mr Harris made some effort to straighten his mount in the last 100m.

5. DISCUSSION

5.1 When the three horses spoken of turned into the straight there was a significant gap between each of them. Things got tighter and tighter as the horses moved towards the winning post. By the time the horses reached the 100m mark Virtuoso Lad and Miss Oahu were essentially side by side. Although Virtuoso Lad did not touch Miss Oahu, the Tribunal considers that Miss Oahu and Mr Hannam, its jockey, were conscious of the close presence of Virtuoso Lad and that this caused Miss Oahu to move towards the rail. A contributing factor to the check suffered by Mcphoebe was that this horse plainly did move out a short distance from the running rail and for the reasons earlier explained there wasn’t a great deal of space in which that movement could have occurred.

5.2 It is clear that by the 50m mark Virtuoso Lad was clear of Miss Oahu and the question therefore is whether between the 100m mark or just before the 100m mark and the 50m mark, there was some restriction in the galloping room available for Miss Oahu and Mcphoebe and if so, whether that came about as a result of the actions of Mr Harris.

5.3 It is the Tribunal’s view that there was no wilful action on Mr Harris’ part. The movement in of his mount was very gradual over an extended period of time. That is acknowledged by Mr Balcombe for the RIU.

5.4 The Tribunal has reached the conclusion that Mr Harris did allow his mount to move in more than ought to have occurred and when not sufficiently clear of the horses on its inside. There are however, in the Tribunal’s view, other factors which led to the check to Mcphoebe including that horse itself moving out a little from the running rail. The circumstances taken together demonstrate that there was more than one consideration which led to the check to Mcphoebe. By a narrow margin the Tribunal has reached the conclusion that Mr Harris was not riding as was appropriate in the circumstances but the shortcoming in his riding was at the very lowest level. It follows from what has just been said that the decision of the Judicial Raceday Committee is upheld and the appeal is dismissed.

6. PENALTY, COSTS & DEFERMENT

6.1 This has not been an appeal without merit: indeed there was much to be said in support of the position taken for Mr Harris and the level of carelessness which we have found to exist is, as said earlier, at the very lowest level. Further, as noted above, there were other contributing factors. We cannot alter the period of suspension of five days. The penalty guide provides for six days and Mr Harris was found by the Raceday Judicial Committee to have a good record and hence the five day suspension was imposed.

7. PERIOD OF SUSPENSION

7.1 There was some discussion between the RIU and Mr Williams concerning when the five day suspension should take effect. There is a significant meeting at Ellerslie this coming Saturday, 16 February, and a significant meeting at Matamata on 23 February being Matamata Breeder’s Stakes day. Mr Williams contacted the connections of persons who had proposed that Mr Harris ride for them on this upcoming Saturday and they advised that they are prepared to release Mr Harris from those engagements. It follows that the period of suspension will take effect at the conclusion of racing here today at Te Aroha and that the five day period of suspension will expire at the conclusion of racing on Friday 22 February this year. It is to be noted that this period of suspension does not include Christchurch tomorrow or Wanganui on Friday as the declaration of riders has already been made in respect of both of those meetings and Mr Harris did not have rides at either venue. No issue of deferment arises.

8. COSTS

8.1 Mr Balcombe advised that the RIU have incurred the cost of preparing the transcript of the hearing before the Raceday Judicial Committee. The sum involved was around $100.00. Mr Harris will be ordered to pay the sum of the $100.00 to the RIU in respect of that transcription.

8.2 Ordinarily unsuccessful appeals result in a costs award against the party whose appeal has failed. Here the Tribunal takes a somewhat different view. There was substance to this appeal and the decision set out earlier was finely balanced. In those circumstances Mr Harris will not be required to pay costs towards the RIU other than the figure spoken of above, namely $100.00.

8.3 In respect of the Judicial Control Authority it has incurred expense in assembling the Tribunal members at Te Aroha today. A modest contribution towards the costs of the JCA will be required and in that regard Mr Harris is ordered to pay the sum of $200.00.

8.4 The Tribunal thanks the participants for their assistance.

DATED this 13th day of February 2019

Murray McKechnie

Chairman

Signed pursuant to Rule 1007(5)

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