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Non Raceday Inquiry RIU v J McDonald - Decision dated 7 February 2020 - Chair, Hon J W Gendall QC

Created on 10 February 2020

Before a Judicial Committee of the Judicial Control Authority

BETWEEN The Racing Integrity Unit (Mr J Oatham)

(Chief Stipendiary Steward)

Informant

AND James McDonald (Class A Rider)

Respondent

Non Raceday Inquiry held at Ellerslie Racecourse Auckland on 4 February 2020

Information No: A13403

Judicial Committee: Hon J W Gendall QC (Chair)

Mr L N McCutcheon (Member)

In Attendance: Mr J Oatham on behalf of RIU

Dr L Molloy as Lay Representative for the Respondent

Mr M Williamson Stipendiary Steward

Mr J McDonald (in part by electronic link)

Charge: Careless Riding pursuant to Rule 638(1)(d)

DECISION AND REASONS:

1. Following the running of the Karaka Million 3 year old Classic on 25 January 2020 the Chief Stipendiary Steward charged the Respondent with careless riding in that he permitted his mount CONQUEROR to shift out near the 400 metres when not sufficiently clear of HASSTOBEGOOD which was contacted and forced wider. CONQUEROR finished 2nd and earned a stake of $155,000; HASSTOBEGOOD finished 3rd and earned a stake of $62000. The total stake money for the race was $1,000,000.

2. The Respondent entered a guilty plea and was dealt with by the Committee imposing a suspension of 9 NZ National Riding days (to commence after racing on 27January 2020 and conclude after racing on 13 February 2020) and a fine of $750.

3. The Respondent is a hugely successful rider based in Australia. He lodged an Appeal against the penalties imposed. When the Appeal came before an Appeals Tribunal of the JCA, that Tribunal granted the Respondent leave to change his plea, if he wished. He elected to do so. The reasons for the granting of leave have been summarised in a decision issued by that Appeals Tribunal, and do not require repeating here. This Non Raceday Committee has proceeded to hear the charge de novo. We make it clear that it does not follow that the Raceday Committee erred because it could only proceed on the basis of the guilty plea and evidence before it. We also emphasise that we have sat as an originating Non Raceday Committee considering the charge afresh putting, as we must, the original decision entirely to one side.

4. After receiving evidence which included lengthy assessment of the relevant stage of the race as shown on several race films, that of the Stipendiary Steward, the Respondent, Dr Molloy, and the several statements of other Senior Riders tendered on behalf on the Respondent, as well as the submissions of Mr Oatham and Dr Molloy, we have found the charge proved. We add this was not just on the balance of probabilities but beyond reasonable doubt.

5. We then invited the parties to present arguments as to penalty, following which we imposed penalties in the form of : (a) 6 day suspension (“NZ National Days”) to have commenced on 27 January 2020 and to end at the close of racing on 7 February 2020, because the Respondent had in fact by now having served 3 days suspension on 29 January, 1 and 2 February 2020, and (b) a fine of $10,000. We made no costs order.

REASONS FOR FINDINGS AND DECISIONS

As to careless riding:

6. Our reasons for finding that the Respondent was guilty of careless riding were delivered by Mr McCutcheon to the parties after we had spent some time deliberating. The findings are:

(a) Nearing the 400 metres point the horse STATELINE about 3-4 widths off the fence, with HASSTOBEGOOD on its immediate outside. was racing ahead of CONQUEROR which was travelling well and looking for a run.

(b) Mr McDonald then deliberately angled his mount outwards when there was insufficient room for him to do so and forced a run between HASSTOBEGOOD and STATELINE. As a consequence of Mr McDonald’s actions CONQUEROR came into contact with HASSTOBEGOOD and it and 3 other runners (RHAIGER, AALALUNE and HARLECH) were forced outwards from the lines to which they were entitled.

(c) Whilst STATELINE did not handle the bend well, this had no bearing on Mr McDonald’s actions and we do not accept the claim made on his behalf that there was a gap for him to enter and the claim that STATELINE was at fault. We do not accept the claim that STATELINE shifted and influenced Mr McDonald’s line when he initially attempted to force a run inside HASSTOBEGOOD. He chose to direct his mount outwards to force a run to advantage his mount.

(d) Whatever later occurred between HASSTOBEGOOD and CONQUEROR, was namely legitimately tight riding by V Colgan on HASSTOBEGOOD after his mount had been interfered with, was seen by the Stewards as a separate matter, with which we agree, and was not a breach of the Rules. But the careless riding of Mr McDonald had already occurred.

(e) We accept the evidence of Mr Oatham when asked by us “Did Mr McDonald say he believed there was sufficient room? To which he answered “No”. Submissions made now on his behalf do not align with what he then said.

(f) The Informant has proven the charge of careless riding which we have assessed as being in the mid-range category.

Reasons as to Penalty:

7. Sentencing or the process in deciding appropriate sanctions require an evaluation of all the circumstances that surround a particular offence, licence holder, as well as wider consideration of deterrence to other licence holders if the particular offence requires this. It is not a formulaic or arithmetical exercise rigidly bound by originally laid down “rules”. There are guidelines provided by the JCA to assist Judicial Committees in their task of coming to an appropriate and just penalty, and aimed at there being consistency across many cases which have generally similar features. But the guidelines as to penalties are simply that and do not override the Committee’s discretion to determine a penalty that reflects the many aspects surrounding the particular offence and offender.

8. For this careless riding, at least, mid range seriousness, we started with 7 National Riding days suspension. Given the status of the race, being only one of two with a $1,000,000 stake in New Zealand, a Restricted Listed race, that 4 horses were hampered, some to lesser effect than perhaps HARLECH (4th), and in line with uplifts in similar cases between November 2017 and January 2020, factor in an uplift of 4 days . It is then necessary to make allowance for personal aggravating and mitigating factors personal to the Rider. He does not have a record of offending (last suspension for careless riding being in August 2018. There are no personal aggravating matters. He is entitled to recognition of his record achieved over hundreds of rides in major races in Australia as well as internationally. We allow 2 days. There can be no discount for any guilty plea or admission of fault.

9. How then do we allow a further discount of 3 days? As noted by an Appeals Tribunal in B Allen v RIU (18 March 2018) it is the established position that if offending in New Zealand races requires an order for suspension, they have to be expressed in terms of New Zealand National Riding Days, and likewise where New Zealand Riders are suspended whilst riding in Australia, reciprocal arrangements require the penalty as fixed be served in New Zealand. Nevertheless the final penalty sanction whilst properly fixed as “NZ National Riding Days“ still has to reflect any mitigating or special circumstances relating to the Rider. So, for example, a Rider from Singapore who is suspended in New Zealand for, say 8 days, will in fact only serve 4 actual riding days in Singapore as there are only 2 days per week there. So, he will benefit and it undermines the NZ penalty. Correspondingly, a very busy Australian rider suspended in NZ for say 8 days will be required to miss (if a regular rider in the busy Sydney NSW area) about 15 days in reality. It will all depend on where the Rider usually rides and the infinite various different circumstances that may exist, and usually Raceday Committees will not have sufficient information of those factors. But we have been in a special position of now knowing facts which are relevant to the level of ACTUAL penalty we impose on the Respondent. The penalty must still be expressed in terms of “New Zealand Racing Days” but in determining that level so as to reflect the actual personal effect on the Respondent, we regard it as properly mitigating that, if we fixed the penalty at 9 days he would actually serve a disproportionate 16 days; and as a further mitigating matter, arising only because the unique circumstances that have existed, the Respondent could not take his usual rides at Randwick, Sydney on 1 February 2020 (because they had been taken by others in the meantime when he was thought to be suspended) when 3 mounts he otherwise would have ridden each won races worth $A136,000 to the winner, which would have yielded to him $A12,000 riding fees (without taking into account the practice we understand may exist there that connections usually “sling” a similar margin”’. We factored in those personal mitigating matters known to us in allowing a further discount of 3 days, in order to come to a final sanction appropriate to the Respondent, of 6 NZ National Riding Days. As 3 have in truth already been served, the order is backdated to commence at the end of racing on 27 January 2020 and end at the cessation of racing on 7 February 2020 – that is racedays being Hastings 29 January, New Plymouth 1 February, Matamata 2 February, Invercargill 5 February, Tauherenikau 6 February, Palmerston North 7 February 2020. The fine of $10,000 provides a substantial additional penalty uplift not only because he the Respondent obtained a riding percentage of the stake in excess of $7,500 but also as a deterrent factor for any riders who should choose to break the Rules in this way in future similar races. There has to be consistent yet overall just penalties for similar offending.

Dated at Wellington the 7th day of February 2020

Hon J W Gendall QC

Chair

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