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Non Raceday Inquiry RIU v T Moseley - Written Decision dated 3 April 2017 - Chair, Prof G Hall

Created on 05 April 2017

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR TERRY MOSELEY

Licensed Class A Jockey

Respondent

INFORMATION NO. A8601

COMMITTEE: Prof G Hall (Chairman)

Mr V Munro (Member)

APPEARING: Mr M Davidson for the RIU

The respondent in person

DATE OF ORAL DECISION: 1 April 2017

DATE OF WRITTEN DECISION: 3 April 2017

DECISION OF JUDICIAL COMMITTEE

[1] The informant, the Racing Integrity Unit (RIU), has alleged that Mr T Moseley was in breach of r 638(3)(b)(ii) of the New Zealand Thoroughbred Racing Rules of Racing in that he used his whip in an excessive manner on his mount KRUGER RAND in race 7 at the Wyndham Racing Club’s meeting at Gore on 23 March, the WOODLANDS TAVERN / LES FRISBY CONTRACTING HCP RATING 65 1200 metres.

[2] Rule 638(3)(b)(ii) states: “A Rider shall not strike a horse with a whip in a manner or to an extent which is excessive.”

[3] Mr Davidson produced authorisation in a letter dated 30 March from Mr Godber, General Manager RIU, to lay the information.

Informant’s submissions

[4] Mr Tidmarsh demonstrated the alleged breach on the videos. Mr Moseley was racing midfield on the rail. He counted 9 strikes before the 200 metres. There were 3 strikes before the respondent went back to the rein for 2 to 3 strides. There were then 6 strikes before the 200 metres, and the whip was then drawn again and used over the final 200 metres. He said there was a lack of respite. Mr Moseley finished 3rd and was a nose and ½ head from the winner.

[5] Mr Davidson referred to the NZTR Guidelines for Use of Whip, which provide:

Once a horse enters the final straight it can be hit with the drawn whip up to six times and then the rider should ride hands and heels for six strides before hitting the horse again with the drawn whip and continue this action until the 200 metres. From this point on a rider may use his whip continuously to the winning post, if the horse is holding its position or improving. If at any other stage of the race the drawn whip is used it will be deemed acceptable if it is used in moderation and not continually.

Any rider who uses the whip outside these guidelines could be charged with excessive use of the whip pursuant to r 638(3)(b) of the New Zealand Rule of Racing. Excessive simply means ‘too much’ and should not be confused with unduly punished’….

[6] Mr Davidson stated that Mr Moseley was in a competitive position inside the final 200 metres and, whilst it was not a good look, the whip use was not outside the guidelines at this time.

[7] Mr Davidson emphasised that the informant’s case was that the respondent had to race for 6 strides before going back to the whip. The count of the number of strikes would recommence at this point. The number was 6 on and 6 off. The respondent had not done so. Therefore, the crux of the RIU case was that Mr Moseley was in breach of the guidelines as he had hit the horse 9 times before the 200 metres.

[8] Mr Moseley stated that he had been told by the trainer that the horse switches off in its races. The horse had won 2 starts ago and had then finished last. Those races were over 1400 metres, whereas this race was over 1200 metres.

[9] Mr Moseley said the race was run at a reasonable pace and KRUGER RAND had had 3 flat patches during the race. He had given the horse a couple of reminders at the 450 metres and three more when turning for home. He had then tried to reset the whip count. He said he had gone back to the rein and believed he had remained within the guidelines and if not, had done his best to do so. He said there had been a number of strides when he had not used the whip and a couple of strikes were to the shoulder of the horse. He did not believe his use of the whip was excessive. He thought he might technically have been outside the guidelines and if so, they were “a rule of thumb” and “not a set rule”. He emphasised he had tried to remain within the guidelines and to do what was in the best interests of the horse.

[10] Mr Moseley concluded his submission by stating the charge was “trivial” and he believed the Stewards were “nit picking” with respect to his ride.

[11] We adjourned the hearing and carefully examined the wording of the guidelines. In particular, we had regard to the need to reset after 6 strikes with the whip. This obligation is stated to be “once a horse enters the final straight”. When we apply this to Mr Moseley, we find that he used his whip 6 times in the straight before then reaching the 200 metres. There was thus no obligation upon him to stop using the whip for 6 strides as he was then into the final 200 metres of the race. Inside the final 200 metres a rider is entitled under the guidelines to use the whip continuously to the winning post, if the horse is improving, which was the case with KRUGER RAND.

[12] The 3 strikes and the 2 or 3 strides when the whip is not used are as KRUGER RAND turned for home. Mr Moseley’s actions are thus covered not by the first sentence of the guideline (up to 6 strikes on, 6 strides off, as the horse was not in the final straight) but fall within the final sentence of the first paragraph, which requires that the whip not be used continually and only in moderation. There were no submissions directed to this matter but the videos do not evidence that this aspect of the guideline was breached.

[13] We returned to the room and indicated to Mr Davidson that we believed the need for Mr Moseley to reset the whip count had not arisen in this case. Mr Davidson replied that the guidelines had always been interpreted as applying to the 200 metres before the final 200 metres, indeed, from barrier rise. However, this is not how the guidelines are written.

[14] The status of these guidelines is very pertinent. They are promulgated by NZTR and are incorporated into the Rules of Racing. Rule 106 of which states that “NZTR may make or issue the following under these Rules: … (d) guidelines”. Significantly, r 106 concludes by stating that the guidelines “must be followed by those bound by the Rules and form part of these Rules.”

[15] The whip guidelines in the Harness code are interpreted very strictly. The maximum number permitted in the final 400 metres is 10. When that number is exceeded a charge is laid. There is thus quite some degree of certainty and consistency in the application of the Harness guidelines. There is no reason to assume that a similar approach is not appropriate when interpreting the NZTR guidelines.

[16] We have searched the JCA website for assistance. We can find no thoroughbred decision where reference is made to the strikes being before or after entering the final straight. Mr Davidson would thus appear to be correct when he says the guidelines have just simply been applied as if they refer to the first 200 metres of the final 400 metres wherever that might be; ie in the final straight on a large track and on the bend on a tight track. We emphasise however, this is not what the guidelines, themselves, state.

[17] Perversely, Mr Moseley when presenting his defence has emphasised he was endeavouring to keep within the guidelines but believed that he might have gone outside them with respect to the need to reset the whip count. He believed any such failure on his part was de minimis. However, our conclusion based on our reading of the guidelines is that he has remained within them and thus within the Rules of Racing.

[18] Mr Davidson submitted that we should also look at the incident by exercising our discretion. We understand him to be saying to consider it from the perspective of simply determining whether Mr Moseley’s whip use was simply “too much” and was therefore in breach of r 638(3)(b)(ii). We have given this issue anxious consideration because, as Mr Davidson stated, the incident does not look good. This is especially so when we have regard to the final 200 metres, although that aspect of the respondent’s ride was not highlighted in the informant’s submissions.

[19] We find this takes us back to the issue that Mr Moseley’s actions do not fall foul of any aspect of the guidelines, which, as we have noted, form part of the Rules of Racing. In these circumstances, we are reluctant to find him to be in breach of the Rules. These are the guidelines that all jockeys are required to follow to ensure their whip action does not fall foul of r 638(3)(b)(ii). Mr Moseley’s actions on this occasion, as we say, did not breach these guidelines.

[20] We thus find the breach of r 638(3)(b)(ii) not to be proved.

[21] There is a clear need to revisit these guidelines. It would be fair to say that Mr Moseley has escaped being found in breach of the Rules through a technicality. The guidelines need urgent attention. A quick fix is to remove the reference to entering the final straight and to refer to the first 200 metres of the last 400, or from barrier rise, if that is the intention. However, we believe more extensive surgery is required and that an approach similar to that taken with respect to the Harness guidelines is in order.

Dated at Invercargill this 3rd day of April 2017.

Geoff Hall, Chairman

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