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Appeal - Mr G Smith



869.3.g
1207.1

On the 20th March 2008 Mr Gavin Smith pleaded guilty to a breach of Rule 869 [3][g], i.e. “Driving a horse in any manner capable of diminishing the chances of his horse winning.” Mr Smith admitted that he had miscounted the rounds.



On the 20th March 2008 Mr Gavin Smith pleaded guilty to a breach of Rule 869 [3][g], i.e. “Driving a horse in any manner capable of diminishing the chances of his horse winning.” Mr Smith admitted that he had miscounted the rounds.

 

On the question of penalty, the transcript of the hearing shows that Mr Taumanu stated;

 “The recommended penalty from the stewards is 2 weeks suspension plus a $500.00 fine.

 

Mr Smith advised the Judicial Committee that he had some important drives coming up and would prefer to pay a fine. As a result Mr Taumanu suggested a fine of $1,000.00 in lieu of any suspension. To this, the Chairman responded;

 

“Are you looking at $1,000.00 ? I mean I think it’s the better option.”

 

Later, Mr Smith said;

“I accept that and am happy.”

 

The Judicial Committee then imposed a fine of $1,000.00.

 

On the 25th March Mr Lawson filed a Notice of Appeal on behalf of Mr Gavin Smith who at that time was in Fiji.

 

 

 

On the 1st January 2007, Queensland Harness  implemented its “ POLICY FOR AN APPEAL TO AN APPEALS TRIBUNAL.”

 

In the preamble to its Policy, Queensland Harness stated ;

 

“The purpose of the policy for an appeal to an appeal committee is to provide an opportunity for a person aggrieved by a decision of a steward to have certain matters dealt with more expeditiously by an appointed appeal tribunal.”  

 

This principle is equally pertinent in New Zealand.

 

Mr Lawson was advised that since Mr Smith had agreed to the quantum of the penalty, how could he have been aggrieved to be able to file an appeal?

 

In response, Mr Lawson stated that following the appeal Mr Smith learned of the amount of fines imposed in respect to similar breaches and discovered that the fine he received was two hundred and fifty per cent higher than the highest of those other fines. It was at that stage he became aggrieved. Particulars of those fines had been produced by Mr Lawson during the hearing.

 

In response to a question from the Tribunal, Mr Taumanu stated that he and another Stipendiary Steward had discussed minimum penalties and agreed upon penalties that they felt appropriate to aid consistency. The penalty agreed upon by them for breaches of this kind was fixed at a fine of $500.00 plus two weeks suspension. It was on this basis that he advised the Judicial Committee that Mr Smith’s penalty should be at that level.

 

Mr Rowe, for the Tribunal asked Mr Taumanu if at any stage during the hearing the Committee made any reference to the “GUIDE FOR JUDICIAL COMMITTEES’ fixing guidelines in the setting of penalties. Mr Taumanu said that he had not heard it, nor is there any reference to it in the transcript of the hearing. That guide, copies of which were supplied to all persons serving on Judicial Committees, suggests a penalty for breaches of Rule 869[3] [g] for other than major races, of  $250.00 or one weeks suspension, and for major races, $500.00 plus two weeks suspension. Mr Smith was not driving in a major race at the time of the offence.

 

Mr Taumanu in response to further questioning by the Tribunal admitted that Mr Smith may have been misled into accepting that the true penalty for his breach was $500.00 plus two weeks suspension and this influenced his agreement to the penalty finally fixed.

 

This Tribunal records that it accepts there was no intention on the part of Mr Taumanu to mislead Mr Smith as he genuinely believed that he had suggested the appropriate penalty.

 

This Tribunal records further that it is the duty of the Chairman of the Judicial Committee to correct the error. The Judicial Control Authority has compiled the guide lines and made them available to all members of the Judicial Committees who must have regard thereto if consistency of penalties is to be achieved. Clearly it would be appropriate for copies to be made available to Stipendiary Stewards also.

 

 

Natural justice dictates that anyone appearing before any Court or Tribunal is entitled to a fair hearing. In this present case The Judicial Committee failed in its duty and Mr Smith was manifestly disadvantaged through the failure of the Committee to refer to the guide lines available to it and correcting the misconception caused through the introduction of a penalty far in excess of that recommended in the guide lines.

 

The appeal is allowed and in pursuance of the provisions of Rule 1207 [1] b] the decision of the Judicial Committee on the 20th March 2008 is set aside.

 

Following submissions from Mr Taumanu and Mr Lawson, Mr G. Smith is now fined the sum of $500.00.

 

There is a direction that the filing fee of $250.00 is to be refunded.

 

Dated at Tauranga this 14th day of April 2008.

 

 

 

 

N.F.Smith

Chairman

 

 

 

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