SEVEN DAYS (THE WEDNESDAY REPORT): THE WEEKLY REVIEW (APRIL 9 - APRIL 15) - AT THE APPEAL HEARINGS

By Graham Potter | Wednesday, April 16, 2014

HRO's news and commentary feature - SEVEN DAYS (THE WEDNESDAY REPORT) - provides a weekly review of racing activity, both on and off the track.

It wasn’t quite the normal run of the mill business at some of the Racing Disciplinary Board’s appeal hearings lately. Two very different cases make interesting reading … and there is also a report back on a case involving a Queensland registered trainer who fell foul of the stewards in NSW.

CASE 1: STEWARDS V RUBY RIDE:

Apprentice Ruby Ride successfully appealed a decision by a steward’s panel (comprising messrs Knibbs, Aurisch and Gillard) who charged her under rule AR175(q) (Improper conduct), found her guilty and fined her $500.

Interestingly enough, in a time where lawyers seem so much part of the appeal system, Ride represented herself before the Appeal panel consisting of Judge W Carter (chair), Mr P James and Mr N Thomson. Martin Knibbs appeared on behalf of the stewards.

As dictated in the Appeal board’s finding, ‘Prior to hearing submissions, the question of Ms Ride being represented was raised with her by the board. She advised that Mr Hanna, her Master, had become unavailable and that she was prepared to argue her case.

The matter related to Ride’s alleged conduct in the scales area after the weigh-in following Race 3 at Eagle Farm on 14 March 2014 where according to Knibbs offending words were allegedly used as in ‘after having made comment of the track you (Ms Ride) then walked away from the scales and loudly and clearly audibly to me (Knibbs), used the words ‘fuck off’ in reference to comments that I (Knibbs) made.’

Ride’s case was uncomplicated. She simply denied using the offending words, as alleged by Mr Knibbs.

Again from the appeal finding transcript, ‘In the steward’s inquiry, she (Ride) had already persistently denied using the relevant words. Both in the Stewards Room and at the appeal the question was essentially one of credibility - Mr Knibbs alleged that she did it; Ms Ride denied it.

‘Prior to hearing submissions at the appeal, the board invited Mr Knibbs to discuss its concerns in relation to the procedure used by the panel; in particular that Mr Knibbs was allegedly the only person who had heard the offending words; it was he who reported this event to the other members of the panel; as chairman he convened the Inquiry and his was the only evidence on behalf of the stewards; as chairman he charged Ms Ride with the relevant offence and, finally, having deliberated her guilt or otherwise with his colleagues, he then advised Ms Ride that the stewards were satisfied of her guilt and imposed the penalty.’

The Appeal Board further added, ‘The Racing Act 2002, amended by the Racing and Other Legislation Amendment Act 2012, established this board as the appellate body (section 149B) and it has operated as such since 1 August 2013. Section 149ZE provides that the board:

a) must observe natural justice; and
b) is not bound by the rules of evidence; and
c) may inform itself in any way it considers appropriate; and
d) must act as quickly, and with as little formality and technicality, as is consistent
with a fair and proper consideration of the issues.

The finding continued. ‘It has long been held that administrative law requires that steward’s act in accordance with natural justice principles. Bias or the perception of bias must therefore be avoided.

‘At the outset it seemed to us that the circumstances of this case raised an issue of perceived bias on the part of Mr Knibbs in that not only was his the only evidence put forward by the stewards to support the alleged breach of the rules, there was a credibility issue to be resolved, given Ms Ride’s denial.

‘Nonetheless Mr Knibbs maintained this position as chair of the panel which deliberated upon Ms Ride’s guilt or otherwise and which ultimately found her guilty and imposed a penalty upon her.

‘It was on this account that the board sought submissions from Mr Knibbs before considering the merits of the appeal; the core issue being whether in the circumstances of this case Mr Knibbs ought to have withdrawn himself from the panel and to have taken no part in the decision-making process.

“He (Knibbs) submitted:

• that he did not regard the words allegedly spoken as addressed to him, nor that the words were intended to offend him, nor were they directed at him on a personal basis
• that he heard the words and simply reported their use by Ms Ride to his colleagues on the basis that irrespective of to whom they were directed there had prima facie been a breach of the rules, and
• that his participation in the stewards’ process was no different from cases where stewards give evidence of what they saw in the course of a running and handling inquiry or in one concerned with careless or other offending riding by a jockey.

‘We say at once that we do not consider the procedures adopted by stewards in this case to be supportable by the last submission. In the cases referred to by Mr Knibbs it has long been held that in those cases, it is permissible for stewards to give evidence about and to adjudicate upon matters which they had seen when pursuing their stewarding duties in the course of a race.

‘This issue was considered by the Privy Council in Calvin v Carr [1980] AC 574 where it was held that in such cases stewards were entitled to use the evidence of what they saw and of their experience when adjudicating on matters relating to a race. Further it was said that the appeal process was an essentially domestic proceeding “in which experience and opinion as to what is in the interests of racing as a whole plays a large part and in which the standards are those which have come to be accepted over the history of this sporting activity”.

‘This, in our view, is a very different case.

‘Turning to the other submissions of Mr Knibbs, we are satisfied that what was said was not an impersonal or stray comment. If the offending words were used (and it is unnecessary for us to form a concluded view), they were immediately preceded by a robust exchange between steward and jockey of such a kind as was not unlikely to provoke comment by the jockey.

‘This is supported by the evidence at the steward’s inquiry but more cogently by the particulars of the charge which Mr Knibbs gave to Ms Ride when charging her with a breach of the rule. We will deal with that in a moment.

‘It is common ground that when weighing in the jockey made a disparaging remark about the state of the Eagle Farm track. This led to a response by Mr Knibbs who said words to this effect:

• “If the track doesn’t suit you, it’s best that you don’t ride here”.
• “You ride at Toowoomba and Chinchilla and Bullamakanka and you want to come to town and bag the tracks here”.
• “If it (the track) doesn’t suit you, stay at Dalby and Goondiwindi, stay at Chinchilla”.
• “Can we expect to see you not accept rides at Eagle Farm?”

‘The fact that the alleged offensive remark was a response to the steward’s comments is expressly supported by the particulars of the charge:

• “that after having made comment of the track you then walked away from the scales area and loudly and clearly audibly to me used the words ‘fuck off’ in reference to comments that I made”.

‘We are comfortably satisfied that immediately after this robust exchange about the track which did include a “personal” element the steward alleges that he heard the words spoken by the jockey.

‘The latter who concedes the details of the earlier exchange persistently has denied both at the inquiry and at the appeal hearing that she spoke the words that are the subject of charge.

‘In these circumstances it was incumbent upon Mr Knibbs, having reported to his colleagues, to then withdraw and allow Messrs Aurisch and Gillard to determine the proper process.

‘Alternatively, once it became apparent to the stewards that the jockey denied using the words and that there was a critical conflict in testimony, it was essential that Mr Knibbs retire from any adjudication and allow the other two stewards to determine the matter.

‘By not retiring and continuing to adjudicate, the perception of bias in the fact finding process was overwhelming. Accordingly, the process miscarried and Ms Ride was not afforded natural justice in the Stewards Room.

‘It is our view that, in any case, where there is an evidentiary conflict in a case of this kind between steward and licensee in relation to any key issue of fact, that the steward should withdraw and engage in the process only as a witness as required. The remaining panel would thereupon assume the obligation of adjudication.

‘We would allow the appeal and quash the conviction and penalty.

Appeal Result: Appeal upheld!

**HRO comment. It seems inconceivable that other parties in the weighing room area (riders, officials etc) would not have heard the relevant exchange between steward and jockey. It certainly doesn’t seem to have been whispered. Yet, by all accounts, no other person was questioned in relation to the incident which is surprising. Ultimately it comes down to being filed as an unfortunate incident for racing’s overseers in which, at various times in Appeal Board’s summation, procedure and credibility came under scrutiny and somewhere in that mix it was found wanting.

Having said that, how comfortable would you be trying to make a case before a board who ‘is not bound by the rules of evidence; and who may inform itself in any way it considers appropriate’ … whatever that means! These are two points of reference (amongst others) that the Appeal Board brought up itself (see list in above copy) when noting the provisions available to them in terms of the Racing Act and its amendments.

Maybe there is another procedure that needs to be revisted!

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CASE 2: STEWARDS v ASHLEY BUTLER:

Apprentice Ashley Butler successfully appealed the severity of length of a suspension (eight meetings) imposed upon him by stewards.

The Appeal Board panel consisted of Judge W Carter (chair), Mr P James and Mr N Thomson while trainer Dan Meagher appeared on behalf of apprentice jockey Ashley Butler and Martin Knibbs appeared on behalf of the stewards.

The matter related to Butler’s repeated excessive use of the whip and his poor record in that regard. The specific details of this case related to Butler’s ride on Hialeah Jet at Toowoomba on March 14 where ‘as a result of an inquiry by the stewards it was ascertained that jockey Butler was in breach of Rule 137A(5)(a)(ii) in that he had used the whip in a forehand manner on more than five occasions prior to the 100 metres.’

The Appeal Board’s finding continued, ‘Mr Butler was no stranger to this offence because on March 8at Toowoomba he had been charged with and convicted of a similar offence, although on that occasion the number of whip movements totalled 17.’

Butler’s previous suspension was due to expire on March 25 at which time his latest suspension (the eight meeting penalty handed down on his second offence on Hialeah Jet) was due to start … and was to end on April 3. It was the severity of this sentence that was being appealed.

Again from the Appeal Board’s findings transcript: ‘The submissions made on Mr Butler’s behalf by Mr Meagher, who with his father and brother conduct a training establishment at Eagle Farm, submits that as a result of the imposition of the penalty in question, Mr Meagher personally intervened and sought to re-educate the jockey in relation to what had become something of a continuing fault.

‘The submission from Mr Meagher is that not only was he spoken to by the trainer, but also that there was, what you might say, a demonstration on a chaff bag in the feed room at the stable whereby the whole issue was sought to be addressed by the trainer with apprentice Butler.

‘We are significantly encouraged by that because it seems to us that it is a case where there has been a serious attempt at intervention on the jockey's behalf by his master. At the same time we are conscious of the stewards' obligations in respect of these rules, and their penalty of suspension for eight meetings, as a general rule, could not be seen as objectionable, nor do we consider that it was on this occasion.

‘However, we are persuaded by Mr Meagher that because he and his co-trainers have taken a specific interest in the jockey's whip habit and have sought to address this issue specifically with him, that there should be some relief from the suspension of eight meetings. If he continues to offend, he will of course be dealt with appropriately.

‘We are prepared to reduce the penalty by two meetings, so that the penalty will expire at midnight, 1 April.

‘Accordingly, the appeal against penalty is allowed to that extent.’

**HRO comment: The Meagher racing team can never be accused of not standing by their apprentice. Their effort here, both in the appeal hearing and in the feed room, really goes above and beyond the call of duty and full credit to them for that. In the end, the two meeting relief might be a minor victory, but it is really inconsequential. What really matters is whether Butler can mend his ways. By the way, where were the apprentice school officials, or its representatives, in all of this and what help do they have to offer an apprentice in need?

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NIKOLIC OUTED FOR TWELVE MONTHS:

This item does not fall under the jurisdiction of Queensland regulators but it does concern a Queensland licenced trainer and hence it is included here.

This is the NSW Chief Steward Ray Murrihy’s report on a matter relating to trainer John Nikolic.

‘The stewards on Wednesday (April 9) conducted an inquiry into the Analysts report of the presence of the prohibited substance gabapentin in the urine sample taken from the racehorse Wonderful Jester subsequent to it winning the Hakka Hire Murwillumbah Class 3 Handicap conducted at Murwillumbah racecourse on the 5th January 2014.

‘Evidence was taken on Wednesday from Mr John Nikolic, trainer of Wonderful Jester and from Mrs Yvette Nikolic (by telephone), part-owner of Wonderful Jester.

‘Racing NSW Senior Official Veterinarian, Dr Craig Suann gave advice by telephone to the inquiry, to the effect that gabapentin is an active ingredient in a number of prescription medicines for humans and under the Australian rules of racing can be classified as a prohibited substance by its actions and effects, primarily on the central nervous system.

‘Evidence was also taken by telephone from Mr John Nikolic Snr (Riders Agent RVL), Mr Kevin McFarland (a warned-off person with Queensland Racing) and from Mr Adam Loxley.

‘The Stewards received a report from Racing NSW Betting Steward Mr Terry Griffin who detailed information of betting transactions from all Australian betting entities on the race which indicated strong stable inspired betting support for Wonderful Jester whose official betting fluctuations were $6 out to $8 in to $2.4 favourite.

‘Mr John Nikolic was charged with the following breaches of the Rules of Racing:

‘Charge 1: Breach of AR80E(1)
AR80E(1) – Having in his possession at his Gold Coast stables, when visited by Stewards on the 6th February 2014, a blister pack of ten gabapentin capsules which were not labelled or prescribed or obtained in compliance with relevant State and Commonwealth legislation.
Plea – Guilty
Penalty – $600

‘Charge 2: Breach of AR178F(1)
AR178F(1) – Failing to record treatments to Wonderful Jester and other horses in Mr Nikolics stable between the 25th September 2013 and 20th January 2014.
Plea – Guilty
Penalty – $600

‘Charge 3: Breach of AR175(h)(ii)
AR175(h)(ii) – Administering the prohibited substance gabapentin on the 3rd January 2014 to Wonderful Jester, which was detected in a sample taken from that gelding subsequent to it winning the Hakka Hire Murwillumbah Class 3 Handicap conducted at Murwillumbah racecourse on Sunday 5th January 2014.
Plea – Guilty
Penalty – 12 Months Disqualification

‘Charge 4: Breach of AR175(h)(i)
AR175(h)(i) – Administering the prohibited substance gabapentin to Wonderful Jester for the purpose of affecting the performance of the gelding in the Hakka Hire Murwillumbah Class 3 Handicap at Murwillumbah on Sunday 5th January 2014.
Plea – Not Guilty
Finding – Not Guilty

‘Under the powers of AR196(6)(a), the Stewards deferred the commencement of the period of disqualification by 7 days until the 16th April 2014, however, under part (b) of that rule, Mr Nikolic may not start a horse in that period.

‘Consequently, the period of disqualification will commence on the 16th April 2014 and expire on the 16th April 2015.

‘Under the powers of AR177, Stewards disqualified Wonderful Jester from its first placing in the Hakka Hire Murwillumbah Class 3 Handicap of the 5th January 2014 and amended the placings.

‘Mr Nikolic was advised of his rights of appeal.’

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