FROM THE SHERIFF'S DESK: MAKING THE CASE AGAINST MANDATORY PENALTIES IN RACING

By John Schreck | Thursday, December 3, 2015

John Schreck, a former Chief Steward in both Sydney and Hong Kong, has seen both the colourful and the dark sides of racing. His wealth of experience in racing matters across the board is unquestioned and the reputation he built as a racing ‘lawman’ remains firmly entrenched in racing’s history. Shreck’s personal blog, ‘From the Sheriff’s Desk', appears exclusively on HRO.

The cobalt cases currently being heard in Victoria have, amongst other things, put the spotlight firmly on the merits, or otherwise, of mandatory penalties for those in breach of racing rules.

I am not in favour of mandatory penalties.

I think that people who have the power to penalise should have the courage of their convictions. That is, if they have the power to penalise they should be able to treat each case on its own individual facts and impose penalties as per that particular case ... taking into account a person’s record, their demeanour, their plea, the quality of their evidence and so on.

There are a myriad of facts that need to be considered before penalties are imposed. They should not just impose them as per the book. My granddaughter can do that!

With so many factors in play, in my view, it is unreasonable to have one set of penalties for all.
In 2013, I wrote, ‘I guarantee you that mandatory penalties will eventually result in excessively severe penalties being handed down in certain cases.’

My view has not changed.

At that time I also quoted Michael Murray, a retired Supreme Court judge, who said, ‘To impose mandatory punishment simple creates injustice that otherwise would have been avoided by the proper exercise of discretion.’

I rest my case.

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It is important to understand that the principles of racing justice differ from that of criminal standard.

If stewards had to go to the criminal standard ... that is beyond reasonable doubt ... they would seldom find anyone guilty.

That standard is just too high for domestic tribunals.

So the accepted terms of reference for racing justice comes down to the balance of probability ... that is if it is more probably than not that the alleged offence occurred.

The person can then be deemed to be guilty of the charge levelled against them.

That was the case in my time and that is still the case today.

In that regard it has become noticeable that in some jurisdictions stewards seem to have difficulty establishing their case before an Appeals Tribunal where penalties have been overturned and suspensions decreased.

Many point to that being leniency on the part of the Appeal Boards. That’s one possible side to that story ... but it also might be that the stewards are not presenting their case well enough.

Stewards are like everybody else. They can make mistakes. Judges of the court make mistakes.

Stewards are not always right, but we hope they get it right most of the time.

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It was good to see the Australian Jockey’s Association (AJA) decide against taking any industrial action with regard to the implementation of the new whip rule, which was brought in against the wishes of many riders.

I believe avoiding industrial action was the correct decision.

The new helmet situation though is another matter all-together.

As I said in last week’s blog, the jockeys are entitled to be fully consulted in relation to the gear they use and I fully support their right to have a major say in matters which directly affect their own safety.

Surely jockeys know better than anybody else what is good for them so far as gear and equipment is concerned?

They wouldn’t go around, for example, in the old skull caps of fifty years ago that were really just like hard cardboard.

So it is now up to the Australian Racing Board (ARB) to take the views of the jockeys very seriously.

Absolutely, they need to do that.

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The two problems facing the jockeys are that there are standards set by government in relation to some of these things and those standards are set by academics with little practical experience.

Therefore, those standards might not necessarily be the right thing as far as the people who actually use that gear are concerned.

The second part of that ... a key issue ... is that, once the new helmets become part of the rules, jockeys will be compelled to wear them.

Clearly before that compulsion is put in place the views of the jockeys have to be heard and understood.

I know the jockeys are certainly getting their message out there. In fact, they seem quite committed at this time to not backing off on this one and several riders have already indicated they will not ride with the new helmets even if it is written into law by the ARB.

That will lead to a standoff that racing can ill-afford.

Hopefully it doesn’t come to that.