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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
Review and regulation LIST
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vcat reference No. Z810/2016
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CATCHWORDS
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Application for Review as to both liability and penalty; Alleged breach of AR 137(a), reckless riding; Proposed guilty plea to careless riding only; Application for review as to Charge dismissed; Decision of the Racing Appeals and Disciplinary Board affirmed.
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APPLICANT
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Damien Oliver
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RESPONDENT
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Racing Victoria Limited
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WHERE HELD
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Melbourne
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BEFORE
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Judge Jenkins, Acting President
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HEARING TYPE
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Hearing
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DATE OF HEARING
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21 October 2016
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DATE OF ORDER
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24 October 2016
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CITATION
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Oliver v Racing Victoria Limited (Review and Regulation) [2016] VCAT 1794
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ORDER -
Damien Oliver is found guilty of reckless riding in breach of the Australian Rules of Racing 137(a).
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The decision of Racing Appeals and Disciplinary Board made on 14 October 2016 in respect of the Charge against Damien Oliver is affirmed.
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The application for review as to liability is dismissed.
Judge Jenkins
Acting President
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APPEARANCES:
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For Applicant
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Mr D Sheales of Counsel
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For Respondent
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Mr P Holdenson QC, with Mr J O’Connor of Counsel, instructed by Racing Victoria Limited
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TABLE OF CONTENTS
ORDER 1
TABLE OF CONTENTS 2
2
REASONS 3
NATURE OF APPLICATION 3
1.The Charge arose out of an alleged incident during Race 6, (Catanach’s Jewellers Blue Sapphire Stakes) a 1200m Group 3 race at Caulfield on 12 October 2016 (the Race). Following a hearing conducted by the Stewards, the Charge was found proven and the Applicant was sentenced to a suspension of 20 race meetings, covering the period commencing at midnight on Saturday, 15 October 2016 and expiring at midnight on Monday, 31 October 2016. 3
2.The Applicant appealed to the Racing Appeals and Disciplinary Board (the RAD Board) against both the finding of guilt and the severity of the penalty. On 14 October 2016, the RAD Board dismissed the appeal and confirmed the penalty. 3
3.The Applicant now applies to the Victorian Civil and Administrative Tribunal (the Tribunal) under s 83OH of the Racing Act 1958 (the Racing Act), for a review of the RAD Board’s decision, as to both liability and penalty. The Applicant indicated at the commencement of the Tribunal Hearing that if he were successful in relation to the Charge, he would plead guilty to careless riding. 3
THE CHARGE 3
4.AR 137(a) provides as follows: 3
5.The Particulars of Charge are as follows: 3
BACKGROUND 3
6.In the Race: 3
7.The mount ridden by the Applicant won the Race. The mount ridden by Mr Shinn came second. The mount ridden by Mr Yendall came fourth. 4
8.The Charge and relevant Particulars are concerned with the manner of the Applicant’s riding between the 800m and 700m marks in the Race. 4
JURISDICTION OF STEWARDS, RAD BOARD AND TRIBUNAL 4
9.Thoroughbred racing in Victoria falls under the control of Racing Victoria, a company limited by guarantee, pursuant to the Racing Act. 4
10.The object of Racing Victoria is to develop, encourage and manage the conduct of thoroughbred racing. It is vested with legal capacity to exercise any powers and perform any functions conferred by or under the Racing Act; and any rules relating to the proper management of thoroughbred racing in Victoria, made by the Australian Racing Board. 4
11.Stewards are appointed in accordance with the rules of a controlling body, defined to mean, in the case of horse racing, Racing Victoria; and Rules of Racing means the rules, for the time being in force, of Racing Victoria (the Rules). 4
12.The Rules place the supervision and control of race meetings in the hands of the Stewards. 4
13.In conducting inquiries, by force of the Rules, the Stewards are afforded the somewhat unique authority to investigate and sanction any person whom they find in breach of the Rules, that is, the one Panel of Stewards effectively investigates, prosecutes, makes determinations and issues certain penalties. 4
14.The RAD Board for thoroughbred racing is established under the Rules and given statutory standing by the Racing Act. 4
15.The RAD Board is constituted under LR 6A of the Rules and derives its jurisdiction to hear and determine appeals under LR 6B; and its jurisdiction to hear and determine charges of a serious offence under LR 6C. The RAD Board is authorised to impose penalties set out under AR 196. 5
16.Section 83 OH(1) of the Racing Act provides that a person whose interests are affected by a decision of the RAD Board may apply to the Tribunal for review of that decision. The Tribunal then exercises all the decision-making powers conferred on the RAD Board. 5
17.Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) confers the following functions and powers on the Tribunal for the purpose of the current review: 5
18.The Applicant was charged with an offence in breach of the Rules. He is a person whose interests are affected by the decision subject to review. 5
19.The Tribunal’s functions in reviewing a decision of the RAD Board are not appellate. That is, on review, the Tribunal stands in the shoes of the original decision-maker and must determine the correct decision on the material before it. The review is conducted without any presumption as to the correctness or otherwise of the decision subject to review. The Tribunal is not confined to the material upon which the original decision was made and may receive evidence or material which was not before the original decision-maker. 5
EVIDENCE 6
20.Oral evidence was given by the following witnesses: 6
21.The following material was also tendered by Racing Victoria: 6
22.The DVD of the Race is clearly critical evidence. The Race is shown from two angles, a side view, being the view most commonly played in a public broadcast; and head on and rear views, which more clearly depict the positioning of horses, relative to each other, during the course of the race. I have been greatly assisted by the DVD which was replayed multiple times during the Hearing, including in slow motion and still frames. I have also subsequently carefully reviewed the DVD of the Race multiple times. 6
WITNESSES 6
23.Mr Bailey, Chief Steward, comes before the Tribunal with 30 years’ experience, including 8 years as Chief Steward. Mr Bailey was a steward on the day of the race and also chaired the Stewards Inquiry into the conduct of the Applicant following the Race. 6
24.Mr Bailey took the Tribunal through the video of the Race. The video was played multiple times, including in slow motion from the beginning until sometime after the incident. Mr Bailey identified the mounts of the Applicant, Mr Yendall and Mr Shinn, at various stages of the Race. In summary, Mr Bailey gave further relevant evidence as follows: 6
25.In my view, Mr Bailey’s description of what the video shows, at critical stages, is accurate and accords with what I see. I will deal shortly with Mr Bailey’s assessment of the attendant risks created by the actions of the Applicant. 7
26.The Applicant, Mr Yendall and Mr Symons are all professional jockeys with extensive experience. They have also fallen from their horses many times. Each gave evidence to the effect that: 7
27.All jockeys acknowledged that: 7
28.The evidence given by the jockeys, in aggregate, focused upon the following matters: 8
29.In particular: 8
30.Mr Symons also agreed that: 9
31.The Applicant gave evidence of his thought process as he approached the Race. He was familiar with his mount, having ridden in three of its four starts. He had intended to ride quietly. However, he decided to modify his race plan after ascertaining, immediately prior to the start of the Race, that his mount was ‘very keen, fierce and difficult’. He therefore decided to ride closer to the lead. His mount initially raced keenly, with his head up. Mr Shinn had commenced from barrier 11 and he could see him coming across and anticipated that he would continue to the fence and hence follow the shortest route. In the video, Mr Shinn is observed to look to the left, a number of times, as he initially moved his mount across. The Applicant said he then observed a sustained look to the left by Mr Shinn and anticipated that he was going to move to the fence rail. Just past the 800m mark, he was faced with the following scenario. He was one of three riders at the front of the field with Mr Shinn to his right, in the lead, and Mr Yendall to his right, a head behind. He assumed he could not proceed directly forward because he anticipated that Mr Shinn would continue to move to the rail, in front of him. He determined that the only way he could avoid being ‘pocketed’ or boxed in was to edge his way to the right and create a path between Mr Shinn and Mr Yendall. To that end he pulled on the right reign to ease his mount out to the right. Mr Yendall held his course. The Applicant suggested that by maintaining his line, Mr Yendall effectively contributed to what happened next. The Applicant did not intend for his mount to ‘come out’ in the sharp manner which occurred. He followed his mount, but denied driving him into Mr Yendall’s mount. 9
32.Under cross examination, the Applicant conceded as follows: 10
33.In my view, the account given by the Applicant, in critical respects, is not reflected in the video. I will deal with the incident shortly. 10
RELEVANT LAW AND AUTHORITIES 10
34.There is no definition of ‘reckless’ in the Rules. Accordingly, for the purpose of the Charge, Counsel for each party agreed that the Tribunal should be guided by the Ruling of Lewis J, Chair of the RAD Board in the case of Luke Nolen on 19 August 2006 (Nolen’s case). I agree. 10
35.The charge of reckless riding, in marked distinction to careless riding, is uncommon. The Tribunal was referred to the only two prior cases which have come before the RAD Board: Nolen’s case, where the charge was found proven and the jockey was sentenced to a suspension of one month encompassing 31 race meetings; and the case of G McKeon, heard 12 November 2006 (McKeon’s case), where the jockey pleaded guilty to the charge and was sentenced to a suspension of one month encompassing 35 race meetings. 10
36.In Nolen’s case, the particulars of the charge alleged that the jockey rode his mount out making initial contact with mount 1 and continuing to make contact thus forcing a run to the outside of mount 2, where there was insufficient room. Mount 1 was forced out onto mount 3 which was taken out across the running of mount 4 which clipped the heels of mount 3 which almost fell. Mount 5 was also severely checked. Mounts 1 and 3 were hampered. 10
37.In McKeon’s case the jockey is recorded as having permitted his mount to shift near the 100m mark, when there was insufficient clearance, causing three horses in succession to be checked, two severely. There is no reference to actual contact between the horses. 11
38.The primary question for the Tribunal in this case is whether the conduct of the Applicant was reckless rather than merely careless. 11
39.The applicable standard of proof is that standard which is applied in all disciplinary cases of this kind, which was originally drawn from the landmark decision of Briginshaw v Briginshaw, and subsequently clarified in more recent cases. Accordingly, the Tribunal must attain a ‘comfortable level of satisfaction fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by the Tribunal’. 11
40.In the Ruling of Lewis J in Nolan’s case, for the purpose of a charge of reckless riding, His Honour addressed the applicable standard of care; the concept of recklessness; and the abiding objective underpinning the Rules. I endorse and adopt each of these aspects of His Honour’s Ruling. 11
41.First, the relevant standard of care to which the Applicant is subject: 11
42.Secondly, in relation to the concept of recklessness, His Honour stated: 11
43.Thirdly, His Honour clearly stated the abiding objective underpinning the Rules, in a case such as the present: 12
44.In Nolan’s case, the RAD Board was satisfied that the jockey: 12
CHARACTERISATION OF ‘RECKLESS RIDING’ AND FINDINGS 12
45.The Respondent’s Counsel provided a useful breakdown of the incident which the Respondent relies upon to demonstrate that the conduct of the Applicant can be fairly described as ‘reckless’ in all the circumstances. I will make reference to the Respondent’s characterisation but also include other relevant circumstances: 12
46.I endorse the observations of the RAD Board, which accord with my examination of the video. In their reasons for decision, the Chairman, His Honour Judge Bowman, observed: 14
47.In my view, the actions of the Applicant were calculated and intentional. I do not accept that the fact that his mount has been described as ‘fresh’ or ‘keen’ at times had any bearing upon how the incident evolved or the actions or intention of the Applicant. His mount had settled into a stride, appeared under control and continued to be so for the remainder of the Race. Indeed, any concerns which the Applicant may have had about his ability to control his mount ought to have made him more cautious. 14
48.In my view, the actions of the Applicant, in deliberately driving his mount into the mount of another jockey, with the effect of displacing that jockey from his chosen pathway, created a clear circumstance of potential risk, particularly to Mr Yendall, who did suffer some instability in the saddle, but also potentially to other riders, if Mr Yendall had fallen. 14
49.Furthermore, I am satisfied that two further potential risks were created by his actions: 14
50.In my view, the Applicant exhibited a cavalier attitude, which is not moderated by his explanation to the effect that jockeys will commonly try to take another horse out, notwithstanding the Rules. The Applicant, as a very experienced professional jockey, is aware of the attendant dangers of placing another jockey at risk of falling and the consequential danger to other riders and horses where a fall occurs in front of a field of riders. By forcing his mount into the pathway of another jockey and abruptly displacing that jockey and his mount out of the way, the Applicant displayed a reckless indifference to the possible grave consequences. 15
51.Accordingly, I am comfortably satisfied in finding that the conduct of the Applicant, in consciously and deliberately choosing to breach the Rules by forcefully taking another rider’s legitimate pathway, in the circumstances in which he did, constituted a gross breach of the standard of care expected of a rider of reasonable competence, skill and ability. 15
52.In determining whether the Applicant’s conduct is to be properly described as reckless or merely careless, I have also had particular regard to the paramount objectives of the Rules to ensure the safety of the horse and rider. To this end, riders in turn have an obligation to observe reasonable standards of safety, which include not to interfere with the right of another horse to its running as well as the Rules under which they ride and are licensed. 15
53.In the present case, the Applicant displayed a cavalier attitude to such Rules and his understanding and observation of such Rules. If riders continue to test the boundaries in the hope of defying the clear and attendant risks associated with a particular course of action, then the integrity of the Rules are undermined and the safety of riders and horses alike become victims of the pursuit of competitive advantage. 15
54.Having regard to all of the circumstances as detailed above, I am comfortably satisfied that the Applicant’s conduct amounted to reckless riding. In reaching this conclusion I have had particular regard to: 15
CONCLUSION 16
55.In the circumstances, for the reasons given, I am satisfied that the Charge is proven against the Applicant as alleged. In particular, I have a comfortable level of satisfaction, having regard to all the circumstances and the gravity of the Charge in accordance with the burden of proof as stated by the Court of Appeal in the Karakatsanis case. 16
56.Accordingly, I find the Applicant guilty as charged. The application for review of the decision of the RAD Board is dismissed insofar as the Charge is concerned. 16
57.I will now hear submissions as to penalty. 16
REASONS NATURE OF APPLICATION -
On 12 October 2016, Racing Victoria Limited (Racing Victoria) Stewards charged the Applicant, Damien Oliver, with reckless riding, in breach of Rule 137(a) of the Australian Rules of Racing (AR 137(a)) (the Charge).
1.The Charge arose out of an alleged incident during Race 6, (Catanach’s Jewellers Blue Sapphire Stakes) a 1200m Group 3 race at Caulfield on 12 October 2016 (the Race). Following a hearing conducted by the Stewards, the Charge was found proven and the Applicant was sentenced to a suspension of 20 race meetings, covering the period commencing at midnight on Saturday, 15 October 2016 and expiring at midnight on Monday, 31 October 2016.
2.The Applicant appealed to the Racing Appeals and Disciplinary Board (the RAD Board) against both the finding of guilt and the severity of the penalty. On 14 October 2016, the RAD Board dismissed the appeal and confirmed the penalty.
3.The Applicant now applies to the Victorian Civil and Administrative Tribunal (the Tribunal) under s 83OH of the Racing Act 1958 (the Racing Act), for a review of the RAD Board’s decision, as to both liability and penalty. The Applicant indicated at the commencement of the Tribunal Hearing that if he were successful in relation to the Charge, he would plead guilty to careless riding.
THE CHARGE
4.AR 137(a) provides as follows:
Any rider may be penalised if, in the opinion of the Stewards,
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He is guilty of careless, reckless, improper, incompetent or foul riding.
5.The Particulars of Charge are as follows:
That passing the 700m mark, you turned your mount’s head out, and then rode your mount out from a position inside of Dalradian to a position outside of Dalradian and in doing so, making heavy contact with Ken’s Dream, resulting in that horse being severely hampered and rider Dean Yendall becoming unbalanced in the saddle.1
BACKGROUND
6.In the Race:
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The Applicant was the rider of a mount known as Flying Artie, the race favourite, which started from barrier 5;
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Dean Yendall (Mr Yendall) was the rider of a mount known as Ken’s Dream, the Race second favourite, which started from barrier 6;
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Blake Shinn (Mr Shinn) was the rider of a mount known as Dalradian, the race 10th favourite, which started from barrier 11; and
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There were 12 runners altogether.
7.The mount ridden by the Applicant won the Race. The mount ridden by Mr Shinn came second. The mount ridden by Mr Yendall came fourth.
8.The Charge and relevant Particulars are concerned with the manner of the Applicant’s riding between the 800m and 700m marks in the Race.
JURISDICTION OF STEWARDS, RAD BOARD AND TRIBUNAL
9.Thoroughbred racing in Victoria falls under the control of Racing Victoria, a company limited by guarantee, pursuant to the Racing Act.2
10.The object of Racing Victoria is to develop, encourage and manage the conduct of thoroughbred racing. It is vested with legal capacity to exercise any powers and perform any functions conferred by or under the Racing Act; and any rules relating to the proper management of thoroughbred racing in Victoria, made by the Australian Racing Board.3
11.Stewards are appointed in accordance with the rules of a controlling body, defined to mean, in the case of horse racing, Racing Victoria; and Rules of Racing means the rules, for the time being in force, of Racing Victoria (the Rules).4
12.The Rules place the supervision and control of race meetings in the hands of the Stewards.5
13.In conducting inquiries, by force of the Rules, the Stewards are afforded the somewhat unique authority to investigate and sanction any person whom they find in breach of the Rules, that is, the one Panel of Stewards effectively investigates, prosecutes, makes determinations and issues certain penalties.
14.The RAD Board for thoroughbred racing is established under the Rules and given statutory standing by the Racing Act.6
15.The RAD Board is constituted under LR 6A of the Rules and derives its jurisdiction to hear and determine appeals under LR 6B; and its jurisdiction to hear and determine charges of a serious offence under LR 6C. The RAD Board is authorised to impose penalties set out under AR 196.
16.Section 83 OH(1) of the Racing Act provides that a person whose interests are affected by a decision of the RAD Board may apply to the Tribunal for review of that decision. The Tribunal then exercises all the decision-making powers conferred on the RAD Board.
17.Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) confers the following functions and powers on the Tribunal for the purpose of the current review:
Functions of the Tribunal on Review
(1) In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a) has all the functions of the decision-maker; and
(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2) In determining a proceeding for review of a decision the Tribunal may, by order—
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make another decision in substitution for it; or
(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
18.The Applicant was charged with an offence in breach of the Rules. He is a person whose interests are affected by the decision subject to review.7
19.The Tribunal’s functions in reviewing a decision of the RAD Board are not appellate. That is, on review, the Tribunal stands in the shoes of the original decision-maker and must determine the correct decision on the material before it. The review is conducted without any presumption as to the correctness or otherwise of the decision subject to review. The Tribunal is not confined to the material upon which the original decision was made and may receive evidence or material which was not before the original decision-maker.8
EVIDENCE
20.Oral evidence was given by the following witnesses:
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Terrence Bailey, Chief Steward;
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Christopher Symons, Jockey;
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Dean Yendall, Jockey; and
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Damien Oliver, the Applicant.
21.The following material was also tendered by Racing Victoria:
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Results of the Race;9
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Transcript of hearing before the Stewards;10 and
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DVD of the Race.
22.The DVD of the Race is clearly critical evidence. The Race is shown from two angles, a side view, being the view most commonly played in a public broadcast; and head on and rear views, which more clearly depict the positioning of horses, relative to each other, during the course of the race. I have been greatly assisted by the DVD which was replayed multiple times during the Hearing, including in slow motion and still frames. I have also subsequently carefully reviewed the DVD of the Race multiple times.
WITNESSES
23.Mr Bailey, Chief Steward, comes before the Tribunal with 30 years’ experience, including 8 years as Chief Steward. Mr Bailey was a steward on the day of the race and also chaired the Stewards Inquiry into the conduct of the Applicant following the Race.
24.Mr Bailey took the Tribunal through the video of the Race. The video was played multiple times, including in slow motion from the beginning until sometime after the incident. Mr Bailey identified the mounts of the Applicant, Mr Yendall and Mr Shinn, at various stages of the Race. In summary, Mr Bailey gave further relevant evidence as follows:
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At the point immediately prior to the incident, the Applicant had plenty of room to allow his mount to stride forward and thus maintain his course;
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Mr Yendall’s mount is seen to cross its front legs, upon being severely bumped and pushed from its course. Mr Bailey described this situation as a dangerous position for a horse and creates a risk of the horse falling;
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Mr Yendall’s mount was subject to ‘absolutely heavy contact’ which creates a situation of risk for the rider, who can become unbalanced, lose control of the horse and fall off the horse;
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The risk is enhanced if there are horses following, who may not be able to avoid a fallen horse or fallen rider, with the potential for injuries and fatalities;
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The video also clearly depicts Mr Yendall becoming unbalanced; and
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Under cross examination, Mr Bailey was challenged in his opinion regarding the risk of a horse falling either from a bump or crossing its legs. He agreed that the Applicant’s mount was ‘running fresh’ meaning that having not raced for about 4 months, it may be inclined to take control.
25.In my view, Mr Bailey’s description of what the video shows, at critical stages, is accurate and accords with what I see. I will deal shortly with Mr Bailey’s assessment of the attendant risks created by the actions of the Applicant.
26.The Applicant, Mr Yendall and Mr Symons are all professional jockeys with extensive experience. They have also fallen from their horses many times. Each gave evidence to the effect that:
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In their experience, there was no risk of a horse ever falling after being bumped or crossing its legs;11
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In their experience, horses can be at risk of stumbling or falling if one horse clips the back heels of the horse in front; and
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In the subject incident, there was no risk of Mr Yendall falling.
27.All jockeys acknowledged that:
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It was not permissible to take another jockey’s ride, meaning that they could not interfere with another jockey or his mount for the purpose of taking their current pathway or course;
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A jockey must be at least 2 lengths clear of a jockey behind before changing course in front of them;
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A jockey can fall if he or she becomes (sufficiently) unbalanced; and
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Mr Yendall became unbalanced following the impact of the two horses.
28.The evidence given by the jockeys, in aggregate, focused upon the following matters:
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providing an explanation for the race plan adopted by the Applicant and therefore his intentions in undertaking certain actions; and
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characterising the Applicant’s mount as ‘fresh’ ‘keen’ and therefore difficult to manage, such that the horse effectively contributed to the unexpectedly forceful impact of the Applicant’s mount upon Mr Yendall’s mount.
29.In particular:
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Mr Symons, who won race 5 at Caulfield on the day of the Race, described the course as exhibiting an ‘on pace bias’ or a ‘leaders track’ meaning that it favoured horses at the front and closer to the rail. Mr Symons was suggesting that it was reasonable for the Applicant to assume that Mr Shinn would continue making a pathway to the front and toward the fence line. However, he conceded that a ‘back marker’ or horse which came from the rear, won in two races on the day. Furthermore, from my observation of the Race, Mr Shinn maintained a straight pathway for some time both before and after the incident. I give this evidence no weight;
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Upon viewing the video, Mr Symons also suggested that immediately prior to the incident and during the incident, the Applicant’s mount ‘was a handful’. However, he also conceded that the mount had settled down prior to the incident and was not seen to be throwing its head about or racing erratically. I give this evidence no weight;
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Mr Symons also suggested that the Applicant’s mount was ‘very arrogant’ and did not always respond to the direction of the jockey on its back. He further suggested that the Applicant’s mount ‘panicked’ and moved to the right, rather than being edged out by the Applicant. He denied that the Applicant rode his mount into Mr Yendall’s mount. In my view, Mr Symons description does not reflect what is depicted in the video. I give this evidence no weight;
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Mr Yendall said he initially observed the Applicant’s mount to be ‘keen’ meaning pulling strongly on his bridle. He was not specific as to when this observation was made and in any event, such initial observation has no bearing upon the clear actions taken by the Applicant in the incident, which I will describe shortly. I give this evidence no weight;
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Mr Yendall said that he anticipated that Mr Shinn’s horse, being in the lead, may tire late and drop back. He also expected Mr Shinn to ‘go to the fence’. In my view, this evidence is entirely speculative and not consistent with what is depicted in the video. Mr Shinn did not move to the fence until well after the incident and finished second in the race. I give this evidence no weight;
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Mr Yendall explained that his tactic was to try to ‘pocket’ or hold the Applicant behind Mr Shinn.12 In my view, there is no question that this tactic, in the circumstances, was perfectly legitimate and did not breach any of the Rules; and
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Mr Yendall agreed that the Applicant made ‘heavy contact’ with his mount, giving it a ‘solid bump’ but said that it was a common tactic for a rider, in the Applicant’s position, to try to ‘move out’ another jockey, meaning to place pressure upon that other jockey to move over. Mr Yendall also agreed that the contact was more significant at the time, pushing his mount out of the line in which he was running and causing him to become ‘somewhat unbalanced on top of the horse’. I will return to the incident shortly.
30.Mr Symons also agreed that:
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When the head of the Applicant’s mount was turned to the right, the mounts of both Mr Yendall and Mr Shinn continued racing in a straight line, that is each maintaining their course;
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Mr Shinn’s mount was less than 2 lengths in front, being less than the distance permitted for Mr Shinn to move left to the rail; and
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The Applicant could have allowed his mount to proceed forward by releasing pressure on the reign and allowing the mount to ‘slide’.
31.The Applicant gave evidence of his thought process as he approached the Race. He was familiar with his mount, having ridden in three of its four starts. He had intended to ride quietly. However, he decided to modify his race plan after ascertaining, immediately prior to the start of the Race, that his mount was ‘very keen, fierce and difficult’. He therefore decided to ride closer to the lead. His mount initially raced keenly, with his head up. Mr Shinn had commenced from barrier 11 and he could see him coming across and anticipated that he would continue to the fence and hence follow the shortest route. In the video, Mr Shinn is observed to look to the left, a number of times, as he initially moved his mount across. The Applicant said he then observed a sustained look to the left by Mr Shinn and anticipated that he was going to move to the fence rail. Just past the 800m mark, he was faced with the following scenario. He was one of three riders at the front of the field with Mr Shinn to his right, in the lead, and Mr Yendall to his right, a head behind. He assumed he could not proceed directly forward because he anticipated that Mr Shinn would continue to move to the rail, in front of him. He determined that the only way he could avoid being ‘pocketed’ or boxed in was to edge his way to the right and create a path between Mr Shinn and Mr Yendall. To that end he pulled on the right reign to ease his mount out to the right. Mr Yendall held his course. The Applicant suggested that by maintaining his line, Mr Yendall effectively contributed to what happened next. The Applicant did not intend for his mount to ‘come out’ in the sharp manner which occurred. He followed his mount, but denied driving him into Mr Yendall’s mount.
32.Under cross examination, the Applicant conceded as follows:
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From the 800m mark, his mount had settled down ‘to some extent, but was still racing keenly’;
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Mr Shinn had been racing for some time in a straight line and he was aware that Mr Shinn was about 1 ½ lengths in front and certainly less than 2 lengths;
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It is in breach of the Rules for a jockey to cross over into another line or pathway unless at least 2 lengths in front of the horse behind;
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Mr Yendall was entitled to maintain his position and thereby block him in;
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It is contrary to the Rules to take another horse’s line, but said it happens all the time and usually collisions do not occur; and
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He caused ‘medium contact’ with Mr Yendall’s mount and Mr Yendall became ‘a little bit unbalanced’.
33.In my view, the account given by the Applicant, in critical respects, is not reflected in the video. I will deal with the incident shortly.
RELEVANT LAW AND AUTHORITIES
34.There is no definition of ‘reckless’ in the Rules. Accordingly, for the purpose of the Charge, Counsel for each party agreed that the Tribunal should be guided by the Ruling of Lewis J, Chair of the RAD Board in the case of Luke Nolen on 19 August 2006 (Nolen’s case). I agree.
35.The charge of reckless riding, in marked distinction to careless riding, is uncommon. The Tribunal was referred to the only two prior cases which have come before the RAD Board: Nolen’s case, where the charge was found proven and the jockey was sentenced to a suspension of one month encompassing 31 race meetings; and the case of G McKeon, heard 12 November 2006 (McKeon’s case), where the jockey pleaded guilty to the charge and was sentenced to a suspension of one month encompassing 35 race meetings.
36.In Nolen’s case, the particulars of the charge alleged that the jockey rode his mount out making initial contact with mount 1 and continuing to make contact thus forcing a run to the outside of mount 2, where there was insufficient room. Mount 1 was forced out onto mount 3 which was taken out across the running of mount 4 which clipped the heels of mount 3 which almost fell. Mount 5 was also severely checked. Mounts 1 and 3 were hampered.
37.In McKeon’s case the jockey is recorded as having permitted his mount to shift near the 100m mark, when there was insufficient clearance, causing three horses in succession to be checked, two severely. There is no reference to actual contact between the horses.
38.The primary question for the Tribunal in this case is whether the conduct of the Applicant was reckless rather than merely careless.
39.The applicable standard of proof is that standard which is applied in all disciplinary cases of this kind, which was originally drawn from the landmark decision of Briginshaw v Briginshaw,13 and subsequently clarified in more recent cases.14 Accordingly, the Tribunal must attain a ‘comfortable level of satisfaction fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by the Tribunal’.15
40.In the Ruling of Lewis J in Nolan’s case, for the purpose of a charge of reckless riding, His Honour addressed the applicable standard of care; the concept of recklessness; and the abiding objective underpinning the Rules. I endorse and adopt each of these aspects of His Honour’s Ruling.
41.First, the relevant standard of care to which the Applicant is subject:
The standard of care is that of a rider of reasonable competence, skill and ability. Whether a rider is careless or reckless will depend upon the extent to which the rider departs from the standard imposed upon him.16
42.Secondly, in relation to the concept of recklessness, His Honour stated:
The question of whether a rider was reckless will be answered by an examination of and an evaluation of all the circumstances of the case. In this case, the circumstances would include such matters as the point of the race where the incident occurred, the relative positions of the horses involved, the nature and extent of the initiating act of interference, the appellant’s state of mind, and the consequences which flowed and/or the potential consequences which may have flowed, from the appellant’s actions.17
43.Thirdly, His Honour clearly stated the abiding objective underpinning the Rules, in a case such as the present:
It is clear that the Rules of Racing as they apply to riders are primarily about safety, they are not penal rules. The safety of the horse and rider in the conduct of racing is paramount. Riders have an obligation to observe the rules of safety which include not to interfere with the right of another horse to its running as well as the rules under which they ride and are licensed.18
44.In Nolan’s case, the RAD Board was satisfied that the jockey:
…rode his mount out and despite the fact that there was no run then present between [mount 1] and [mount 2] he rode on severely bumping mount 1 on three occasions. A chain reaction ensued in which [mount 3] was almost brought down. Had [mount 3] fallen there could have been a catastrophe.
The Board is in no doubt that in doing what he did, the appellant threw caution to the wind; not only was he prepared to barge his way out by shunting [mount 1] out of the way but in doing so the Board finds that he was indifferent to the consequences of his actions…19
In all the circumstances the Board is satisfied that what the appellant did was fraught with danger.
In the Board’s view the appellant’s riding constituted a gross departure from the required standard of care and could only be categorised as reckless…20
CHARACTERISATION OF ‘RECKLESS RIDING’ AND FINDINGS
45.The Respondent’s Counsel provided a useful breakdown of the incident which the Respondent relies upon to demonstrate that the conduct of the Applicant can be fairly described as ‘reckless’ in all the circumstances. I will make reference to the Respondent’s characterisation but also include other relevant circumstances:
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The Race involved 12 runners, where the Applicant’s mount was favourite and Mr Yendall’s mount was second favourite. Mr Shinn’s mount was backed 10th to win. In my view, this circumstance alone placed Mr Yendall’s mount as a greater competitive risk to the Applicant. Indeed, Mr Yendall himself anticipated that Mr Shinn’s mount was likely to tire and fall back, after having maintained the lead;
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The incident occurred between the 800m and 700m mark, along which there are no turns in the track;
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The video shows the Applicant’s mount move to the lead quite quickly after the start of the Race, with Mr Yendall’s mount in second position on the Applicant’s outside;
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Mr Yendall appears to be closing the gap on the Applicant;
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Having started wide from barrier 11, Mr Shinn proceeded to move left across the field, eventually taking a position in front of and to the right of the Applicant;
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When passing near the 700m mark, Mr Shinn was leading, about 1 ½ lengths in front of and to the right of the Applicant, having maintained that line for some time. At this point Mr Yendall is in a line behind Mr Shinn and about a neck behind the Applicant, but had clearly been gaining ground up to this point;
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Mr Shinn is seen to look behind, to the left, but maintains his line and in fact does not move any further left over toward the fence line until the next bend in the track;
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The Applicant admitted that he was aware of the respective positions of Mr Shinn and Mr Yendall;
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At this point in time, in my view it is clear that:
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Mr Shinn could not change his course, moving toward the fence, without being in breach of the Rules; and
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The Applicant had a clear opportunity to permit his mount to stride forward, maintaining his line on the inside of Mr Shinn and thus improve his position relative to Mr Shinn, without any contact being made with Mr Yendall’s mount;
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Instead, the Applicant is seen to abruptly direct the head of his horse to the right. From the position of his body and hands on the reigns, he clearly appears to be driving his horse to the right, into Mr Yendall’s mount and the line taken by Mr Yendall;
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The Applicant’s mount made very heavy contact with Mr Yendall’s mount sufficient to abruptly displace Mr Yendall’s mount from his pathway, pushing him over wide to the right. As a consequence:
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Mr Yendalls’ mount appears to cross its front legs and momentarily lose its stride;
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Mr Yendall’s body wavers and he appears momentarily unbalanced in the saddle on top of his mount; and
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Mr Yendall’s race is severely hampered as he falls back, losing ground;
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The Applicant immediately forges a pathway on the outside of Mr Shinn;
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The above incident occurs at the front of the field where nine other horses are following; and
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No rider or horse in fact fell or were injured.
46.I endorse the observations of the RAD Board, which accord with my examination of the video. In their reasons for decision, the Chairman, His Honour Judge Bowman, observed:
[Mr Shinn] looked to his left but did not move. There was space for Mr Oliver to take the run on Shinn’s inside.
…it is clear that Mr Oliver turned his mount’s head, moved abruptly to his right, away from the rails and simply bumped Yendall out of the way. Yendall’s mount appeared to go close to crossing its forelegs and whilst Yendall appeared to be temporarily unbalanced, he did not appear to be in danger of falling off. However, the bump was a significant one…At least for the next several strides after the incident, Shinn’s horse did not move closer to the rails…
We are comfortably satisfied that the move by Mr Oliver was quite deliberate…and was intentional…
There was a real risk that the consequences could have been serious…we are not satisfied that the racing manners of Flying Artie contributed to the incident.21
47.In my view, the actions of the Applicant were calculated and intentional. I do not accept that the fact that his mount has been described as ‘fresh’ or ‘keen’ at times had any bearing upon how the incident evolved or the actions or intention of the Applicant. His mount had settled into a stride, appeared under control and continued to be so for the remainder of the Race. Indeed, any concerns which the Applicant may have had about his ability to control his mount ought to have made him more cautious.
48.In my view, the actions of the Applicant, in deliberately driving his mount into the mount of another jockey, with the effect of displacing that jockey from his chosen pathway, created a clear circumstance of potential risk, particularly to Mr Yendall, who did suffer some instability in the saddle, but also potentially to other riders, if Mr Yendall had fallen.
49.Furthermore, I am satisfied that two further potential risks were created by his actions:
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First, a risk to Mr Shinn’s mount by reason of the proximity of the horses when the Applicant effected his sudden manoeuvre. It was readily accepted by all jockeys that where a horse in the rear clips the back heels of the horse in front, this can cause the front horse to fall, with consequent danger and potential injury to horse and rider; and
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Secondly, a risk to Mr Yendall’s mount, whose stride was clearly, albeit momentarily, disrupted. However, the proximity of other horses following meant that there may not have been time or space for following horses to avoid a horse which was attempting to regain its stride and position.
50.In my view, the Applicant exhibited a cavalier attitude, which is not moderated by his explanation to the effect that jockeys will commonly try to take another horse out, notwithstanding the Rules. The Applicant, as a very experienced professional jockey, is aware of the attendant dangers of placing another jockey at risk of falling and the consequential danger to other riders and horses where a fall occurs in front of a field of riders. By forcing his mount into the pathway of another jockey and abruptly displacing that jockey and his mount out of the way, the Applicant displayed a reckless indifference to the possible grave consequences.
51.Accordingly, I am comfortably satisfied in finding that the conduct of the Applicant, in consciously and deliberately choosing to breach the Rules by forcefully taking another rider’s legitimate pathway, in the circumstances in which he did, constituted a gross breach of the standard of care expected of a rider of reasonable competence, skill and ability.
52.In determining whether the Applicant’s conduct is to be properly described as reckless or merely careless, I have also had particular regard to the paramount objectives of the Rules to ensure the safety of the horse and rider. To this end, riders in turn have an obligation to observe reasonable standards of safety, which include not to interfere with the right of another horse to its running as well as the Rules under which they ride and are licensed.
53.In the present case, the Applicant displayed a cavalier attitude to such Rules and his understanding and observation of such Rules. If riders continue to test the boundaries in the hope of defying the clear and attendant risks associated with a particular course of action, then the integrity of the Rules are undermined and the safety of riders and horses alike become victims of the pursuit of competitive advantage.
54.Having regard to all of the circumstances as detailed above, I am comfortably satisfied that the Applicant’s conduct amounted to reckless riding. In reaching this conclusion I have had particular regard to:
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The importance of maintaining and enforcing racing conduct which ensures proper safety standards for rider and horse alike;
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The Applicant’s conscious and deliberate decision to abruptly drive his mount into the mount of Mr Yendall, the second favourite of the Race and thereby effect a significant impact with and displacement of Mr Yendall’s mount off his chosen path;
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The Applicant ignoring the lawful option of allowing his mount to proceed forward, maintaining his line to the left of Mr Shinn;
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The actions of the Applicant being effected at the front of the Race where nine riders following were potentially placed at risk, in the event of any one of the three front riders being dislodged from their mount or their horses falling. While in the particular circumstances, as they evolved, the risk of such events and consequent injury or even death, may have been small, the likelihood of serious injury or death in the event of a fallen rider and horse is significant; and
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The impact of the Applicant’s mount upon Mr Yendall’s mount was significant, being sufficient to forcefully push Mr Yendall’s mount aside, disrupt that mount’s gait and stride and severely hamper the course of Mr Yendall’s race.
CONCLUSION
55.In the circumstances, for the reasons given, I am satisfied that the Charge is proven against the Applicant as alleged. In particular, I have a comfortable level of satisfaction, having regard to all the circumstances and the gravity of the Charge in accordance with the burden of proof as stated by the Court of Appeal in the Karakatsanis case.22
56.Accordingly, I find the Applicant guilty as charged. The application for review of the decision of the RAD Board is dismissed insofar as the Charge is concerned.
57.I will now hear submissions as to penalty.
Judge Jenkins
Acting President
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