Appeal – Decision dated 21 April 2023 – Warren Kennedy

1.  NATURE OF APPEAL

Reference should be made to the Minute of the Appeals Tribunal dated the 19th of April. There was some uncertainty as to the nature of the Appeal. It was unclear from the Notice of Appeal whether the Appeal was in relation to penalty only or whether there might be an application to vacate the guilty plea. Mr Galbraith, Counsel for Mr Kennedy, advised that the Appeal was to proceed in respect of penalty only. There has been a hearing today at the Pukekohe Racecourse and detailed submissions have been received from Mr Galbraith and Mr Dooley and further, Mr Kennedy has answered a number of questions directed to him.

2.  THE RELEVANT RULE

The relevant Rule is 636(1)(d). That Rule provides ‘a person being the rider of a horse in a race must ride his or her horse out to the end of the race if there is a reasonable chance of it running into a position for which there is prize money to be awarded or a dividend to be declared’. As recorded in the Minute of the 19th of April, Mr Kennedy admitted the charge. He was suspended from riding from the close of racing on the 22nd of April 2023 for a period of 10 national days with the suspension concluding after racing on the 5th of May 2023.

3.  MR KENNEDY’S CIRCUMSTANCES AND THE GROUNDS OF APPEAL

Mr Kennedy is a Senior Rider. He moved from South Africa to New Zealand in October 2022. He has since that time had 345 rides in New Zealand. He was a Senior Rider in South Africa and since his arrival in New Zealand, has ridden for a number of leading stables and been involved in races at the highest level. He has no previous breaches of this Rule since his riding in New Zealand commenced in October 2022.

On the day in question, Mr Kennedy was riding the horse DAZZLED. The horse was coming down the middle of the track at Ruakaka and closing in on those ahead of it. The horse finished fourth, a head behind the third placed horse which was close to the running rail. The Adjudicative Committee formed the view that there was a reasonable chance that the horse would have filled a better placing had Mr Kennedy not stood up in the irons with one or two strides to go.

The Appeals Tribunal has closely examined the film of the Race. There are serious problems at Ruakaka. There is, inside the running rail, a large sign which refers to Cambridge Stud and on each side of that sign, there are white posts. These do not appear to be necessary to hold the sign in place. It was Mr Kennedy’s position that he had seen one of these and had mistaken it for the winning post. Given that he was out in the middle of the track that is perhaps unsurprising. The line-up of the winning post at Ruakaka has been the subject of comment on previous occasions, including references by the commentator Mr George Simon.

It was Mr Galbraith’s submission that the Adjudicative Committee had not given sufficient consideration to the position of the pole just been spoken of, Mr Kennedy’s good record and his frank admission of the breach.

4.  POSITION OF THE RIB

Mr Dooley pointed out that Mr Kennedy had an obligation to acquaint himself with the track at Ruakaka. Mr Kennedy advised that he’d only ridden nine times at Ruakaka since coming to New Zealand. Nonetheless, it is the Appeals Tribunal’s view that all Jockeys must acquaint themselves with the tracks upon which they are riding. In referencing previous cases, Mr Dooley drew attention to the fact that in nearly every instance where there had been a breach of the Rule, it had involved a horse which has been overtaken or might have been overtaken by another horse where the Jockey has failed to ride out the horse and thus breached the Rule. Mr Dooley referenced a number of previous decisions. These were helpful, but none bear direct comparison with the position here.

5.  DISCUSSION

In the Appeals Tribunal’s view, the set-up of the course and track at Ruakaka is not satisfactory and needs to be addressed. Mr Dooley, for his part, said that he would speak with the Whangarei Racing Club to see if some change could be made to the sign spoken of above. Mr Kennedy, who has a close relationship with Cambridge Stud, said he too would do what he could to have this addressed by speaking with Mr and Mrs Lindsay, who are the proprietors of Cambridge Stud. It is a unique coincidence that the horse DAZZLED is raced by Mr and Mrs Lindsay.

It is not necessary, in order to establish a breach of this Rule, to be definitive about whether or not the horse in question would in fact have filled a better placing. The critical words are ‘there was a reasonable chance of filling a better placing’. Having seen the film and studied the transcript of the hearing before the Adjudicative Committee, the Appeals Tribunal is satisfied that there was a reasonable chance that DAZZLED may have run third. Mr Kennedy, for his part, recognised that by his guilty plea.

The question for determination, is whether the penalty of ten days was appropriate. The Penalty Guide (it is no more than a guide) speaks of a starting point of three weeks. This was noted by the Adjudicative Committee in its decision. There is reference in that decision to the case of K Hannan 21 May 2022, where a nine-day suspension was imposed. The Appeals Tribunal has looked carefully at that decision. It bears little similarity to the circumstances here. The Jockey on that occasion was a very inexperienced Rider. Further, there were not the unique circumstances in relation to the track and the position of the pole, which is in place at Ruakaka as outlined above.

The Appeals Tribunal has reached the view that, having regard to the considerations outlined here and with particular emphasis on the unfortunate set-up of the track at Ruakaka, some reduction of the ten-day penalty is appropriate. A seven-day penalty would allow Mr Kennedy to resume riding at Whangarei on the 3rd of May. Mr Dooley advised that meeting may require to be relocated, but that is uncertain presently. For the reasons outlined, the Appeal is allowed and the suspension will be from the close of racing tomorrow the 22nd of April, until the close of racing on Sunday the 30th of April.

6.  COSTS

After some discussion with Mr Galbraith and Mr Dooley, it was agreed that Mr Kennedy should pay for the cost of transcribing the hearing that took place before the Adjudicative Committee. The figure is $200.00, and Mr Kennedy will pay that sum to the RIB.

The Appeals Tribunal is grateful to Messrs Galbraith and Dooley for their co-operation and to Mr Kennedy for his realism and courtesy.