Appeal – Decision dated 6 June 2023 – Jonny Cox
Rangiora Harness Racing Club
Rangiora Racecourse - 312 Lehmans Road, Fernside, Rangiora, 7440
Addington Raceway, Christchurch
Outcome: Appeal Dismissed
Penalty: Driver Jonny Cox' suspension of 7 days stands
1. On 7 May 2023 the Rangiora Harness Racing Club held a meeting at the Rangiora Raceway.
2. Race 10 on the programme was the Tyre General Handicap Pace. The Appellant drove “JUST MICHAEL”. Also in the event was “KIWI HERO”, driven by Mr R Holmes.
3. Following the event, the Appellant was charged with Improper Driving under Rule 869(3)(f) of the New Zealand Rules of Harness Racing.
4. The Rule provides:
“No driver in any race shall drive:
5. The charge arose from an incident when passing the 1500 metre mark in the race, where the Appellant struck the trailing horse KIWI HERO, on four (4) occasions with his closed fist.
6. Following a defended hearing held on 12 May 2023, the Adjudicative Committee found the charge proved and the Appellant’s Open Driver Licence was suspended for a period of seven (7) days.
7. The Appellant now appeals the Decision as to the finding of the Adjudicative Committee and also the penalty which they imposed.
8. The Appellant submitted KIWI HERO had been trailing JUST MICHAEL too closely to the point, there could have been a dangerous situation arising.
9. He says his actions arose from concerns as to safety for both himself and also other participants in the race. He had already endeavoured to have KIWI HERO move back by moving his head around, but that was to no avail.
10. The Appellant maintains he called to the Driver of KIWI HERO to pull back, but again that was to no avail.
11. In the Appellant’s submission, there was nothing more he could have done to prevent a potentially dangerous situation arising and his actions were solely out of safety concerns.
12. The Appellant also asked for three (3) race films to be shown. These race films were events from 26 February 2018 at Waikouaiti, 6 April 2018 at Addington Raceway and 24 December 2018 at Manawatu.
13. On all three (3) occasions, Drivers had reacted to a trailing horse following too closely. On none of these occasions was the Driver charged, although the actions had come to the attention of Stipendiary Stewards and a warning had been issued on at least one of those occasions.
14. Mr Renault on behalf of the Respondent, relied on the video films, maintaining it was improper for the Appellant to strike KIWI HERO with his closed fist on three (3) occasions to the head, and on one (1) occasion to the chest.
15. The Respondent accepts KIWI HERO was racing keenly and on more than one occasion, had moved its head to the inside of the Appellant’s helmet during the running.
16. However, Stewards did not see anything out of the ordinary from these events until the 1500 metre mark, where the Appellant moved to the side and struck KIWI HERO. It was only when the Appellant carried out this action, that any risk arose from a safety perspective of KIWI HERO potentially over racing and striking the wheel of JUST MICHAEL.
17. It is the Respondent’s view, it is improper to strike a horse in the head area, particularly given Industry concerns as to matters of animal welfare and the Appellant’s actions were clearly visible on Trackside television to a wide audience.
18. It is the submission of the Respondent, that the actions of the Appellant on this occasion, amounted to a terrible look for Harness Racing.
19. The Appeal has been conducted by way of a re-hearing. The Appeals Tribunal procedure is set out in Rule 126 of the New Zealand Harness Racing Rules. The Fifth Schedule to the Rules sets out the actual procedure to follow. Paragraph 44 confirms the Appeal is to be by way of a re-hearing and the Appeals Tribunal has adopted that procedure.
20. In considering this Appeal, the Appeals Tribunal is required to form its own opinion as to matters of law and fact. However, it should give due weight to findings made by the Adjudicative Committee.
21. The Appeals Tribunal has carefully read the Adjudicative Committee’s Decision, and also the submissions which had been made before it.
22. The facts are relatively clear and not disputed.
23. JUST MICHAEL was travelling in the 1-1 position during the running. Immediately following him was KIWI HERO. The trailing horse was “pulling” and on more than one occasion, struck the helmet of the Appellant. At the 1500 metre mark, the Appellant lent to the side and struck KIWI HERO with his fist on four (4) occasions. On three (3) of those occasions the strike was to the head, and on the other occasion it was to the chest.
24. The Appellant’s justification for taking this course of action, was a concern he had for the safety of all participants in the event, due to KIWI HERO trailing too closely and potentially striking a wheel, which could cause safety issues.
25. The Appeals Tribunal looked at the three (3) previous examples which were submitted by the Appellant as being similar circumstances to these facts, but where Stipendiary Steward action was either not taken, or dealt with by way of warning.
26. The Appeals Tribunal is of the view the actions by the Drivers on each of those three (3) occasions, was far less than what the Appellant resorted to. Not only that, but attitudes towards animal welfare have stiffened considerably over the last five years.
27. It is critical for the Industry to take, and be seen to take, stern measures where any issues of animal welfare arise, in order to maintain its current social licence to operate. To do otherwise, will create a high level of risk to the ongoing operation of the Industry. This has been reinforced on a number of recent Decisions, both at Adjudicative Committee level and Appeals Tribunal level.
28. For those reasons, the Appeals Tribunal placed little weight on the films of races which took place some five (5) years ago.
29. The Appeals Tribunal did not see any safety issues which could in any way, justify the actions which the Appellant took. Perception is reality and it was a poor look for the Industry.
30. In the Appeals Tribunal’s view, it is never acceptable to strike a horse in the head region, whether in a race or not. The actions of the Appellant, in the Appeals Tribunal’s view, fall very much within what would be considered as Improper Driving. A definition of Improper Driving was submitted to the Adjudicative Committee as being:
“Improper driving can mean unseemly, unwarranted or not in accordance with the normal rules of conduct expected of a licence holder or driver competing in a race. Improper driving is something improperly done, connected with the act of driving. Improper driving involves something being done which ought not to be done, or something is omitted to have been done which ought to have been done and which is judged to be wrong, but not necessarily within the description of careless, dangerous or reckless”.
31. There was no justification for the Appellant to take the actions which he did, and in the Appeals Tribunal’s view therefore, the Adjudicative Committee was correct to make the finding they did.
32. It is for this reason, the Appeals Tribunal dismisses the Appeal as to finding.
33. The Appellant also appealed the penalty which was imposed.
34. However, at the hearing the Appellant indicated he did not wish to pursue the Appeal as to penalty and accepted a suspension of seven (7) days to be appropriate if the Appeals Tribunal dismissed his Appeal as to the finding.
35. The Appeal as to both finding and penalty is dismissed.
36. The Appellant has been driving under a stay since the filing of the Appeal. The seven (7) day suspension should therefore now be imposed. Accordingly, the Appellant’s Open Driver Licence is suspended up to, and including, 30 June 2023.
37. The Appellant has not been successful in his Appeal. The Respondent does not seek costs.
38. The Appellant should, however, make some contribution to the costs of establishing the Tribunal for the hearing of this Appeal. The Appellant is therefore ordered to pay $500 costs. The Tribunal notes this costs award is for an amount significantly less than the actual costs which have been incurred in hearing this Appeal.
Decision Date: 06/06/2023
Publish Date: 08/06/2023