Appeal – Written Decision dated 8 November 2022 – Colin DeFilippi

Background

1. On 31 October 2022 the Kaikoura Trotting Club held a race meeting at the South Bay Racecourse in Kaikoura.

2. Race 6 on the programme was the Peninsular Beach Front Resort Mobile Pace. The horse “HAPPY PLACE” was driven by the Appellant in that race.

3. Subsequent to the race, the Appellant was charged with a breach of Rule 869(2) alleging he used his whip with more than a wrist flicking motion in the run home.

4. The Appellant pleaded guilty to the charge.

5. The Adjudicative Committee imposed a suspension of the Appellant’s Drivers Licence for a period of three (3) racedays commencing on 1 November 2022 and concluding on 10 November 2022. The meetings covered by the term of suspension included Rangiora Harness Racing Club on 4 November 2022, New Zealand Metropolitan Trotting Club on 8 November 2022 and Ashburton Trotting Club on 10 November 2022.

6. The meeting on 8 November 2022 is New Zealand Cup Day to be held at the Addington Raceway. The Appellant requested a penalty be imposed which allowed him to drive his own horse “HEZA SPORT” in the New Zealand Cup.

7. The Adjudicative Committee rejected that request and the penalty decision of three (3) days suspension was imposed.

8. The Appellant appeals the penalty decision.

Preliminary Matter

9. By letter dated 4 November 2022, Mr Dale advised he wished to raise a preliminary issue relating to this Appeal. He indicated he believed it was inappropriate to proceed with the Appeal until a current Judicial Review Proceeding had been determined. This Proceeding relates to the constitution of an Appeal Panel. The primary ground is that members of an Appeal Panel should not have sat at first instance hearings. That Judicial Review is awaiting a decision from the High Court.

10. However prior to the commencement of the hearing, Mr Dale was advised neither member of this Appeals Tribunal sit on racedays. On that basis Mr Dale indicated he did not wish to pursue this preliminary issue.

11. At the outset Mr Dale indicated there was no complaint regarding the three (3) day suspension as a penalty. The issue was whether any deferment should have been granted to allow the Appellant to drive on New Zealand Cup Day.

12. He confirmed the hearing was a de novo hearing enabling this Tribunal to grant the deferment sought by the Appellant.

13. Rule 1304 provides for a suspension to take place immediately after the day the suspension is imposed, unless the driver has engagements to drive a horse in a betting race during the next seven (7) days from that date. As the New Zealand Cup Day was eight (8) days after the Kaikoura meeting, Mr Dale urged us to apply our discretion under Rule 1304(4) to defer the suspension until after the New Zealand Cup Day meeting.

14. He drew a comparison between the seven (7) day deferment period under the Harness Racing Rules with an equivalent ten (10) day deferment period under the New Zealand Thoroughbred Racing Rules.

15. There was also reference to a matter involving N Rasmussen where an Appeals Tribunal of the then Judicial Control Authority for Racing allowed flexibility on 2 November 2018 to enable Ms Rasmussen to drive on a New Zealand Cup Day. He submitted the circumstances surrounding the Rasmussen Appeal, were very similar to those applicable to the Appellant. Therefore in the interests of consistency, this Tribunal should act in the same manner as the Rasmussen case, and allow a deferment of the period of suspension.

16. The Appeals Tribunal was also asked to give consideration to the human interest aspect of the Appellant’s circumstances, given his distinguished career in the Industry and the possibility this would be the last occasion the Appellant would be in a position to drive in the New Zealand Cup Day.

Respondents Submissions

17. Needless to say, Mr McIntyre on behalf of the Respondent was of the view the decision of the Adjudicative Committee on the raceday was correct. He submitted the comparison of deferment periods under the Harness Racing Rules as opposed to the Thoroughbred Racing Rules was irrelevant.

18. He drew a number of matters to the Appeals Tribunal’s attention relating to the Rasmussen case, to suggest it was distinguishable from the circumstances relating to the Appellant. These distinguishing matters include:

(a) The matter was heard in 2018.

(b) Different Rules applied at that time. At that time the Rule determined a maximum number of times a driver was able to strike a horse in a race being ten (10), whereas the Rule now prescribes a technique which is required.

(c) Ms Rasmussen was found to have struck her horse on eleven (11) occasions which was one more than permitted under the Rules, whereas the Appellant breached the current Rule on at least ten (10) occasions during the run home.

(d) The Appellant has a poor record under the current Whip Rules and there has been little disadvantage to the betting public by having the matter heard on Appeal within close proximity to the New Zealand Cup Day as there has been no Driver posted for “HEZA SPORT” pending the outcome of this hearing.

(e) Mr McIntyre believed the Adjudicative Committee took into account the New Zealand Cup Day, as this was expressly referenced in their decision.

(f) The Respondent wished to emphasise there was no suggestion of the Appellant driving “HAPPY PLACE” in a manner which caused any welfare concerns to the horse.

(g) The Respondent also noted the Appeal decision dated 10 May 2021, which also involved the Respondent.

Appellants Personal Submissions

19. The Appellant asked if he could address the Appeals Tribunal in person. This was granted.

20. The circumstances in which the Appellant finds himself today is upsetting to him and his family. He asks for consistency in the application of the Rules and for “the penalty to fit the crime”. In his opinion neither has been adhered to in this instance.

21. The Appellant has been driving standardbred horses for forty eight (48) years. The current Rule was introduced only two (2) years ago. He enquired as to why all aspects of the Rule change were introduced at once and not in steps to enable participants such as him, to be able to gradually adjust.

22. We confirmed this could not be a matter under this Appeal. The Rules of Harness Racing are set by Harness Racing New Zealand and not the Racing Integrity Board in any of its roles. If there is any criticism of the actual Rules, then that criticism should be directed at Harness Racing New Zealand and not Stipendiary Stewards or Adjudicative Committees.

23. The Appellant stressed the New Zealand Cup is an iconic event which all Licence Holders seek to win.

24. We totally understand the disappointment which the Appellant finds himself. However we see an overriding need to ensure consistency and parity to all participants rather than being in a position of allowing “special consideration” to individual Licence Holders. To do so in our view would create a high level of uncertainty and would surely draw greater criticisms of inconsistency.

Discussion

25. The matter is relatively simple. The setting of the penalty at the lower end of the Penalty Guidelines was completely orthodox and cannot be criticised. The only issue is, as the Chair of the Adjudicative Committee stated:

“The case is a simple one, complicated only by the Respondent’s desire to drive on Cup Day.”

26. The Adjudicative Committee carefully considered all matters put forward by the parties.

27. The Appeals Tribunal is not persuaded to the view the Rasmussen decision should influence us in our determination.

28. Attitudes towards matters of animal welfare have stiffened considerably since 2018. These attitudes apply across all Codes.

29. There is little doubt that the social licence which is enjoyed by the Industry will only continue if society as a whole is satisfied that matters of animal welfare are being taken seriously. For this reason, penalties in the area of animal welfare have increased in order to satisfy the sentencing objectives in this area.

30. These points have been emphasised in numerous recent cases, including RIU v McGrath, RIU v Alford, RIU v Turnwald and RIB v Pinn.

31. The Appeals Tribunal asked Mr Dale to comment on the Appeals Tribunal decision and subsequent Judicial Review of Bosson v Racing Integrity Board. He indicated he was disappointed with that decision.

32. On New Years Day 2021, Mr Bosson who is widely recognised as one of the most successful New Zealand jockeys, was suspended for a period of time preventing him from riding in the Karaka Million Race night. He applied to the Adjudicative Committee for a discretion to be exercised to enable him to ride on that occasion. That was rejected by the Adjudicative Committee.

33. Mr Bosson Appealed that decision and by decision dated 12 January 2021, the Appeals Tribunal also rejected that submission. The matter was taken on Judicial Review and again that submission was rejected in Bosson v RIB [2021] NZ HC 23.

34. At the Adjudicative Committee it was stated:

“Riders should also have in the back of their mind pending premier and iconic race days and avoid being unavailable due to suspension. Mr Bosson is a very experienced senior rider and we are sure this would have been at the forefront of his thinking.”

35. Reference was also made to an Australian decision of the Victorian Racing Appeals Board relating to Jockey H Bowman where it was stated:

“We are also very aware of the need for parity and consistency in applying penalties.”

36. At the Appeals Tribunal hearing involving Bosson, it was stated at paragraph 7.13:

“The proposition that upcoming significant race meetings at which Mr Bosson might play a prominent role should be a reason for departing from the Penalty Guide, and the consistent application of penalties, hitherto is unconvincing. It would lead to a situation where there would be unacceptable uncertainty going forward as to the circumstances in which suspension might or might not be appropriate, or where some reduction in suspension and increase in fines might or might not be appropriate. All riders must obey the same Rules and accept the same outcomes if those Rules are breached, having regard of course to the individual rider’s record and the circumstances of offending.”

37. The High Court concluded consistency, transparency and meaningful deterrents outweigh the consequences of suspension.

38. The Appeals Tribunal procedure is set out in Rule 1206. The fifth schedule to the Rules sets out the actual procedure.

39. Paragraph 44 confirms the Appeal is to be way of a re-hearing and we have adopted that procedure. We should however, not lightly interfere with the decision of the Adjudicative Committee.

40. The setting of the period of suspension at three (3) days cannot be faulted. The issue is solely around whether or not a discretion should have been exercised to enable the Appellant to drive on New Zealand Cup Day.

41. In our view the relevant authority is the Bosson case. Although it applied to the Thoroughbred Code, the principles from that case should apply equally to the Harness Racing Code.

42. The consequences of offending in the lead up to iconic or special race days is a matter which should be in the forefront of the mind of Licence Holders. Not only the Bosson case, but other Tribunals have also confirmed the inability to participate in similar race days is an ordinary consequence of offending. The pending dates should be in the minds of all Licence Holders and they should act accordingly.

43. Having regard to those principles we cannot find fault with the decision of the Adjudicative Committee. We believe it to be correct.

44. It therefore follows the Appeal is dismissed.

Costs

45. The Appeal was heard on a race day and therefore there were no costs incurred in venue hire or set up. The Respondent did not seek costs.

46. Whilst there are some costs incurred in establishing the Appeals Tribunal, we have determined there should be no award of costs.