Appeal – Written Reasons for Decision dated 24 July 2023 – Tayla Mitchell

1. INTRODUCTION

1.1 Miss Tayla Mitchell was charged with a breach of Rule 638(3)(g)(i) Contravention of Whip Rule, following Race 7 at Ruakaka on the 15th of July 2023.

1.2 Miss Mitchell, at that time, New Zealand’s leading Apprentice Jockey, pleaded guilty. The Raceday Adjudicative Decision suspended Miss Mitchell’s Licence for 5 National Riding Days, to commence at the conclusion of racing on the 23rd of July and to end at the conclusion of racing on the 2nd of August 2023.

1.3 Miss Mitchell appealed the Decision of the Adjudicative Committee. Her Notice of Appeal had two grounds. These were:

a) that she was denied representation in the form of the Jockey Michael McNab, saying she needed that advice and would not have pleaded guilty, and

b) the severity of the suspension, saying that she could have asked for a substantial fine had she been given the right advice.

1.4 The hearing of the Appeal took place at the Tauranga Racecourse on Saturday the 22nd of July 2023, before the commencement of the day’s racing. Miss Mitchell was represented by the Senior Trainer Mr Graeme Rogerson and also present as noted above, was her mother Tarissa McDonald. Miss Mitchell had to leave the hearing briefly at one point in order to put on silks for the first race.

2. DECISION

At the conclusion of the hearing, the Tribunal Members spoke by telephone – it having been noted above that Mr Harper, who lives in Queenstown, had attended the hearing by Zoom – and then the Tribunal determined that a decision should issue. Following Race 1, the parties were called back to the Judicial Room and the Tribunal advised that the Appeal had been dismissed and that reasons for that decision would follow. Those reasons are now set out in the pages which follow.

3. THE CASE FOR MISS MITCHELL

3.1 Mr Rogerson began by saying that it was ‘not a fair trial’. He explained that normally the Jockey Mentor, the former Senior Jockey Noel Harris, would have been at the race meeting. Mr Harris was not present at Ruakaka on the 15th of July. He contended that a Senior Jockey should have been permitted to attend the hearing to assist Miss Mitchell. He told the Tribunal that the leading Jockey Michael McNab had offered to assist, but that this had been refused by the Stipendiary Steward in attendance on the day. Reference will be made to the attendance of Senior Jockeys later in this Decision. Miss Kylie Fawcett, a Matamata based Trainer, was asked to assist Miss Mitchell. The transcript of the Raceday Hearing, which was made available to the Tribunal and the parties, recorded that Miss Fawcett told the Adjudicative Committee that she had not previously acted in that role and that it was ‘so it’s all new to me’.

3.2 The Information laid against Miss Mitchell on the 15th of July was that she had struck her mount Delorean 7 times with the whip prior to the 100-metre mark and then 4 times after the last 100-metre mark – that is 11 times before the finish. Mr Rogerson took the Tribunal through the film of the race. He contended that the horse was showing that it wanted to run out from the rail. He submitted that it had a tendency to do this and pointed to the fact that it was wearing a crossover noseband. He contended that Miss Mitchell was endeavouring to keep the horse running straight. The Tribunal could see that there was some indication that the horse wanted to run out from the rail. Mr Rogerson placed considerable emphasis on the fact that there were 11 strikes where the Rule permits 10, and he strongly contended that the 11th strike was what he called ‘a flick’. The Tribunal could see from the film that it was not a heavy strike.

3.3 Mr Rogerson pointed to Miss Mitchell’s success. He submitted that it was her first season of riding, that she had ridden 455 horses and had 67 wins. Mr Dooley for the RIB in his submissions – to which there will be further reference later in this Decision – updated the figures to 535 rides with 74 wins. Further, he pointed out that while this was Miss Mitchell’s first full season of riding, she had ridden last season for a period of time.

3.4 Mr Rogerson, in addition to contending that the offending strike was ‘a flick’, emphasised that there had been no interference of any kind to any other horse in the race.

3.5 The submissions by Mr Rogerson made a number of criticisms of the Raceday Decision of the Adjudicative Committee. These were:

a) He contended that it was inappropriate to say that Miss Mitchell ‘was riding aggressively’.

b) In fixing the penalty, the Adjudicative Committee noted that it was not a Black Type Race, but that it was worth a total stake of $60,000. Mr Rogerson submitted that the reference to the stake money was not appropriate.

3.6 A Thoroughbred Racing Meeting had been scheduled to take place at Oamaru on Sunday the 23rd of July. The Tribunal was advised that this meeting had been postponed due to weather issues and that it was now to take place on Wednesday the 26th of July. Miss Mitchell had a number of rides booked at Oamaru. On that same day, the 26th of July, a Thoroughbred Racing Meeting is scheduled to take place on the synthetic track at Cambridge. Mr Rogerson proposed that the suspension, if it were to remain in place, commence on the 26th of July. He pointed to previous cases which he said, established a precedent for this. He referred to overseas jurisdictions, Hong Kong and some in Australia, where extended deferments had been granted to prominent Riders in order that they might ride in significant races.

3.7 Mr Rogerson advanced two proposals. These were:

a) That there be a substantial fine. He spoke in terms of a sum of around $1,000.

b) That the 5-day period of suspension be delayed until the 29th of July. This to allow Miss Mitchell to ride at Oamaru on the 26th of July.

4. THE POSITION OF THE RIB

4.1 With reference to representation of Miss Mitchell on Raceday, Mr Dooley pointed to Rule 605(2). This requires Apprentice Jockeys to notify the Stewards who will represent them. Mr Dooley advised that the Stewards had not received any advice from Miss Mitchell. Mr Dooley referenced a submission from Mr Rogerson about deferments in relation to a meeting at Riccarton. It was pointed out that the meeting was underway when abandoned. In that case, there was a Ruling that a number of Jockeys were able to ride on the deferred date as the meeting had already got underway.

4.2 Mr Dooley emphasised Miss Mitchell’s repeated breaches of the Whip Rule and put her record before the Tribunal. As the Adjudicative Committee explained in its Decision, there had been 4 breaches of the Whip Rule in the 6 months leading up to the 15th of July this year. Mr Dooley then drew attention to the Penalty Guide for breaches of the Whip Rule. This makes plain that where there are 5 or more breaches, there should be a suspension for 5 National Riding Days. That applies whether there are 1 or up to 4 more additional strikes. In answer to a question from the Tribunal, Mr Dooley advised that he knew of no case where a fine had been imposed for a 5th or further breach. In the present instance, this was the 5th breach by Miss Mitchell within 6 months.

4.3 With reference to the proposed deferment of the suspension to the 29th of July, Mr Dooley drew attention to Rule 1106(2). That provides that a deferment can be for up to 10 days. With reference to longer periods of deferment in other jurisdictions, Mr Dooley submitted that this Tribunal must apply the Rules of NZ Thoroughbred Racing and those do not give the Tribunal the power to defer the suspension beyond 10 days. Rule 1106(2) is quite plain. It follows that the request for deferment had to be declined.

4.4 Mr Dooley drew attention to a practice that has been in place for some time, whereby Senior Jockeys are not permitted to represent Apprentices or Junior Jockeys at Raceday hearings. This practice is in place to avoid possible conflicts of interest.

5. DISCUSSION

5.1 The strike by Miss Mitchell, which breached the Rules, was not harsh. However, the Rule does not make a distinction between heavy blows, light blows or what Mr Rogerson chose to describe as ‘a flick’.

5.2 There was reference to the cases of the Jockey Opie Bosson in Thoroughbred Racing and the Harness Racing Driver Colin DeFilippi. This followed Mr Rogerson’s submission that some sort of dispensation should be allowed Miss Mitchell, given that she was the leading Apprentice Jockey and might win the premiership and that this could be jeopardised by a suspension. It is the Tribunal’s view, that the Adjudicative Committee was correct to not take into account, a possibility of winning the premiership, when determining the period of suspension. Miss Mitchell pleaded guilty. The transcript of the hearing demonstrates at page 3 that she acknowledged the mistake; she is recorded as having said ‘so it’s a pretty silly mistake to make’. Further, it’s clear from the transcript, that Miss Mitchell knew that there would be a period of suspension: reference transcript top of page 4. As the Adjudicative Committee correctly observed, there is a discretion. The period of 5 days suspension was at the level set out in the Guidelines and while those are not mandatory, the Tribunal can see no valid reason for departing from those Guidelines, nor can it see any fault in how the Adjudicative Committee came to arrive at 5 National Riding Days. This was a very experienced and Senior Adjudicative Committee.

5.3 The Tribunal is satisfied that everybody got a fair hearing on the Raceday and ample opportunity to put forward their positions. Mr Rogerson’s description of the proceedings before the Adjudicative Committee as ‘not a fair trial’, is inappropriate.

5.4 Miss Mitchell has had 6 breaches of the Whip Rule between October 2022 and April of this year and in all but one occasion, that resulted in a suspension. Following the suspension in April this year, Miss Mitchell was directed to meet with the Riders Skills Review Panel.

5.5 A fine at whatever level, would not have been an appropriate penalty.

5.6 The Tribunal believes that the penalty imposed by the Raceday Adjudicative Committee was not excessive: perhaps modest, given Miss Mitchell’s record for breaches of the Whip Rule.

5.7 The Tribunal accepts the submission of Mr Dooley, that there is no authority to defer the commencement of a suspension beyond 10 days.

5.8 It was unfortunate that Miss Mitchell could not ride at the Oamaru Meeting on Sunday the 23rd of July. That came about as a result of unforeseen circumstances.

6. RESULT

6.1 For all the reasons set out above, the appeal against penalty is dismissed. It follows that no deferment of the suspension period is granted.

6.2 When advising the decision at Tauranga on Saturday the 22nd of July, the Tribunal sought submissions as to costs. Mr Dooley acknowledged that it was a Raceday Hearing, albeit beginning well in advance of the first race. For the RIB, he sought no costs other than the cost of the transcript of the hearing before the Adjudicative Committee. He advised the figure of $65, and Miss Mitchell will pay that to the RIB. As to the costs of the assembling the Tribunal, Miss Mitchell must make some contribution to that. The general is that the figure to be contributed will be around 40% of the total costs and in this case, that comes to $400, and that sum will be payable to the RIB.

6.3 The Tribunal thanks the parties for their patience and courtesy throughout the proceeding.