Victorian Civil and Administrative Tribunal s11

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

administrative DIVISION

Review and regulation LIST / vcat reference No. Z810/2016
CATCHWORDS
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.
APPLICANT / Damien Oliver
RESPONDENT / Racing Victoria Limited
WHERE HELD / Melbourne
BEFORE / Judge Jenkins, Acting President
HEARING TYPE / Hearing
DATE OF HEARING / 21 October 2016
DATE OF ORDER / 24 October 2016
CITATION / Oliver v Racing Victoria Limited (Review and Regulation) [2016] VCAT 1794

ORDER

1 Damien Oliver is found guilty of reckless riding in breach of the Australian Rules of Racing 137(a).

2 The decision of Racing Appeals and Disciplinary Board made on 14 October 2016 in respect of the Charge against Damien Oliver is affirmed.

3 The application for review as to liability is dismissed.

Judge Jenkins
Acting President
APPEARANCES:
For Applicant / Mr D Sheales of Counsel
For Respondent / Mr P Holdenson QC, with Mr J O’Connor of Counsel, instructed by Racing Victoria Limited

ORDER 1

TABLE OF CONTENTS 2

REASONS 3

NATURE OF APPLICATION 3

THE CHARGE 3

BACKGROUND 3

JURISDICTION OF STEWARDS, RAD BOARD AND TRIBUNAL 4

EVIDENCE 5

WITNESSES 6

RELEVANT LAW AND AUTHORITIES 10

CHARACTERISATION OF ‘RECKLESS RIDING’ AND FINDINGS 12

CONCLUSION 15

REASONS

NATURE OF APPLICATION

1 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).

2 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 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.

4 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

5 AR 137(a) provides as follows:

Any rider may be penalised if, in the opinion of the Stewards,

(a) He is guilty of careless, reckless, improper, incompetent or foul riding.

6 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

7 In the Race:

(a) The Applicant was the rider of a mount known as Flying Artie, the race favourite, which started from barrier 5;

(b) Dean Yendall (Mr Yendall) was the rider of a mount known as Ken’s Dream, the Race second favourite, which started from barrier 6;

(c) Blake Shinn (Mr Shinn) was the rider of a mount known as Dalradian, the race 10th favourite, which started from barrier 11; and

(d) There were 12 runners altogether.

8 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.

9 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

10 Thoroughbred racing in Victoria falls under the control of Racing Victoria, a company limited by guarantee, pursuant to the Racing Act.[2]

11 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]

12 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]

13 The Rules place the supervision and control of race meetings in the hands of the Stewards.[5]

14 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.

15 The RAD Board for thoroughbred racing is established under the Rules and given statutory standing by the Racing Act.[6]

16 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.

17 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.

18 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

(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

(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.

19 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]

20 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

21 Oral evidence was given by the following witnesses:

(a) Terrence Bailey, Chief Steward;

(b) Christopher Symons, Jockey;

(d) Damien Oliver, the Applicant.

22 The following material was also tendered by Racing Victoria:

(a) Results of the Race;[9]

(b) Transcript of hearing before the Stewards;[10] and

23 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

24 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.

25 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:

(a) 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;

(b) 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;

(c) 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;

(d) 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;

(e) The video also clearly depicts Mr Yendall becoming unbalanced; and

(f) 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.

26 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.

27 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:

(a) In their experience, there was no risk of a horse ever falling after being bumped or crossing its legs;[11]

(b) 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

28 All jockeys acknowledged that:

(a) 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;

(b) A jockey must be at least 2 lengths clear of a jockey behind before changing course in front of them;

(d) Mr Yendall became unbalanced following the impact of the two horses.

29 The evidence given by the jockeys, in aggregate, focused upon the following matters:

(a) providing an explanation for the race plan adopted by the Applicant and therefore his intentions in undertaking certain actions; and

(b) 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.

30 In particular:

(a) 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;

(b) 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;

(c) 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;