History of the Not Blameworthy Case - Racing Talk - Racehorse TALK
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History of the Not Blameworthy Case - Racing Talk - Racehorse TALK

Author Topic: History of the Not Blameworthy Case  (Read 769 times)

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Offline Arsenal

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O.P. « 2018-Jul-29, 06:14 PM »
Current AR 135 provides :-
AR.135. (a) Every horse shall be run on its merits.
(b) The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.
 (c) Any person who in the opinion of the Stewards has breached, or was a party to breaching, any portion of this Rule may be penalised, and the horse concerned may be disqualified. [amended 1.9.09]
 (d) Any person who: (i) in the opinion of the Stewards, has breached, or was a party to breaching, subrule 135(a); and (ii) has a lay bet or an interest in a lay bet on the subject horse and/or has a bet or an interest in a bet on another horse in the subject race, must be penalised in accordance with AR.196(5).
AR.135A. When by or on behalf of a trainer, any instruction is given to, or arrangement made with the rider of a horse engaged in a race that the horse be ridden in the race in a manner different from the manner in which the horse was ridden at its most recent start or starts, it shall be the responsibility of the trainer or his duly authorised agent to notify the Stewards of any such instruction or arrangement as early as practicable but not later than 30 minutes prior to the race. Upon receipt of that notification the Stewards may make any public release in respect thereof as they deem to be appropriate. [added 1.3.05][amended 1.10.06][rule replaced 01.10.12]

This is a brief history of the proper application of  R135(b) which first came to light in Qld under the former Racing Appeal Board  way back in 2014 ...some extracts from the decision in  the words of learned chairman the late Bill Carter QC

Rule 135(b"The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that the horse is given full opportunity to win or to obtain the best possible place in the field."

Prior to the insertion of Rule 135(b) into the rules some years ago, the only rule which focused on the running and handling of a thoroughbred in the course of any race was Rule 135(a), which provides: "Every horse shall be run on its merits.”

There was a perceived difficulty for racing authorities in the application of Rule 135(a). For a person to be properly convicted for a breach of that rule, the stewards had to be satisfied to the required standard of proof that the rider and/or the owner and trainer had formed a prior intention that in the particular race this horse would not be allowed to run on its merits.
In short, that there was the intention that the horse would not win and that it would be seen to perform at an inferior standard. To use the racecourse vernacular: that there was an intention "to hold the horse" and to get it beaten.

 Rule 135(b), however, is essentially different. It provides: "The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that the horse is given full opportunity to win or to obtain the best possible place in the field."

The alleged offender under Rule 135(b) is identified as the rider. The core focus of the rule is the quality or otherwise of the jockey's ride. That is, if he/she, the rider, fails, given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that the horse is given full opportunity to win or to obtain the best possible place in the field, he/she is in breach of the rule and liable to penalty.

 
The leading statement of principle involving Rule 135(b) is generally regarded as being that of Mr T E F Hughes, QC, the then chairman of the New South Wales Racing Panel, on 5 June 2003 in an appeal in respect of Rule 135(b) by jockey Munce.

Mr Hughes QC said with reference to Rule 135(b): "The task of administering this rule is not always easy.
One must keep in mind that on its true interpretation it is not designed to punish a jockey unless on the whole of the evidence in the case the tribunal considering a charge under the rule is comfortably satisfied that the person charged was guilty of conduct that, in all the relevant circumstances, fell below the level of objective judgment reasonably to be expected of a jockey in the position of the person charged in relation to the particular race.
 
The relevant circumstances in such a case may be numerous.
They include the seniority and experience of the person charged. They include the competitive pressure under which a person charged was riding in the particular race.
They include any practical necessity for the person charged to make a sudden decision between alternative courses of action. The rule is not designed to punish jockeys who make errors of judgement unless those errors are culpable by reference to the criteria that I have described."

Judge Lewis, the chair of the Victorian Racing Appeals and Disciplinary Board, in an appeal by apprentice jockey Rodder on 1 December 2011, developed this principle somewhat further.
He said: "The onus is on the stewards to prove that the appellant has been in breach of the Rule. The appellant is, in the circumstances, required to give an explanation for his/her actions. However, the onus always remains with the stewards. This is a serious offence. The standard of proof is that referred to in the well-known High Court case of Briginshaw v Briginshaw, 1938, CLR, 336. The standard is on the balance of probabilities.

However, the board must have a reasonable degree of satisfaction that the charge has been proved. It is not a matter of mechanical comparison between competing views. Matters which the board must take into consideration include the seriousness of the allegation and the gravity of the consequences flowing from the particular finding.
The rule imposes an objective standard of care. The standard of care takes into account, among other things, the views and explanations of the rider and the views and the opinions of the stewards.
A mere error of judgment is not a sufficient basis for a finding that the rule has been breached. The rider's conduct must be culpable, in the sense that, objectively judged, it is found to be blameworthy."
Then His Honour with reference to the particular facts of the case continued. He said: "Putting the issue in context, the board must be comfortably satisfied that, in the circumstances which existed, and viewed objectively, the manner in which the jockey rode her mount and the degree of control which she exercised over her mount in the stages of the race specified in the charge fell well short of what would be reasonably expected of a rider in her position."

And further: "The question for the board is: was the appellant's ride an error of judgement or was it, in all of the circumstances, culpable in the sense that, objectively judged, it was deemed to be blameworthy."
And finally: "This is not a case where, for example, a horse with a definite racing pattern was ridden upside down, or where a clear run existed and was not taken."

So the learned Racing Appeal Board under the late Bill carter QC concluded :-
It seems to us that the following statements of principle emerge: (1) It is the quality of the ride in the circumstances of the particular race which has to be judged.
 (2) That judgment must be based on an objective assessment of the jockey's ride in this particular race.
 (3) A mere error of judgement by a jockey is not a sufficient basis for an adverse finding that this rule has been breached.
(4) The rider's conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.


AMENDMENTS TO AUSTRALIAN RULES OF RACING AR.135 – Advantaging another runner Summary:
Racing Australia is introducing a new rule which requires riders to ride their horses in a manner that:
(a)   only benefits their horse’s own best interests; and (b) does not advantage any other horses or riders.
(b)    While the current running and handling rules require that horses be run on their merits and that riders take all reasonable and permissible measures to obtain the best place in a race, the proposed rule will further strengthen this suite of rules from an integrity perspective. In addition to seeking to prevent any corrupt conduct affecting the running of a race, such a rule will also limit the use of pacemakers and team/stable riding practices.
(c)    The rule is consistent with the International Agreement on Breeding, Racing & Wagering model rule, save for the exception in respect of horse and rider safety. Such an exception is necessary to ensure that the rule does not create any perverse outcomes, such as a jockey riding in a manner that is in his horse’s best interests but is unsafe to others.
1. Amend AR.135 as follows: “AR.135. (a) Every horse shall be run on its merits.
 (b) The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.
 (c) Except where the safety of any horse or rider in a race requires otherwise, every horse must be ridden in such a manner to benefit only its own best interests and not to the advantage of other horses or riders.
(d) Any person who in the opinion of the Stewards has breached, or was a party to breaching, any portion of this Rule may be penalised, and the horse concerned may be disqualified.
 (e) Any person who: (i) in the opinion of the Stewards, has breached, or was a party to breaching, subrule 135(a); and (ii) has a lay bet or an interest in a lay bet on the subject horse and/or has a bet or an interest in a bet on another horse in the subject race, must be penalised in accordance with AR.196(5).” Date of Effect: 1 August 2018



Giddy Up :beer:
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Offline Peter Mair

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« 2018-Jul-29, 09:01 PM Reply #1 »


A jockey's number is up -- eventually

Having sat in on many appeals in NSW, by jockeys penalized for a 'bad ride', my assessment was that the charge was not for a first 'recent offence'.

My suspicion is that, eventually, stewards decided to act and, accordingly, found a suitably 'offensive' ride to prosecute -- an accumulated assessment that was fairly widely agreed.

Almost invariably the penalty imposed, by stewards, was halved on appeal -- but the costs were substantial. 

This was rough justice in some ways -- but not as rough as in times past when an eventual penalty was predictable and 'rights' of appeal had less meaning.
 

Offline gunbower

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« 2018-Jul-29, 09:55 PM Reply #2 »
It goes against the grain , but I am inclined to agree. It was a horrible ride and in isolation may just look like that. Tend to think that  the point you make is valid. Human nature suggests that there must have been some pre -existing concerns and they jumped all over this particular ride. I( know that I have had previous concerns.

Offline Arsenal

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« 2018-Nov-28, 10:49 AM Reply #3 »
In his recent decision reported on the COBALT thread learned QCAT member Gordon QC referred to the blameworthy principle in deciding the appropriate penalty for a trainer penalised for a positive to cobalt all his comments are set out hereunder :-

"The importance and degrees of blameworthiness [46]
How far a person prosecuted under the racing rules is blameworthy is an important consideration on the question of penalty. Attempts have been made in the cases to categorise the degrees of blameworthiness.

For example McGill DCJ in Wallace v Queensland Racing [2007] QDC 168, [69], identified a category of case where the tribunal accepted the trainer’s explanation showing no blameworthiness: this may be appropriate for more lenient treatment.
 
Then there was the ‘ordinary case’ where there was no explanation for the elevated reading and therefore no indication whether or not there was any blameworthiness of the trainer
.
Then there was another category of case where an explanation showed some moral blameworthiness on the part of the trainer, which would justify a more severe penalty.
 
[47] Ms Scott’s case does not come within any of Judge McGill’s stated categories. She has provided an explanation for the elevated reading which I have accepted. The explanation indicates that she was careless.

This is therefore an additional category of blameworthiness which may apply in these types of cases. [48] Adding an additional category to allow for a case such as Ms Scott’s means that the categories may now be stated as:-

 A. No blameworthiness at all.

 B. Carelessness.

C. No credible explanation, so no indication about blameworthiness one way or the other.

 D. Moral blameworthiness shown.

[49] It seems to me that category B cases could encompass varying degrees of carelessness – mild, moderate or serious (equivalent to gross negligence or recklessness). The appropriate penalty would vary accordingly.

[50] Category C cases might ultimately spill into category D in circumstances when it was right to infer moral blameworthiness from the absence of a credible explanation for the elevated reading. Some authorities in the various categories and various prohibited substances"
 


Giddy Up :beer:

Offline timw

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« 2018-Nov-29, 08:23 PM Reply #4 »
So if there is no evidence that Wilbur didn't administer the cobalt for whatever reason it seems reasonable to assume that Mr Ed was blameworthy.  Now from what I recall of the TV series I would have thought that Mr Ed was capable of self administration.  It follows that if the authorities can't pin a blameworthy act on the trainer then the horse should be suspended for 2 years which is about the typical suspension for a human drug taker.  The concept of 'moral blameworthiness' sounds like a load of cobblers to me.   

Cheers


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