Goldsbury v Queensland Racing Integrity Commission
[2021] QCAT 174
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- Unreported Judgment
- Goldsbury v Queensland Racing Integrity Commission[2021] QCAT 174
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Goldsbury v Queensland Racing Integrity Commission[2021] QCAT 174
Goldsbury v Queensland Racing Integrity Commission[2021] QCAT 174
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Goldsbury v Queensland Racing Integrity Commission [2021] QCAT 174 |
PARTIES: | rebecca mary goldsbury (applicant) |
v | |
Queensland Racing Integrity Commission (respondent) | |
APPLICATION NO/S: | OCR317-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 4 May 2021 |
HEARING DATE: | 8 March 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
ORDERS: | The decision of the Queensland Racing Integrity Commission of 13 October 2020 is confirmed. |
CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Thoroughbred racing – where jockey charged with failure to take all reasonable and permissible measures to ensure her horse was given full opportunity to win – where the stewards claimed an available opening that would allow the horse to advance was not utilised – where the jockey claimed the opening was closing – where video evidence was available – where the charge was made out – whether some lesser penalty appropriate Australian Rules of Racing r 129(2) Queensland Racing Ltd v Ganderton [2010] QCAT 348 Racing Queensland Ltd v Cassidy [2012] QCAT 31 Radecker, M.S. v Queensland Racing [2008] QRAT 4 |
APPEARANCES & REPRESENTATION: | |
Applicant: | JE Murdoch QC for the applicant |
Respondent: | RJ Anderson QC for the respondent |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]Ms Goldsbury is a jockey. She started her apprenticeship in New Zealand and finished it in Australia in September 2018. She rides on average five races each week. She rode the thoroughbred Abitofacard in Race 1 at Toowoomba on 1 August 2020.
- [2]Abitofacard was a five year old gelding with ten previous race starts and two wins. It started from barrier one in a nine horse field over 1,000m. The horse finished sixth. Abitofacard had been spelled for eight and a half weeks prior to the race. Ms Goldsbury had ridden Abitofacard before.
- [3]After the race the stewards opened an inquiry into the performance of the horse. At the inquiry Ms Goldsbury was charged with breach of Australian Rule of Racing 129(2) which provides:
A rider must take all reasonable and permissible measures throughout the race to ensure that the rider’s horse is given full opportunity to win or to obtain the best possible place in the field.
- [4]The particulars of the charge were:
1. Upon straightening, after Jockey Goldsbury elected to shift to the inside of Calculated Risk, where there always remained clear running, for a number of strides she failed to ride with sufficient purpose and vigour, when reasonable and permissible to do so, to improve to the inside of that runner, before electing to shift outwards behind Calculated Risk near the 150m, which resulted in her mount becoming held up;
2. Further after leaving the 100m, after briefly shifting to the inside of Calculated Risk, she immediately shifted away from a clear run to the inside of that runner when it was reasonable and permissible for her to continue to improve to the inside of Calculated Risk.
- [5]Ms Goldsbury sought an adjournment prior to entering a plea, which was granted. The inquiry resumed on 8 August 2020 but was again adjourned to allow her to provide submissions. At the resumed hearing on 14 September 2020 Ms Goldsbury entered a plea of not guilty, however the stewards found her guilty after considering her submissions. A penalty of two months’ suspension of licence was imposed.
- [6]Ms Goldsbury applied for internal review of the decision which was unsuccessful. Ms Goldsbury has now applied to the Tribunal for external review.
The case law
- [7]The charge is a serious one.
- [8]The principles to be applied in charges arising out of AR129(2) (formerly AR135(b)) have been the subject of consideration, both in the Tribunal and in earlier forums. In Radecker, M.S. v Queensland Racing [2008] QRAT 4, the Queensland Racing Appeals Tribunal said:
The issues to be decided when considering whether a rider has breached AR135(b) were articulated by Mr T.E.F. Hughes AC QC - Principal Member of the Appeal Panel of Racing NSW in a decision involving Jockey Chris Munce published 11 June 2003 when Mr Hughes stated:
“The task of administering this rule is not always easy. One must keep it clearly 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 charge[d].
They include the competitive pressure under which the 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 judgment unless those errors are culpable by reference to the criteria that I have described.”
- [9]In Queensland Racing Ltd v Ganderton [2010] QCAT 348 the tribunal pointed to the contribution made by the stewards with their knowledge and experience in coming to a decision concerning breach of this rule:
15… we do acknowledge the weight and experience and dedication of Stewards in the industry and have regard to their collective knowledge and experience when deciding whether or not charges should be laid against riders under AR.135. In addition, we take into account that Stewards not only have the depth of knowledge as to the application of the rules, they are also attuned to what jockeys should and should not do in discharging their responsibilities to ensure that each horse is run on its merits.
- [10]In Racing Queensland Ltd v Cassidy [2012] QCAT 31 the Tribunal said:
[5] The plain language of AR 135(6) (sic) permits only of an objective analysis as to whether the measures taken by the jockey were sufficient to discharge the obligation that rule imposes. In undertaking that analysis, it is proper for the Tribunal to take into account the views and opinions of the Stewards, the evidence of the jockey, including his explanation of the race, and any other matters the Tribunal considers relevant to the review.
…
[7] However, AR 135(b) does not exist to punish a rider simply because he does not win, or does not achieve a place consistent with the trainers, bookkeepers or betting public’s expectations. Even a decision which appears poor with the benefit of hindsight will not offend the rule without more. What is needed to offend AR 135(b) is the availability of a measure to improve the horse’s success in the race and an unreasonable failure to take that measure. The question is whether measures such as moving Trump up on the field earlier or taking the early lead may have been available and, further whether the decision not to take those measures was unreasonable.
The Jockey’s submissions
- [11]Ms Goldsbury provided the following summary of the race before also giving oral evidence:
- (a)Began slowly and driven to try to obtain a handy position
- (b)I was tightened for room from when we jumped out of the gates for at least the first 100m of the race. I was scraping the fence at this point. This put a lot of pressure of (sic) my horse especially because of his size.
- (c)The horse was travelling fairly 3 lengths back on the fence.
- (d)The pace quickened at the 650m mark where I had to push the horse to keep my position
- (e)At the 500m the horse was struggling to quicken with the rest of the field despite pushing the horse asking him to go faster
- (f)On the point of the turn he is wanting to lay out under pressure. I go to pull the whip in the right hand but have to put it away to try to keep him from drifting out more.
- (g)I attempt to take a run up the fence pushing my mount who isn’t really responding a lot
- (h)Calculated Risk is on my outside and goes to lay in as I get there and I predict it will keep coming across as it is leaning its body to the right.
- (i)My horse was not going fast enough to take the gap that is potentially closing
- (j)I try to come to the outside of calculated risk, as I come and am directly behind it on my way to the outside of it calculated risk comes out in front of me.
- (k)I then attempt to go back to the inside but the horse starts hanging and he is being difficult to steer him where I want him to go.
- (l)I try to give him a push before the line and he still doesn’t respond to going any faster.
- (m)The horse pulls himself up fairly quickly after the race.
The Stewards’ perspective
- [12]The Stewards’ view of the race was:
Near the 300m mark Ms Goldsbury attempted a run to the inside of Calculated Risk, which would have provided Ms Goldsbury with an unimpeded run to the end of the race. Ms Goldsbury failed to capitalise on such before shifting out into a congested area behind Calculated Risk, at which time that horse simultaneously shifted out resulting in Abitofacard being momentarily held up behind Calculated Risk. Ms Goldsbury subsequently shifted back to the inside of Calculated Risk near the 100m mark which again provided Ms Goldsbury with an unimpeded run to the end of the race. Ms Goldsbury failed to capitalise on such run and again shifted out into a congested area behind Calculated Risk, and as a consequence the horse was not tested in the straight.[1]
- [13]A post-race veterinary examination found Abitofacard mildly lame in the near hind leg.
The jockey’s evidence at hearing
- [14]Ms Goldsbury said she had been a jockey for two and a half years.
- [15]Concerning Abitofacard’s first inside chance, she said she saw Calculated Risk ahead of her wanting to lay in (move in) towards the rails. Predicting it would do so she moved out behind Calculated Risk. But when she moved out to go around him the other jockey pulled on his left rein and struck with the whip on the right side of Calculated Risk trying to straighten up his horse, causing it to move out too.
- [16]She had seen the gap on the rails but Abitofacard was a big horse, and given she saw Calculated Risk would come across in front of her to the fence, she realised the gap wasn’t big enough to allow Abitofacard safely through. Therefore she eased Abitofacard back around Calculated Risk to go outside him. In racing these sorts of decisions must be made quickly, she said, which is what she did. There is often little time for reflection.
- [17]After that Abitofacard didn’t run on. It wanted to run behind the other horses. She had ridden Abitofacard before and he was not responding as he had previously. She put that down in part to the interference he had suffered being crowded into the fence by other horses after leaving the gate.
- [18]She agreed Abitofacard had closed the (linear) gap between the two horses from about the 500m mark to when the gap opened after the turn around the 300m mark, but disagreed that Abitofacard was outpacing Calculated Risk.
- [19]Ms Goldsbury agreed that there was no horse in front of Calculated Risk to interfere with him having a straight run in the gap at the fence, however she said that with the way Abitofacard was travelling, and his size, and her belief that Calculated Risk would come in to the fence, she disagreed he could have made it through the gap. She said there are serious consequences in getting caught in a gap at the fence which is closing. You can fall off the horse, or the horse can fall or go through the fence. It can be dangerous.
- [20]She placed particular importance on the body shift she saw Calculated Risk exhibit suggesting he was coming into the gap at the fence. Calculated Risk’s head was turned away from the fence which meant its body was laying or flexing to the right, indicating it wanted to move to its right, into the fence.
- [21]In respect of the second gap opening up at the fence after that which she did not take, she said Abitofacard was not responding. Indeed his lack of response was why she tried him on the inside a second time. She had moved him outside Calculated Risk after he failed to respond adequately to take him through the gap the first time, but though there was a gap there on the outside of Calculated Risk he wasn’t travelling well enough to go through.
The Senior Steward’s evidence
- [22]The Senior Steward for the race, Mr Hitchener, gave evidence at the hearing. He has long experience as both Steward and Senior Steward, seven years part time then thirteen years full time, mostly in Toowoomba. He has had the responsibility of overseeing many thousands of races.
- [23]He said he had not only seen the race but watched the video many times. Coming into the turn (at about the 300m mark) Calculated Risk’s head can be seen pointing towards the rail. He said that was typical of a horse laying out from the rail. In fact, that should have been the trigger, or the green light as he put it, for Ms Goldsbury to use the opening opportunity inside Calculated Risk at the fence to move forward.
- [24]He said around the turn Calculated Risk can be seen to move out from the fence, opening up the gap at the fence. The way the head of Calculated Risk was turned in towards the fence was very indicative of a horse wanting to move out, not move in as claimed by Ms Goldsbury.
- [25]He did not accept Ms Goldsbury’s claim that any mistake on her part was due to a split second error of judgment. He pointed out that through the turn she would be able to see Calculated Risk had its head turned towards the rail which meant it wanted to move away from the rail. Indeed Calculated Risk’s head movement was what a rider looks for to obtain advantage. It was unreasonable for her to claim that the indications from Calculated Risk were that it was going to move in.
- [26]Even if she did think Calculated Risk was laying in towards the rails, given the congestion outside Calculated Risk, she should have waited for that then gone forward through the gap left in her lane vacated by Calculated Risk. There was no horse in front of Calculated Risk in the lane they were running in.
- [27]Abitofacard had closed a three length deficit to Calculated Risk over a couple of hundred metres and when the gap at about the 300m mark opened up Abitofacard wanted to go through. Ms Goldsbury however prevented him doing that by taking him away from the rails back around Calculated Risk into traffic (other horses) where there was no opportunity for him and he was always going to be held up. In evidence of that he said, Ms Goldsbury shifted back to the inside again to have another try at the gap at the rails which had in fact widened by then.
- [28]All the time he noted, Abitofacard was responding well to her directions.
- [29]Whilst Abitofacard suffered some interference at the start of the race he outpaced Calculated Risk from about the 500m mark to the 300m mark and was going for the gap at the rails that had opened up when he was at the hindquarters of Calculated Risk when checked by Ms Goldsbury.
- [30]What the rider of Calculated Risk sought to achieve by changing whip from left to right hand at around the 300m mark was unknown, however it was just as likely to have been use of a technique adopted in recent years to get more out of a horse by changing the side of the horse contacted by the whip, as using the whip to move the horse out from the rails.
The video evidence
- [31]I have viewed the video of the race many times. I have considered Ms Goldsbury’s evidence and that given by Mr Hitchener.
- [32]The video shows Abitofacard outpacing Calculated Risk over 200m leading into the turn at about the 300m mark. The video shows that, going into the turn, Calculated Risk did not have his head turned out as claimed by Ms Goldsbury. Rather its head was, if anything, turned towards the rails. Given that body language of Calculated Risk, it was unreasonable for Ms Goldsbury to claim that the body language from Calculated Risk indicated the horse wanted to move in to the rails rather than out.
- [33]Ms Goldsbury clearly elaborated at the hearing the meaning of an angled head. Her explanation was confirmed by Mr Hitchener - that if a horse’s head was towards the rail the horse was flexing its body trying to move in the opposite direction.
- [34]It ought to have been obvious to Ms Goldsbury that Calculated Risk was moving out, not in, given the body language of Calculated Risk.
- [35]Indeed, true to its body language, Calculated Risk did move out from the turn and Abitofacard was presented with an open gap at the fence inside Calculated Risk. The video shows him maintaining momentum and moving forward into the gap, only to be checked by Ms Goldsbury, who moves him behind Calculated Risk into traffic on the outside of Calculated Risk instead.
- [36]Again, it ought to have been obvious to Ms Goldsbury that Abitofacard’s best opportunity was not outside Calculated Risk in congestion but in the gap inside Calculated Risk which was open and without impediment.
- [37]Abitofacard clearly outpaced Calculated Risk leading into the turn because he overcame a deficit of three lengths over 200m to that point. That is also clear on the video. His faster pace took him into the gap that had opened up at the rails when Calculated Risk moved out.
- [38]When Ms Goldsbury moved back to the rails a second time because of the congestion to the outside of Calculated Risk, the gap between Calculated Risk and the fence had only increased and was again available to Abitofacard. Again Ms Goldsbury is seen to check Abitofacard from running the gap and instead she runs him behind Calculated Risk. Her decision to stay behind Calculated Risk rather than allow Abitofacard to try the inside on this second occasion is rather inexplicable.
- [39]Throughout the race, Abitofacard appeared responsive to Ms Goldsbury’s directions.
Determination
- [40]Generally I prefer the evidence given by Mr Hitchener to the evidence of Ms Goldsbury where their evidence conflicts. The video evidence confirms his view and interpretation of Ms Goldsbury’s race.
- [41]I conclude that it was not reasonable on the part of Ms Goldsbury not to run Abitofacard through the gap at the fence which opened up after the turn. At that stage her horse was moving faster than Calculated Risk.
- [42]I find her horse was responding appropriately to directions.
- [43]I do not accept that either the body language from Calculated Risk or the change in whip hand by the rider of Calculated Risk from left to right should reasonably have indicated to her that that horse was going to lay in to the fence. Rather the reasonable indications to be derived from observing the head movement of Calculated Risk were to the contrary. Given Calculated Risk moved out after the turn, the reasonable indications were proved right.
- [44]Consequently I reject Ms Goldsbury’s claim that it was reasonable for her not to take the gap to the inside of Calculated Risk because she decided the gap was going to close and she and her horse might face a dangerous situation. Taking the gap was both a reasonable measure and permissible in the sense it was not fraught with danger to her or her horse in the circumstances.
- [45]The reasonable indications were that Calculated Risk was going to move out rather than in and those reasonable indications should have been observed by Ms Goldsbury coming into the turn. Accordingly her decision to go out behind Calculated Risk cannot be construed as an error of judgment on her part made in the urgency of the moment.
- [46]The gap on the inside of Calculated Risk clearly offered better advantage and opportunity for Abitofacard than the outside given the observable congestion to the outside. The gap was an available opportunity but Ms Goldsbury failed to take it.
- [47]I conclude that Ms Goldsbury also erred in unreasonably failing to allow Abitofacard to take his opportunity to advance his placing by trying the increased gap on the rails when he was given a second chance nearer the end of the race. Instead Ms Goldsbury checked him to run behind Calculated Risk rather than allow him to try the gap when he may still well have been the faster horse.
- [48]I find Ms Goldsbury did not take all reasonable and permissible efforts to best position her horse in the race.
- [49]I might note, whilst the horse was examined and found mildly lame after the race, it was of the mildest sort and she made no complaint about it to the stewards or anybody else after the race. I conclude it did not affect the performance of Abitofacard during the race.
- [50]I determine that Ms Goldsbury breached AR129(2) by failing to take all reasonable and permissible measures throughout the race to ensure that Abitofacard was given full opportunity to win or to obtain the best possible place in the field.
- [51]The penalty set was two months’ suspension of licence. As stated above, the offence concerned is a serious one. The penalty is in line with other relevant penalty decisions. I see no reason to alter it.
Footnotes
[1] Internal review reasons for decision.