Racing - whether applicant failed to take all reasonable and permissible measures to win or obtain the best possible place in the field - where necessary to scrutinise the jockey's decision making process having regard to the circumstances of the particular race - purpose of AR135(b) considered

Queensland Civil and Administrative Act 2009, s 20

Queensland Racing Ltd v Ganderton [2010] QCAT 348

Radecker v Queensland Racing [2008] QRAT 4

Larry Cassidy was represented by Mr Murdoch SC instructed by Emanate Legal

Racing Queensland was represented by Mr Byrne QC instructed by Mr Orchard of Racing Queensland

[1] Larry Cassidy was the rider of Trump in Race 2 at Doomben on Saturday 17 September 2011. At the conclusion of the race the Stewards held an inquiry into Mr Cassidy's riding of Trump. The result of the inquiry was to charge Mr Cassidy with a breach of Australian Racing Rule 135(b) in that he had failed to take all reasonable and permissible measures throughout the race to ensure that his horse was given the full opportunity to win or obtain the best possible place in the field.

[2] The Steward's decision was appealed to the First Level Appeals Committee and was overturned in a decision made on 6 October 2011. Racing Queensland Ltd (RQ) now seeks to review that decision pursuant to division 3 of the QCAT Act.

[3] RQ particularised the charge directed to Mr Cassidy in the following terms:

• (a) That from leaving the 1500 metres until near the 1300 metres when an opportunity existed to allow your mount Trump to improve forward to a position one off the fence outside of Craiglea Hussy and in circumstances when 2 competitors, namely All The Torque and Black Jag, were progressing to the outside of Trump, you unnecessarily and unreasonably restrained Trump and allowed All The Torque and Black Jag to cross your running, which resulted in Trump being disadvantaged by virtue of having to then race 3 wide without cover.

  • (b) That after restraining Trump for approximately 150 metres in the back straight which resulted in Trump being positioned some 5 lengths from the lead near the 1000 metres, and when Trump was travelling strongly under restraint when the pace of the race was only moderate, you unnecessarily and unreasonably restrained Trump between the 1000 metres and a point approaching the 800 metres, which resulted in Trump being positioned approximately 5 lengths from the lead and 3 wide without cover near the 800 metres, having, in the stewards' view, expended energy due to continuous restraint from yourself.

  • (c) Your riding of Trump, in the stewards' view, had denied the horse it's full opportunity to win or to obtain the best possible place in the field.

[4] In this review application it is well established that the Tribunal is to produce the correct and preferable decision by considering all the circumstances and then determine for itself, afresh, whether the rider took all reasonable and permissible measures throughout the race to win or improve the position of the horse[1].

[5] The plain language of AR 135(6) 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.

[6] In determining whether the jockey has complied with the objects of a jockey's decision making is necessarily to be scrutinised. Various factors are relevant factors in determining whether the steps taken and decisions made by the jockey satisfy the obligations set out in the rule. Those obligations endure throughout the race and the race officials quite properly scrutinise all aspects of the race to ensure that all reasonable and permissible measures are taken.

[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.

[8] In Radecker, MS v Queenland Racing (2008) QRAT, the former Racing Appeal Tribunal stated, in discussing the factors relevant to such a charge:

"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 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 the subject race Mr Cassidy had to make decisions balancing a number of relevant factors including:

• (a) The weight being carried (Trump was the favourite, carrying 58kg);

• (b) The speed of the race (it was common ground that the first 1,000 metres of the race was slow);

• (c) Position or conduct of the horse in the race so far (three off the barrier without cover for the majority of the race);

• (d) Any instructions from the trainer (here, to ride comfortably and conservatively - both words seem to have been used at various times prior to the race);

• (e) Knowledge of the horse (previous hanging, fast finisher).

[10] It is the task of this Tribunal to analyse Mr Cassidy's conduct relevant to the particulars charged in the context of the scope of the rule and the factors necessarily bearing upon the decisions he had to make.

First Particular of the charge - failing to advance from 1,500 to 1,300

[11] The race was over 1615 metres. From 1,500 metres until 1,300 metres, the complaint is that Mr Cassidy failed to take advantage of an opportunity to advance and, in fact, restrained his mount from doing so. The result, it is said, is that Trump was then forced to race three wide without cover for a significant portion of the race. This was described by RQ as disadvantageous.

[12] The video evidence, and Mr Cassidy's evidence, is consistent with the factual allegation that Trump did not advance to a position closer to the fence between 1,500 and 1,300 metres.

[13] The dispute arises from the explanations provided by Mr Cassidy to RQ and to this Tribunal. It is noteworthy that Mr Cassidy was co-operative with the Stewards on the day of the enquiry and, although the inquiry was adjourned on a number of occasions to allow Mr Cassidy to ride throughout the day, the explanations he provided to the Stewards then are essentially the same as those provided at the First Level Appeal hearing, and to this Tribunal.

[14] Mr Cassidy gave evidence that, although Trump jumped well, he began to hang out almost immediately, that is pulling to the outside. He described the steps he then took, and continued to take during the race, to control this tendency.

[15] Mr Cassidy also has consistently asserted that his mount was bumped by another horse, Atlantis Gem, and that this caused or contributed to Trump's tendency, during this early part of the race, to hang out or want to veer away from the fence. The response by the race officials to this is either that the bump was unlikely to have produced such a response in Trump, or that the real explanation for the horse hanging his head in the particular way is that he was under unnecessary restraint.

[16] It is helpful to return to what is disclosed by the video evidence of the race itself. It is clear that Trump gets away to a good start, not apparently under restraint, but does then start to hang its head. At the point referred to by Mr Cassidy as a bump by Altantis Gem there appears to be a reaction by Trump and a continuation of the behaviour described by Mr Cassidy.

[17] Mr Cassidy gave evidence (in the inquiry, First Level Appeal and before this Tribunal) that he could not advance at that stage because he had to keep control of his horse. He also explained that he was riding the horse left handed in order to counter-act the horse's tendency to lay or hang out. The action he describes of holding the reigns with his elbow high to push Trump into the turn is also visible in the video. Whilst retaining control of Trump in this way any opportunity to advance could not reasonably have been pursued by Mr Cassidy.

[18] We therefore accept the explanation provided by Mr Cassidy for Trump's behaviour in this section of the race. It follows that this element of the particulars of charge of failing to advance is not sustained on the available evidence.

Second Particular of the charge - unnecessary restraint from 1,000 to 800

[19] The second particular of the charge relates to unnecessary restraint of Trump by Mr Cassidy between 1,000 metres and 800 metres. The result, it is said, is that Trump was positioned three wide and approximately five lengths from the lead near 800 metres from the finish. RQ asserted that both the position and the significant energy expended by Trump in this period of the race adversely affected Trump's prospects of a win or the best possible place.

[20] It is common ground that Trump advanced to contest the finish with about 800 metres to go. The essential issue before the Tribunal in relation to this particular is whether the decision by Mr Cassidy to restrain Trump and not advance until the 800m mark, amounted to a failure to give the horse its best opportunity for success in the race. Put another way, did Mr Cassidy wait too long to compete for the win or best possible place?

[21] What may have eventuated had Mr Cassidy let Trump advance at 1,000 metres is open to conjecture. RQ submit that to not let the horse advance simply prevented the horse from being given the best opportunity in the race and that is sufficient to contravene AR 135(b).

[22] The explanation provided by Mr Cassidy was:

• (a) He was looking to move to the fence at this stage;

• (b) He took some time to identify whether he could move across;

• (c) When he realised that he could not come across it was too early to advance to the front. This would have increased the pace of the race too early on a horse with a strong finish.

[23] The factors bearing upon Mr Cassidy's decision are set out above. Certainly his previous knowledge of the horse and the trainer's instructions, both of which were ultimately uncontroversial on the evidence before us, are consistent with the approach which Mr Cassidy described. The video evidence is also, again, consistent with his explanations and indicates the time taken to assess whether he could move Trump to a more advantageous position at this point in the race. The other riders in the race do not give ground and this is unsurprising given that, by 1,000 metres, the $1.70 fast finishing favourite is outside them without cover and is having to take the long way home.

[24] We do not consider that measures were available to Mr Cassidy at this time to advance the horse which he failed to take. It therefore follows that the second element of the particulars of charge of unnecessary restraint from 800 metres to 1,000 metres is not sustained on the available evidence.

[25] In conclusion, having considered the matter afresh, we are not satisfied to the requisite standard that RQ has established that Mr Cassidy has breached AR 135(b) in his manner of riding Trump.

[1] The decision of the First Level Appeals Committee of 6 October 2011 is confirmed.

[1] Queensland Racing Ltd v Ganderton [2010] QCAT 348 at [13]; Radecker v Queensland Racing [2008] QRAT 4; QCAT Act, s 20.