1. Dr Pannam QC who appears for the respondent has referred me to the decision of Karakatsanis v Racing Victoria Ltd,[2] where the Court of Appeal accepted the applicability of Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case. I will apply the test stated in that case, and as a result, need to have a comfortable level of satisfaction fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by the tribunal.

1. Improper riding is not defined in the rules of racing. However it has been accepted before me that improper riding must involve an element of deliberate or intentional conduct which creates a danger or potential for danger. The danger may be to a rider or to a mount. The rules of racing as they apply to riders are concerned with safety. The safety of rider and horse is paramount. Riders have an obligation to observe the rules of racing. A rider is not to interfere with the right of another horse to run in the race.

1. The rules of racing are also concerned with fairness and recognise that a horse has a rightful line of running. The issue in this case is whether the appellant's riding constituted improper riding, as the respondent contends, or whether it was no more than competitive riding as the appellant contends.

1. I have the benefit of the transcript of the inquiry conducted by the stewards on the day of the race, and of the transcript and decision of the RAD Board conducted on 26 September 2014.

1. I am also assisted by the evidence of Mr Terrence Bailey, chairman of stewards, and a steward on the day of the race. The appellant and Ms Payne were called to give evidence before me and were cross-examined and re-examined. Most importantly, I am assisted by the film of the race which I have carefully viewed on a number of occasions.

1. There are a number of matters before me that are not in issue or are clear on the evidence. The race was over 1600 metres. As he approached 1100 metres, the appellant's mount was three wide and outside Ms Payne's mount which was one off the rails, that is in the two wide position. There was no horse immediately to the inside of Ms Payne's mount. In an interview conducted between Bruce Clark and the appellant on 27 September 2014, the appellant said that he definitely manoeuvred Michelle Payne off her course, which was clear on the film. He added that, "I definitely do manoeuvre Michelle Payne off her rightful line of running and that's clear that's what I've done, and obviously went on for too long." There is no doubt that the appellant did seek to manoeuvre Ms Payne's mount off her line of running in the two wide position, which as she said in evidence, she had been instructed to maintain. It is common ground that the appellant's conduct was deliberate and intentional, with the object of gaining advantage in the race for his mount by moving into the one off position occupied by Ms Payne's mount.

1. It is not in dispute, or at any rate not in serious dispute that the two bumps occurred as the appellant sought to move his mount into the position behind Surging Wave. The appellant was successful near to the 850 metre mark, taking up the position previously occupied by Ms Payne's mount. There was conflict on the evidence as to whose responsibility the two bumps were, and whether the appellant's conduct created a danger or potential for danger.

1. The principal contention advanced by Mr O'Sullivan was that there was no actual danger or potential for danger. There is no doubt that the appellant was attempting to apply pressure to Ms Payne's mount, to edge her inwards towards the rail. It was for that purpose that the appellant turned his horse's head in towards her mount. I am of the view that the appellant was principally responsible for the first bump. He was determined to take up the one off position. Ms Payne was minded to maintain her position and to hold her line. Given that Ms Payne was entitled under the rules of racing to maintain her mount's line of running, I am satisfied that the appellant must be regarded as responsible for the first bump. It appears from the film that the appellant's manoeuvre had by this time, or soon afterwards achieved some success. Ms Payne persisted with her desire to maintain her mount's line of running whilst the appellant sought to take up the one off position.

1. In these circumstances the second bump took place. Again I am of the opinion for the same reason that the appellant must be viewed as principally responsible for the second bump. It is only to be expected that Ms Payne would seek to maintain her mount's line of running. Following the second bump, Ms Payne moved her mount to the rails. As a result, I conclude that the appellant is principally responsible for the incidents that took place between his mount and that of Ms Payne between the 1100 metre and the 850 metre marks.

1. The second main issue in dispute is whether the incidents that I have described gave rise to actual danger or a potential for danger. Both the appellant and Ms Payne gave separate evidence that there was no danger. On the other hand, the evidence and opinion of Mr Bailey and the stewards was that there was potential for danger.

1. I have come to the conclusion, despite the evidence of the appellant and Ms Payne, that there was a potential for danger arising from the appellant's course of conduct.

1. First, the incidents that took place over a significant distance of around 150 to 200 metres, I agree with Dr Pannam QC when he submitted that the incidents went on too long.

1. Secondly the incidents involved the determined pursuit by the appellant of a course of action, even after two bumps had occurred.

1. Thirdly, at no time did the appellant desist or break off from his course of action, despite contact between the mounts on two occasions. By contrast, Ms Payne moved her mount to the rails position after the second bump.

1. Fourthly, there are dangers, and in my view significant dangers, arising from the appellant's conduct. The dangers exist to both jockeys and mounts and to the horse in front and horses behind, particularly in the event of a fall. The dangers are exacerbated in the event of overrunning by a horse in the position of Ms Payne's mount, or steadying or falling back of the horse in front.

1. Whilst the bumps may not have been very heavy and while neither jockey appreciated that there was actual danger or a potential for danger, I agree with and accept the view of the stewards that conduct of this nature does involve very real risks and dangers to riders and mounts alike.

1. In the circumstances I am satisfied that the charge has been proven against the appellant as alleged. I have a comfortable level of satisfaction, having regard to the circumstances and the gravity of the charge in accordance with the burden of proof as stated by the Court of Appeal in Karakatsanis. The application for review of the decision of the RAD Board insofar as the charge is concerned will be dismissed.

1. I have given consideration to the nature and gravity of the charge and to the evidence before me. I have given attention to the evidence both of the appellant and Ms Payne. However having regard to the principles of specific deterrence and general deterrence, I must also give very serious consideration to the numerous matters which are set out in Exhibit F. There have unfortunately been numerous suspensions imposed on the appellant over a relatively short period of time from March 2011 until today.

1. I also note the content of Exhibit G which refers to a number of matters not all that dissimilar to the matter which is before me today. In the circumstances, whilst I accept that the penalty that has been imposed by the stewards is significant and is serious, given the appellant's record and the nature of the charge, I do not think that I ought to disturb the penalty that has been imposed by the stewards.

1. I would suggest to the appellant that he should give very serious attention to the manner of his riding. It ought to be apparent to him that if conduct of this nature continues into the future, his career as a jockey may be curtailed. In the circumstances I will order that the application for review before the Tribunal be dismissed.

[1] These reasons are the oral reasons given on 6 October 2014 as revised.

[2] [2013] VSCA 305; (2013) 306 ALR 125, 137 [36]-[37].