Scriven v Racing Queensland Limited

[2011] QCAT 268

CITATION: Scriven v Racing Queensland Limited [2011] QCAT 268

PARTIES:	Mr Shane Scriven
v
Racing Queensland Limited

APPLICATION NUMBER:   OCR088-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: 23 May 2011

HEARD AT: Brisbane

DECISION OF: Mr Brock Miller, Presiding Member
Ms Sandra Deane, Member

DELIVERED ON: 17 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    The application to review is allowed.

2.    The applicant’s suspension of 5 months is set aside.

3.    The applicant’s jockey’s licence is suspended for 3 months.

CATCHWORDS: Application for review – penalty by jockey – Australian Rules of Racing AR 137(a) – improper riding – whether as a matter of construction it excludes elements of danger – Interfering with other jockey's whip – period of suspension reduced

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Michael Grant-Taylor SC instructed by Schultz Toomey O’Brien Lawyers for the applicant Shane Ernst George Scriven
RESPONDENT:	Mr J E Murdoch SC instructed by Jamie Orchard of Racing Queensland Limited for the respondent

REASONS FOR DECISION

1. At the outset of this Review Mr Grant-Taylor for the applicant suggested that an initial point of construction should be approached on the premise that there were two phases to the review.  The first related to the charge that had been levelled under Rule 137(a) of the Australian Rules of Racing and this reads:

Any rider may be penalised if in the opinion of stewards he is guilty of careless, reckless, improper, incompetent or foul riding.

1. Mr Grant-Taylor suggested to the Tribunal that a point of construction had first to be decided insofar as it was the contention of the applicant that, in what the stewards did in charging him with improper riding under Rule 137(a), as opposed to careless riding or reckless or incompetent riding or foul riding, it was then impermissible when determining what penalty should be imposed for the stewards to have regard to any aspect of danger that may have been associated with the contact by the applicant with apprentice rider Looker or his whip.  Senior Counsel indicated that the stewards recognised that it was necessary to select from the five categories of riding adverted to in sub-rule (a), a particular category of riding of which Mr Scriven was guilty.  He suggested that the stewards chose improper riding and in doing so, when considering any penalty that was to be imposed once a plea of guilty had been entered, it was essential that only the connotations of the term or word “improper” could be considered.  The Tribunal was referred to three definitions of the word “improper”. 

1. His view is that improper when considered by the Dictionary should be restricted to that meaning expressed in those definitions and nowhere, he suggests, can an element of danger be a factor associated with improper.  His proposition then espoused that if we are in agreement with his interpretation then, by virtue of same, we cannot and should not take into account the Affidavit or statement evidence of two former jockeys Palmer and Harris.  Gary Palmer had suggested that when riding thoroughbred horses in official races, jockeys tend to ride with their stirrups quite short which assists in maintaining their correct balance.  The majority of riders and apprentices ride with only their toes in the stirrups.  This factor means that any sudden movement or interference caused either by their horse or the actions of their fellow rider increases the risk of the rider being dislodged.

1. Mr Palmer went further in his Affidavit and stipulated that there is a high degree of risk of serious injury to a jockey in becoming unbalanced and being dislodged given that they are travelling at high speed and in amongst a field of horses.

1. What Mr Grant-Taylor is suggesting is that the evidence submitted by Mr Palmer and Mr Harris in Affidavit or statement form should not have been made available when the charge is restricted to improper riding where no question of danger is an associated issue.  He suggested if there are connotations of danger being an element of a charge then the charge that should have been levelled was one other than that of improper riding.

1. Mr Grant-Taylor suggested neither Palmer nor Harris is able to express a view and cannot be treated as an expert on that basis because neither of them have been associated with any similar issue during the course of their riding career and that Palmer as a stipendiary steward is merely trying to embellish the specifics of the charge.

1. We have considered the definitions of the word improper but are not convinced that the mere use of that word in Rule 137(a) when used in conjunction with the other words demands that a restriction be imposed on any charge that is confined to improper riding such that a connotation of danger must be ruled out.  We are not prepared to accept that that is appropriate in circumstances involved in the Racing Industry.  As one well knows anything associated with riding horses can be significantly dangerous.  Having said that all that the evidence of Mr Palmer and Mr Harris proffer is a suggestion that, if a jockey loses his balance, then danger can well ensue.  It may have been fortuitous but in the end result apprentice Looker and jockey Scriven both, somewhat remarkably, maintained their balance and were able to ride their horses out with vim and vigour.  That perhaps goes to the professionalism and competence of each of these jockeys.

1. The actual Review centres upon the penalty that was imposed by the stewards of Racing Queensland after jockey Scriven pleaded guilty to the improper riding charge under Rule 137(a).  The circumstances of the incident that led to the charge are very well depicted in the DVD that was admitted into evidence as exhibit 4.  It is not appropriate for this Tribunal to embark upon the history of the race in question but suffice to say that jockey Scriven lost his whip when he was either struck by the whip of apprentice Looker or when he was riding in very close proximity to the horse ridden by apprentice Looker.  Jockey Scriven’s horse was challenging apprentice Looker’s horse and the evidence from the DVD, in very slow motion, identifies jockey Scriven riding hard with the whip of apprentice Looker in close proximity to his right side and in the air near his right ear.  Jockey Scriven admits that he saw the whip and simply grabbed at it and wrested it away from apprentice Looker.  What appears to be seconds in time was more likely than not only fractions of a second exacerbated more by the slow motion of the recording.  It does however depict that after taking the whip jockey Scriven then rode his horse and struck his horse seven times with that whip until after passing the finish line he somewhat nonchalantly turned the whip around and handed it towards apprentice Looker.  The whip was not snatched back by apprentice Looker after the finish line as was suggested by Mr Murdoch in his submissions.

1. There is absolutely no doubt that both jockeys showed extreme capabilities at the relevant time.  It is a testament to their ability that nothing untoward befell either of them and that the race was able to finish without further incident.

1. The result of the race, in our opinion, was, in no way, affected by the interchange between jockey Scriven and apprentice Looker.  Both their horses were ridden out and the ultimate winner appeared to have them covered in any event.  It is irrelevant whether either jockey Scriven or apprentice Looker would have been successful in any protest that might ultimately have been lodged by one against the other because neither would have been declared the winner.  As it stands jockey Scriven interfered with the gear of another rider and his mount should have been and was disqualified from the race in question.

1. We are asked to identify whether a penalty imposed of five months suspension for such a breach is appropriate in all the circumstances or whether some other more fitting penalty should be imposed.  There are no precedents that assist us in this respect and, to some degree, that is indeed fortunate.  What we do know is that jockey Scriven intentionally removed the whip of another rider so that he could use same for his own benefit.  No danger subsequently did ensue and that is most fortuitous but notwithstanding it seems that it was a very unusual and possibly highly dangerous manoeuvre that could have resulted in significant injury to one or both jockeys or others in the race in question.  Jockey Scriven in his evidence suggests that it was merely a brain snap and evidence was adduced of a sports psychologist and representations were made on his behalf by a Mr Prentice.  Both of them identified that the taking of the whip was not intentional but frankly the view of the video does not support either of those propositions.  In our opinion jockey Scriven has seen the other whip and has forcefully removed it from apprentice Looker’s hand.  The struggle was brief, to say the least, but there was intent in his actions in that respect.  One does not know why a senior jockey of his stature and standing in the community and in the industry would ever have countenanced such a step but the simple fact of the matter is that he did do so and as a result he must suffer a consequence.

1. The stewards considered that a six month suspension was appropriate but granted a dispensation of one month because of the record of jockey Scriven.  Mr Murdoch in his submissions suggested that Mr Scriven did not show remorse but the Tribunal does not accept such a proposition.  He is undoubtedly extremely upset over the steps that he had taken and he expressed that view during the stewards enquiry.  He has been penalised with being on the sidelines from racing for a period of five months.  He has suggested that such a penalty will be the death-knell of his career as he will be compelled to lose weight, to resume full fitness after the period of suspension has expired.  His view is that he will not be able to do so because of his age and the injuries that he has sustained and suffered over the years.  Ordinarily we, as a Tribunal, might find favour with such a proposition.  However as Mr Murdoch in his submission highlighted jockey Scriven will not commence his period of suspension incapacitated and he will still be able to ride trackwork and remain physically active.  We are cognisant of the impact that the media has had on this type of matter.  Everyone seems to have an opinion on what penalty would best be served but this Tribunal must act as the final arbiter on the issue and in doing so must take care to ensure that it does not set a precedent for other less skilled jockeys or apprentices to use the event as a barometer for something they might elect to do in the future.

1. Suffice to say that injury could well have befallen either jockey Scriven or apprentice Looker or horses had there been a dislodgment or a fall.  That no injury was sustained was indeed fortunate but it is imperative that a senior jockey not be allowed to dictate terms to an apprentice or any other jockey simply because he felt a rush of blood in the course of a race.  To do otherwise than penalise such an inappropriate or improper act would be wrong.  This Tribunal has observed the history of the applicant and his respected position in the community.  It has determined that it is not appropriate for a fine to be imposed and to thereafter allow him to simply continue without there being some form of deterrent made readily apparent to other jockeys and to the community at large.  It has however been concerned that five months for a breach of the Rules where no injury or untoward circumstance has arisen or where the result of the race in question has not in any other way been affected seems excessive in all the circumstances.  This is even more apparent when one takes into account the record of the applicant and his standing in the industry and in the community.  It is therefore appropriate that the penalty of suspension be reduced and in the opinion of this Tribunal a period of three months suspension should be substituted therefor.  The Tribunal so orders.