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R Taupo 9 October 2019 - R 6 - Chair, Mr A Dooley

Created on 11 October 2019

Rules:
340
Committee:
ADooley (chair)
TCastles
Name(s):
Mr P McKay - Class A Trainer
Mr J Oatham - Chief Stipendiary Steward
Informant
Mr B Jones - Stipendiary Steward
Information Number
A12901
Plea:
Denied
Charge:
Misconduct by striking WITHOUT FLAW with the lead rope
Evidence:

Following the running of race 6, an Information was filed pursuant to Rule 340. The Informant, Stipendiary Steward Mr Jones, alleged that Mr P McKay misconducted himself by striking WITHOUT FLAW with a lead rope.

Rule 340 states: A licensed person, owner, lessee, racing manager, official or other person bound by these rules must not misconduct himself in any manner relating to the conduct of races or racing.

Mr McKay signed the Information that he denied the breach.

Submission For Decision:

The salient points of the hearing are listed below.

Mr Jones demonstrated the alleged incident using all the available video footage. He stated that WITHOUT FLAW was being a handful in the birdcage. He identified that Mr McKay led WITHOUT FLAW out onto the track with the lead rope attached to the horse. He pointed out that Mr McKay unclipped the lead rope adjacent to the winning post and struck WITHOUT FLAW on a least 3 occasions. In conclusion he said Mr McKay’s conduct cannot be allowed and he noted that with mobile phones these images could have been captured by members of the public.

Mr McKay said that he was denying the severity of the breach and it would be a “slur” on him to be charged with misconduct. He said that he intended to “run off” with the filly out onto the track. However, WITHOUT FLAW “jacked up” and was proving difficult and he was concerned for his son Mr S McKay who was aboard the filly. He admitted that he “smacked” WITHOUT FLAW on more than 1 occasion but in his view he was not cruel to the horse and there was no malice. He said that he was an experienced horseman and using the lead rope was his preferred way of encouraging WITHOUT FLAW to move forward.

Mr McKay said he should get a severe warning for his actions and stated that WITHOUT FLAW did not respond as good as he had hoped. He said that he was trying to get the horse around to the start and acknowledged that he nearly put himself in the “firing line”.

In summing up Mr Jones said that striking a horse with a lead rope is misconduct and he noted that alleged incident occurred in front of the crowd.

When given the opportunity to sum up Mr McKay had nothing to say.

Reasons For Decision:

The Committee carefully considered all the evidence and submissions presented and reviewed the video footage of the alleged incident frame by frame. The footage was compelling in that it clearly showed Mr McKay struck WITHOUT FLAW with the lead rope on 4 separate occasions. On each occasion the lead rope made contact with the filly. It was evident that the lead rope was doubled over when the strikes were applied. We assessed the strikes to be unnecessary and unreasonable and therefore within the bounds of misconduct.

Decision:

The charge of misconduct is proved.

Submission For Penalty:

Mr Jones said that Mr McKay had a clear record under the misconduct Rule. He submitted a monetary penalty in the vicinity of $400 to $500.

Mr McKay submitted that he had a lot of years in the Industry and never had a misconduct charge filed against him.

Mr Oatham advised the Committee that Mr McKay has held a Trainers License since 1989.

Reasons For Penalty:

The Committee carefully considered all the evidence and submissions presented.

The JCA Penalty Guide has no starting point for a misconduct charge as it is fact dependent.

The Committee accepts that WITHOUT FLAW was fractious when entering the track to commence its preliminary. However, Mr McKay’s actions that followed were unnecessary and unreasonable.

The incident occurred near the winning post and in front of the crowd and the Sponsors' tent. It was obvious on the video footage that numerous members of the public which included young children witnessed Mr McKay striking his horse with the lead rope doubled over. Mr McKay's conduct was by any measure hard to justify given he continued to strike the horse when it was showing no response to his repeated urgings. The 4 separate strikes ranged from flicks to the near side hind quarter, a forceful strike which appeared to make contact with the back end / tail area of the filly and additional flicks to the back legs. In our assessment all the strikes made contact with the filly and unsurprisingly WITHOUT FLAW continued to spin around with Mr S McKay aboard the horse.

Mr McKay exhibited no remorse for striking WITHOUT FLAW. It was of concern to the Committee that throughout the hearing he was in denial and failed to appreciate the gravity of his offending.

In determining an appropriate penalty animal welfare was at the forefront of our thinking. We were also mindful of the impact this breach would have had on the public who witnessed the incident and the potential irreparable damage it may have caused to the image of racing and the care of horses on the racetrack.

The only mitigating fact is that Mr McKay has an unblemished record under this Rule over a period of 30 years and but for his record we may have considered a significant uplift.

Although misconduct charges of this nature are very rare we have taken some guidance from the case involving the RIU v Mr D (2013). Mr D was charged with misconduct for striking his mount when in the barriers. The strike happened once around the head region. In that case the Stewards considered the breach to be relatively serious and submitted that a fine of between $500 and $1000 be imposed. In considering penalty the Committee took into account Mr D's admission of the breach, his very good record, his genuine remorse when he apologised profusely for his actions and that it was out of character. A $500 fine was imposed.

We have assessed this breach to be more severe than the Mr D's case and our penalty must therefore be commensurate to the serious nature of the breach.

Finally it is important to note that animal welfare is a hot topic in the Horse Racing Industry around the world at present. This is supported by the fact that NZTR issued a revised Directive with respect to Acceptable Use of the Whip for all Licensed Riders effective from 7 October 2019.

Penalty:

Accordingly, Mr McKay was fined $1,000.

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