xperienced racing lawyer Wayne Pasterfield says stewards got it right in the recent James McDonald betting case and in this opinion piece has given an insight into how the rules of racing can be applied which all participants, including owners, should know.
Pasterfield writes, Many recent racing cases have raised questions about the powers of racing officials and those powers’ relationship to civil rights when compared to the laws of the land.
I can’t believe the amount of people who ask me questions about why stewards are able to do some of the things they do.
I have been defending people charged under the rules of racing for nearly 20 years. I have even been investigated myself.
As a defence lawyer it is very difficult at first to understand why the laws of racing are so different and so much more powerful and intrusive to the laws of the land. But after years of banging my head against a brick wall I finally got it.
It is because they are essentially contractual rules. That is, there is a contract that exists between you and the racing powers.
The most talked about case of recent times is the James McDonald “betting” case. How is it that the stewards were able to seize his phone and inspect its contents?
In the real world, authorities such as police cannot simply come into your house and take your possessions. They cannot stop you on the street and take possession of your mobile phone and they can’t force you to provide a urine or blood sample for no reason.
That is of course unless it is part of legislation such as the traffic laws which allow them to sample your breath and/or blood for things such as drink or drug driving.
In cases like the McDonald case, where do the stewards get their powers from? And why can they do things without court orders that even the police cannot do?
The answer is surprisingly simple.
They get their powers from the rules of racing which are no different to the powers and rules of those that govern your local RSL Club.
If you go to the club up the road for a beer after work, whilst it is not an offence to wear a singlet when walking around on the street, your local club will probably have a rule that prevents you from wearing one on their premises.
If you breach that rule, you can be ejected or even barred from the club.
The same thing applies if you want to play a game, if you play the game you agree to play by the rules.
If not, penalties usually apply. Like driving a car. You are granted a licence, you agree to obey the road rules otherwise penalties apply. If you do not agree with the rules, then don’t drive.
Racing is no different.
If you want to “play” the racing game, you sign on to follow the rules and if you breach them, you get punished.
Look no further than Australian Rule of Racing 2 (AR 2), which basically says, “any person who takes part in any matter coming within these Rules…agrees to be bound by them.”
That’s it, game, set and match.
If you are involved in racing you agree to follow the rules otherwise you can be penalised. If you disagree with the rules, don’t get involved in racing. The choice is yours.
As an indication of their wide powers, under AR 7 a racing authority can licence people on any terms they think fit and then suspend, vary or revoke that licence without giving any reason.
Whilst this seems unfair, it is the rule and if you want to “play” the racing game, you must follow the rules.
Police are required to get court approval to exercise certain powers of search, but under AR 8, stewards need no such approval.
Even if you have a one percent share in a horse you are bound by the rules and are agreeing to allow the stewards to have these enormous powers over you.
AR 8 (b), to obtain and take possession of mobile phones, computers, electronic devices, books, documents and records including phone and financial records relating to an inquiry.
If you have a share in a horse or lease it and the stewards are inquiring into that horse, they can have access to all of the above without your approval.
AR 8 (jj) and (jjj), take samples from any rider or horse handler for testing.
AR 8(k) to search any licenced person and take any equipment or thing which could afford evidence of a breach of the rules.
AR 8(B), to enter at any time premises occupied or under the control of a licenced person and inspect or search the premises and the person or take any article or thing and remove it for as long as deemed necessary.
If you do not comply with these rules, penalties apply.
In the outside world you have the right to free speech, which is provided that if you criticise a person or persons, they have their civil rights such as to bring a defamation action.
The standard of proof for that type of action is on the balance of probabilities. You also have the right to silence if the police wish to interview you in relation to an offence.
In racing, those rights do not apply.
Under the wide powers of AR 175 it is an offence to not give evidence, to give false evidence, misleading evidence etc.
And under AR 175A, my personal favourite, it is an offence if any person bound by the rules either within a racecourse or elsewhere, in the opinion of the stewards, has been guilty of conduct that is prejudicial to the image of racing.
Note that the standard of proof is not beyond reasonable doubt, or the balance of probabilities, it is in the opinion of the stewards.
You can be involved in the racing industry but agree to obey the rules.
It is crystal clear and, remember AR 2, any person who participates in racing agrees to be bound by the rules.
Using the James McDonald case as an example, the stewards had the power to seize and take information from his phone because they were investigating a racing matter.
If he refused to provide it, he would be penalised.
The punter or the “tennis player” as he is known, did not obey the directions of the stewards – he refused to attend and give evidence.
He was penalised by being warned off.
Interestingly, he has been penalised although he has not been charged or even accused of doing anything wrong under the rules other than not attend to be questioned.
They are the rules we sign up to if we want to be involved in this sport.
Whilst it is hard to reconcile the enormous powers available to racing authorities when compared to the hoops police have to jump through to exercise the same powers, the whole premise upon which the rules are built is integrity.
If we want our sport to be squeaky clean, we need these wide powers to be available to the authorities and harsh penalties available for those who breach their rules.
In relation to the James McDonald case generally, I can’t believe the public condemnation of the decision.
The comparison to the Damien Oliver case is irrelevant. In fact the Oliver case is what ultimately sealed McDonald’s fate.
Oliver received a 10-month disqualification for having a bet back in 2012.
As a direct result of that seemingly appallingly inadequate penalty, the rules of racing were specifically amended in 2013 so that if a jockey breached AR 83(d) and had a bet or an interest in a bet, then under AR 196(5) the mandatory penalty is a two year disqualification with a reduction if there are “special circumstances” as defined in Local Rule 108 (usually pleading guilty, assisting stewards, mental impairment or duress).
To use the Oliver case and/or any other case for that matter prior to the introduction of the mandatory rule in 2013, is completely irrelevant in my opinion.
The starting point was, is and will always be two years with a reduction under LR 108 in certain cases.
The general law affords a maximum discount of 25 percent for a plea of guilty at an early stage.
Applying simple math’s to the equation, McDonald, by pleading guilty to a breach under AR 83(d) received a mandatory disqualification of two years.
Because he pleaded guilty at an early stage, and even though the phone examined had some information missing from it, stewards afforded him a 25 percent discount on penalty finally deciding on a disqualification of 18 months.
Even though they did not have to back date the start of the disqualification, they did so and it commenced on the day McDonald stood himself down.
I have represented McDonald previously including once when he weighed in light on a short-priced favourite and looked like missing the ride on It’s A Dundeel in the Spring Champion Stakes in 2012.
Fortunately we had some joy and got the suspension reduced, he rode the horse and got the cash.
He is a nice young bloke and I wish him well.
But in terms of what the mandatory laws state, and given that Oliver’s case is irrelevant having been decided before the new rules came in, 18 months is a good result in my view and whilst I wish him and his lawyer well in the appeal, and I hope I am wrong, I can’t see them having much joy.
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