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John J. Nallen Appeal Hearing - Gowran Park 9 March 2013

John J. Nallen / Minella For Value Appeal – Gowran Park, 9th March 2013

The Appeals Body, Judge Tony Hunt (in the chair), Sean Barry and Hugh Ferguson met at the Turf Club, Curragh, Co. Kildare on Tuesday, 26th March 2013 to consider the appeal of John J. Nallen, owner and trainer of Minella For Value. The appeal was against the decision of the Stewards at Gowran Park on 9th March 2013 to find him in breach of Rule 212 following the running of the ‘Support Kilkenny GAA Raceday on 23rd March at Gowran Park’ Beginners Steeplechase as the Stewards were of the opinion that Minella For Value was not allowed to run on its merits. As a result he was fined €4,000 and Minella For Value suspended for 60 days.

The grounds of appeal lodged were that “the jockey was instructed to obtain the best possible place”.

Prior to any evidence being given Andrew Coonan, acting on behalf of Mr Nallen, made a submission to the Appeals Body that the Stewards at Gowran Park acted outside their powers as they imposed a 60 day ban on the horse under Rule 14 (iii), which was in conflict with the provisions of Rule 14 (ii)(a). Having considered a number of further submissions, the Appeals Body decided that the hearing should proceed “without prejudice” to any subsequent decision in respect of the submissions made by Mr. Coonan as to whether or not the Stewards had power to impose the 60 day suspension on Minella For Value.

Evidence was heard from John J. Nallen, Shay Barry – rider, Minella For Value, Patrick Doody – authorised representative, John J. Nallen, and Shay Quinn – stipendiary steward. Film of the race was also viewed, as was film of the horse’s previous runs at Listowel on 16th September 2012 and Fairyhouse on 23rd February 2013. The Appeals Body also noted the evidence given which was recorded on the transcript of the Gowran Park enquiry.

In his evidence John J. Nallen said that he bought Minella For Value as a foal and the plan was for the horse to run well as soon as possible so as he could be sold on. He said the horse makes a noise the whole time but finds plenty when asked for an effort. He outlined the background to the instructions given to Shay Barry (who hadn’t ridden the horse before) which were to jump off in the first five or six, stay on the inside and make the best of his way home. He said he wanted the horse ridden this way as he lay too far out of his ground at Fairyhouse and didn’t run well as a result. As he was unable to attend the racemeeting at Gowran Park, Mr. Nallen said that he gave the rider the instructions on the previous morning. However, he had not explained the noise issue or discussed the roughness in wind. 

John J. Nallen said he was very satisfied with the ride up to the last fence and he couldn’t understand why Shay Barry wasn’t harder on the horse between the last fence and the finishing line because if he had been more forceful the animal would have finished closer. He said the only possible reason for this was that the rider may have been put off by the noise the horse was making. He said he spoke to Shay Barry on the Monday morning following the race and the rider told him that the horse was legless after the last. He said he told the rider that he felt the horse would have been closer if he drove him out and that it would have increased his chances of being sold.

Mr. Nallen stated that his authorised representative Patrick Doody watched the race from the horse gate and said he was satisfied with the ride prior to seeing the race film in the Stewards’ room. However he accepted that Mr. Doody had confirmed his satisfaction to the Stewards after viewing the film subsequently. Mr. Nallen also stated that he didn’t believe that the noise the horse made affected his performance. He concluded by saying that he would have expressed dissatisfaction with the ride if he was at Gowran Park.

In his evidence Shay Barry confirmed the evidence given by John J. Nallen with regard to the instructions. He said that Mr. Nallen did not tell him that the horse made a noise but he did accept that Sean McDermott (who had ridden the horse previously) and Patrick Doody had made him aware that the horse might have a “small bit of a wind problem” and that “lately he’s making a bit of a noise”. With regard to the race Shay Barry said that the horse was going well until about the fourth last where he started to make a noise which got worse. As a result he was easy on him which he thought was the right thing to do as he was conscious of taking the horse’s welfare into account.
He said that John J. Nallen told him he was “annoyed with the ride” and that he should have been harder on the horse. Shay Barry accepted that he should have persevered more on the horse and said he would have done so if he realized that it was common for this horse to make a noise. He confirmed that he stood over the evidence given at the original enquiry that was recorded in the transcript. He accepted that he would have finished closer if he was more vigorous on the horse.

In his evidence Patrick Doody confirmed that he watched the race from the horse gate. He said he had never attended a running and riding enquiry before and that he felt the horse ran on its merits. He said he also accepted the comments attributed to him in the transcript.

Shay Quinn gave evidence on penalty and outlined the guidelines issued to the Stewards with regard to the imposition of penalties for similar offences.

On the preliminary point made by the Appellant, the Appeals Body decided that the Stewards had acted within their powers in imposing the penalties in question, instead of being obliged to refer the matter to the Referrals Committee under Rule 14 (ii)(a).  In resolving a possible conflict between the provisions of that Rule and those of Rule 14 (iii), it was necessary to apply a construction which led to a sensible and harmonious interpretation of the various Rules. 

Rule 14 (iii) specifically enabled Stewards to impose a restriction from running on a horse of up to 60 days in cases where the running and riding of the horse was the subject of the inquiry.  That specific provision was not affected by the general provision of Rule 14 (ii)(a), which applied only to instances in the Rules where the specific powers of the race day Stewards were limited to a fine or punishment of €4,000 or 50 days suspension, such as Rule 14(i)(a) when dealing with breaches committed by Riders.  Where a specific higher limit applied to the breach under consideration, the race day Stewards were entitled to act up to that specific limit, as they did in this case.  Any general provision contained in Rule 14(ii)(a) is not to be read as to disturbing or displacing the operation of other particular provisions in the Rules.          

Having considered the evidence relating to the substantive appeal, the Appeals Body decided as follows:-

There was compelling evidence that Minella For Value had not been run on its merits and had not been given a full opportunity to obtain the best possible place.  That being the case, the Appellant was responsible as the trainer for the running of the horse in question under Rule 148(i), unless he provided a satisfactory explanation.  

The Stewards had not been provided with such an explanation, as the Authorised Representative had expressed satisfaction to them with the riding of the horse.  Consequently, the Stewards were fully entitled to find the Appellant liable for a breach of Rule 212 on the evidence before them. 

However, the Appeals Body had been provided with alternative evidence explaining that although the horse in question had a problem in that it made a respiratory noise “the whole time” and was rough in its wind, this problem did not ordinarily prevent it “finding plenty” or had not stopped the horse performing well in races before.

In considering this new evidence, the Appeals Body acted on the assumption that this explanation was true.  However, they did not accept that it was satisfactory for the purpose of absolving the Appellant from responsibility for the running of his charge in this race. 

Shay Barry gave evidence that he had received instructions from the Appellant on the previous morning. The Appellant said in evidence that had not discussed the wind roughness and noise with Shay Barry.  Having regard to this evidence, and the other  evidence outlined above, the Appeals Body decided that if the horse genuinely belonged to a limited category that had a problem involving wind noise or roughness not otherwise affecting performance (described by Shay Barry in evidence as being one in ten of horses with a wind problem), the Appellant ought to have ensured that Shay Barry was fully conversant with this particular and unusual situation so as to enable him to take all reasonable measures to achieve the best possible place, as he would then presumably have made a far more significant effort in the latter stages, even if the horse was making wind noises. 

Taking the Appellant’s case at its highest, he was also responsible for a failure by all concerned in the running of Minella For Value to ensure that the horse ran on its merits and that it was given a full opportunity to obtain the best possible place.       

Accordingly, the Appeals Body dismissed the appeal against the finding of the Stewards that there was a breach of the provisions of Rule 212(a). As to the appeal against the penalties imposed, the Appeals Body decided that as the breaches by all concerned had probably cost the horse a place finish, it was at the upper end of the scale of seriousness of cases falling within the remit of the Stewards.  Therefore, the penalties imposed were appropriate, and the appeal against the level of penalty imposed was also dismissed.  The penalties are effective from 2 April 2013.    

The parties have liberty to apply on notice in relation to any consequential matter.
The case was presented by Conal Boyce, Solicitor, Naas, Co. Kildare.  John J. Nallen was represented by Andrew Coonan, Coonan Cawley Solicitors, Naas, Co. Kildare.

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