THE TURF CLUB
APPEALS BODY
(Division 1)
J. Finnegan
N.B. Wachman
P.J.A. O’Connor
Between
The Turf Club
Respondent
And
Edward O’Connell
Appellant
Decision delivered the 24th day of July 2014
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The Appeals Body
The Irish Horseracing Industry Act 1994 acknowledged the role of the respondent as the
regulatory body for horseracing and recognised the Rules of Racing and the authority of the
respondent to make and amend rules. Section 45 of the Act required the Turf Club, where a
sanction is imposed against any person involved in horseracing, to afford that person an
opportunity to appeal against the sanction imposed and required that any such appeal be
heard in a fair and impartial manner. For the purposes of compliance with Section 45 the
Appeals Body was established by the Rules of Racing, Rule 19C. The Rules of Racing at
Rule 271 provide as follows:“The standard of proof to be applied in all Stewards’ Enquiries and
in all cases before the Licensing Committee, the Referrals Committee or
the Appeals Body shall be the balance of probabilities.”
Rule 256 of the Rules of Racing provides in relation to an appeal to the Appeals Body as
follows:“Such appeal shall be way of a full rehearing and the decision of the
Appeals Body shall be final.”
The rule goes on to provide:“Such appeal will be determined by the Appeals Body on the basis of a
written or mechanically or electronically recorded transcript of the
hearing”
In rulings given on the 16th day of July 2014, the Appeals Body considered the nature of the
appeal afforded by the Rules of Racing. Arising out of the rulings, it is appropriate to
consider the nature of the appeal afforded in some more detail.
In SS Gairloch [1899] 2 I.R. 1 at page 18, Holmes LJ. said:-
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“Where a judge after trying a case upon viva voce evidence comes to a
conclusion regarding a specific and definite matter of fact, his finding
ought not to be reversed by a court that has not the same opportunity of
seeing and hearing the witnesses unless it is so clearly against the weight
of the testimony as to amount to a manifest defeat of justice. The same
rule does not apply, as least in the same degree, where the conclusion is
an inference of fact. It often happens, as in the present instance, that the
decisive finding is a deduction from facts hardly disputed or easily
ascertained. In such a case the appellate tribunal is in as good a position
for arriving at a correct conclusion as the judge appealed from, and it
would be an undue restriction on the functions of the former if it were to
hold itself bound by what had been found by the latter. Of course the view
of the judge who tried the case is of the greatest weight, and for my own
part I would only depart from it with much hesitation when, as here, we
have not been furnished with a report or note of the judgment appealed
from.
In his judgment Fitzgibbon LJ. said:“I fully and strongly feel the inexpediency of reversing decisions upon
questions of fact, even where there is an appeal on fact as well as on law.
But this is an appeal from a single judge who has no exclusive
jurisdiction, such as a jury has, upon matters of fact. Unless the finding,
in the judgment of the appellate court, is plainly against the weight of the
evidence, we ought not to come to an opposite conclusion, but it is our
duty to do so if the evidence coerces our judgment so to do.”
In Hay v. O’Grady [1992] 1 I.R. 210, the Supreme Court dealt with the function of the
Supreme Court in reviewing the verdict of a judge sitting alone, that is without a jury, in a
case which prior to 1988 would have been tried by a judge and jury and whether any change
had been effected in the law identified in Northern Bank Finance Company Ltd v. Charleton
[1979] I.R. 149. Before the coming into force of the Courts Act 1988, where an action had
been tried by a judge and jury the established jurisprudence of the Supreme Court was that the
verdict of a jury as to issues of fact will not be disturbed by the Supreme Court if there is
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evidence to support such findings. As to inferences drawn from findings of fact the Supreme
Court will be slow to interfere. This was so even if the Supreme Court would, itself, have
drawn different inferences from those drawn by the jury.
In Northern Bank Finance
Company Ltd v Charlton it was so held. O’Higgins CJ. at p.179 of the judgment cited with
approval a passage from Montgomerie & Co Ltd v. Wallace-James [1904] A.C. 73:“It is simply a question of fact, and doubtless where a question of fact has
been decided by a tribunal which has seen and heard the witnesses, the
greatest weight ought to be attached to the finding of such a tribunal. It
has had the opportunity of observing the demeanour of the witnesses and
judging of their veracity and accuracy in a way that no appellate tribunal
can have. But where no question arises as to the truthfulness, and where
the question is as to the proper inferences to be drawn from truthful
evidence, then the original tribunal is in no better position to decide than
the judges of an appellate court.”
O’Higgins CJ. went on to say:“In my view these cases show a consistent line of thinking. A judge’s
findings on fact can and will be reviewed on appeal. Such findings will be
subjected to the normal tests as to whether they are supported by the
evidence given at the trial. If such findings are firmly based on the sworn
testimony of witnesses seen and heard and accepted by the judge, then the
court of appeal, recognising this to be the area of credibility, will not
interfere. However, if the finding in question depends on the judge’s view
of the evidence or on inferences he draws from such evidence, then the
court of appeal, while respecting this view, will nevertheless disagree if
another view or a different inference be the proper one…..In my view it
would not only be contrary to accepted practice but also a manifest
injustice if a court, which neither saw nor heard the witness, pronounced
on his credibility. There may be circumstances in which the acceptance or
rejection of particular evidence by a judge was so obviously and clearly
wrong as to be unreasonable and unjust. Such incidences have been
extremely infrequent and one can say hopefully that they will continue to
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be so. In the normal case, however, insofar as the judge’s findings of fact
are based directly on evidence which he heard and believed, it being open
to him to accept such evidence or to reject it, such findings cannot be
interfered with by this court in my view.”
Inferences from facts found fall to be dealt with differently to findings of primary fact. In Hay
v. O’Grady McCarthy J. set out the role of an appellate court in the following five
propositions:“1.
An appellate court does not enjoy the opportunity of seeing and
hearing the witnesses as does the trial judge who hears the
substance of the evidence, but also observes the manner in which it
is given and the demeanour of those giving it. The arid pages of a
transcript seldom reflect the atmosphere of a trial.
2.
If the findings of fact made by the trial judge are supported by
credible evidence, this court is bound by those findings, however
voluminous and, apparently, weighty the testimony against them.
The truth is not the monopoly of any majority.
3.
Inferences of fact are drawn in most trials; it is said that an
appellate court is in as good a position as the trial judge to draw
inferences of fact. I do not accept that this is always necessarily
so. It may be that the demeanour of a witness in giving evidence
will, itself, lead to an appropriate inference which an appellate
court would not draw. In my judgement, an appellate court should
be slow to substitute its own inference of fact where such depends
on oral evidence or recollection of fact and a different inference
has been drawn by the trial judge. In the drawing of inferences
from circumstantial evidence, an appellate tribunal is in as good a
position as the trial judge.
4.
A further issue arises as to the conclusion of law to be drawn from
the combination of primary facts and proper inference – in a case
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of this kind was there negligence? I leave aside the question of
any special circumstance applying as a test of negligence in the
particular case. If, on the facts found and either on the inferences
drawn by the trial judge or on the inferences drawn by the
appellate court in accordance with the principles set out above, it
is established to the satisfaction of the appellate court that the
conclusion of the trial judge as to whether or not there was
negligence on the part of the individual charged was erroneous,
the order will be varied accordingly.
5.
These views emphasise the importance of a clear statement, as made in this
case, by the trial judge of his findings of primary fact, the inferences to be
drawn, and the conclusion that follows.
The foregoing dicta and in particular the propositions set out by McCarthy J. represent the
approach which is taken by the Appeals Body on an appeal to it from the Referrals
Committee.
Having regard to the foregoing the Appeals Body will have regard to the transcript of
proceedings before the Referrals Committee and in particular of the oral evidence adduced
and also the admitted documentary evidence.
The Referrals Committee helpfully in its
decision sets out the findings of fact which it made and the inferences drawn from such facts.
The Appeals Board will approach its task in accordance with the principles of law set out
above in relation to findings of fact and in relation to inferences drawn from such findings.
Decision of the Referrals Committee
The Referrals Committee in relation to Mr Lambe, the trainer, found him not to be in breach
of any of the Rules of Racing mentioned in “Topics of Enquiry” presented by the Turf Club.
In relation to Mr O’Connell, the Referrals Committee made the following finding:“Eddie O’Connell was in breach of the following Rules:-
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273(vi): By agreeing with Mr Martin on the day of the race to ensure by his riding
that Yachvili would not run on its merits or obtain the best possible place in
the race in order to ensure that a lay bet placed against it by an acquaintance
of Mr Martin would be successful, thereby conspiring to prevent Yachvili
from running to its maximum ability.
273(viii): By thereby engaging in a corrupt or fraudulent practice in relation to racing
in Ireland
212(a)(1): By actually failing to take all reasonable and permissible measures
throughout the race in question to ensure that Yachvili was given a full
opportunity to win or obtain the best possible place.
The Grounds of Appeal
By letter dated the 22nd May 2014, the appellant set out 23 grounds of appeal in total:
grounds 1-3 inclusive were disposed of at a preliminary hearing. The remaining grounds are
as follows:-
4.
The Referrals Committee erred in failing to have any or any adequate regard to
Mr Brian Keown’s betting history.
5.
The Referrals Committee erred in holding that Mr Robert Martin imparted
information to Mr Keown as to the likelihood of Yachvili finishing unplaced in
the Kerry Foods European Breeders Fund Beginners Chase at Downpatrick on
the 21st September 2011.
6.
The Referrals Committee erred in holding that either or both of Mr Eddie
O’Connell and Mr James Lambe “must inevitably have provided” an assurance
or comfort to Mr Robert Martin to the effect that Yachvili would finish
unplaced in the Kerry Foods European Breeders Fund Beginners Chase at
Downpatrick on the 21st September 2011.
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7.
The Referrals Committee erred in holding that either or both of Mr Eddie
O’Connell and Mr James Lambe provided an assurance and/or certainty and/or
comfort to Mr Robert Martin to the effect that Yachvili would finish unplaced
in the Kerry Foods European Breeders Fund Beginners Chase at Downpatrick
on the 21st September 2011.
8.
The Referrals Committee erred in holding that Mr O’Connell assured Mr
Robert Martin on the 21st September 2011 that a lay bet of the type
subsequently placed by Ms Stanton would be likely to succeed.
9.
The Referrals Committee erred in holding that Mr O’Connell assured Mr
Robert Martin on 21st September 2011 that Mr O’Connell would take whatever
steps where necessary to ensure that a lay bet of the type subsequently placed
by Ms Stanton would succeed.
10.
The Referrals Committee erred in holding that Mr O’Connell took advantage
of the situation presented by the incident at the first fence by subsequently
failing to take all reasonable and necessary steps to attempt to put Yachvili
back into the race over the remaining trip.
11.
The Referrals Committee erred in holding that Mr O’Connell failed to take all
reasonable and necessary steps to attempt to put Yachvili back into the race
over the remaining trip.
12.
The Referrals Committee erred in holding that the evidence disclosed a lack of
substantial effort by Mr O’Connell.
13.
The Referrals Committee erred in failing to have any or any adequate regard
for the limited nature and duration of the footage of Yachvili in the said race.
14.
The Referrals Committee erred in failing to have any or any adequate regard to
the explanation giving by Mr O’Connell in his testimony.
15.
The Referrals Committee erred in disregarding the testimony of Mr O’Connell.
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16.
The Referrals Committee erred in finding that Mr O’Connell agreed with Mr
Martin on the 21st September 2011 to ensure by his riding that Yachvili would
not run on its merits to obtain the best possible place in the race, in order to
ensure that a lay bet placed against it by an acquaintance of Mr Martin would
be successful.
17.
The Referrals Committee erred in finding that Mr O’Connell and Mr Martin
conspired to prevent Yachvili from running to its maximum ability.
18.
The Referrals Committee erred in holding that Mr O’Connell engaged in a
corrupt and/or fraudulent practice in relation to racing in Ireland.
19.
The Referrals Committee erred in finding that Mr O’Connell failed to take all
reasonable and permissible measures throughout the race to ensure that
Yachvili was given a full opportunity to win or obtain the best possible place.
20.
The Referrals Committee erred in holding that Mr O’Connell breached the
alleged or any Rules of Racing.
21.
The Referrals Committee erred in regarding statements made by Mr Martin
and/or Mr Keown and/or Ms Stanton as probative of their contents in
determining the Turf Club’s case against Mr O’Connell.
22.
Further and/or in the alternative and without prejudice to the generality of the
foregoing, the Referrals Committee erred by imposing a sanction on Mr
O’Connell that was disproportionate and/or unduly harsh in the circumstances.
23.
Such further and other grounds as may be advanced.
Appellant’s submissions
Counsel for the Appellant helpfully structured the grounds of appeal under three headings as
follows:9
1.
Those relating to the riding of Yachvili by the appellant being those set out in
paragraphs 10, 11, 12, 18 & 19.
2.
The nature and temperament of Yachvili.
3.
Those relating to communications.
As to the nature and temperament of Yachvili, it is clear that while Yachvili had some ability
he did not being like being bullied and if bullied was inclined to sulk. In the past he had
performed well when ridden with restraint. He does not like the whip. The appellant had
ridden Yachvili on fourteen previous occasions and was well acquainted with his
temperament. On a previous occasion at Downpatrick on the 18th December 2009 when the
appellant used the whip on Yachvili he pulled up.
As to the riding on the horse on this occasion, the appellant was instructed by the trainer to
drop in, take his time and ride a race, this being the normal practice adopted with Yachvili.
The appellant did this. Following the first fence incident Yachvili lost ground but, having
regard to his temperament, it was appropriate for the appellant to coax him forward rather
than to bully him.
As to the communications between Mr O’Connell and Mr Martin their evidence was clear and
there was no basis upon which the same could be rejected as untruthful.
Submission of the Turf Club
The Turf Club supported the findings of the Referrals Committee on the basis that the same
were supported by evidence which the Referrals Committee was entitled to accept and on
permissible inferences drawn from that evidence. Findings of fact and the inferences drawn
from the same support the conclusion reached by the Referrals Committee in relation to the
appellant’s conduct and ought not to be interfered with.
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Decision on the Appeal
The findings of fact and inferences drawn by the Referrals Committee are set out on pages 12,
13 & 14 of their decision in 24 paragraphs to which we will refer as appropriate.
There are no explicit findings in relation to the nature and temperament of Yachvili but it is
clear that the evidence in this regard given to the Referrals Committee was accepted.
Yachvili might not respond to forceful riding and if the whip was used could sulk. He
performed best when held up.
In evaluating the ride given to Yachvili, the Referrals
Committee accepted this. We also have regard to this in evaluating in our consideration of the
respondents riding.
In relation to the race in issue, we have had the benefit of seeing the video of the race, albeit
that the same is limited in duration in relation to Yachvili. We have also had the benefit of
viewing five other videos of races in which Yachvili took part. Two of these had already
been seen by the Referrals Committee, the other three being other races which the appellant
was anxious that we should see. The videos showed Yachvili in different moods, some
showing him running well and finishing well, others showing him running less than well.
Throughout the videos, other than the one with which we are directly concerned, a consistent
pattern appears. Yachvili was regularly kept up with the field and given his chance and if he
was good enough he could move forward. Having looked at these videos we are in a position
under the authorities which we have cited to substitute our own view for if different to that
taken by the Referrals Committee but we do not take a different view. We note the incident
which occurred at the first fence in the race in question. What happened thereafter was that
Yachvili dropped back but got into his stride and was able to take the next fence. From that
point forward no apparent effort was made to get him back up to the field. There was a clear
lack of effort to a point which is not explained by any problems with the horse following the
first fence incident. Nor is it explained by the horse’s temperament. The conclusion come to
by the Referrals Committee was that Yachvili was not ridden as required to achieve his best
possible result. We would not come to a different conclusion on viewing the video evidence.
There was detailed evidence before the Referrals Committee as to communications between
various parties and in particular, Mr Martin, Mr Lambe, Mr O’Connell and Mr Keown. It is
almost an inescapable conclusion from the evidence which was before the Referrals
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Committee that there was extreme confidence in Mr Keown that Yachvili would not feature in
the first three in his race. This is corroborated by the betting history, the manner in which the
bet was placed and the modest return for a large outlay, all of which suggest certainty on the
part of Mr Keown. A reasonable inference from the sequence of telephone calls is that the
origin of the certainty was the appellant. It is a legitimate inference from the evidence that the
source of the certainty that Yachvili would not achieve a first, second or third place in the race
was a commitment by the appellant to that effect given to Mr Martin in the course of
telephone communications on the day of the race and communicated by Mr Martin to Mr
Keown. The Referrals Committee had the opportunity of observing the appellant giving
evidence as to the contents of his communications with Mr Keown and, as is their entitlement,
did not accept his evidence. That is a matter of credibility and something with which we will
not interfere.
The findings of the Referrals Committee taken as a whole and individually are, in our opinion,
clearly based on evidence which was available to the Referrals Committee and accepted by
them. The inferences from findings of fact drawn by the Referrals Committee are based upon
findings of fact and are reasonable, we do not take a different view and we would not interfere
with the same. We also have regard to the circumstance that the findings of fact were based
upon the Referrals Committee conclusions on the credibility of evidence and it would be
inappropriate to interfere with findings so based. Finally we note that the findings and
inferences were to an extent based on circumstantial evidence and we find no fault with the
manner in which the Referrals Committee had regard to such evidence.
Disposition
Having regard to the foregoing, we disallow the appellant’s appeal and affirm the decision of
the Referrals Committee.
Penalty
We have paid careful attention to the submissions made on behalf of the appellant in relation
to the severity of penalty and in particular to the age and personal circumstances of the
appellant and the serious consequences for him of the penalty imposed. However regard
must be had to the objective of maintaining the integrity, proper conduct and good reputation
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of horse racing and we have regard to the likely prejudicial effect on this objective of the
appellant’s conduct.
Disposition in relation to penalty
We disallow the appeal and affirm the decision of the Referrals Committee
Dated this 24th day of July 2014
_________________
J. Finnegan
__________________
N.B. Wachman
____________________
P.J.A. O’Connor
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