Protecting the Integrity & Reputation of Irish Horseracing

James Ferry/Cybersnow (USA) Appeal Decision

 

The Appeals Body (Division Two), Judge Tony Hunt, Mrs. J.O. Onions and Mr. Martin O’Donnell convened at the Turf Club on 21 June 2010, to hear this appeal, in which the Appellant was represented by Jonathan Kilfeather SC (instructed by Coonan Cawley, Solicitors), and the Turf Club was represented by Conal Boyce, Solicitor, of Wilkinson & Price, Solicitors.

The appeal was against the decision of the Referrals Committee published on the 11 May 2010, whereby the Referrals Committee found that Cybersnow (USA) ran in an unregistered meeting at Magheraboy on 28 June 2009, and was thereby disqualified from races in which he ran subsequently, and from running from races for two years.  The Referrals Committee was not satisfied of any wrongdoing by the Appellant, and the charge brought against him was dismissed.

The Appeals Body (referred to hereinafter as “this committee”) considered the transcript of evidence heard by the Referral Committee, the photographs and documents submitted by the parties and the submissions made thereon by their respective legal representatives.

In short summary, the Appellants case was based on submissions that the Referrals Committee had erred procedurally by failing to state the standard of proof applied by the Committee in the hearing, by requiring the Appellant to go into evidence at the end of the Turf Club case, and had erred in substance by reaching an incorrect conclusion on the evidence before it.  The Turf Club submitted that the Referrals Committee had not committed any procedural, legal or substantive error, and had reached a correct and sound conclusion on that evidence.

This Committee is satisfied that there was no defect in the procedures followed by the Referrals Committee.  There is no direct analogy to be drawn with a criminal trial in such cases.  The Referral Committee is empowered to conduct an independent inquiry into such matters at the behest of the Turf Club, and decide whether the evidence produced by the Turf Club as the investigating body justifies a finding that there were breaches of the relevant Rules.  The Turf Club are obliged to meet the burden of proof by production of evidence of sufficient cogency and strength to constitute a prima facie case. At the conclusion of the Turf Club case, it may be submitted that the evidence is insufficient to justify an adverse finding.  If the Referrals Committee finds that the evidence reaches that standard, then the subject of the inquiry must decide whether to respond to the prima facie case by giving or calling evidence. 

This Committee is satisfied that the strength and cogency of the evidence of Terry Smith, Veterinary Surgeon, was such that the Turf Club had made out a prima facie case that Cybersnow (USA) was identified in evidence as being one and the same as the horse that had won the race at Magheraboy, based on the apparent similarities between photographs of Cybersnow (USA), and that of the winner of the race at the unrecognised meeting.  In those circumstances, it was correct for the Referral Committee to proceed to hear the evidence called by the Appellant, which was designed, in effect, to rebut the prima facie made out by the Turf Club.

This Committee is also satisfied that the Referrals Committee did not err by applying an incorrect standard of proof in reaching the conclusion that it did.  This is apparent from the careful evaluation of the evidence carried out by the Referrals Committee, and although it did not expressly state which standard was applied, the fact that it dismissed the charge against the Appellant personally based on the presence of “sufficient doubt” suggests that, in fact, the Referrals Committee applied a higher standard of proof than that required in a civil case (proof on the “balance of probabilities”), approaching that required in a criminal case (proof “beyond reasonable doubt”). 

This Committee is satisfied that the Referrals Committee was more than fair to the Appellant by adopting this approach.  This Committee finds that the appropriate standard of proof in a hearing of this type by the Referrals Committee is the civil standard.  The analogies drawn by the Appellant with a criminal trial are not relevant to an inquiry by the Referrals Committee into compliance or otherwise with the Turf Club Rules by those who have voluntarily bound themselves to those Rules.  Although such inquiries may involve significant monetary and reputation issues, civil courts deal with many such issues by reference to the lower civil standard of proof.  The alternative standards suggested by the Appellant, such as proof to “the very high end of the balance of probabilities”, or to point of “being very comfortable with the decision” are neither particularly clear in application, nor warranted by the subject matter of such an inquiry.                    
The sole substantive question is whether it has been proved as a matter of probability that Cybersnow (USA) is the same animal as the winner of the unregistered race at Magheraboy.

The rationale for the decision that Cybersnow (USA) ran in and won the pony race at Magheraboy culminates in paragraph 47 of the written decision of the Referrals Committee, which states as follows:-

“Whilst, therefore, the evidence of Mr. Smith in identifying positively Cybersnow (USA) as being one and the same as Man About Town would have been more definitive had he been able to see the two animals the reason why he was not able to see the so called second animal was entirely the fault of Mr. Browne, an employee of Mr. Ferry and Mr. Ferry was under pressure to have the enquiry ended so that his cash would be released to him.  Mr Browne’s failure to request an inspection by the Turf Club under those circumstances is mildly a very significant piece of evidence indeed”.

However, in relation to the Appellant Mr. Ferry, the Referrals Committee decided that the Turf Club had not discharged the onus of proving that he was a specific participant in running Cybersnow (USA) at Magheraboy.

This Committee is of the opinion that this finding is of particular significance to the case that Cybersnow (USA) was identified as the winner of that race.

It is clear from the evidence that the that the major difficulty for the investigating authority in this case was the absence of an opportunity for Mr. Smith to deploy his expertise in the identification of horses by reference to direct comparisons of observed markings or markings officially recorded in a passport.  This Committee is satisfied that Mr. Smith possesses such an expertise, and that a procedure based on direct comparisons of this nature would be a valid process of identification for a horse.  However, when identification is based upon a comparison of photographs rather than direct inspection of all of the animals at issue, the indirect identification procedure is inherently more complicated and doubtful.  It is possible to rely on such evidence of indirect identification, but such cases call for a close scrutiny of the quality and detail of the photographic material, the circumstances surrounding the identification and the totality of the other evidence adduced in such a case.      

It appears from the evidence to be common case that all parties, including Mr. Ferry, were of the opinion that there was a strong apparent similarity between the animal depicted in the photograph of the Magheraboy pony winner and the animal depicted in the photograph of the Galway race winner.  It also appears that to be a fact that Mr. Ferry had been the sponsor of the Magheraboy and that he had reasonably close personal and business ties with Mr. Browne. 

This Committee finds it unusual that Mr. Ferry did not immediately enunciate the basic case subsequently put forward on his behalf at the time of first inquiry by the Turf Club investigators, namely that two separate animals of similar appearance ran in two separate races.  It is reasonable to infer that in the known context of his relationship with Mr. Browne, Mr. Ferry should have immediately known at the time that he was shown the photograph of the Magheraboy winner by the Turf Club official that the issue involved Mr. Browne and the horse that had won the prize money put up by Mr. Ferry.  Mr. Ferry made no reference to his sponsorship of that race, nor did he make any mention of two important constituents of the position subsequently advanced on his behalf, namely that Cybersnow (USA) could not have run in or won a pony race at the end of June due to being in recuperation from a leg injury sustained in April, and moreover that he could not have run at Magheraboy on the 28th of June because Mr. Ferry had himself attended to and fed Cybersnow (USA)  in his own yard on that day.  He may also have indicated to the Turf Club investigator that there was a difference in colour between the horses in the photographs shown to him. 

In the circumstances of his failure to mention these basic matters, Mr. Ferry can have no complaint about the fact that the Turf Club investigators and the Referrals Committee viewed these matters and the other co-incidences arising in the case with serious suspicion.  In fairness to Mr. Ferry, it should be noted that he did co-operate to the extent of permitting an inspection of Cybersnow (USA) by the investigators and did provide a statement to them on that day.  However, it should also be noted that this Committee is also of the view that there is doubt about the candour of Mr. Ferry’s evidence to the Referrals Committee on another aspect of the case, that being the amount and nature of work done on, and degree of fitness of Cybersnow (USA), before he went into training with Mr. Fahey at the start of July, prior to winning races at Killarney and Galway in mid-July and early August respectively.

After the initial inspection by the Turf Club officials, the sole means by which the identification issue could have been resolved beyond argument was for Mr. Ferry to procure a direct inspection of Mr. Browne’s animal by the Turf Club veterinary surgeon and investigators for further comparison and identification purposes. 
Mr. Ferry said in evidence that he only got serious about the matter when he learned that his prize money was frozen.  He contacted Mr. Browne then, and Mr. Browne stated to him that he had a similar horse, and suggested that they should take a photograph of the two horses.  That was the expressed limit of Mr. Browne’s proposed assistance to Mr. Ferry, in that he refused point blank to permit any outside inspection of his animal.  This resulted in the single photograph of two apparently similar animals, taken in Mr. Ferry’s yard when Mr. Browne consented to bring his horse to that location. 

This Committee is of the opinion that a third party inspection would have been clearly possible on this occasion, at no extra inconvenience to either Mr. Ferry or Mr. Browne.  In his direct evidence, Mr. Ferry gave no indication that he was any more forceful in his attempts to enlist Mr. Browne’s further assistance.  The Committee finds this surprising, having regard to the evidence of the extent of their employment, social and sporting ties.    Under cross examination, Mr. Ferry stated that they fell out only to the extent of having “big words” and that Mr. Browne took a couple of weeks off his employment with Mr. Ferry.  For his part, Mr. Browne said that he and Mr. Ferry “kind of parted for a few days”, but gave no further evidence of any additional effort by Mr. Ferry to persuade him to co-operate with the Turf Club investigations.  This refusal was explained by Mr. Browne by reference to some perceived slight to him by Mr. Healy, a Turf Club investigator whom he apparently knew in the past. 

This Committee finds these various explanations to be unconvincing and insufficient.  The Turf Club was thereby deprived of an opportunity to have a decisive direct inspection of all of the animals concerned, due solely to lack of reasonable efforts by Mr. Ferry to secure co-operation from his employee and friend Mr. Browne, and to an entirely unreasonable refusal by Mr. Browne to afford simple assistance to Mr. Ferry.  It is also clear to this Committee that Mr. Ferry could have taken further advantage of the limited co-operation and assistance afforded by Mr. Browne by taking additional and more detailed photographs of both animals when he had the opportunity, rather than the general and distant view afforded by the single photograph offered to the Referrals Committee, which omits crucial parts of at least one of the animals concerned.  However, this photograph does at least suggest that Mr. Browne had access on that date in December to an animal bearing some resemblance to Cybersnow (USA), but the absence of detail and of clear sight of all relevant body parts mean that this photograph does not definitively conclude the matter.

The Referrals Committee was therefore clearly entitled to treat the evidence of both men with a considerable degree of scepticism, an approach which is shared by this Committee.  The manifest suspicion surrounding these matters was deepened by the fact that the horse said to be Man About Town was never seen again in public after winning the race at Magheraboy, as it was said to have jarred itself on the firm ground, and then sustained a leg injury on the ice in Mr. Browne’s yard in January, necessitating it being euthanised and disposed of thereafter.  This event apparently brought about no change Mr. Browne’s resistance to the Turf Club investigation, there being no consideration of an inspection of markings on the carcass.  The Referrals Committee was understandably deeply suspicious of Mr. Browne’s evidence on this issue, describing the accident and injury as “convenient”.                 
                                    
This Committee accepts that legitimate concerns and suspicions surround the actions and evidence of both Mr. Ferry and Mr. Browne concerning this matter, which did nothing to dispel the concerns of the Turf Club arising from the obvious similarity in the photographs.  It is not disposed to accept or act upon any part of their evidence unless supported in a material way by independent evidence.  Therefore, this Committee examined the evidence of identification by photograph in the light of the other evidence on the transcript of the hearing, together with the finding of the Referrals Committee that there was insufficient evidence to connect the Appellant specifically with the running of the horse at Magheraboy.

Whilst accepting that Mr. Smith was considerably handicapped through no fault of his own by having to attempt identification by photograph comparison as opposed to live inspection, in such circumstances particular caution must be exercised before it could be accepted that the two animals depicted in the relevant photographs were one and the same.  In doing so, the Committee carried out its own evaluation of the photographs and considered the evidence of the various veterinary surgeons who gave evidence on both sides of the case. 

It does appear from an examination of the various photographs and the transcript of evidence that there are considerable difficulties with such photographic comparisons.  Colourings and markings seem to vary in photographs depending on the time of year, the length of coat of the animal, the lighting, the presence of dirt or sweat on the animal, and by the process of development of the photograph. Appearance and shape may vary due to the condition of the animal or the perspective of the photograph. 

The Committee also notes that a photograph of an animal would not be accepted by racing authorities as proof of identity of an animal for the purposes of running in a race under Rules, in substitution for the proper passport for the animal.  There was a difference of opinion among the various veterinary surgeons who gave evidence as to the reliability of this form of identification, particularly as between Mr. Smith and Mr. Paul Traynor. 

The other evidence in the case appears to establish that a lame horse identified to Mr. Patrick McCooey by Mr. Ferry as Cybersnow (USA) was diagnosed by him on 18 April as having a pastern injury requiring six weeks box rest and four weeks walking.  Mr. McCooey felt that it was unlikely that that horse would have been fit to run in a flapping race on 28 June and that it was possible that it might have been fit to run at Killarney on 16 July, whilst observing that he didn’t know much about training horses and that the time period was short.  Mr. Paul Traynor felt that a horse with a stress fracture in the pastern could not possibly win a race eight weeks after sustaining the injury, but possibly could win three weeks after that with a strong healing performance. 

The Committee is of the opinion that this evidence does not assist in resolving the issue of identification one way or the other, but if Cybersnow (USA) did have such an injury, it must reduce the likelihood that it ran in and won the flapping race at Magheraboy.  The Committee does not propose to comment on the merit or otherwise of the subsequent win by Cybersnow (USA) at Killarney, save to note that Mr. Fahey noted that he was in good condition when received into training by him at the start of July.  As already noted, Mr. Ferry’s evidence was not particularly helpful in determining how he came to be in such good condition after sustaining the injury in question, and is not exactly consistent with the veterinary evidence called on behalf of Mr. Ferry to suggest that a run or a win was unlikely at the end of June against the background of such an injury.  The Committee is unable to form a definitive view on the veterinary evidence as to whether Cybersnow (USA) had the capacity to run in or win a pony race at the end of June.  He did have the capacity and fitness required to win the race at Killarney in mid July.     

The other veterinary evidence was that of Mr. Joseph Campbell, who euthanised an animal with a fractured cannon bone at Mr. Browne’s premises in January.  This was a chestnut with a white face stripe.  He checked the microchip and confirmed that there was only one chip in the horse which appeared to tally with the chip in a horse registered as Man About Town with the Northwest Horse and Pony Racing Board, a microchip with a serial number ending with “774”.  However, it should also be noted that the markings recorded in this registration documentation were different to the markings observed on the horse identified by Mr. Browne as being Man About Town, so there remains an issue as to the reliability of records from that source.

The principal reason for allowing the appeal in this case derives from the finding by the Referral Committee to the effect that there was insufficient evidence to find that Mr. Ferry was involved in running Cybersnow (USA) as a Man About Town at Magheraboy.  The identification evidence of Mr. Smith, which undoubtedly tended to suggest that the animals were the same, must be viewed in the context of the other evidence and findings.  As Mr. Ferry must be regarded as innocent of participation or involvement in running his horse in the pony race, if it is the case that Cybersnow (USA) was in fact the winner of the pony race, there must have been an alternative means by which this animal came to participate at Magheraboy.  The only realistic alternative explanation for this must be that Cybersnow (USA) was removed from Mr. Ferry’s yard by a third party, presumably Mr. Browne, without his consent or knowledge prior to running at Magheraboy, and was returned in a similar fashion before being sent to Mr. Fahey a number of days later. 

This Committee has concluded that there is insufficient evidence to support this alternative construction of the facts to the necessary level of probability, nor was this scenario canvassed with Mr. Browne or Mr. Ferry when they gave evidence.  Consequently, the dismissal of the case against Mr. Ferry leaves insufficient other evidence in the case which is capable of logically or sufficiently supporting the prima facie identification evidence.  Notwithstanding the suspicions raised by the conduct and evidence of Mr. Browne and Mr. Ferry, the totality of the evidence leaves sufficient doubt as to whether Cybersnow (USA) was in fact the winner of the pony race at Magheraboy as to entitle the Appellant to an acquittal.
 
For these reasons, this Committee respectfully differs with the conclusion reached by the Referrals Committee and sets aside the finding and order thereof. 

This Committee has decided that should either party wish to apply for costs, such application should be made in writing on notice to the other side.  This Committee will issue a decision by post in such circumstances.  The Appellants deposit will be refunded to him.


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