Appeal – Written Decision dated 26 January 2023 – Jason Ford

Background

1. On 3 December 2022, the Akaroa Trotting Club held a race meeting at the Motukarara Racecourse.
2. Race 7 on the programme was the Cavalier Trotting Products Handicap Trot. The horse “TEST THE BOUNDARIES” was driven by the Appellant in that race.
3. Subsequent to the race the Appellant was charged with a breach of Rule 868(2) of the Harness Racing New Zealand Rules (“the Rules”), alleging he failed to take all reasonable and permissible measures to ensure TEST THE BOUNDARIES was given full opportunity to win the race or obtain the best possible position and/or finishing place.
4. The Appellant elected to defend the charge. The Adjudicative Committee adjourned the hearing to a date to be determined.
5. The defended hearing took place at the Methven Racecourse on Sunday 11 December 2022.
6. Following the defended hearing the Adjudicative Committee found the charge proved. They imposed a suspension of the Appellant’s Licence to Drive in races for a period of one (1) month commencing from the close of racing on 11 December 2022, and to conclude on the close of racing on 11 January 2023. In addition a fine of $500.00 was imposed.
7. The Appellant now appeals that decision of the Adjudicative Committee, both as to the finding of the charge being proved and also the penalty imposed.
8. In accordance with the Rule 126 and the Fifth Schedule to the Rules this Appeal will be dealt with by way of a re-hearing. We will consider the evidence presented before the Adjudicative Committee, but having heard submissions from both parties will then form our own opinion on both matters which are subject to this Appeal.
9. At the commencement of the hearing we were given the opportunity to view the race on film. There were 3 different camera angles used.

Appellant’s Submissions

10. The Appellant filed written submissions in support of his Appeal.
11. He was of the view the winner of the race “ROYAL DEL” who was also the favourite and had been travelling in the favoured 1 – 1 position, would utilise the passing lane and therefore it would be necessary for him to seek a run through the middle with TEST THE BOUNDARIES. The Appellant was also of the view, that in his experience, a run would become available through the middle of the field and he had no wish to move to the passing lane as that would cause him to lose momentum.
12. It is the view of the Appellant that it was only when ROYAL DEL commenced to move outwards, he was then forced into having to move down in the passing lane.
13. The Appellant was of the view TEST THE BOUNDARIES did not gain ground on ROYAL DEL once clear. Therefore he did not think he would win the race even had he taken the inside running at an earlier point.
14. The Appellant rejects any suggestion he was not trying to win the race and he strongly believed he would obtain clear running by maintaining the course he was on between the 250 metre and 100 metre marks.

Respondent’s Submissions

15. Mr Renault on behalf of the Respondent confirmed there was no complaint from Stewards regarding the drive until the 250 metre mark. The concern is there was never a gap available for TEST THE BOUNDARIES and the sulky to take between ROYAL DEL and “SIOUX PRINCESS”.
16. Various film angles were shown and it was the submission of Mr Renault which had already previously been made to the Adjudicative Committee a gap was never available. TEST THE BOUNDARIES had not moved past the helmet of the Driver of ROYAL DEL, and therefore there was no need to pull back in order to move to the inside. The passing lane offered plenty of room had the Appellant elected to take the inside run.
17. The Respondent’s view is it was not reasonable for the Appellant to not take the option of the inside run when it had presented for at least 150 metres.
18. Mr Renault responded to the submission of the Appellant that ROYAL DEL had commenced an outward movement which effectively closed the gap. It was his view ROYAL DEL had maintained a reasonably straight course until such time as TEST THE BOUNDARIES moved to its inside and it was only at that point did ROYAL DEL commence an outward movement. By that stage TEST THE BOUNDARIES had already shifted to the inside.

Discussion

19. The Rule under which the Appellant was charged is Rule is 868(2) which reads:
“Every Driver shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.”
20. The Rule has been considered in a number of decisions, both on race day and on appeal. It has also been the subject of judicial comment.
21. As had been clearly set out by the Adjudicative Committee in RIB v Newman the use of the word “permissible” means “lawful”. Further the use of the word “reasonable” imports an objective standard.
22. The purpose of the Rule was detailed in HRNZ v Higgs where it was stated:
“The Rule requires the demonstration of tactics that can by objective standards be said to be both reasonable and permissible. Those have to be tactics which can be seen by not only the Stipendiary Stewards, but also those present at the racetrack, and in particular by the betting public, to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The Informant does not have to prove any deliberate intent not to win the race, and in this case no deliberate attempt is alleged. The Informant does however need to prove more than an error of judgement and for culpability to attach there must be some carelessness or incompetence involved and a charge can only be upheld where the Driver has failed to take some measure or measures, which were reasonably and permissibly open to him/her. There may be circumstances in which a Driver’s manner of driving may amount to merely a permissible error of tactics, but when that error of tactics amounts to bad judgement, that results in a disadvantage to his/her horse in such manner of driving falls within the terms of the Rule.”
23. There was also helpful commentary referenced in what is known as the Honan decision from NSW in October 1983 by Justice Goran which has been referred to in recent New Zealand Harness decisions as principles which have stood the test of time. Those principles include:
i) It is the quality of the drive and the circumstances of the particular case which has to be judged;
ii) That judgement must be based on an objective assessment of the drive and the particular race;
iii) A mere error of judgement by a Driver is not a sufficient basis for an adverse finding, but the Rule has been breached;
iv) The Driver’s conduct must be culpable in the sense that objectively judged, it is found to be blame worthy;
v) The focus of the Rule is the quality or otherwise of the drive. That is to say if the Driver fails given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or obtain the best possible place in the field, then he is in breach of the Rule and liable to penalty;
vi) The Rule imposes an objective standard of care. This standard of care takes into account among other things, the views and explanation of the Driver and the opinion of the Stewards;
vii) The onus is on the Stewards to prove that a Driver has been in breach of the Rule. The Driver is required to give an explanation for his actions but the onus always remains on the Stewards;
viii) The standard of proof is on the balance of probabilities. However because of the seriousness of the charge and the gravity of the consequences that flow from a finding that the charges proved, the Adjudicative Committee must have a reasonable degree of satisfaction that the charge has been proved.
24. There was also reference in the recent decision of Smith v RIB which referenced what was referred to as “Justice Haylen Test” where an interested party would ask the hypothetical question:
“What on earth is Mr Ford doing?”
25. Having reviewed a number of films from different angles, we agree with the Adjudicative Committee that any slight movement by ROYAL DEL did not in any way contribute to a run not being available for TEST THE BOUNDARIES has not proceeded into the gap. There was never a run available. There may have been room for the horse, but not the cart and the head-on view confirms that.
26. Applying the principles from the various cases we are of the view the Adjudicative Committee were correct in their finding. The Appellant persisted in maintaining his attempt to take a gap which was never available when at the same time he had the opportunity to move to the inside of ROYAL DEL for at least 150 metres. TEST THE BOUNDARIES has not proceeded into the gap as we were able to see from films the head of TEST THE BOUNDARIES had not passed the helmet of the Driver of ROYAL DEL. There was therefore every opportunity for the Appellant to take the ample room to the inside, but he did not do so for some considerable time.
27. It is this persistence over a prolonged period which in our view was not a reasonable option to take, and therefore we agree with the Adjudicative Committee the Appellant is in breach of the Rule and the charge was properly confirmed as proved by the Adjudicative Committee.
28. The Appellant is not correct in suggesting this charge suggests an allegation he was not trying to win the race. That is not a necessary component of this Rule. Whether or not the horse is run on its merits comes under Rule 868(1). We also confirm whether or not TEST THE BOUNDARIES would have won the race is a matter of conjecture and does not form an integral part of any charge under this Rule.
29. It therefore follows the Appeal against the finding of the charge being proved by the Adjudicative Committee as dismissed.

Penalty

30. The Appellant also appeals the penalty which was imposed. The Adjudicative Committee imposed a one (1) month suspension, together with a $500.00 fine.
31. The Appellant referenced a case of Mr Williams who was recently found guilty of a charge under the same Rule and received a three (3) day driving suspension.
32. It is the Appellant’s view the same penalty should have been imposed on him for a breach of the same Rule.
33. The Respondent however confirmed the starting point under the Penalty Guide for a breach of this Rule is a suspension of twenty (20) drives. The Appellant over the last 12 months has driven on 55 occasions at an average of 1.25 drives per meeting attended. This would equate to a starting point of close to twenty (20) weeks suspension.
34. Conversely Mr Williams drives on an average of 5 drives per meeting, and thus a much shorter period of suspension would apply to achieve suspension periods equating to a similar number of drives.
35. The Adjudicative Committee were clearly concerned about the proposed period of suspension and following consideration determined a combined penalty of one (1) month suspension and $500.00 fine was adopted.
36. We are of the view the penalty imposed was well within the range of sentencing options available to the Adjudicative Committee and cannot be said to be manifestly excessive.
37. The Appeal against the penalty is also dismissed.

Outcome

38. Both appeals are dismissed and the Appellant is suspended from driving for a period of one (1) month commencing at the conclusion of racing on 29 January 2023 and concluding at the conclusion of racing on 28 February 2023. In addition the fine of $500.00 is also imposed. A deferment of the suspension was granted until after the Methven Meeting, Sunday 29 January 2023.

Costs

39. Mr Renault on behalf of the Respondent did not seek costs.
40. The Appellant submitted the appeal was of merit and therefore there should be no costs awarded on the unsuccessful appeal.
41. However we are of the view the Appellant should make some contribution to the costs of this hearing and he is therefore ordered to pay costs of $500.00.