Timaru HRC 3 October 2021 – R1 (heard 4 December 2021 at Addington) – Colleen Negus

SUMMARY OF FACTS:

Following the running of Race 1 Stipendiary Steward Mr Steve Mulcay presented an Information alleging a breach of Rule 868(2) by Amateur Driver Mrs Colleen Negus which was denied. The hearing was subsequently adjourned sine die and heard at Addington Raceway 4 December 2021.

Mrs Negus was represented at the hearing by her husband, Mr Bruce Negus, with support from Mr Richard May and Mr Alan Edge.

The Committee asked Mr Negus if he would be calling any of the four witnesses named during a teleconference between parties on 19 November 2021. He informed the Committee none were present today.

Mrs Negus confirmed to the Committee she denied the charge and that she was conversant with the Rule.

STEWARDS SUBMISSIONS:

Mr Paul Williams, (Chair) played the entire replay of the race without comment from either party. Mr Williams then submitted a detailed Summary of Facts which he articulated to the hearing in a condensed form.

Mr Williams’ summary of Mrs Negus’ drive was after starting from barrier 7 in the mobile 2600m event Mrs Negus (DREAMINSOVER) was caught 3 wide for the first 700m. He said upon reaching the parked position Mrs Negus has immediately driven forward intent on leading. He said Mrs Negus continued to challenge for the lead when it was apparent that the lead was not going to be handed up by Mr Fitzgerald (THE NAENAE EXPRESS) and this challenge continued until DREAMINSOVER was crossed at approximately the 1000m. He stated DREAMINSOVER then commenced to weaken near the 600m to finish 9th in the 10 horse field – beaten 13.8 lengths.

He said the Stewards submit that having commenced challenging for the lead from the 1900m, Mrs Negus should have realized well before the 1000m point that the challenge was not going to be successful and the only option was to give her horse some respite which would have been both reasonable and permissible.

Further to this, he said Stewards submit Mrs Negus’ failure to do so was unreasonable given DREAMINSOVER had been required to race 3 wide over the initial 700m of the race on a strong tempo, and her actions are in breach of Rule 868(2) and clearly deserving of a penalty.

Mr Williams said any breach of this Rule puts into question the integrity of Harness Racing and maintaining public confidence is paramount. Stewards submit driving in a manner in which Mrs Negus has done undermines that confidence and is deserving of sanction. That said, the Stewards wish to emphasize, we do not believe there was any intent on the part of Mrs Negus to not give her horse the opportunity to win or finish in the best possible position.

Mr Williams stated the Rule imposes an objective standard of care. The standard of care takes into account, among other things, the views and explanation of the driver and the opinion of the Stewards. The onus is on the Stewards to prove a driver has been in breach of the Rule and we believe we have proved Mrs Negus’  drive on DREAMINSOVER is a clear breach of Rule 868(2) in that the manner in which Mrs Negus drove her horse fell well short of what would reasonably be expected of a driver in her position.

RESPONDENTS SUBMISSIONS:

Mr Negus asked for the replay of the start to be played. He showed the mobile vehicle was very slow accelerating away from the field. He estimated it was at least 50m past the start point before the machine put space between it and the field which hindered DREAMINSOVER from taking a more forward position.

Mr Negus said every horse easily maintained their positions throughout the race which, he said, means the tempo of the race was not excessive. He asked where is the Rule that says the horse on the fence is the lead horse. He said Mrs Negus was clearly in front at the stage of the race in question and normal practice would be the horse on the fence would relent the lead once the outside horse had headed it. He said Mrs Negus had the lead and she was controlling the speed of the race. Mr Negus stated the instructions for Mrs Negus were specific, go forward and keep a strong tempo and let nobody pass.

Mr Negus asked the Stewards to play several videos of the horse’s previous starts. He explained to the Committee that DREAMINSOVER only competes when he is in the lead or in the fight and added the times of these races were approximately the same as the Timaru race. The races showed DREAMINSOVER racing in front, in the parked position, in the trail, and in the 1×1 position and in each instance raced very competitively.

Mr Negus asked for Mr May’s assessment of the drive at Timaru. He said he had seen worse in his time but he could not comment on DREAMINSOVER’S racing habits although he had driven the horse, he had not followed the horse’s career. Mr Williams asked Mr May if he would have pursued the lead as Mrs Negus had. He conceded he would have taken the opportunity to take a gap behind the leaders that was presented early in the running. He added Mrs Negus may have attacked in the way she had because of the yelling from her fellow drivers which he understood had gone on.

Mr Negus asked Mr Alan Edge who is an experienced amateur driver and had driven DREAMINSOVER previously for his assessment. He stated he drove the horse on 21 October 2021 (the video was provided) and had instructions to go to the front. He said it took him 3/4 of the race to make the front, the horse is an old slug and is forever on and off the bit but did race well that night finishing 4th. Mr Williams informed the hearing this race was over the 1980m distance and the horse was perhaps better suited by that, but Mr Edge said the horse isn’t suited by any distance, he is just an old slug.

Mr Negus requested if he was able to phone Ms Cheree Wigg who is the leading amateur driver and has driven DREAMINSOVER in 8 races winning 4. Ms Wigg who was the driver of the horse in most of the races shown to the hearing stated, as had the previous contributors, that the horse was a one-paced old battler who needed to be driven handy to the pace.

Mr Negus asked for a replay of a race to be played from an earlier meeting at Cambridge 14 Oct 2021. He demonstrated on the film 3 senior drivers engaging in a dual for the lead culminating in 2 horses breaking with several others being severely checked. He said no drivers were charged. The Committee asked Mr Negus what the relevance of this was to Mrs Negus’ drive at Timaru. Mr Negus said “the perception is that if she (Mrs Negus) was a man we wouldn’t be in this room now”. He said “the Stewards are inconsistent when it comes to charging drivers but when it’s a woman they do”.

Mr Negus produced a written statement from Mr Colin DeFilippi who he had asked to compare the drive of Mrs Negus and the drives of some more experienced drivers at the Cambridge meeting 14 October 2021. Mr DeFilippi states although Mrs Negus’ drive may not have looked good, the concern was that there seems to be an inconsistency in the application of the rules.

Mr Negus produced a written statement from the Clerk of the Course at Timaru, Mr Craig Wiggins. Mr Wiggins’s statement says from his position at the 1800m mark he heard Mr Fitzgerald yell “don’t do it Colleen don’t do it” many times along with a lot of head shaking and that other drivers were yelling from behind and this could be heard for a considerable distance. Mr Wiggins has then heard from his assistant Mr William Redwood that abusive language was directed at Mrs Negus and this compelled him to notify Stipendiary Steward Ms Rebecca Haley of this incident.

Further to this matter, Mr Negus notified the Committee he would be requesting a ruling to scratch Mrs Negus’ drive tomorrow (5th Dec) as he was not comfortable having her driving in an unsafe environment. Mr Negus said he is not using this information as an excuse for Mrs Negus ‘ drive, he was happy with her drive but stated the situation was handled very poorly on the day.

Mr Mulcay, the Chief Steward on the day, explained to the hearing the events post-race, and the information and statements the Stewards had over the alleged matter and that an investigation would be proceeding. At this juncture, all parties agreed a full investigation into the matter was warranted and Mr Negus was happy to proceed with the Information at hand and put that matter aside.

Mr Williams summarised by asking Mrs Negus if she had been given any formal instructions if she was unable to get to the front in the race. She said no that “this horse was going to the front”. She said she could have eased but that wasn’t the plan and if she had eased the horse wouldn’t have had a chance.

REASON FOR DECISION:

The Committee carefully considered all submissions, of which there were several, and analysed the many videos played.

In the course of the hearing, it was well documented that DREAMINSOVER is a horse that is better suited to be “in the fight”.

The issue of the start alluded to by Mr Negus is a common occurrence and Drivers have to adapt to those situations. The same applies to the cauldron of the race when Drivers are aggressively jockeying for positions. From time to time there is invariably language used that doesn’t appear in the original Oxford dictionary. In this case, someone may have stepped over the line but that will be established by Racecourse Inspectors in their investigation.

Mr Negus’ comments regarding his perception of the RIB Stewards being sexist in their application of the Rules are not worthy of a response by this Committee.

The submissions of Messrs DeFilippi, May, Edge, and Wigg had a common theme. They would have driven the horse differently, and that the drive didn’t look good or they had seen worse.

Adjudicating a breach of this Rule is an objective observation test. Mrs Negus has pressed forward from the start and has been caught wide around the first bend. She has kept driving forward, as instructed, to be in the parked position after 700 metres. Mrs Negus has attacked for the lead immediately from this juncture, under an aggressive drive, for another 800 metres until crossed by the eventual winner of the race. The horse showed some courage to hold its ground for a short time before weakening through the field finishing 13.8 lengths in 9th place out of 10.

The Committee’s opinion is that Mrs Negus has unreasonably overraced her horse, there was no plan B. In essence, Mrs Negus has put the accelerator to the floor, without giving her horse respite, until it had run out of petrol.

The Committee was satisfied, after considering all factors, that the Rule was breached, and accordingly, the charge was found proved.

SUBMISSION FOR PENALTY:

Mr Williams produced a very detailed meticulous written Penalty Submission, the main points being.

(1) The core 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 /her horse is given full opportunity to win or obtain the best possible place in the field, then they are in breach of the Rule and liable to a penalty.

(2) Mrs Negus is an experienced Amateur Driver having 110 starts since being licensed in 2016.

(3) In considering any mitigating factors, Mrs Negus has a clear record but has had several breaches of rules which could be considered in the same family as Rule 868(2).

Mr Williams has quoted a few relevant extracts from other cases including the somewhat famous Justice Haylen’s Australian case. The most pertinent is from the case of HRNZ v W Higgs (2005) which in the Committee’s opinion is the benchmark guidance for breaches of this Rule.

9.1] “It is well established that the test is an objective one and an alleged breach of the Rule falls to be considered by objective standards and not by the subjective reactions of the driver. 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 judgment 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 drivers manner of driving may amount to merely a permissible error of tactics but, when that error of tactics amounts to bad judgment, that results in a disadvantage to his/her horse, then such manner of driving falls within the terms of the rule”

10.1] “A breach of this particular Rule is one that invariably jeopardises the integrity of harness racing for reasons that are self-evident. Harness races are based on the requirement that all contestants in a race are given every possible opportunity by their drivers and that, when the race has been run, all contestants have been fully tested and have been asked to be the best that they can. This has to be the case in order that the betting public, so important to the industry, can have confidence that they have had a run for their money when they have invested their money on contestants in a harness race. Any suggestion that a horse has not been given every possible opportunity and has not been asked to do the best that it can, for whatever reason, will result in the loss of public confidence in harness racing. As stated it is the primary function of judicial committees, in dealing with penalty, to maintain integrity and public confidence in harness racing”.

(4) Stewards believe there is no evidence to say that Mrs Negus deliberately intended to deny her horse the opportunity to finish in a better finishing position, and so it is submitted she displayed a serious lack of judgment in deciding not to desist in her attempt to get to the lead.

(5) The starting point penalty for a mid-range breach of the Rule is a 20 drive suspension or a fine of $1000. Stewards submit the severity of this breach is well into the mid to high range and that a significant period of suspension is the appropriate penalty. Mrs Negus is an Amateur Driver and it is a well-established principle when assessing a period of suspension for an Amateur Driver that 2 drives per month are used to calculate the length of the term of the suspension.

(6) Taking all of the above into account, from a starting point of 20 drives, Stewards submit this should be increased by a further 4 drives meaning a penalty of 12 months suspension to be imposed. It is also strongly submitted that the period of suspension should be measured in time and not drives so as not to create any precedent based on drives for more busy drivers.

RESPONDENTS PENALTY SUBMISSIONS:

Mr Negus stated they would not be making any submissions on penalty and advised the Committee to do their best but whatever the outcome,  they would be appealing. He said Mrs Negus has been through enough trauma and the Stewards asking for 12 months will have added to that.

REASON FOR PENALTY:

The Committee acknowledges the Penalty Guidelines which provide a 20 drive suspension or a $1000 fine as a starting point for mid-range breach.

Penalties in previous cases are widely spread depending on the frequency of driving by each individual. Mr Williams is correct that the well-established principle of assessing Amateur Driver’s periods of suspension is 2 drives per month as on average there are only 2 opportunities for Amateurs to race per month.

The Committee considers the degree of offending on this occasion is slightly higher than mid-range. Most people watching the race would call into question Mrs Negus’ judgment or lack of when continuing her quest for the lead.

Mrs Negus has a clear record under Rule 868(2) which is a mitigating factor. The Committee also considers Mrs Negus was under added pressure by being given inflexible driving instructions from her husband/Trainer, a difficult situation. Another factor to consider is the alleged behavior of one or some of her fellow Drivers during the race.

It is the Committee’s core function to maintain the integrity and public confidence in Harness Racing. In arriving at an apposite penalty the Committee has to consider the particular circumstances of the drive and of the Driver. The Steward’s submission of a 12-month sanction is out of proportion to what happened at Timaru and does not warrant an extreme penalty which would be manifestly harsh. Consideration was given to the Reekie (2017) decision which involved a comparable drive, perhaps a little worse, and charged under a more serious Rule [869(3)(g)] which has a starting point of a 60 drive penalty. Mr Reekie was suspended for 10 months.

The Committee has considered all relevant factors and applied a measured judgment, rather than a mathematical equation to its decision. This sanction imposes the least restrictive penalty that is appropriate and fair and reasonable. Mrs Negus’ Amateur Licence to drive is suspended for a period of 4 months from the date of this decision, 6 December 21 up to and including 6 April 2022. In addition to this suspension, Mrs Negus is fined $400.

COSTS:

The cost of the transcripts supplied to the Respondent was waivered by the RIB.