Appeal – Written Decision dated 17 May 2024 – Paul Nairn

Background

1. On 19 April 2024, the Ashburton Trotting Club held a race meeting at the Ashburton Racecourse.

2. Race 2 on the programme was the Premium Peas Trot.

3. A contender in the race was ‘FORGIVENESS’, which was driven by the Appellant.

4. Subsequent to the race, the Appellant was charged with a breach of Rule 868(2) of the New Zealand Rules of Harness Racing (“the Rules”) alleging he failed to take all reasonable and permissible measures to ensure FORGIVENESS was given full opportunity to win the race or obtain the best possible position and/or finishing place.

5. The Appellant elected to defend the charge. At the hearing however, the Adjudicative Committee found the charge to be proved. The Adjudicative Committee imposed a suspension of the Appellant’s Licence to drive for a period of ten (10) driving days. This suspension therefore commenced at the conclusion of racing held 19 April 2024 up to and including 17 May 2024.

6. The Appellant now appeals the Decision of the Adjudicative Committee, both as the finding of the charge being proved and also the penalty imposed.

7. At a preliminary hearing, the Appellant was granted a stay of the commencement of the penalty up to the date of the hearing of the Appeal.

8. In accordance with Rule 126 of the Rules and the Fifth Schedule to the Rules, this Appeal will be dealt with by way of a rehearing. The Appeals Tribunal will consider the evidence presented before the Adjudicative Committee, but having heard submissions from both parties, will then form its own opinion on both matters which are subject to this Appeal.

9. At the commencement of the hearing, the Appeals Tribunal viewed both the race in full and the run home.

Appellant’s Submissions

10. The Appellant filed written submissions in support of his Appeal.

11. These written submissions were helpful to the Tribunal to be able to fully understand the nature of the Appeal.

12. The Appellant indicated FORGIVENESS is a well gaited trotter, however, has a tendency to break her gait without any apparent reason. This has occurred in a number of her previous races. The Appeals Tribunal watched films of some of her previous races where she has broken her gait.

13. For this reason, the Appellant is of the view, the best way to drive her is to hold a firm rein which he did in this event. He went on to say, he was continually talking and growling at her to obtain the best possible effort.

14. In the Appellant’s view, there was a chance she would lose her gait if he had driven in any other matter and therefore did obtain the best possible outcome by driving in the manner he did.

Respondent’s Submissions

15. Mr Sole presented submissions on behalf of the Respondent. It was the view of the Stewards on the day that FORGIVENESS was trotting tractably throughout the event. The concern of the Stewards was the lack of encouragement by the Appellant in the run home. It was the Stewards’ view that the Appellant only showed a minimal amount of encouragement over the last 50 metres. Once the Appellant did show some urging, FORGIVENESS made ground against the winner.

16. The Stewards’ conclusion was if the Appellant had shown any urgings earlier in the run home, the margin between the winner and FORGIVENESS may have been less and even to the point where FORGIVENESS may well have won the event.

17. Mr Sole acknowledged FORGIVENESS has broken her gait in previous races, but the circumstances were different to the straight run home on this occasion. In previous instances, she has broken gait when clearing the bend into the home straight, or she has been angled in a different direction in the run home. On this occasion, there was a clear run to the line and FORGIVENESS was trotting well.

18. Therefore, the view of the Respondent is the actions of the Appellant amounted to an error of judgment in taking hold of FORGIVENESS and not urging her more in the run home.

19. It was submitted this was not an occasion to try to restore confidence in FORGIVENESS, but the intention should have been to win or obtain the best possible placing.

Discussion

20. The Rule under which the Appellant was charged is Rule 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.”

21. The Rule has been considered in a number of Decisions, both on Raceday and on appeal. It has also been the subject of judicial comment.

22. The use of the word “permissible” means “lawful”. Further, the use of the word “reasonable” imports an objective standard. These matters of interpretation were detailed in RIB v Newman. The purpose of the Rule was also 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. The informant does however need to prove more than an error of judgment…. There must be some carelessness or incompetence involved and the 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 judgment that results in a disadvantage to his/her horse, then such a manner of driving falls within the terms of the rule.”

23. There was also helpful commentary referred to in an earlier Decision in New South Wales known as Honan. In that case, Justice Goran detailed the principles to include;

1. It is the quality of the drive and the circumstances of the particular case which has to be judged;

2. That judgment must be based on an objective assessment of the drive and particular race;

3. A mere error of judgment by a driver is not a sufficient basis for an adverse finding;

4. A driver’s conduct must be culpable in the sense that it is objectively judged and is found to be blameworthy;

5. The focus of the rule is the quality or otherwise of the drive. That is to say that 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, that he is breaching the rule and liable to penalty;

6. The rule imposes an objective standard of care. This standard of care takes into account amongst other things, the views and explanation of the driver in the opinion of the stewards;

7. The onus is on the stewards to prove that the 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;

8. The standard of proof is on the balance of probabilities. However because of the nature of the charge and the gravity of the consequences that flow from a finding that the charge is proved, the Adjudicative Committee must have a reasonable degree of satisfaction that the charge has been proved.

24. Although this Decision was issued in October 1983, the principals have stood the test of time.

25. It is clear the drive must be judged in an objective manner. The Appeals Tribunal gave careful consideration to the submissions of the Appellant, but come to the view that the Appellant has been looking at his own drive from a purely subjective view. When you consider the matter from an objective view, that is when the principles detailed, in what has been well known now as the “Justice Haylen Test” where an interested party would ask the hypothetical question:

“What on earth is Mr Nairn doing?”

26. Having reviewed the films and having given the submissions of both parties full and careful consideration, the Appeals Tribunal is of the view the actions of the Appellant – or lack of them – from the 300-metre mark to the 50-metre mark, do not satisfy, from an objective perspective, the requirements imposed on a Driver under this Rule.

27. It is not enough for a Driver to sit motionless in the cart and not take some steps to encourage his horse.

28. This was a similar view to a Decision of a Judicial Control Authority in Racing Integrity Unit v Richard Allen, a Decision of 14 December 2014, which was referred to the Appeals Tribunal by the Respondent. In that case, Mr Allen over the concluding stages, adopted minimal encouragement other than verbal encouragement. The Judicial Committee on that occasion found that to be insufficient.

29. It was also noted that an intention to keep the horse trotting by keeping hold of the horse, was insufficient to satisfy the obligations to those persons who had invested on the horse. The obligation is to drive it out to the end of the race where there is a reasonable chance of the horse finishing in a better placing.

30. The Committee on that occasion, went on to note a race is not the occasion to restore a horse’s confidence or to see if there are any unsoundness issues.

31. The Appeals Tribunal agrees with those comments.

32. It is the persistence over a prolonged period of sitting motionless in the cart, which was not reasonable. Therefore, the Appeals Tribunal agrees with the Adjudicative Committee, the Appellant, in this instance, is in breach of the Rule and the charge was properly confirmed as proved by the Adjudicative Committee.

Penalty

33. The Appellant also appealed the penalty which was imposed by the Adjudicative Committee.

34. However, at the hearing the Appellant made it clear he only wished to pursue the Appeal in respect of finding the charge to be proved and not the period of suspension which was imposed as a penalty.

Decision

35. For the reasons the Appeals Tribunal has set out, the Appeal in respect of the finding of the charge being proved is dismissed. As the Appellant did not wish to pursue the Appeal in respect to penalty, then that Appeal is also dismissed.

36. The ten (10) day suspension imposed by the Adjudicative Committee will therefore stand.

37. The Appellant sought a deferment of the commencement of the suspension to the conclusion of racing on 19 May 2024. This was not opposed by the Respondent and was therefore granted.

38. Accordingly, the Appellant will have his Open Driver’s Licence suspended from after the conclusion of racing on 19 May 2024, up to and including 23 June 2024. The suspension encompasses the following meetings;

• 23 May 2024 at Addington
• 26 May 2024 at Timaru
• 30 May 2024 at Addington
• 2 June 2024 at Ashburton
• 7 June 2024 at Addington
• 9 June 2024 at Addington
• 14 June 2024 at Addington
• 16 June 2024 at Addington
• 21 June 2024 at Addington
• 23 June 2024 at Addington

Costs

39. The Respondent does not seek costs.

40. The Appellant made no submissions in respect of costs.

41. The Appeals Tribunal is of the view that the Appellant should make some contribution to the costs of this hearing, and he is therefore ordered to pay costs of $500.