Appeal – Written Reserved Decision dated 26 June 2024 – Robbie Close

Background

1.  On 23 May 2024, the New Zealand Metropolitan Trotting Club held a race meeting at the Addington Raceway.

2.  Race 8 on the programme was the Fahey Fence Hire Trot.

3.  A contender in the race was GEORGE ELIOT, which was driven by the Appellant. It was placed fourth (4th) in the race.

4.  Subsequent to the race, the Appellant was charged with a breach of Rule 868(3) of the New Zealand Rules of Harness Racing (“the Rules”) alleging he failed to drive his horse out to the end of the race when there was a reasonable chance of finishing third.

5.  The Appellant elected to defend the charge. At the hearing, 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 four (4) driving days. This suspension was to commence after the close of racing on 2 June 2024 and to be up to and including 16 June 2024.

6.  The Appellant now appeals the Decision of the Adjudicative Committee, both as to 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 delivery of this Appeal Decision.

8.  In accordance with Rule 1206 of the Rules and the Fifth Schedule to the Rules, this Appeal was dealt with by way of a rehearing. The Appeals Tribunal considered the evidence presented before the Adjudicative Committee and having heard submissions from both parties, then formed its own opinion on both matters, which are the subject of this Appeal.

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

Preliminary Matter

10.  Mr House, on behalf of the Appellant, commenced by requesting the Appeals Tribunal allow the Appeal immediately on the grounds that following the race in particular, the Stipendiary Stewards did not seek a Veterinary examination of GEORGE ELIOT to consider whether or not GEORGE ELIOT had suffered from tying up towards the conclusion of the race.

11.  Mr Renault, on behalf of the Respondent, opposed that on the grounds there was no obligation under the Rules for the Stipendiary Stewards to require a Veterinary examination prior to laying any such charge.

12.  The Appeals Tribunal had little difficulty determining the Appeal should proceed.

Appellant Submissions

13.  It was necessary for the Appeals Tribunal to remind Mr House the Appeal was being conducted by way of a rehearing and his submissions should focus on the evidence which had been given before the Adjudicative Committee. There was no ability for him to introduce new or additional evidence.

14.  Mr House then proceeded to point out to the Appeals Tribunal how the Appellant, when driving GEORGE ELIOT, had moved into a 3-wide line at approximately the 950-metre mark. At that point, he had to elect whether to remain in that 3-wide line, or to proceed to a position immediately ahead of the horse which was sitting in the 1-by-1 position, to ensure he was not pushed further out by that runner.

15.  GEORGE ELIOT had moved to a position outside the leader and so by the time the horses turned into the home straight, was in third (3rd) position. However, at the 100-metre mark when GEORGE ELIOT was tiring, Mr House submits she changed her gait, and it was necessary for the Appellant to take hold of GEORGE ELIOT in order to bring her back to a proper trotting gait.

16.  Mr House stated GEORGE ELIOT changed her stride at the 100-metre mark and strongly submitted, had the Appellant not driven in the manner he did, the horse would have inevitably gone into either a pace or a gallop.

17.  He went on further to submit, that contrary to the view of the Adjudicative Committee, the Appellant did not go to the line with a hold of GEORGE ELIOT. He maintains the reins were loose and sitting on the dust sheet and therefore the Appellant had driven his horse out to the end of the race.

18.  Therefore, it was the submission of Mr House, that the Appellant had performed a “miraculous” job in holding GEORGE ELIOT to a trot and by doing so, enabled her to finish fourth (4th), when to drive in any other manner, would have inevitably meant GEORGE ELIOT losing her proper trotting gait.

Respondent Submissions

19.  Mr Renault started his submissions by referring the Appeals Tribunal to a very recent Decision of Nairn v RIB. He submitted there were similarities in these two instances where a Driver sat motionless in the cart throughout the run to the winning post.

20.  Mr Renault points to the Appellant taking hold of GEORGE ELIOT at the 100-metre mark. This is clearly shown in his submissions by the Appellant moving from a position leaning forward in the cart to an upright position, suggesting there has been a distinct change in the driving tactics of the Appellant.

21.  It was submitted it is insufficient to sit motionless in the cart to satisfy a Driver’s obligations under this Rule. A Driver must show some form of urging his horse to satisfy the Rule.

22.  He goes further to point out that although GEORGE ELIOT was making ground against the third-place runner at the post, there was only a nose margin between the two. Had the Appellant shown the necessary degree of urging and driven to the end of the race, then there was more than a reasonable chance of GEORGE ELIOT being placed third. It was his further submission, GEORGE ELIOT was at all times trotting and there was no reason for the Appellant to sit up in the cart and take a hold of the horse, when she was continuing to trot squarely all the way up the straight.

23.  It was further submitted, that just because a horse tires in the running, this is not a reason to stop driving the horse with the necessary degree of urging.

24.  As Mr Renault submitted to the Adjudicative Committee, it was his view the Appellant was caught out by the trotting action of GEORGE ELIOT, as it was his first drive behind the horse and he simply took hold of the horse when it was not warranted.

Discussion

25.  The Rule under which the Appellant was charged is Rule 868(3) which reads:

“Every driver shall drive his or her horse out to the end of the race if he or she has any reasonable chance of running first, second, third, fourth or fifth.”

26.  There was helpful reference in the New South Wales case known as Honan. Although that Decision applied to the equivalent of another Rule (being Rule 868(2) of the Rules), in that case, Justice Goran detailed a number of principles which have application to a charge under Rule 868(3) of the Rules. The Principles which were referenced in that case and which apply under Rule 868(2) of the Rules 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 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.”

27.  It is clear the drive must be judged in an objective manner. Mr House made strong submissions on behalf of the Appellant, which focused very much on what the Appellant would have been thinking at the point of the race which was approximately 100 metres from the finish. He did not however, give consideration to what other bystanders, including the betting public, would have been feeling towards the drive.  The Appeals Tribunal must consider the matter from an objective view.

28.  The Appeals Tribunal reviewed the films carefully. It also listened to submissions from both parties.

29.  There are two matters which must be satisfied to the requisite standard for a charge under this Rule to be proved. In this instance they are:

a.  Did the Appellant drive GEORGE ELIOT out to the end of the race; and

b.  Was there a reasonable chance of GEORGE ELIOT running third.

30.  From the Appeals Tribunal’s observation, GEORGE ELIOT did change its gait, albeit slightly, at the 100-metre mark. This can be seen when viewing the hind legs of GEORGE ELIOT. They do change in action at that point. The Appeals Tribunal is of the view the Appellant was entitled to take hold of GEORGE ELIOT at that point, in order to allow her to balance up and return to her proper gait. This, in the Appeals Tribunal’s view, occurred at approximately the 50-metre mark.

31.  The Appeals Tribunal then went on to consider the drive of the Appellant from the 50-metre mark to the finish. From its observations, the Appellant sat motionless in the cart and whilst he did not have a hold of the horse as the reins were resting loose on the dust sheet, neither did he take any action by way of any form of urging GEORGE ELIOT to the finish.

32.  It is not enough for a Driver to sit motionless in the cart and not take some steps to encourage his horse. That point was made by RIU v Richard Allen in December 2014. This view was confirmed as being the correct position in Nairn v RIB

33.  The Appeals Tribunal has no doubt the Appellant had an intention to keep GEORGE ELIOT trotting by driving in the manner he did from the 100-metre mark. However, the Appeals Tribunal is of the view that once GEORGE ELIOT returned to her proper gait approximately 50 metres from the finish, there was then an obligation under the Rule on the Appellant to at least show some form of urging to the end of the race, given there was a reasonable chance of her finishing third.

34.  The Appeals Tribunal then goes on to consider the second aspect of the Rule.

35.  In the Decision of the Adjudicative Committee, it was stated:

“The Adjudicative Committee comfortably finds that GEORGE ELIOT had a reasonable chance of finishing third.”

36.  The Appeals Tribunal agrees with that statement. It is clear GEORGE ELIOT continued to make ground against the third placed runner right up to the finish. Given the margin between the two was a nose, it is reasonable to expect GEORGE ELIOT may well have finished third had the Appellant driven her out to the finish, as is required under the Rule.

37.  The standard of proof which applies, is the balance of probabilities. This was confirmed in the Honan Decision, and which is referenced in paragraph 26 of this Decision. As the seriousness of a charge increases, then so does the standard of proof which must be satisfied by the Informant. The Appeals Tribunal is satisfied in this instance, the Informant has met that standard of proof.

38.  On this basis therefore, the Appeals Tribunal believes the Appellant was in breach of his obligations under the Rule over the concluding 50 metres of the race. The Appeals Tribunal is of the view, the Appellant did not drive GEORGE ELIOT out to the end of the race when there was a reasonable chance of her finishing third. Therefore, this Tribunal is of the view, the charge was properly confirmed as proved by the Adjudicative Committee and the Appeal in relation to this finding of the Adjudicative Committee is dismissed.

39.  The Appellant has also appealed against the penalty which was imposed by the Adjudicative Committee. As this Decision was reserved, the Appeals Tribunal has not heard from the parties in this respect.

40.  The Appeals Tribunal therefore directs the Appellant to file written submissions in support of the Appeal against the penalty by 5:00pm, 5 July 2024, and the Respondent to respond by 5:00pm, 10 July 2024. The stay is extended until the Appeal against penalty has been determined.  Those submissions should also include any comment which the parties may wish to make in relation to costs.

41.  All submissions should be directed to the Executive Officer of the Racing Integrity Board.