Ashburton TC 19 April 2024 – R2 – Paul Nairn

BACKGROUND:

Following the running of Race 2, Open Driver, Paul Nairn, denied a charge that, as the Driver of FORGIVENESS in the Race, he “failed to take all reasonable and permissible measures to win the race when failing to show sufficient vigour in the run home”.

Rule 868 provides:

(2)   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.

EVIDENCE:

Stipendiary Steward, Matthew Sole with the assistance of Stipendiary Steward, Shane Renault, showed a video replay of the final 400 metres of the race. He pointed out FORGIVENESS, driven by the Respondent, racing on the outside of the leader, OSMIUM, as the field turned for home. Mr Renault pointed out Mr Nairn, when racing in 2nd place, sitting motionless in the sulky from the 300m, apart from looking inside to the 3rd placed horse, GOLD NUGGET, until near the 50m, where Mr Nairn used the whip in a light tapping motion over the final stages. He showed on the films, that when FORGIVENESS was encouraged by the light taps with the whip, the horse responded and got within 3/4 of a length of the winner.

Mr Sole said that Mr Nairn did not show enough vigour to satisfy the Stewards that he had given FORGIVENESS every opportunity to win the race over the final stages of the race. He added that the horse was not tested, especially between the 300m and 50m, and that some form of discernable or demonstrable vigour should have been applied to FORGIVENESS to ensure that every opportunity was afforded the horse.

Mr Sole alleged that the Respondent has not taken any action in the home straight, apart from just holding his horse until the last 50 metres. He has failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the Race, Mr Sole said.

The Respondent said that in his defence, FORGIVENESS had broken in 5 of its career 8 starts. He showed video replays of races at Addington on 27 March, Methven on 14 April and Addington on 7 April 2024, where the horse broke on the home turn, or in the straight. He added that he drove the horse with that in mind and in trying to get the horse across the line without breaking and getting the best out of the mare.

Mr Sole concluded by saying that the Respondent had believed that the only way to drive the horse was to sit quietly from the 300m to the 50m and not apply pressure, just in case the horse broke. He added that it was reasonable and permissable for Mr Nairn to apply some form of discernable or demonstrable vigour on the horse, to apply some degree of pressure and test the horse. The Respondent, he said, had not given the horse every opportunity.

DECISION:

The charge was found proved.

REASONS FOR DECISION:

The Respondent’s defence to the charge was, essentially, that the best way of winning the Race or gaining the best possible place, was to handle his horse with care, as it was prone to breaking in the home straight or over the final stages and do no more than was necessary to obtain the best possible placing. That is acceptable, so long as the Race is won or the best possible placing achieved.

It is admirable that the Respondent should wish to not pressure the horse, in the hope that it would not gallop in the run home, as he feared it may do, if pressured. However, that does not amount to a defence to a charge of failing to take all reasonable and permissible measures, should the horse fail to obtain the best possible finishing position.

A Driver has an obligation, in terms of the Rule, to ensure that his horse is given “full opportunity to win the Race or finish in the best possible position or finishing place”, in this case 1st.

The Adjudicative Committee asks itself 2 questions of Mr Nairn’s drive.  Firstly, was it reasonable for Mr Nairn to apply pressure and test FORGIVENESS over the final 300m of the race?  This Adjudicative Committee determined the answer is yes.

Secondly, was it permissible for Mr Nairn to apply pressure and test FORGIVENESS over the final 300m of the race?  This Adjudicative Committee again determined that the answer is yes.

This Adjudicative Committee finds that it was reasonable and permissible for Mr Nairn to apply pressure and test FORGIVENESS over the final 300m, but he has not done this and, while he thought he was doing his best for the horse, his drive over the concluding stages was culpable and punters were entitled to expect more and could justifiably feel let down.

The Respondent was quite candid in explaining that there were reasons why he drove FORGIVENESS as he did.  FORGIVENESS was prone to breaking and galloping over the concluding stages of the race.

However there is an obligation by Drivers to test their horses to a standard that satisfies the Rules they race under, the connections and the betting public, that the horse has been driven out to a degree of standard to give it every opportunity to win or obtain the best possible place.

The Adjudicative Committee, in applying the Justice Haylen Test to Mr Nairn’s drive on FORGIVENESS, where an informed and interested party would ask the hypothetical question “What on earth is Mr Nairn doing?” after watching the race, would in all probability ask that question and would be of the opinion that FORGIVENESS was not given every opportunity to win the race.

This Adjudicative Committee is satisfied that the standard required under the Rule was not met. It was reasonable and permissible for Mr Nairn to apply some degree of pressure and test FORGIVENESS between the 300m and the 50m by some discernable or demonstrable measure, either by urging with reins or touching with the whip.

The Respondent had not asked his horse for its optimum effort over the concluding stages, as he was obliged to do, and his failure to do so has, most likely, cost his horse winning the Race. He has failed to take all reasonable and permissible efforts. The charge is therefore found proved.

PENALTY SUBMISSIONS:

Mr Sole said that the Respondent has a previous breach under this Rule, being at Westport on 28 December 2023, where he received a 7 day suspension for a mid range breach.

The Penalty Guide starting point of a second offence under this Rule is a suspension of 10 days for a mid-range breach, Mr Sole said. He submitted that, after taking all factors into consideration, a 10 day suspension be considered as penalty in this case.

The Respondent made no submissions in regard to penalty apart from stating he did not seek a deferment and requested any suspension begin as soon as possible.

PENALTY:

The Adjudicative Committee noted the starting point under the RIB Harness Racing Penalty Guide for a second breach of this Rule is a 10-day suspension. That is for a mid-range breach. The Adjudicative Committee has determined that the present breach can be regarded as mid-range. The Adjudicative Committee deemed there were no aggravating factors, therefore no uplift in penalty was warranted.

The Adjudicative Committee also finds that there are no mitigating factors to consider, therefore no discount on penalty is warranted.

Accordingly, the penalty is to be a suspension of 10 days.

CONCLUSION:

Mr Nairn’s Open Driver’s Licence is suspended from after the conclusion of racing today,19 April 2024, up to and including 17 May 2024. Relevant days encompassed in this period of suspension are Addington – 26 April, Rangiora – 28 April, Addington – 1 May, Addington – 3 May, Rangiora – 5 May, Addington – 8 May, Addington – 10 May, Ashburton – 12 May, Addington – 15 May and Addington – 17 May 2024.