Auckland TC 19 May 2023 – R3 – Scott Phelan

Introduction:

Following the running of Race 3, an Information was filed by Stipendiary Steward Mr Renault, alleging Driver, Mr S Phelan used his whip with more than a wrist flicking motion leaving the final build.

Mr Phelan denied the breach.

Rule 869 provides that:

(2) No Driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.

Part 3 of the Whip and Rein Regulations provides as follows:

3.1 A driver may only apply the whip in a wrist only flicking motion whilst holding a rein in each hand with the tip of the whip pointed forward in an action which does not engage the shoulder.

3.2 For the purposes of clause 3.1, “wrist only flicking motion” means:

3.2.1 Ensuring no force is generated by the use of the elbow or shoulder when applying the whip.

3.2.2 The forearm is not raised beyond forty-five degrees relative to the racing surface.

3.2.3 Not applying the whip with overt force.

Evidence:

Witness Mr Renault

Mr Renault used the available race films in support of his evidence. He identified ARTISAN driven by Mr Phelan, rounding the final bend into the home straight.  He said that Stewards contended that Mr Phelan struck ARTISAN four times using more than a wrist flicking motion, with a lot more force being applied on the last two strikes.  He added that apart from the four strikes, Mr Phelan’s whip use for the remainder of the race was compliant.

In cross examination, Mr Phelan questioned whether it is alleged that the number of strikes of concern numbered three or four.  In response, Mr Renault reiterated that Stewards believed there were four strikes of concern, with the third one being the worst (in terms of non-compliance).

Respondent Mr Phelan

In his evidence, Mr Phelan stated that, “in my opinion only one of the four strikes is questionable and the other three aren’t”.  He said that with regards to the first two strikes, they are no worse than used every day in races. He added that although the third strike may be questionable, the fourth strike was definitely not.

Summing up

In summing up the case, Mr Renault submitted that Stewards believed that the four strikes were clearly more than a wrist flicking motion, with overt force being used.

In summing up his defence, Mr Phelan submitted that at best, only one of the four strikes was questionable and that the other three strikes were not outside the Rules.

Decision and Reasons:

Decision

After carefully evaluating the available race films, the Adjudicative Committee was not sufficiently satisfied that the charge was proved to the requisite standard, namely on the balance of probabilities. On that basis, the charge was dismissed.

Reasons

The Adjudicative Committee carefully analysed each of the four strikes.  In the Adjudicative Committee’s opinion, strikes one, two and four are in conformity with the ingredients of Part 3 of the Use of Whip and Rein Regulations.  Strike three required a more detailed assessment but ultimately, the Adjudicative Committee found that it was also in compliance.

In reaching this decision, the Adjudicative Committee examined each strike to determine whether:

• Mr Phelan generated any force by use of his elbow or shoulder when applying the whip.
• Mr Phelan’s forearm was raised beyond forty-five degrees relative to the racing surface; and or
• Mr Phelan applied overt force.

Having completed this exercise, the Adjudicative Committee determined that with regards to all four strikes, but in particular with regards to strike number three, the films do not conclusively establish that Mr Phelan’s use of the whip was non-compliant in terms of either his wrist flicking motion, the use of his forearm (beyond forty-five degrees) or with regards to the amount of overt force used.

It was quite proper that the charge was filed for the Adjudicative Committee to assess and determine, but for the reasons outlined, the charge is dismissed.