Non Raceday Inquiry – Decision dated 4 July 2022 – Maurice McKendry

Introduction

[1] Driver Mr Maurice McKendry denied a charge alleging that he breached Rule 868(2).  The charge arises from the running of Race 6 at the Auckland Trotting Club race meeting on 10 June 2022.  The defended hearing was heard at Alexandra Park on 30 June 2022, and this is the resultant decision of the Adjudicative Committee.

[2] Following the race in question on 10 June 2022 Stewards opened and adjourned an investigation after which authority to charge was sought and given by the CE of the Racing Integrity Board, Mr Mike Clement.

The Charge

[3] The details of the charge are outlined in Information number A18260 which provides:

THAT at a race meeting conducted by Auckland Trotting Club at Alexandra Park in Race 6, Driver, M McKendry (SIMPLY SAM) failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the race or obtain the best possible position and/or finishing place by electing to shift down off the back of HARDER THAN DIAMONDS (T Mitchell) rounding the home turn to attempt to secure a run which did not eventuate resulting in “SIMPLY SAM” being held up throughout the home straight to finish in 7th place beaten 2.8 lengths.  An alleged breach of Rule 868(2) of the New Zealand Rules of Harness Racing.   

The Rule

[4] Rule 868(2) provides that:

“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.”

The Penalty Provisions

[5] The Penalty Guidelines provide a starting point of a 20-drive suspension or $1000 fine.

Plea

[6] At the commencement of the hearing Mr McKendry confirmed that he did not admit the breach.

Evidence

[7] In his opening remarks Mr Mulcay outlined a summary of the incident that gave rise to the charge.  In essence this was a summary of agreed facts.  Mr McKendry advised that although he denied liability, he agreed with the factual situation outlined in the summary.

The agreed facts

[8] Mr McKendry was the driver of SIMPLY SAM in Race 6, the Powell Transport Mobile Pace, an event for horses 3yo and older, R54 – R65, R66 – R70 with conditions.

[9] The race was over 2200m from the mobile. SIMPLY SAM drew barrier 2 off the front and was slow early before settling at the rear.

[10] SIMPLY SAM then continued to race at the rear before shifting out to the running line near the 1100m. Mr McKendry then shifted out to a three wide position on the back of HARDER THAN DIAMONDS (T Mitchell) near the 700m.

[11] Mr McKendry has then elected to shift SIMPLY SAM down off the back of HARDER THAN DIAMONDS rounding the home turn near the 300m to look for a run which did not eventuate resulting in SIMPLY SAM being held up throughout the run home to finish in 7th place beaten 2.8 lengths. A post-race veterinary examination of SIMPLY SAM detected no obvious abnormality.

[12] Mr McKendry was then interviewed by Stewards and after hearing initial evidence and viewing the replays the matter was adjourned sine die.

[13] Permission was then sought and obtained from RIB Chief Executive Mike Clement to charge Mr McKendry with an alleged breach of Rule 868(2) on the grounds that he failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win or obtain the best position and/or finishing place by electing to shift down off the back of HARDER THAN DIAMONDS (T Mitchell) rounding the home turn to attempt to secure a run which did not eventuate resulting in SIMPLY SAM being held up throughout the home straight to finish in 7th place beaten 2.8 lengths.

Witnesses – Mr A Dooley

[14] Mr Mulcay called Stipendiary Steward Mr Dooley to demonstrate the race films.  Mr Dooley showed the race films in their entirety from the start of the race to the finish.

[15] In his evidence Mr Dooley pointed out that SIMPLY SAM drifted to near the rear of field at the start from its barrier 2 position. He said that nearing the 1100 metre mark Mr McKendry shifted SIMPLY SAM off the marker line, into the running line behind the eventual race winner HARDER THAN DIAMONDS.  He then said near the 500 metres SIMPLY SAM was still at the rear but commencing to improve.  He added that near the 400 metres, the number 1 horse on the rails (CASHLODO FLYBYE), paced roughly, with SIMPLY SAM at that stage on its outer, and at this point Mr McKendry directed SIMPLY SAM inwards, electing to go for an inside run, which he said was a high-risk manoeuvre, which was reliant on luck because there were 2 horses ahead of him on the inside.

[16] Mr Dooley said that from this point to the finish Mr McKendry searched for clear running and passing the 100-metre mark he took a firm hold because SIMPLY SAM had nowhere to go, as there were no gaps.

[17] Mr Dooley said SIMPLY SAM finished the race untested and under a hold.

[18] In response to questions from Mr Mulcay, Mr Dooley advised that although CASHLODO FLYBYE paced roughly it had no bearing on Mr McKendry electing to angle downwards.

[19] Mr Dooley also pointed out that he was aware of SIMPLY SAM’S racing style and that in the past, when presented with an unimpeded run, it has finished its races off strongly. He said that in its previous races SIMPLY SAM had showed no early gate speed.

[20] Mr Dooley acknowledged that on this occasion SIMPLY SAM was racing for the first time in a higher rated (grade) race.

[21] Mr Mulcay produced a summary of SIMPLY SAM’S previous seven race starts, including a race it won the week after this incident on 16 June 2022.  Mr Mulcay also showed race films of SIMPLY SAM’S previous four race starts and demonstrated that the sectional times in its previous races were comparable with its sectional times in the race on 10 June 2022. Mr Mulcay also made the point, using the films, that SIMPLY SAM is a slow starter and is usually a strong finisher.

The Respondents case

[22] Mr McKendry said that he does not dispute the fact that SIMPLY SAM gets back and finishes its races off strongly.  In support of this he submitted the racebook for 10 June 2022 in which tipster Jason Teaz commented that “SIMPLY SAM steps up significantly in grade tonight after he was narrowly robbed of a hat trick May 27.  Beaten by a horse who received a better trip on that occasion.  Looking for luck here as he has no gate speed to use the good draw”.

[23] Mr McKendry said that although SIMPLY SAM was the race favourite it should not have been because he is an inexperienced (Class 2) horse who was going up in grade.  He pointed out that many of the runners in the race were more tightly assessed and had won significantly more stakemoney (for example MIMI E COCO a nine-race winner).

[24] Mr McKendry said that there were two options available to him. They were that he either follow HARDER THAN DIAMONDS or shift down.  He said that if he followed HARDER THAN DIAMONDS, to beat that runner SIMPLY SAM would have had to run 1 second quicker.  He said that Drivers do not have a lot of time to make a decision, and on this occasion, it was a split second decision he made to angle downward.  He added that although there was no run for him, he expected the horses in front to “fan out”, but that did not occur.

[25] Mr McKendry stated that on the point of the bend the horses in front were sprinting and SIMPLY SAM was “feeling the pinch” and “starting to struggle”.

[26] He accepted that on the night his decision was the wrong one, but if SIMPLY SAM had won the race, it would have been a good one.

[27] In response to a question from the Adjudicative Committee, Mr McKendry confirmed that on the point of the turn SIMPLY SAM was not travelling well and that’s why he took a chance by shifting inwards.  He said, “I thought I might have got a run on the inside lane”.

[28] In response to a further question from the Adjudicative Committee Mr McKendry confirmed that he has driven 3354 race winners from 22192 lifetime drives.

[29] Mr McKendry reiterated that the race was a big step up in class for SIMPLY SAM.  He accepted that he made a decision that turned out to be “a bad one”.

[30] Under cross examination from Mr Mulcay, Mr McKendry conceded that by shifting downward he took a chance, and it was an error.

Summing Up – Applicant (Mr Mulcay)

In summing up the case for the RIB Mr Mulcay submitted:

[31] That Mr McKendry, in electing to shift SIMPLY SAM down the track rounding the home turn has resulted in the colt being held up when unable to secure clear racing room. As no run was available when Mr McKendry commenced the shift, he was dependent on things happening which were beyond his control i.e., horses shifting ground to provide him clear running.

[32] The measure that Mr McKendry had available to him, which was both reasonable and permissible, was to maintain his position on the back of HARDER THAN DIAMONDS before then shifting out off that horse’s back where he had clear running thereby ensuring that SIMPLY SAM was given full opportunity to do the best it could given the circumstances. This may not have been Mr McKendry’s preferred option, but Stewards submit that it was clearly the best option at that stage of the race.

[33] Mr McKendry’s failure to take this measure is in Stewards’ opinion so unreasonable as to be culpable and has resulted in SIMPLY SAM not having the opportunity to finish in the best position possible.

[34] SIMPLY SAM’s record shows that this was the colt’s 8th raceday start and that he has been driven by Mr McKendry on four previous occasions. Stewards acknowledge that SIMPLY SAM is up in class for the event in question but submit that the colt has recorded comparable times including closing sectionals when finishing its races off in a strong manner after having been driven for one run.

[35] SIMPLY SAM underwent a post-race veterinary examination following the event which revealed no obvious abnormality that could have prevented the colt from being driven in its usual manner.

[36] The Harness Racing Industry is driven by the gambling dollar and maintaining public confidence in the integrity of the Industry is paramount. Stewards submit that driving in this manner undermines that confidence and must not be condoned and/or deemed as acceptable.

Summing Up – Respondent (Mr McKendry)

In summing up his case Mr McKendry submitted:

[37] That SIMPLY SAM was racing up in grade, is a back runner and was a false favourite for the race.

[38] That he made a “split decision” at the time to shift downward and it turned out to be the wrong one.

[39] Two other horses in the race were held up and they both won their next starts.

Decision

[40] The Adjudicative Committee finds the charge proved.  Our reasons are set out below.

[41] During our deliberations the Adjudicative Committee spent considerable time evaluating the race films, particularly the bend into the home straight where Mr McKendry said that he made a split second to shift downward.  The critical moment is on the point of the bend in terms of Mr McKendry’s decision making.

[42] The Adjudicative Committee is mindful of Mr McKendry’s evidence that decisions must be made in racing “in a split second”.   This sentiment was also highlighted in Williams and B Williamson (6 March 2022) who were charged under Rule 869(3)(g).  The Adjudicative Committee who dealt with that matter said “…. but accepted that……race tracks are a very competitive place and these incidents happen from time to time but they have a detrimental effect on Harness Racing. That case involved a duel between two Drivers, but the point to be taken is that racing is competitive, but casual and / or interested onlookers do make judgements about decisions made on racetracks, whether such decisions are good or bad.

[43] The films, over the concluding stages from the straight entrance, where Mr McKendry elected to shift down off the back of HARDER THAN DIAMONDS, to the to race finish, clearly demonstrate the breach.  Mr McKendry took a calculated risk in electing to shift down off the back of HARDER THAN DIAMONDS, when at the time of the shift there was no apparent opening. On the other hand, there was clear space on the outer of HARDER THAN DIAMONDS. It cannot necessarily be said that SIMPLY SAM would have beaten HARDER THAN DIAMONDS had Mr McKendry gone wide, but it most likely would have ended up in a better position at the finish. Stewards do not have to prove the tactic was a deliberate decision to avoid winning the race or finishing in a better placing; all that is required is proof to the requisite standard that by adopting the tactic SIMPLY SAM was not given full opportunity to win the race or obtain the best possible position and/or finishing place.

[44] In the Adjudicative Committee’s opinion the breach arose from the combined impact of a tactical mistake and error of judgement by Mr McKendry.  The decision HRNZ v W Higgs (2005) is often referred to and provides some useful guidance on this point; namely:

“….. 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 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 manner of driving falls within the terms of the rule”

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…….”

[45] Mr Mulcay referred the Adjudicative Committee to the Honan decision, NSW October 1983, Justice Goran.  This case sets out several principles which have stood the test of time and are often referred to in New Zealand Harness decisions.  For example, more recently in the RIB v R Cameron decision (17 September 2017).  Those principles include:

1. It is the quality of the drive in the circumstances of the particular case which has to be judged;
2. That judgement must be based on an objective assessment of the drive in the particular race;
3. A mere error of judgement by a Driver is not a sufficient basis for an adverse finding that the Rule has been breached; and
4. The Driver’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.
5. 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 horse is given full opportunity to win or to obtain the best possible place in the field, then he is in breach of the Rule and liable to penalty.
6. 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.
7. The onus is on the Stewards to prove that a Driver has been in breach of the Rule. A 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 seriousness of the charge and the gravity of the consequences that flow from a finding that the charge is proved, the Committee must have a reasonable degree of satisfaction that the charge has been proved.

[46] In this case the Adjudicative Committee has taken cognisance of the above two decisions and concludes that it was the error in terms of Mr McKendry’s tactical decision making, which occurred at that critical moment on the home bend, which led to SIMPLY SAM being denied the opportunity to finish in a better placing. The charge is therefore proved.

Penalty Submissions – Applicant

[47] Mr Mulcay submitted that Mr McKendry has a clear record under the Rule.  He said that he is a leading Driver who has driven 3354 race winners from 22192 lifetime drives.

[48] Since 1 January 2022 Mr McKendry has had 150 drives, an average of 4.8 drives per meeting.

[49] Mr Mulcay submitted that the penalty starting point for a breach of Rule 868(2) is 20 drives (suspension) or $1000 fine.  He said that a 4-day suspension would be appropriate, and Stewards would have no objections to a combined suspension and fine due to the limited raceday opportunities for Northern Drivers during the winter months.  But he added that in the circumstances of this case a reduced starting point may be appropriate because Stewards assessed the breach to be below mid-range.  He referred the Adjudicative Committee to the recent case, RIB v D Ferguson who received 4 days for a mid-range breach.

Penalty Submissions – Respondent

[50] Mr McKendry said that if a suspension was proposed he does not seek a deferment and can commence a suspension immediately.

[51] In terms of penalty Mr McKendry made no submissions.  However, on his behalf a letter was provided to the Adjudicative Committee by the connections of SIMPLY SAM (Lincoln Farms).  They are fully supportive of Mr McKendry and have full confidence in him as their Stable Driver.  The Adjudicative Committee fully accepts the high praise afforded to Mr McKendry.  The letter also refers to other cases including RIB v K Newman (heard 30 December 2021 at Reefton) in which the Adjudicative Committee did not uphold a charge under Rule 868(2).  Whilst there may be similarities between various cases, such as Newman and this matter, there are also points of difference.  The Newman case does not necessarily set a precedent, and nor does this case, as each is evaluated on their particular circumstances.

Penalty Decision

[52] As has been highlighted elsewhere in this decision the starting point for a breach of Rule 868(2) is a 20-drive suspension or $1000 fine, with penalty adjustments applied, up or down, on a fact dependent basis taking into account; (a) Mr McKendry’s level of culpability; (b) aggravating and or mitigating factors; and (c) personal factors, specific to Mr McKendry.

[53] Given Mr McKendry’s vast experience, and having driven over 3354 winners, the risk of a similar mistake or error of judgement happening again is most unlikely.

[54] Mr McKendry has an excellent driving record and having reflected on his drive on this particular occasion, he accepts that he made a tactical error.  However, a penalty must be imposed that not only holds Mr McKendry accountable and responsible for his breach, but also deters others from breaching the Rule in a similar manner.

[55] Mr Mulcay has submitted that a 4-day suspension, or a combined suspension and fine would be appropriate.

[56] In consideration of:

• the submissions.
• the penalties that we understand have been imposed for similar cases.
• our assessment of the breach i.e., below mid-point.
• Mr McKendry’s excellent driving record, and
• Mr McKendry has, on average, 4.8 (rounded to 5) drives per meeting.

[57]  A 3-meeting (15 drive) suspension is imposed.

Conclusion

[58] Mr McKendry’s licence to drive is suspended from 1 July 2022 until after racing on 21 July 2022.

[59] There was no application for costs by the RIB and there is no award for costs in favour of the RIB Adjudicative Committee.