NZ Metro TC 1 December 2023 – R6 – (heard 10 December 2023 at Addington) – Tony Herlihy

BACKGROUND:

Following the running of Race 6, “What The Hill” at Woodlands Stud NZ Trot, Open Driver, Tony Herlihy, denied a charge of careless driving in that, as the Driver of WALKINONSUNSHINE in the race, he “drove carelessly racing into the first bend by failing to concede his position when shifted inwards by SHEZ BELLA (Dylan Ferguson) resulting in his runner breaking with trailing runners also being checked”.

The Information was filed on race night and adjourned. It was heard at the meeting of NZ Metropolitan TC at Addington Raceway on 10 December.

Rule 869 provides as follows:

(3)   No driver in any race shall drive:-

       (b)  carelessly.

The Shifting Ground Regulation provides as follows:

Where a horse does not have clear passage during a race the driver shall be permitted to shift ground inwards and ease another runner down the track provided such driver is in a position to do so by having sufficient advantage over the horse about to be shifted inwards and that horse is clear of other horses to its inside so it can be moved in.

 For the avoidance of doubt, the following shall apply:

The onus shall be on the driver shifting ground to ensure the move is made with safety and does not cause interference by conducting it in a gradual and acceptable manner thereby enabling the driver of the runner being moved to be able to take the necessary action to accommodate the manoeuvre.

 Where interference occurs or a driver fails to concede when not in a position to maintain his/her place, the provisions of Rules 869(3) and (4) shall apply.

EVIDENCE:

Chief Stipendiary Steward, Nigel McIntyre, alleged that the Respondent was in a position in which he should have been conceding his position. He showed the available video replays of the incident, shortly after the start of the 1980 metres mobile start race.

He pointed out that the runner against the markers, KENNY’S CHARM (Brad Williamson), which had drawn the pole position, had left a space. The Respondent was racing one-off the markers. Mr Ferguson, directly outside him, was shifting into the one-out line. He alleged that Mr Ferguson had an advantage over the Respondent.

Mr McIntyre showed on the video replay that the Respondent tried to hold his position, one-off the markers, and Mr Ferguson was directing his horse inwards to shift the Respondent into a position that he was required to go, he alleged. The Respondent had no runner to his inside and therefore, Stewards were alleging, he should have been conceding. The two runners jostled for 40-50 metres, before the Respondent’s runner broke, Mr McIntyre said. The sulky wheels of the two runners came together and “pinged” when the Respondent did try to shift his runner away, and it did appear that its back leg contacted Mr Ferguson’s sulky, Mr McIntyre said.

The Respondent said that the head-on replay showed that he had held his position. He submitted that, if he could hold his position, he did not have to concede. When the point was reached that he could no longer hold his position, he said, his horse’s leg touched the wheel of Mr Ferguson’s sulky and that was what caused it to break. He submitted that it could be Mr Ferguson’s fault in getting under his runner trying to manoeuvre him in. It was a “racing incident”, he submitted, which probably would not have happened had his runner not been such a “big, gangly filly”. He did not have to concede his position before he did, he submitted, as Mr Ferguson did not have an advantage prior to that. When he went in, the filly had turned her head around, her hind quarters had turned out and her leg had contacted Mr Ferguson’s sulky. The horse was still trotting up to that point, he said, and it was not the movement that caused her to break.

Mr McIntyre read the Rule (see above) to the hearing. He said, in summary, that the Respondent had lost his advantage and, as there was no horse on his inside, he was required to shift in.

DECISION:

The charge was dismissed.

REASONS FOR DECISION:

The Stewards’ case was that the Respondent had driven carelessly in not conceding his position when in a position to do so, resulting in his horse breaking. This was alleged to have happened just after the start of the race. The Rule states that, if a Driver does not concede his position in that situation, he is guilty of careless driving.

The Respondent argued, essentially, that he was not in a position, initially, where he had to concede his position to Mr Ferguson, as Mr Ferguson did not have an advantage over him. When the point came that he had to concede his position, he argued, he did concede but as he attempted to shift down his horse struck its leg against Mr Ferguson’s sulky and broke.

The Adjudicative Committee was not satisfied that Mr Ferguson’s attempt to ease the Respondent down was entirely in compliance with the Regulation (see above). The Adjudicative Committee finds that it was only in the very latter stages of the manoeuvre that he was in a position to ease the Respondent down and, when he did so, it was arguably not in a “gradual and acceptable manner”.

The bottom line is that the Adjudicative Committee finds that some responsibility for the breaking of Mr Herlihy’s runner can be attributed to Mr Ferguson’s actions – in other words, neither Mr Ferguson nor the Respondent was entirely to blame. In that case, it becomes a “racing incident” and the Adjudicative Committee believes that was the case on this occasion. The Respondent was not in a position in which he had to concede until the later stages of Mr Ferguson’s manoeuvre. The Adjudicative Committee accepts that he did then attempt to concede, but his efforts were thwarted by his horse striking the wheel. It is accepted by the Adjudicative Committee that was what caused the Respondent’s runner to break. There is sufficient doubt as to exactly what happened and Adjudicative Committee is not satisfied to the required standard that the Respondent has driven carelessly.