NZ Metro TC 15 April 2025 – R1 (heard 19 April 2025 at Addington) – Colleen Negus

Following the running of Race 1, Livamol Amateur Drivers Mobile Pace, an Information was filed alleging that Advanced Amateur Driver, Colleen Negus, as the Driver of FOVEAUX GAMBLER in the race “failed to take all reasonable and permissible measures to win or obtain the best possible position and finishing place by electing not to shift outwards and obtain the one-one position near the 1200 metres when the opportunity existed.”

The hearing of the Information was adjourned on raceday and was heard at the meeting of NZ Metropolitan TC at Addington Raceway on 19 April 2025.

Mr Bruce Negus, Licensed Trainer, was approved by the Adjudicative Committee to represent Mrs Negus at the hearing.

Mrs Negus did not admit the breach.

THE RULE:

Rule 868 provides as follows:

(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 Matt Sole, showed a video replay of the entire race, a 1980 metres mobile start race for Amateur Drivers. In the seven-horse field, FOVEAUX GAMBLER, driven by Mrs Negus, had drawn barrier position 6. Mrs Negus restrained her runner after the start and settled towards the rear of the field behind ENYA FRANCO (Michael House). Shortly after the start, all runners, except ARCHIE (Dan Roberts), were racing on the marker line. The race was being run at a “very sedate tempo”, Mr Sole said.

Mr Sole then went to the finish of the race and showed both ENYA FRANCO and FOVEAUX GAMBLER being driven out to the end of the race. Those runners finished 2nd and 3rd respectively, the margin between them being a neck.

Mr Sole then took the race back to the 1300 metres. He pointed out ARCHIE improving in the parked position. The remaining six runners were all racing against the markers with FOVEAUX GAMBLER racing in second-to-last position, following ENYA FRANCO. He said that the concern that the Stewards had was that, at the 1200 metres, Mrs Negus had a clear opportunity to shift out into the one-out line behind ARCHIE, but did not do so, instead following out ENYA FRANCO, which got into the one-one position. Mrs Negus was, thereafter, one position further back in the running than she should have been, Mr Sole said. Had she been in the one-one, which was the best possible position, she would have been in a position of control in the final 600-800 metres, he said. It was reasonable and permissible for Mrs Negus to have improved her position at the 1200 metres, he submitted.

Mr Negus then pointed out that the quarter (from the 1600 to 1200) had been run in 36 seconds. He drew attention to the runner, ALMIGHTY CLEVER (Blair Wilmott), three places back, looking to come out as ARCHIE was improving, but chose not to and failed to get a clear run at the finish. He submitted that it was an error of judgement on the part of its Driver.

The Driver of ARCHIE had decided to go all of the way back after the start when it could not get in and was restrained to the rear, in the hope that a runner would come out in front of it, Mr Negus said. He then pointed out that VINRULES (Alan Edge), following Mrs Negus on the markers, chose not to take the one-one for the entire length of the straight. He ought to have faced the same charge as Mrs Negus, Mr Negus submitted. He said that his point was that with 1400 metres to run, it is not possible to see how the race will develop. He submitted that three other Drivers in the race had exercised poor judgement. Many races are won by runners which have stayed on the markers, he said.

Mr Negus said that ARCHIE was not a good horse to be following. Mrs Negus was on the back of the favourite, ENYA FRANCO (in fact, the 2/3 favourite), he said. That was the horse to be following, he submitted, but FOVEAUX GAMBLER was not good enough to beat it. Mrs Negus ought not to have been singled out, and every Driver in the race showed some bad judgement, Mr Negus submitted.

Mrs Negus said that she had considered coming out onto the back of ARCHIE, but she was concerned that that horse was not progressing and she did not wish to get on its back, but that it was preferable to follow Mr House.

DECISION:

The charge was not proved.

REASONS FOR DECISION:

Two principles that emerge from the various cases decided under Rule 868(2) are the following:

(1)     A mere error of judgement by a Driver is not a sufficient basis for an adverse finding that the Rule has been breached; and

(2)     The Driver’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy

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 Adjudicative Committee must have a reasonable degree of satisfaction that the charge has been proved. Essentially, the Adjudicative Committee must be comfortably satisfied that, in the circumstances of the case and viewed objectively, the manner in which Mrs Negus drove her horse fell well short of what would reasonably be expected of a Driver in her position.

The burden of proof upon the Stewards is well-stated in the leading case of HRNZ v Higgs in which the (then) Judicial Committee stated:

The informant does not have to prove any deliberate intent not to win the race and, in this case, no deliberate intent is alleged. The informant does, however, need to prove more than an error of judgement 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. 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 judgement, that results in disadvantage to his horse, then such manner of driving falls within the terms of the Rule.

This charge is based on Mrs Negus failing to shift outwards onto the back of ARCHIE with a lap, 1200 metres, to run. It is significant, when assessing the culpability of Mrs Negus, that there was still a lap to run. The field was small in size and that is significant in that the pace was unusually slow – 2.37.7, Mile Rate 2.08.1 – which appeared to cause problems for several of the Drivers, not only Mrs Negus, as highlighted by Mr Negus. At the end of the day, it was not an easy race for the Amateurs to drive in.

While it would have been reasonable and permissible for Mrs Negus to do as the Stewards consider she should have done, it was not unreasonable for her, in the prevailing circumstances, to wait and follow out Mr House, on a favoured runner, with a view to being later taken into the race by that runner and getting the last run at it. Surely that is not unreasonable?

The Adjudicative Committee finds that Mrs Negus gave her runner every opportunity to finish in the highest possible finishing position. She had every opportunity to finish 2nd, beating ENYA FRANCO, but was not good enough, and certainly not good enough to win the race, given that the leader won the race in comfortable fashion, running the last 800 metres in 57.1 and the final 400 metres in 28.1.

It will always be difficult for the Stewards to prove a charge under the Rule based on inaction by the Driver 1200 metres from home. It is trite to say that so many scenarios, of which a Driver cannot possibly be aware at the time, will inevitably unfold in that final 1200 metres, as no two races are the same.

To refer to the Higgs Decision, it could be argued that Mrs Negus’ drive amounted to merely an error of tactics. Did that error amount to bad judgement resulting in a disadvantage to FOVEAUX GAMBLER? The Adjudicative Committee says “no” and, therefore, the drive did not fall within the terms of the Rule.