NZ Metro TC 23 May 2024 – R8 (heard 30 May 2024 at Addington) – Robbie Dean Close

BACKGROUND

Following the running of Race 8, Fahey Fence Hire Trot, Open Driver, Robbie Dean Close, denied a breach of Rule 868(3) in that, as the Driver of GEORGE ELIOT in the race, he failed to drive his runner out to the end of the race when having a reasonable chance of running 3rd.

The Information was filed with the Adjudicative Committee on racenight and adjourned sine die. It was heard at the meeting of NZ Metropolitan TC on 30 May 2024.

Rule 868 provides as follows:

(3)     Every driver shall drive his or horse out to the end of the race if he or she has any reasonable chance of running first, second, third, fourth, or fifth.

The result of the race was as follows:

1st    13  A Fine Patrick

2nd   11  Fight For Freedom

3rd    5   Bravehearthighlander

4th     7   George Eliot

The margin between 3rd and 4th was a nose.

EVIDENCE:

Stipendiary Steward, Shane Renault, showed a video replay of the entire race – a 2600 metres standing start. He pointed out GEORGE ELIOT, driven by the Respondent, drawn barrier 7, four from the outside of the front row.

Mr Renault showed that GEORGE ELIOT began well and took up a position midfield, three places back in the running line. The horse remained in that position, before being forced wider on the track at about the 900 metres. The horse remained 3-wide from that point to the home turn, where it was racing 3rd.

Mr Renault showed that the Respondent was asking the horse for an effort rounding the final bend, urging it with the whip and reins until the 100 metres. From the 100 metres, there was a “distinct change” in the Respondent’s actions – from driving the horse with sufficient vigour, to taking a hold of his runner and sitting motionless in the sulky – before finishing in 4th placing, a nose from the 3rd runner, BRAVEHEARTHIGHLANDER.

On the head-on video replay, Mr Renault alleged that GEORGE ELIOT was trotting well. At no stage, did its action change. It continued in a trot to the finishing line and did not miss a step in its trotting gait, he submitted. At no stage, did the replay show that the horse had switched to a pace, or was likely to, he said.

The Respondent was required, in the final 100 metres, to continue to drive the horse out with sufficient vigour so that anyone investing on the race, or connections, gets the best opportunity for the horse to finish in the highest possible placing. By taking hold of his runner, he has failed to do this, Mr Renault said. There is a “strong possibility” that the horse would have finished at least 3rd.

The Adjudicative Committee observed that GEORGE ELIOT continued to make ground on the 3rd placed runner, BRAVEHEARTHIGHLANDER. Mr Renault agreed.

The Rule requires the Stewards to prove two things, Mr Renault said. Firstly, did the Respondent have a reasonable chance of finishing in a higher placing? Stewards believed that he did. The horse continued to make ground all the way up the straight. Secondly, did he drive his horse out to the end of the race? The evidence is clear, Mr Renault submitted. The horse was under a hold for the last 100 metres. The Respondent sat “motionless” and did not drive the horse out. Finally, Mr Renault said, Stewards did not believe that the horse had changed gait at any stage, but had continued to trot.

The Respondent had the head-on video replay shown and asked that it be slowed down. He said that he believed that the horse was trotting squarely, before he felt a change in its gait and the horse was then in more of a pacing action. Had he “chased” it any more, it would have gone off-stride and been disqualified, he said. The horse was getting tired, he said. It had not trotted sufficiently well in the final 100 metres for him to be able to drive it out, he said.

Mr Mark Jones said that, from his experience, he believed that it was quite obvious that the horse’s motion had changed. It had got “pacy” in behind and had not trotted fluently. Had the Respondent hit the horse when it changed gait, it would have likely rolled into a pace or galloped, he said.

He did not agree that the horse had made ground. The reins were loose over the last 50 metres. The horse had done its best after being 3-wide from the 900 metres, he said. A Driver, sitting behind a horse, would feel the change of action which might not be obvious on a replay, he said.

Mr Renault asked Mr Jones whether, having seen the replay, he believed that the horse had trotted all of the way. He agreed that it had, but said its gait had got narrower. The Respondent, when asked by Mr Renault, said that this was the first time he had driven GEORGE ELIOT. Mr Renault suggested that the horse had caught him out with its action.

DECISION:

The charge was found proved.

REASONS FOR DECISION:

There are two elements to the Rule, which Stewards must prove. Firstly, that the Respondent has failed to drive GEORGE ELIOT out to the end of the race and, secondly, there must have been a reasonable chance of finishing 3rd.

To deal with the first aspect, it was clear to the Adjudicative Committee, from the video replays shown, that the Respondent ceased driving the horse out from about the 100 metres, from which point he sat motionless in the sulky. The Respondent clearly accepted this and nothing he raised in his defence, suggested otherwise. The Adjudicative Committee is satisfied that the Respondent has failed to drive GEORGE ELIOT out to the end of the race.

The Respondent’s defence to the charge was, essentially, that he was unable to carry out his obligation to drive out to the end of the race because he was concerned that the horse had changed gait and, had he driven it out, he believed it would have broken and lost its chance.

It is a clearly established principle that the test is an objective one – that is to say, the situation should be viewed from the standpoint of what a reasonable Driver would have known, thought or done in the same circumstances and not considering the Respondent’s actual belief or intention.

It is difficult to accept the Respondent’s belief that the horse had changed gait and was on the point of breaking, had he continued to drive it out. The Adjudicative Committee carefully and repeatedly viewed the race replays – side-on and head-on – and cannot be satisfied that this was the case. Mr Renault strongly made the point that GEORGE ELIOT had trotted well throughout.

In any event, such belief would not have excused the Respondent of his obligation to drive the horse out. Again, it is a well-established principle, held in many previous cases and recently repeated in the Decision of the Appeals Tribunal in the recent case of Nairn v RIB, in which the Tribunal stated:

An intention to keep the horse trotting by keeping hold of the horse is insufficient to satisfy the obligations to those persons who had invested on the horse. The obligation is to drive it out to the end of the race where there is a reasonable chance of the horse finishing in a better placing.

Was there a reasonable chance of GEORGE ELIOT finishing in 3rd placing? The Adjudicative Committee takes “reasonable chance” to mean “a likelihood, a prospect or expectation, more likely than not” (RIB v Tomlinson December 2023). Looking at the facts of this case, the margin between 3rd and 4th was a nose, and that margin was an ever-diminishing one. The Adjudicative Committee comfortably finds that GEORGE ELIOT had a reasonable chance of finishing 3rd.

The Respondent has made an error of judgement, which may have cost punters on GEORGE ELIOT. The horse was a well-supported runner, being 2/2 in the order of favouritism for the race.

The Adjudicative Committee is comfortably satisfied that the actions of the Respondent, or lack of them, from the 100 metres mark to the finishing line, do not satisfy, from an objective perspective, the obligations imposed on a Driver under the Rule (Nairn v RIB).

The charge is found proved.

SUBMISSIONS FOR PENALTY:

Mr Renault said that the Respondent has had 236 drives this season and does not have a previous charge under the Rule on his record.

The Penalty Guide is very specific, Mr Renault said – for failing to drive out when a reasonable chance of finishing 3rd, a 4-days suspension. The Respondent is a Canterbury Driver, he said.

The Respondent said that he has notified drives at the meeting of Ashburton TC on 2 June, and wished any term of suspension to commence after that meeting.

REASONS FOR PENALTY:

This is a clear case of failing to drive out to the finish, when having a reasonable chance of running, in this case, 3rd. The RIB Harness Racing Penalty Guide (February 2023) is very specific, and leaves no room for a consideration of aggravating or mitigating factors. In the case of a reasonable chance of running 3rd, the Penalty Guide provides a penalty of a 4-days suspension.

Accordingly, the penalty is a 4-days suspension.

CONCLUSION:

Open Driver, Robbie Close, is suspended from after the close of racing on 2 June 2024, up to and including 16 June 2024 – 4 days.