NZ Metro TC 3 September 2021 – R7 (heard 17 September 2021 at Addington) – Ross Cameron
NZ Metropolitan Trotting Club Inc
Addington Raceway - 75 Jack Hinton Drive, Addington, Christchurch, 8024
Addington Raceway, Christchurch
Penalty: Penalty reserved pending submissions.
SUMMARY OF FACTS:
Information No. A12681 alleges that the Respondent, Licensed Open Driver, Ross Cameron, as the Driver of SAGINAW in Race 7, Fahey Fence Hire Mobile Pace, at the meeting of New Zealand Metropolitan TC held at Addington Raceway on 3rd September 2021, failed to take all reasonable and permissible measures near the 200 metres when shifting his drive inwards when there was a clear and unobstructed run to the outside.
The Respondent did not admit the breach and the hearing of the charge was adjourned on race night by the Adjudicator, Russell McKenzie, at the request of Mr Cameron. The hearing took place at Addington Raceway on 17th September.
The Committee had earlier approved Mr Glen Cameron as lay advocate for the Respondent pursuant to clause 23.4 (b) (iii) of the Rules of Practice and Procedure contained in the Fifth Schedule to the New Zealand Rules of Harness Racing.
The Charge and the Rule were read to the Respondent who confirmed that he did not admit the charge.
EVIDENCE OF INFORMANT:
Mr Ydgren produced the following statement of evidence:
 On Friday 3rd September 2021, at the New Zealand Metropolitan Trotting Club race meeting Mr Cameron drove SAGINAW in Race 7, a 1980m mobile race. The horse started from barrier number 4 in the 8-horse field. SAGINAW is part owned and trained by Mr Cameron and he is the horse’s regular Driver.
 Following the running of the race, Stewards viewed the film of the final stages of the race in the presence of Mr Cameron where he was questioned and invited to comment on the race. After considering his comments regarding the way he drove the horse, he was advised that he was to be charged with a breach of Rule 868 (2) in that, in the early stages of the run home, he elected not to shift outwards to obtain clear running but instead moved inwards, resulting in him being held up throughout the home straight and had therefore failed to take all reasonable and permissible measures to ensure that his horse was given full opportunity to win the race or obtain the best possible position and/or finishing place.
 The Information was endorsed by Mr Cameron indicating that he did not admit the breach. He also said he wished to have the hearing of the charge deferred so he could seek advice on the matter.
 After the early rush for positions, SAGINAW ended up in the 1/1 position with approximately 1450m to travel. He remained in that position until rounding the final bend.
 At the top of the straight, the race was being led by SUGAR ME (Blair Orange). Close up in the trail was SMIFFY’S TERROR (Ben Hope) and to his outside, in the parked position and immediately in front of Mr Cameron, was SUPERBASS (Tim Williams).
 At the same time approximately 1 to 1.5 lengths behind Mr Cameron, and 2 horse-widths wider, was AMERICAN SNIPER driven by John Dunn.
 It is from this point that the Stewards have concerns about Mr Cameron’s drive in that, with room available for him to move out from behind the trailing horse to obtain an unobstructed run to the finish, he elected not to do so. The gap to Mr Cameron’s outside was available for a lengthy period. Had Mr Cameron exercised this option, when expected, he would have had more than sufficient time to carry out the shift without the worry of impeding the run of Mr Dunn.
 This demonstrates that the act of Mr Cameron not coming out was not a split-second decision forced upon him by the tactics of other Drivers or the shifting of other horses. Mr Cameron has had a lengthy time to weigh up his options and make the correct decision. The choices were to come out and obtain a clear and unobstructed run to the line or to hold his position (or shift inwards) and rely solely on luck.
 What we see is that Mr Cameron chose the latter option and made the decision to continue to trail SUPERBASS. A gap appeared between that horse and Mr Hope’s horse which was running strongly to the line. As a result, Mr Cameron ended up on the back of the then leader and eventual winner of the race (SUGAR ME) and between Mr Williams’ horse (SUPERBASS) and Mr Hope’s (SMIFFY’S TERROR), who both continued to run on strongly, which meant that Mr Cameron was never afforded clearance and went to the line full of running between horses in front and either side of him over the final 200m.
 Stewards believe SAGINAW was racing tractably throughout the race and certainly around the final bend. The film shows Mr Cameron did not look to his outside at that point of the race, from which it can be inferred he had no intention of attempting to or actually take the gap that was available to him. Instead, he can be clearly seen steering his horse into the gap on the inside that appeared between SMIFFY’S TERROR and SUPERBASS and onto the back of SUGAR ME.
 A post-race Veterinary examination by Dr Donna Williamson, from Premier Equine, did not find any irregularity with the horse.
 The submissions of Mr Cameron, when questioned, centred around his horse allegedly wanting to shift in on the final bend and in the early stages of the run home. In contrast to this, we have the films which show that, on the final bend, Mr Cameron is able to encourage his runner with the whip and rein right-handed. Should a horse be wanting to lay in at this time, we would expect to see a continued pressure on this rein to keep the horse from shifting in. We would also expect to see the horse’s head turned outwards. This also is absent in the films. There is no demonstrable behavioral trait displayed by SAGINAW that backs up Mr Cameron’s assertion.
 If Mr Cameron’s horse is in fact laying inwards, it is to such an insignificant extent that the actions of Mr Cameron to bring the horse wider, amount to no more than one minor pull on the right rein. To accept that act as any Driver taking all reasonable measures to bring a horse wider bears no credence. Mr Cameron is an Open Driver. Any viewer of the race should be entitled to see Mr Cameron make a far greater effort to draw his horse wider and put it into a position to challenge. Mr Cameron by virtue of this class of Licence is now eligible to drive in New Zealand’s biggest races. We say that in this instance his standard of driving could be described as “non-competitive driving”.
 There is an expertly worded quote which sums up this Rule that was delivered in the case of HRNZ v W Higgs (2005). This summation is wholly relevant to the alleged breach in this instance:
It is well established that the test is an objective one and an alleged breach of the Rule falls to be considered by objective standards and not by the subjective reactions of the driver. The Rule requires demonstration of tactics which 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 the those present at the race track, 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 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.
 The no-risk run was available to the outside. There was no run to the inside at the time Mr Cameron took his horse there and the chances of that run opening were negligible. The only reasonable act, which was also permissible due to the lack of an outside runner, was to bring his horse outwards and allow it its chance.
 It is the submission of the Stewards that, had Mr Cameron shifted out from behind SUPERBASS when there was space to do so at the top of the straight, he would have received an uninterrupted run to the line over the final 200m and finished in a higher position than 6th of the 8 runners. Stewards believe this is clearly supported by the official margins for the race which were 3/4 length, neck, nose, nose, and a nose to 6th although the 5th horse and SAGINAW were given the same time. In terms of actual time the winner was timed at 2-23.3 and SAGINAW at 2-23.6. In most cases it is only subjective to hint at an improved finishing position, but in this instance the evidence is overwhelming.
 We do not accept that the horse was hanging inwards. This is not demonstrated on the films. SAGINAW was not beaten out of a better position due to it allegedly hanging inwards, but because Mr Cameron took the wrong option at a crucial time in the race. It is our position that, at best, Mr Cameron has made a significant error of judgement. From the run that Mr Cameron received he should not have been held up. He has an obligation to ensure his runner is given every opportunity to win or obtain the best possible finishing position. Clearly this has not occurred and, in these circumstances, that error is culpable and deserving of sanction. Mr Cameron’s driving has fallen below the standard prescribed by the Rules and that failure in our opinion was considerable.
Mr Ydgren then made a series of observations with particular reference to the race video replays and the statement of evidence. He began by showing a replay of the whole race. Mr Cameron, he submitted, had enjoyed a good run throughout behind SUPERBASS, which had taken him right into the race. Mr Cameron had the fate of his own runner in his own hands, Mr Ydgren submitted. At the request of the Committee, Mr Ydgren showed that point at which, he believed, a run to the outside was no longer available to Mr Cameron. Had he remained on the back of SUPERBASS he would have been able to shift Mr Williams out, even at a late stage in the race (near the 100 metres) by virtue of having an advantage over him. However, he said, at that stage Mr Cameron had already made a decision to shift inwards.
In reply to a question from the Committee as to whether, in his view, SAGINAW finished the race full of running, Mr Ydgren said the horse was “absolutely untested.”
SUBMISSIONS OF THE RESPONDENT:
 Mr Glen Cameron began by producing the following written statement:
“We intend to prove that, due to SAGINAW’s front foot issues and Covid Regulations, SAGINAW was on one rein in the later part of the concerned race, therefore, after Ross Cameron making one effort to shift outwards and feeling the horse unbalance and knowing his history of the horse pacing rough and sometimes galloping in past races, he made all measures to obtain the best possible finishing position by not fighting the horse thereby loosing [sic] several lengths and enhancing the horse’s chance of galloping. This decision was later proven right by the horse pacing rough for a time when going to the inside”.
 Mr Glen Cameron submitted that the Rules had application in normal times. Canterbury had been in COVID Level-3 restrictions up to 31st August. The effect of this was to affect the preparation of SAGINAW for the race on 3rd September, he said.
 SAGINAW has had 36 starts. In 22 of those starts, the Stewards’ report refers to the horse pacing roughly, being warned or galloping. It had had a foot operation in early 2021. Mr Cameron then referred to the videos. Mr Cameron submitted that the horse had “bobbled” and, to have pulled the horse out 1 1/2 carts, knowing that his shoeing was unbalanced, the horse would no doubt have galloped. It was pacing roughly. He agreed that a “normal horse” would be pulling out. The horse’s run looked better because Mr Cameron could not let the horse go, he submitted, although the horse was “pacing all right”.
 This was more of an error of judgement because of circumstances arising from Mr Cameron not being aware of the horse’s problems at the time, which problems have been subsequently rectified. He referred to SAGINAW’s two subsequent starts – a 3rd on 5th September and a win on 10th September.
 Mr Cameron questioned the value of the post-race veterinary check which was not thorough, he submitted.
 The Respondent then read a prepared statement to the hearing. It was inconceivable, he said, from a Trainer’s perspective, that one could tell from a video how much a horse was hanging or laying in. The horse had not had any fast work for over two weeks due to COVID restrictions impacting his preparation. In addition, the horse was not able to be worked in its usual boring pole. He believed that he had the horse the best prepared he could in the circumstances. As for the drive in question, he felt SAGINAW in the final stages of the race getting unbalanced and wanting to run in. Upon turning for home and attempting to get SAGINAW balanced up, it was his intention to take an outside run. He attempted to do so once but, due to the high speed of the race and SUPERBASS beginning to stop and briefly move out, the horse was hanging in due to his foot problems. He had no option but to continue with the horse’s momentum and move towards the inside. Had he not done so, he felt this would have further unbalanced the horse, caused it to go rougher and potentially gallop. Knowing the horse’s tendencies, he had no doubt that this would have hindered his chances of finishing closer in the race.
 The Respondent produced to the hearing a series of x-rays of the feet of SAGINAW, supplied by Veterinary Surgeon, Dr Harriet Bell of Canterbury Equine Clinic. She reported that “both feet look pretty good externally and it was just once seeing the x-rays that I noted the imbalance”. Her report then went on to recommend “the left front is higher on the lateral side so a little more off that edge, the left also needs more heel left on as he is a bit flat through the hoof pastern axis and the right front balance is good but more heel can be taken off, especially as these [presumably, the x-rays] were take soon after shoeing”.
 The Respondent produced the following report from farrier, Nic Grant:
“I have been a qualified farrier for 5 years, shoeing approximately 50 horses per week. In this time I have been shoeing for Mr Cameron and his horse Saginaw, regularly to try to rectify his gait issues.
Saginaw was born with an off-side front club foot, which has affected him throughout his career, often making him difficult to steer, pace roughly and gallop in his races.
On the 16th of August, two days prior to the Level-4 lockdown, Mr Cameron took Saginaw on my advice to his vet Canterbury Equine for x-rays to examine his front feet and joints in an attempt to improve his front feet and shoe balancing, and possibly identify any other issues.
I was booked to re-shoe Saginaw on Thursday, 2nd of September the day after coming out of Level-4 lockdown. Unfortunately, I was unable to honour this appointment due to a large backlog of work. I rescheduled this appointment for Saturday the 4th September.
Mr Cameron discussed with me his concerns with the period of time the shoes had been on as Saginaw was racing on Friday, 3rd September. Saginaw wears cushioning pads under the shoe itself, so can be hard to determine how much growth he had , in particular his club foot , which grows heel at a very fast rate. Although it was slightly longer than usual between re-shoeing, we established he would be OK to race.
However, after receiving the x-rays of the feet on the 6th September, and examining the feet on the 4th September, it was determined his nearside front foot was 5ml [sic] lower than perfect in the heel, and the off-side front club foot 7ml [sic] higher than perfect in the heel.
Had I received the vet report earlier as would be normal practice, I would have recommended Mr Cameron scratch Saginaw from the race on 3rd of September. Because of Covid Level-4 lockdown there was a significant delay in receiving the x-rays and I was denied the opportunity to view them and make this assessment. In my professional opinion after viewing the x-rays and not being able to have the opportunity to make the appropriate changes as outlined as above prior to Saginaw’s race on the 3rd of September. This was a significant reason for him getting on one rein and proving difficult to steer towards the outside.”
 Mr Ross Cameron conceded, in response to a question from the Committee, that there had been an opportunity for him to pull SAGINAW for quite some distance. It had been his intention to do so but the horse had got on one rein, he said. He would have needed to restrain off the back of SUPERBASS to move which, he believed would have cost him 3-4 lengths. He had shifted the horse to the inside at full momentum but it had still gone roughly.
 Mr Ydgren asked Mr Cameron how badly SAGINAW had been laying in on the bend. He responded that the horse was “getting stronger and stronger” on the rein. He could feel it in his arms, he said, although it may not be apparent on the videos. The horse’s head could not be seen to turn out because of the boring pole, Mr Cameron said. He did not believe that there had been an opportunity to pull the horse out earlier. The horse had cost himself on several other occasions of finishing in a higher placing. Mr Ydgren observed that this has not been mentioned in Stewards’ reports.
 Mr Glen Cameron closed with the submission that the present situation would not have arisen but for COVID-19 and the Respondent ought not to be punished for this. He urged the Committee to take this into account.
REASONS FOR DECISION:
 A number of principles emerge from the various cases decided under Rule 868 (2). These principles include the following:
(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.
 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.
 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.
 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.
 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. Essentially, we must be comfortably satisfied that, in the circumstances of the case and viewed objectively, the manner in which Mr Cameron drove his horse fell well short of what would reasonably be expected of a Driver in his position.
 Turning to the facts of this case, the Committee heard detailed and helpful submissions from both parties. Much evidence was presented on behalf of the Respondent as to the effect of the COVID lockdown and the horse’s shoeing problems. However, the issue for this Committee to determine is a simple one – did Mr Cameron take all reasonable and permissible measures from the 300 metres to ensure that his horse, SAGINAW, was given full opportunity to win or obtain the best possible place in the field when not taking a run to the outside of SUPERBASS, but allowing SAGINAW to take a run to the inside?
 In addressing this issue, the Committee makes the following findings of fact:
(i) SAGINAW had enjoyed a good run in the one-out, one-back position and still held that position as the field turned into the home straight;
(ii) Mr Cameron had the opportunity, and it was both reasonable and permissible for him, to draw the horse out from that position and obtain a clear and unobstructed run to the finishing line;
(iii) That opportunity was available for a considerable distance;
(iv) Mr Cameron was able to cross the reins and activate gear; and
(v) SAGINAW shifted in for an inside run and was denied a run thereafter, finishing a close 6th, officially 1.7 lengths from the winner;
None of the evidence supporting the above findings was disputed by the Respondent, so we take them as being agreed.
The Committee also finds that the shift to the inside for a run was a deliberate move, and the horse did not hang its way in and, further, in the run home, SAGINAW was steering straight and showed no tendency to run down into SMIFFY’S TERROR.
 From this point of agreeing on the above facts, the positions of the parties varied.
 Mr Ydgren submitted that SAGINAW was not hanging inwards, and this was supported by the video evidence. He submitted that the horse was “racing tractably” and Mr Cameron did not look to his outside but, instead, steered the horse into a gap on the inside. He submitted that on the final bend, Mr Cameron was able to encourage SAGINAW with the whip and rein right-handed, and activate gear. Had the horse been wanting to lay in, one would have expected to see continued pressure on the right rein to keep the horse from shifting in, he said. No such effort was apparent from the video replays, he said.
 Mr Ydgren relied largely on the video evidence which was both clear and compelling.
 On the other hand, Mr Cameron submitted that SAGINAW had been pacing roughly and difficult to steer and wanting to run in, and he feared that it would have broken had he attempted to pull the horse out for a run.
 The defence to this charge put forward by Mr Cameron revolved around, firstly, the difficulties posed by COVID-19 restrictions and, secondly, SAGINAW’s hoof problems. These matters were argued at length and very eloquently by Mr Glen Cameron on the Respondent’s behalf. The Committee does not doubt that these difficulties existed but, at the end of the day, it is the quality of the Respondent’s drive that must be the centre of the Committee’s focus and not the performance of the horse.
 Mr Ydgren referred the Committee to an extract from the Judicial Committee in the Higgs case which is authoritative, having been cited in many subsequent cases under the Rule. It states that “the test is an objective one and an alleged breach of the Rule falls to be considered by objective standards and not by the subjective reactions of the Driver”.
 The application of the objective test is well put by the pragmatic approach of The Hon Justice Haylen, in an Australian case, when he said, in the context of a case under the corresponding Rule, “a reasonable and knowledgeable harness racing spectator” might well have asked, referring to Mr Cameron’s drive, “What on earth is he doing?” or “My goodness, look at that!” That is the objective test.
 The Respondent has told us that he feared that, had he attempted to steer it out, the horse would have most likely galloped. This may have been a reasonable and genuine belief on his part. That is subjective. We must disregard the Respondent’s subjective intent and focus on objective intent, which is the intention of a reasonable and competent Driver under the same circumstances, and what tactics could reasonably be expected of him or her by a reasonable and knowledgeable viewer. Put another way, the Committee is required to view the circumstances from the standpoint of a hypothetical reasonable Driver, and not considering what the Respondent was thinking, or any predisposition of the horse.
 Applying this test to the facts of this case, as we have found them, the Committee is comfortably satisfied that the manner in which the Respondent drove SAGINAW, at the critical stage of this race, fell well short of what would reasonably be expected of a Driver in that position. The question is did the Respondent display culpable behaviour and was his drive blameworthy viewed on an objective basis? The Committee finds that it was. Was the manner in which he drove the horse reasonable to ensure that he met the obligation to ensure that the horse competed in the finish of the race and was not denied the opportunity to compete? The Committee finds that it was not reasonable. Was it reasonable for the Respondent to take the available run to his outside? Yes. Was a clear run to the outside of SUPERBASS permissible? It was, most certainly.
 The Committee, therefore, is comfortably satisfied that, on this occasion, the Respondent has failed to take all reasonable and permissible measures during the relevant part of the race and, accordingly, we find the charge proved.
The charge is found proved.
The Committee requires both parties to file written submissions on penalty with the Racing Integrity Board. The Applicant is to file those submissions by not later than 5.00pm on Monday, 27th September 2021, and the Respondent’s submissions in reply are to be filed by 5.00pm on Monday, 4th October 2021.
Decision Date: 23/09/2021
Publish Date: 24/09/2021