Oamaru HRC 13 December 2023 – R8 (heard 6 January 2024 at Cromwell – Reserved Decision) – Brad Williamson

Mr McIntyre alleged that Mr B Williamson (TABASCO) drove improperly in Race 8 when restraining to allow an outside runner to shift inwards to take up a position one off the fence.

Mr McIntyre demonstrated on the videos that Ms K Tomlinson, who was driving the Williamson Stable runner, CLASSIC MISSION, had drawn 7 on the mobile gate, and Mr Williamson, driving TABASCO, 11. Shortly after the start, there was a disruption near the rear of the field when EL CHICO broke. Mr Williamson ended up one out in the running with Mr Cox in front of him. Ms Tomlinson was posted 3-wide and can be seen on the videos to be looking on a number of occasions to her inside. Mr McIntyre stated there was no run for her behind Mr Cox. She could not ease Mr Williamson down as there was a horse to his inside, despite her having a clear advantage.

Mr McIntyre demonstrated that after the crossing, there was a length and a half between Mr Cox and Mr Williamson and Ms Tomlinson was able to drop into this space. Mr Williamson had lost the back of Mr Cox. He said the obligation upon Mr Williamson was to drive in a competitive fashion and to hold the back of Mr Cox. He added that the gap between Mr Cox and Mr Williamson was widening before the crossing and Ms Tomlinson had been afforded the opportunity by Mr Williamson to get on to the back of Mr Cox in breach of the Rules.

Mr Williamson commenced his defence to the charge by stating he did not believe he was obligated under the Rules to chase his horse up. He was not hunting his horse forward and the only time he restrained it, was prior to the crossing on the one occasion. Mr Cox had taken advantage of the interference to slide in in front of him. He had no problem with this. He believed the pace of the race at the time was torrid and everyone was struggling to keep up. He believed he had eased his horse ever so slightly before the crossing. He agreed in doing so, he had allowed enough room for the outside runner to shift in.

Mr Williamson emphasised that his horse had never raced on grass before and had never previously experienced a crossing. He said TABASCO had previously been negatively affected by being driven positively at the start and he believed his driving “did not affect anything”. He was just driving the horse “normally”. His driving style had not changed, and he had ended up winning the race and Ms Tomlinson had finished second last. He reiterated that it was a fast tempo, and he would have had to chase up TABASCO to hold Ms Tomlinson out. He did not want to force his horse before the crossing. He did not let Ms Tomlinson in on purpose.

Mr Williamson said he had only eased his horse prior to the crossing and had taken a good hold of its mouth. He was concerned it might break. It was a 3 year-old and reiterated it had never raced on grass before. When questioned by the Adjudicative Committee, he said the horse could gallop when being worked but it never had in a race. There was no crossing on the track at home and TABASCO had never been worked on the grass. Mr McIntyre informed the Adjudicative Committee that the horse had had 17 starts and confirmed this was its first start on grass.

Mr Williamson commented he had chased the horse early with the stick at Addington and it had stopped. It had raced poorly and below expectations during Cup week. It was a horse that could not work at both ends of the race, so shaking the horse up early was not a good thing to do, especially with such a hot tempo.

Mr McIntyre responded that the Stewards believed the pace was not excessive, especially in the one out line. Mr Cox was just sitting in the sulky and was only in front of Mr Williamson because of the interference from the galloping horse. There was no requirement on Mr Williamson to shift inwards as there was a horse to his inside. He summed up by stating Ms Tomlinson was not in a position to shift Mr Williamson inwards had she tried to push him down. The Stewards believed that Mr Williamson was not driving in a competitive manner as he had eased his horse, which did not have tractability issues, to allow Ms Tomlinson to shift in. Mr Williamson’s actions were not a good look for Harness Racing.

Mr Williamson said the videos evidenced that he was not the only person not keeping up. No one was keeping up. There were 2 or 3 gaps in the field at the time and this supported his contention that it was a quick tempo. His intention was to get his horse around safely and to win the race. This was exactly what he had done. When questioned by the Adjudicative Committee, he said not a word had been spoken between him and Ms Tomlinson. He agreed the videos showed that she had looked around a number of times to see if she could slot into the 2-wide line.

Mr McIntyre responded that the fact the field was relatively well-spread was not relevant. Ms Tomlinson’s chances had been improved by her not having to sit 3-wide.

Decision

Rule 869(3)(f) provides that: “No Driver in any race shall drive – (f) improperly”.

The videos evidence that EL CHICO broke shortly after the start which disrupted the field. Mr Cox, possibly taking advantage of this, settled in the 2-wide running line ahead of Mr Williamson. Ms Tomlinson was left out 3-wide and can be seen to be looking to get into the 2-wide line. Shortly before the crossing, Mr Williamson, who was racing behind Mr Cox in the 2-wide line, eased his horse. This created sufficient space shortly after the crossing for Ms Tomlinson to slot in behind Mr Cox and ahead of Mr Williamson.

Mr Williamson does not dispute the fact that he eased TABASCO. As he said, he took a good hold of its mouth. The issue which underlies the charge is why did he do this. Was it to allow CLASSIC MISSION, which was a Stable runner driven by Ms Tomlinson, to shift inwards when it was posted 3-wide into the 2-wide line and obtain cover, as Mr McIntyre alleges, which would clearly be in breach of the Rules, or was it to settle his horse prior to the crossing in the knowledge that this was the first time the horse had raced on grass and he was concerned it might break from its gait.

Mr McIntyre states that Mr Williamson should have been driving his horse more positively and in a competitive manner by trailing up behind Mr Cox, and not restraining and allowing Ms Tomlinson into the one out line. Mr Williamson has said there was no talking between him and Ms Tomlinson. He points out that he was concerned to settle his horse, both because TABASCO is not able to work at both ends of the race and the crossing was coming up. He has emphasised he was successful in his endeavours as the horse went on to win the race.

The issue of the tempo of the race at this time is significant. While it may not have been “hot” as Mr Williamson alleges, it is clearly a solid pace and there are some gaps in the field as the horses settle into a racing pattern. After Ms Tomlinson shifts into the gap between Mr Cox and Mr Williamson, he continues to trail the horse in front, which is now Ms Tomlinson and not Mr Cox of course, and is not hard up against the cart. This gives some support to Mr Williamson’s contention that he was allowing his horse to find its feet early in the race and that he did not want to hunt TABASCO up.

“Improper Driving” has been defined by an Appeals Tribunal in Cox (6 June 2023):  “Improper Driving can mean unseemly, unwarranted, or not in accordance with the normal Rules of conduct expected of a Licence Holder or Driver competing in a race. “Improper Driving” is something improperly done, connected with the act of driving. “Improper Driving” involves something being done which ought not to have been done, or something is omitted to have been done which ought to have been done and which is judged to be wrong, but not necessarily within the description of careless, dangerous, or reckless.”

A briefer definition is in Mangos (2 June 2023) where it is stated at [22]: “Improper means behaviour that is unwarranted, unacceptable, irregular and not in accordance with accepted standards of conduct expected of a Driver.”

The charge of Improper Driving is one of the more serious race related charges. The standard of proof is on the balance of probabilities but with regard being had to the seriousness of the breach. This issue is also addressed in Mangos. The Adjudicative Committee stated at [23]-[24]:

The standard of proof is being on the “balance of probabilities” in civil and disciplinary proceedings such as this.  Mr Lawson contended that where, as here, the allegation was serious and the charge was at the high end, a flexible or higher degree of proof was required.  The Adjudicative Committee told him that it was mindful that the seriousness of the allegation required the Committee to be comfortably satisfied and sure that it had been proved.  But it emphasised that the law in New Zealand, explained by the majority in the Supreme Court Decision of Z v Dental Complaints Assessment Committee (2008) NZSC 55, is that no intermediate standard of proof (between the criminal beyond reasonable doubt and the civil, balance of probabilities) exists.  But, as the Adjudicative Committee explained at the hearing, it is the quality and cogency of the evidence that is relevant to meet the standard in serious cases where serious repercussions may follow.  That is, the more serious the charge and consequences, the more cogent the evidence should be.  The Supreme Court said that “flexibility” being built into the civil standard, requires greater satisfaction in some cases:

“Rather the quality of the evidence required to meet that fixed standard may differ in cogency, depending on what is at stake [101] and the civil standard will accommodate serious allegations through the natural tendency to require stronger evidence before being well satisfied to the balance of probabilities standard.”

All that that means is that the Adjudicative Committee had to be sure, from the cogency and force of all the evidence, that the charge had been established to its comfortable satisfaction on the balance and probabilities, but to a high degree and that the claimed defence was untenable.  But the standard is still not the criminal standard or something “in between”.

Mr Williamson’s explanation of his actions is plausible and cannot be discounted. His defence to the charge, to use the wording in Mangos, cannot be said to be “untenable”. It was the first time the horse had raced on grass. That said, the horse was not a Raceday novice, it was its 17th start. However, Mr Williamson has raised sufficient doubt that rather than his behaviour being “unwarranted, unacceptable, or irregular”, there was a genuine race-related reason for easing his horse before the crossing.

Mr McIntyre is right when he says the incident is not a good look for Harness Racing and the Adjudicative Committee can understand why the charge was laid, but it cannot find the charge proved on this ground.

The Adjudicative Committee is not comfortably satisfied on the balance and probabilities, but to a high degree of being sure that there is evidence of behaviour that is not in accordance with accepted standards of conduct expected of a Driver, such as to establish the charge of Improper Driving. In these circumstances, the charge is not proved.