Rangiora HRC 7 May 2023 – R10 (heard 12 May 2023 at Addington) – Jonny Cox

BACKGROUND:

Following the running of Race 10, Tyre General Handicap Pace, Open Driver, Jonny Cox, denied a charge that, as the Driver of JUST MICHAEL in the race, he drove improperly passing the 1500 metres when striking the trailing KIWI HERO (Robbie Holmes) on several occasions with his left fist.

Rule 869 provides as follows:

(3) No driver in any race shall drive:

     (f)   improperly

EVIDENCE:

Stipendiary Steward, Shane Renault, read to the hearing a definition of “improper driving:

“Improper driving” can mean unseemly, unwarranted or not in accordance with the normal rules of conduct expected of a licenceholder 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.

Mr Renault said that the charge involves an incident near the 1500 metres. He showed a video replay of the relevant part of the race and pointed out JUST MICHAEL, driven by the Respondent, racing in the one-one position approaching the home turn for the bell lap. He also pointed out KIWI HERO, driven by Mr Holmes, trailing the Respondent, racing keenly and under a strong hold. He then pointed out the Respondent turn his head to the side and look around.

Mr Renault said that it was the concern of the Stewards that, for a distance passing the 1500 metres, the Respondent had used his left fist to strike the horse behind him, which Stewards deemed to be an improper act – striking the horse on the head three times and, on one occasion, on the chest. Mr Cox was being trailed closely by the horse behind and had turned his head to try to get it off his back and, in the end, had struck the horse. It was a “terrible look for racing”, Mr Renault submitted. Such actions during a race, or at any stage, cannot be condoned, he said.

Mr Renault then made mention of the Code of Welfare for Horses and Donkeys under the Animal Welfare Act. That provides:

20  Persons must not strike an equid on its head

• A person must not strike an equid on its head.
• A person who fails to comply with this regulation commits an offence and is liable on conviction to a fine not exceeding $1,500.
• The offence in subclause (2) is an infringement offence with an infringement fee of $500.

Mr Renault said that there were things that a Driver could do to stop the horse behind trailing too closely, but the Respondent’s actions were not one of them and constituted improper driving. Any person, anywhere in the world, could watch this race and see what the Respondent had done.

The Respondent showed a video replay from the 2200 metres to illustrate that Mr Holmes was following too close. He showed that the horse’s head was inside his helmet which, he alleged, happened on several occasions down the back straight. Just after the 1000 metres, he said, he leaned back to get the horse off his back. It had been striking his wheel and the back of his sulky. It was getting in a dangerous position, he said, and he did not wish a fall to occur.  He believed that Mr Holmes should have taken his runner out before this happened. The Respondent added that, in the circumstances, he was unsure of what else he could have done.

Mr Renault said that Mr Holmes, when asked, had said that he had had no concerns at the time, and had not heard the Respondent call to him. Had he realised, he would have pulled his runner out and gone forward. Stewards would have had no concerns that it was anything out of the ordinary, Mr Renault said.

Finally, Mr Renault said, it was not the Respondent’s concern what was happening behind him. The Respondent ought not to have turned around and contacted Mr Holmes’ runner as who was to know how it would react, he said. It could gallop and fall. The Respondent’s actions were certainly outside the bounds of the Rules, he submitted.

DECISION:

The charge is found proved.

REASONS FOR DECISION:

The Respondent was clearly frustrated by Mr Holmes’ runner which had, he said, been annoying him for some distance by following too close. In fairness to the Respondent, some of that could be seen on the video replays that the Adjudicative Committee was shown.

However, the actions that the Respondent took to attempt to stop the horse annoying him, were completely inappropriate and improper within the definition put to us by Mr Renault.

The decision that he made was the worst decision that he could have made. His striking the other horse about the head and chest was plainly visible on the replay and, unfortunately, also plainly visible to the viewing audience on the Trackside television channel.

It, having been clearly proved that the Respondent did strike the horse on several occasions with his left fist, as alleged, the Adjudicative Committee then had to determine whether that amounted to “improper driving”.

The Adjudicative Committee was clearly satisfied that the Respondent’s venting his frustration by striking the trailing runner on several occasions with his fist, amounted to improper driving. By any definition, his actions were improper. It could never be proper or appropriate to strike another runner in the manner he did, no matter how frustrated he was, or how concerned he may have been about the likelihood of interference, or even a fall, resulting from that runner following too close.

The Adjudicative Committee noted the provisions of the Animal Welfare Code to which it was referred to by Mr Renault, confirming that a horse must not be struck on the head. That prohibition certainly has application to Harness Racing.

SUBMISSIONS FOR PENALTY:

Stipendiary Steward, Shane Renault, said that the Respondent has had 167 drives this season and, last season, had 291 drives. He is a South Island Driver.

The starting point under the Penalty Guide is an 8-days suspension. It is difficult to assess the seriousness of the breach, because such breaches are rare. Aggravating factors were the look/perception to the viewing public, Mr Renault said the Respondent has a good record. The submission of Stewards for penalty was for a suspension of not less than 6 days, Mr Renault said.

The Respondent maintained that his actions were “a safety thing”, notwithstanding the charge having been found proved. He admitted that, although his reaction may not have been the best, he felt at the time that he had no other option.

The Respondent requested a deferment until after 19 May next.

REASONS FOR PENALTY:

The RIB Harness Racing Penalty Guide (February 2023) suggests a starting point for penalty of an 8-days suspension. That is a significant penalty. Factors to be considered in relation to penalty are the animal welfare aspect of the breach, the Respondent’s previous good record and some allowance for Mr Cox’s position that he had been frustrated and provoked into his actions by the trailing horse. That is not to say, of course, that his actions were justified.

Weighing up the totality of those factors, the Adjudicative Committee had decided that the appropriate penalty in this case is a suspension of 7 days.

CONCLUSION:

The Respondent, Open Driver, Jonny Cox is suspended from after the close of racing on 19 May 2023, up to and including 1 June 2023 – 7 days.