Waikato BOP H 10 August 2023 – R7 – (heard 24 August 2023 at Cambridge) – Dylan Ferguson

Introduction:

Following the running of Race 7 on the 10th of August 2023, an Information was filed with the Adjudicative Committee alleging that Mr Dylan Ferguson breached Rule 869(2) the Whip and Rein Regulations, in that he used his whip in more than a wrist flicking motion in the run home driving SUPER DUPER DUDE. On the evening of the 10th of August, Mr Ferguson endorsed the Information that he admitted the breach, but did not wish to be present. Mr Ferguson advised the Stewards that he had horses he had to attend to and “it was an animal welfare issue”. Mr Ferguson was unavailable to attend a hearing later in the evening and on that basis, the Adjudicative Committee opened and adjourned the hearing to a time where Mr Ferguson was able to be present. Prior to the re-convened hearing date (24/8/23), Mr Ferguson advised the Stipendiary Stewards that he wished to change his plea and defend the charge and that he would have a support person to assist him.

Summary of Facts:

The hearing commenced with Mr Ferguson advising that he wished to change his plea to defend the charge of using his whip in more than a wrist only flicking motion in the run home (Rule 869 (2)).

Rule 869 provides that:

(2) No Driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.

 The Adjudicative Committee outlined the process for the hearing and referred to the specific portion of the Whip and Rein Regulations that were applicable, these were:

3.1 A driver may only apply the whip in a wrist only flicking motion whilst holding a rein in each hand with the tip of the whip pointed forward in an action which does not engage the shoulder

3.2 For the purpose of clause 3.1 “wrist only flicking motion” means:

3.2.1 Ensuring no force is generated by the use of the elbow or shoulder when applying the whip

3.2.2 The forearm is not raised beyond 45 degrees relative to the racing surface

3.2.3 Not applying the whip with Overt force

Informants Submissions

Stipendiary Steward S Mulcay commenced the hearing by outlining the reasons as to why the hearing had been adjourned from the night of the alleged breach to the 24/8/23 (this is covered in the Introduction and doesn’t need further explanation).

Mr Mulcay advised that the Stewards had identified that Mr Ferguson’s whip use in Race 6, the race preceding the charge, had come under notice and had advised the outside Steward to raise this with Mr Ferguson to effectively put him on notice. This did not constitute an official warning, but would be recorded in the Stewards’ Reports as Mr Ferguson having been spoken to advisedly.

Mr Mulcay said that having reviewed R7, the Stewards made the decision to charge Mr Ferguson with a breach of Rule 869(2) – Breach of Whip and Rein Regulations. Prior to contacting Mr Ferguson in relation to the alleged breach, confirmation was sought from the outside Steward as to whether he passed onto Mr Ferguson, that his whip use in the race prior was of concern. The outside Steward advised that he had forgotten to pass this information onto Mr Ferguson.

Mr Mulcay referred to the video recording and identified SUPER DUPER DUDE, and his Driver Mr Ferguson. He said that it was Steward’s submissions that Mr Ferguson applied 4 strikes of the whip that fell outside of the Whip and Rein Regulations. Mr Mulcay slowed down the video and put forward that each of the 4 strikes in question had Mr Ferguson’s arm at more the a 45 degree angle, therefore breaching the Rule. He said that he had spoken to Mr Ferguson previously and advised him that where he gets himself into trouble, is where he lengthens his rein, thus giving him more room to breach the Rule (by engaging his elbow).

Questions from Respondent

Mr Lawson queried what part of the Regulation had Mr Ferguson breached. Mr Lawson said that clearly overt force had not been applied, but it was hard to argue that on the first strike, Mr Ferguson hadn’t had his forearm raised beyond 45 degrees. Mr Mulcay said that in his opinion, all that was allowed was for there to be a wrist flicking action, the Driver needed to ensure that the forearm was straight and parallel to the track, with the wrist applying the whip in a hinged motion.

Respondents Submissions

When questioned by Mr Lawson, Mr Mulcay said that Stewards believed the breach to be in the low range, as it hadn’t continued on for more than 50m.

Mr Lawson expressed some concern that the Stewards had not passed onto Mr Ferguson immediately after his drive in the 6th Race, that his whip use was “on notice” – he said that by the very nature of the warning, it would likely have meant that Mr Ferguson would have adjusted his style and potentially not be facing a charge in the very next race. Mr Mulcay contested this point and referenced the fact that irrespective of whether a Driver has been spoken to advisedly or not, it is their responsibility to drive within the Rules.

Mr Lawson referred to the introduction of the Whip and Rein Regulations, and commented that these were introduced due to the need to meet Animal Welfare expectations and meet “Social License” requirements of the Industry. He said that any breach “should be somewhere near what is considered to be breaching Animal Welfare Standards” and that’s what the Adjudicative Committee needed to consider.

Mr Lawson and Mr Ferguson then showed 3 videos. Mr Lawson said that the purpose of showing the videos, was to identify the fact that the Stewards had discretion as to whether to charge or not charge.

The first two videos showed what they considered to be breaches of the Whip Rule, where no charges were laid against the Drivers. Mr Ferguson and Mr Lawson suggested that on these occasions, Stewards had used their discretion not to charge, despite in their view, the video suggesting the Drivers had breached the Regulations.

The third video was of a race where the Driver successfully defended a charge of the Whip and Rein Regulations. Mr Lawson put to the Adjudicative Committee that this breach was very similar, if not identical, to Mr Ferguson’s breach, in particular the first strike and on that occasion, the Adjudicative Committee dismissed the charge.

Mr Lawson said that Mr Ferguson had spent some considerable time on the “sideline” due to whip breaches and had used that time to watch a number of races in order to improve his whip use. As a result, he had seen instances where he had identified what he thought to be whip breaches, only for charges not to be laid. Mr Ferguson inferred on that basis, he then believed that the whip use shown in the videos was acceptable and suggested that his whip usage was no worse.

Mr Lawson said that aside from the first strike, Mr Ferguson was trying to slap the horse with the reins and any strikes after the first, was in a flicking motion. Mr Lawson said “you could argue that Mr Ferguson’s first strike engaged the elbow and there could have been use of the shoulder, but the other strikes where more rein than whip.”

Mr Lawson closed by saying that all they were seeking was consistency and that it was up to the Adjudicative Committee to determine the acceptable standard.

Informant Summing Up

Mr Mulcay commenced by saying that unquestionably there would have been occasions where breaches had been missed. He said that ultimately, it was for the Adjudicative Committee to decide whether or not the Whip and Rein Regulations had been breached. He said the Stipendiary Stewards’ entire case rested on the fact that in their opinion, Mr Ferguson had applied the whip on 4 occasions in more than a wrist flicking motion.

Respondent Summing Up

Mr Lawson said that he understood that on occasions charges might get missed and that Mr Ferguson, due to his previous breaches, may attract more attention to his drives. He said that Mr Ferguson would likely concede that his first strike did fall outside of the Regulations, however all other strikes didn’t meet the necessary level for them to be considered a breach.

Decision and Reasons:

After considering all submissions and viewing the video evidence independently, the Adjudicative Committee was comfortably satisfied that a breach of the Whip and Rein Regulations had occurred and upheld the charge. It was the Adjudicative Committee’s opinion that Mr Ferguson had used the whip on no less than 2 occasions that fell outside of the Regulations, specifically the first two strikes in the home straight.

Submissions for Penalty:

Mr Mulcay produced the Respondent’s record, which indicated 3 previous breaches of the Rule in the previous 6 months.

He said that this was Mr Ferguson’s 4th breach and his last breach, albeit a mid-range breach, attracted a penalty of 6 days. He said that Mr Ferguson’s record was of concern. He said that Mr Ferguson had advised the Adjudicative Committee at a previous hearing that he would seek some assistance to improve his whip use, but obviously this had been unsuccessful – albeit his drives the week before, were noted as encouraging.

Mr Mulcay said that a 2nd breach of this Rule under the RIB Penalty Guidelines had a starting point of a 3 day suspension, but there was no starting point listed for a 4th breach. He said after taking everything into account, the Stipendiary Stewards believed a suspension of no less than 6 days would be appropriate, he added this was not an uplift on the previous breach, which was also 6 days.

Mr Lawson said that they realised the penalty would be a suspension, however thought that 6 days was excessive. Mr Lawson acknowledged that Mr Ferguson had a poor record, but wanted the Adjudicative Committee to consider that it was a low level breach and the number of infringing strikes was not excessive.

He said Mr Ferguson was under a lot of pressure and knew he needed to improve his whip use. He suggested that this will be the last time Mr Ferguson will be in the room for a whip breach for at least the next 6 months, and suggested that a penalty in the vicinity of 4 days would be more appropriate.

 Reasons for Penalty:

After consideration of the evidence from all parties concerned and viewing the race films of the concluding stages of the race, the Adjudicative Committee assessed the breach as low level.

A low-level breach is defined as when a driver inadvertently reverts to the old style (freehand, loose reining and or more than a flicking motion) but promptly takes corrective action to return to a compliant style.

A low-level penalty range is a 3 day starting point for a second breach.

Mr Ferguson’s record is an aggravating factor and for that reason, a 2-day uplift is applied.

In mitigation, the Adjudicative Committee considered the following factors:

Mr Ferguson should have been advised in the race prior that his whip use had been of some concern.

Having viewed Mr Ferguson’s previous breaches, he is clearly making an effort to improve his whip usage to remain within the Rules.

There is a disproportionate number of Northern race driving opportunities vs Southern driving opportunities; this translates to Northern Drivers receiving longer periods of time suspended as opposed to their Southern counterparts for the same offences.

Having considered the 3 points of mitigation, the Adjudicative Committee determined that a reduction in penalty of one day was appropriate.

The Respondent sought a 7 day deferment to any proposed suspension.

Having considered all factors, the Adjudicative Committee deemed a 4 day suspension to be an appropriate penalty.

Conclusion:

Mr Ferguson is granted a deferment and is suspended for a period of 4 days, commencing after racing on the 31st of August and conclude after racing on the 24th of September (the 24th of September is a meeting conducted at Banks Peninsula, which would ordinarily not be included in a Northern Driver’s penalty. Mr Ferguson was able to provide evidence that he intended to drive at this meeting as he had commitments as a “Blue September Sponsored Race Driver”).