Waikato BOP H 27 April 2023 – R7 (heard 2 June 2023 at Cambridge) – Brent Mangos

Reasons for Decision of Adjudicative Committee

1. After the running of Race 7 at the Waikato Bay of Plenty Harness meeting at Cambridge Raceway on 27 April 2023, Mr Mulcay, Senior Stipendiary Steward, presented an Information charging Mr B Mangos with Improper Driving in breach of Rule 869(3)(f).

2. The hearing of the Information was adjourned to a date to be fixed as Mr Mangos was not then able to be formally interviewed or see the race films.  Mr Mangos was later served with the Information on 11 May 2023.  At that stage, he had not seen the raceday judicial films.  He said he intended to defend the charge.

3. The Information was heard at Cambridge Raceway on the afternoon of 2 June 2023.  Mr Mangos was ably assisted by Mr R Lawson.  Both had the opportunity of seeing the race films earlier that afternoon.  The Adjudicative Committee offered Mr Mangos and Mr Lawson an adjournment if they felt that they needed more time to prepare but Mr Lawson advised that that was not necessary.  He said that the films spoke for themselves and the defence Mr Mangos was to advance was simply that what was shown arose through “bit gear failure”.  That is, it was without any fault or intent on the part of Mr Mangos.

4. After receiving evidence from Mr Mulcay, Mr McIntyre (Stewards on the night), Ms Chilcott, (the Driver of the horse affected), Mr Mangos, and viewing the several race films (side on, head on, frame by frame, and from a distant back straight), as well as receiving submissions from Mr Mulcay and Mr Lawson, the Adjudicative Committee found the charge to have been proved.  Submissions as to penalty were received from both Mr Mulcay and Mr Lawson, following which the Adjudicative Committee imposed a penalty on Mr Mangos of a suspension for 6 days of Northern meetings commencing at the conclusion of racing on the present night of 2 June 2023 and ending at the conclusion of racing at the Auckland Trotting Cup meeting on 14 July 2023.  The Adjudicative Committee advised that it would deliver its full reasons in writing, which it now does.

Reasons

5.  Rule 869(3)(f) provides, where relevant, that:

“No Driver in any race shall drive –

…….

(f) improperly”

“Race” is defined in Rule 105 as meaning “a trotting or pacing race or competition whether Licensed under the Racing Industry Act 2020 or not”.

For the purpose of Rule 869(3), “the “race” shall include the preliminaries, the starts, and time period after the finish whilst the horse remains on the racetrack.” [Rule 869(9)].

6.  The Information alleged that Mr Mangos, the Driver of the horse “TREACHEROUS REIGN” in Race 7 “drove improperly entering the turn after the finish of the race by directing his gelding outwards forcing “MAHIA DREAMIN” (N Chilcott) wider on the track”.

Evidence and Factual Findings

7.  Mr Mulcay presented the race films, side and head on.  He presented a written statement setting out what he said the race films depicted.  He said that “TREACHEROUS REIGN” had initially raced 3 and then 4 back on the marker line during the 2700 race.  Throughout the run home, it was unable to secure clear racing room and finished 4th with MAHIA DREAMIN, driven by Ms N Chilcott, 3rd, 0.4 length ahead of Mr Mangos’ horse.

8.  Mr Mulcay expressed the opinion that Mr Mangos had unsuccessfully attempted to shift “MAHIA DREAMIN” wider on the track on several occasions during the run home but Ms Chilcott had been in a position to resist any shift and retain her line to which she was entitled, before finishing 3rd.  Mr Mulcay said he had observed the race on the “hawkeye” race films in the Stewards’ Room and was advised by Chief Steward Mr N McIntyre (who had observed the race from the Judge’s area in the grandstand) that he had seen “TREACHEROUS REIGN” shift outwards when entering the turn after the finish line, so as to force MAHIA DREAMIN to the outside of the track.  Mr McIntyre reported “that from his observations, Mr Mangos also waited with his horse for Ms Chilcott to return to scale and directed some comments (which he could not hear) towards her as she drove past en route to the stabling area”.

9.  The Yard Steward, Mr Van Kan, did not give evidence, but it was accepted that he, when back at the yard, advised the Senior Steward by telephone that Mr Mangos volunteered to him an excuse that the extreme outward movement occurred because of a gear/bit failure issue.  Mr Van Kan was requested to direct Mr Mangos to present himself to the Stewards’ Room so as he could be interviewed and dealt with in any inquiry.  Mr Mangos was tending to horses about to leave the course so a detailed examination of the films by, and questioning of, him could not then occur.  He was directed to attend before the Stewards the following day at the Auckland Trotting Club meeting.  The Adjudicative Committee records that Mr Mangos said to Mr Van Kan that he was “held up throughout the run home so did not activate the deafeners” (as this was recorded in the Steward’s Report).

10.  Mr Mulcay’s evidence was that when Mr Mangos was interviewed the next day, he said a “jawbreaker bit”, (on the horse’s mouth) shifted near the 100m mark which resulted in his having little control in steering his horse, which shifted up the track towards “MAHIA DREAMIN” when entering the turn after the finish.  Mr Mangos further said he felt Ms Chilcott had “driven dangerously” by pushing him back in which had placed his horse in a precarious position close to an inside horse being driven by Mr Z Butcher.  Mr Mangos then said he had directed comments to Ms Chilcott along the lines that she had picked on the wrong Driver and she would not be getting any room from him in future if she should need it.

11.  Mr McIntyre’s evidence was that he observed Mr Mangos to be “held up in the home straight” when attempting to force a run.  Approaching the bend out of the straight after the finish, he shifted TREACHEROUS REIGN towards Ms Chilcott’s horse forcing it away towards the outside fence, so as to be close to it, requiring her to pull up to a standstill.

12.  Mr Lawson said he did not need to address questions to either Steward as the defence was simply that the claimed cause of the movement was gear failure and unavoidable by Mr Mangos.

13.  Ms Chilcott’s evidence was that after the finish, she experienced Mr Mangos’ horse “veering off” towards her, which led her to think “I might be in a bit of trouble”.  She said she could not see whether Mr Mangos was in any difficulty, and “just did not know”.  He never said anything to her.  But upon returning to “scale” she felt he was “angry about something – a bit abusive and visibly upset”.  Her evidence was that Mr Mangos used the words “You picked on the wrong c..t”.  She said she did not call out and was not in “serious danger” but had to pull up so as not to come into contact with the outside fence.

14.  The several race films were shown to the Adjudicative Committee many times, not only in real time but slow motion, and enlarged head on frame by frame.

15.  Mr Mangos’ evidence was in essence to the effect that the type of bit used may, and did, pull through to the right side of the horse’s mouth and this happened quickly, within about 3 seconds, and a Driver in this situation has to ease or “stop the horse for it – the bit – to drop back” and it cannot be steered.  He demonstrated to the Adjudicative Committee when producing the particular bit he said was used and as to how it can “pull through”.  This happened (per Mr Lawson’s submission) 100-50 metres from the finish when the right side rein/bridle was used to get the horse back from its being jammed on the inside behind Mr Butcher’s horse.  He said the horse became uncontrollable after the finish post and he was only able to stop it at the fence.  He said that he later turned the horse inside, to the left, without any issue or problem but he “imagined the bit had the opportunity to drop back”.

16.  Mr Mangos said that his words to Ms Chilcott when in the process of returning to the stables were simply those of frequent “Driver banter” which he said was not unusual and a competitive feature of Harness Racing.

Factual Findings and Conclusions

17.  The race films clearly show that Ms Chilcott when in the straight, was holding a line to which she was entitled.  Mr Mangos was denied a run in the straight.  He angled out twice in an effort to obtain a run inside Ms Chilcott’s horse.  But she maintained her entitled line to thwart Mr Mangos’ attempted actions through both of his movements.  She finished 3rd, less than a neck in front of Mr Mangos.  Had he obtained the run he sought (but to which he was not entitled as Ms Chilcott maintained her line), he might have finished ahead of her.

18.  When past the finishing post (not before), the race films, especially the head on, clearly show that Mr Mangos applied pressure on his outside, (right) rein.  As a result of which the head of “TREACHEROUS REIGN” is directed outwards and the horse shifts towards “MAHIA DREAMIN”, forcing Ms Chilcott to take evasive action, as both horses went towards the outside fence.  At no stage, when Mr Mangos applied pressure to the outside rein, did he attempt to correct the movement he initiated.  It was only after Ms Chilcott had extricated herself by pulling up near the outside fence, did Mr Mangos attempt to cease his horse’s movement, stopped it and, turned it to the left and inside to “return to scale”, without any difficulty.

19.  There was no evidence from the films or otherwise (apart from his claim) that the bit came through the attachment on the right.  Nor that (as Mr Mangos attempted to explain away the obvious), it could have “corrected itself”. Indeed Ms Chilcott said that even if this bit movement uncommonly does happen, the bit does not correct itself.  The Adjudicative Committee regards Mr Mangos’ claim as not credible.

20. The Adjudicative Committee was compelled to draw the inference that Mr Mangos took umbrage from being denied a run by Ms Chilcott.  Whilst angry, he deliberately steered his horse outwards to “deal to” Ms Chilcott, which is reflected in his actions and words immediately afterwards when he said to her, she “picked on” the wrong other Driver to do that again (that is keep him in).  His later words to the Stable Steward occurred (in the Committee’s assessment) when he realised that he might be under inquiry for what he knew he did, so as to attempt to provide some exculpatory position if any later investigation should occur for what were his actions, done in anger.

21.  The Adjudicative Committee rejects Mr Mangos’ claim of gear failure causing the event that occurred.  His actions may well have been in momentary, but arose from anger or umbrage at being unable to secure a run.  But they were deliberate, and put Ms Chilcott in difficulty although she was able to extricate herself.

22.  “Improper” means behaviour that is unwarranted, unacceptable, irregular and not in accordance with accepted standards of conduct expected of a Driver.  As mentioned, a race does not end at the finish line and includes preliminaries and the time period after the finish whilst the horse remains on the track (Rule 869(9)).

23.  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 [para 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.”

24.  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.  Bur the standard is still not the criminal standard or something “in between”.

25.  As a consequence, the Adjudicative Committee concluded that it was fully satisfied to a high degree of being sure that the evidence that it accepted was strong and cogent, to establish the charge of Improper Driving.

Penalty

26.  Mr Mulcay referred the Adjudicative Committee to the last Penalty Guide of HRNZ which identified a suspension of 8 driving days for Improper Driving.  He referred to some other cases, such as RIB v Cox (7.5.22) (7 days) and RIB v Edge (5 race meetings).  He said an aggravating factor was the “risk of injury or harm”.  He advised that Mr Mangos had a clear record in his very long experience in the Industry.  Mr Lawson submitted that any suspension should be less than that in the Cox case which had involved an animal welfare element.

27.  “Improper” Driving will take all manners of different forms.  They may range from very serious, high end, to less egregious.  Penalties accordingly will vary widely depending upon the severity of the behaviour.  This was not at the high end, yet still serious as being a deliberate act of retribution towards another Driver.  The Adjudicative Committee assesses this at least of midrange improper.  It adopted a starting point of 8 days suspension as per the Penalty Guide.  But the Adjudicative Committee does not consider the level of prohibited behaviour reaches the level of RIB v Cox – involving punching another horse.

28.  From the starting point, there are no relevant aggravating factors.  Presenting a defence, which fails, is not an aggravating factor.  It is simply unable to be considered as mitigating, there being no remorse or contrition as none existed.  The Adjudicative Committee takes into account as mitigation, Mr Mangos’ long history (over 14,000 drives and 1500 winners) with a good record (apart from whip related offences).  It affords him a discount of 25% to reflect this.  The Adjudicative Committee is mindful of the fact that what occurred and what he did resulted from a momentary “loss of blood” and good sense when upset.

29.  To meet the foregoing factors in a proportionality factor, the Adjudicative Committee does not impose a suspension on Mr Mangos to the same level as occurred with Mr Cox.

30.  Accordingly, Mr Mangos’ Licence to drive is suspended for 6 Northern Racing Days, so will commence at the conclusion of racing on 2 June 2023 and cease at the conclusion of racing on 14 July 2023.