Wairio TC 31 March 2022 – R5 – Mark Shirley

Evidence:

After the conclusion of Race 5, Otautau Vets Mobile Pace, Information A16048 was lodged by Stipendiary Steward Mr V Munro under Rule 869(2) (whip and rein regs) alleging that Mr M Shirley (POP DENARIO) used his whip free of the rein in the run home.

Mr M Shirley admitted the breach and confirmed he understood the rule at the commencement of the hearing.

Rule 869(2) reads as follows:

869 (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.

Relevant Part of the Whip & Rein Regulations as follows:

WHIP AND REIN REGULATIONS
PART 3 USE OF THE WHIP
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 purposes 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 forty-five degrees relative to the racing surface.
3.2.3 Not applying the whip with overt force.

Mr Munro asked Miss Haley to demonstrate the incident using available race films. She identified POP DENARIO as the horses raced about 200m from the winning post. Mr Shirley continued to use his whip free of the rein from that point on to the winning post. Miss Haley showed Mr Shirley using his whip up to 15 times and although they were indifferent, they were outside the Regulations.

Mr Shirley said he was aware he had contravened the Rule and that he had reverted to the old style and had simply made an error of judgement.

Decision:

The breach is admitted and therefore the charge is proved.

Penlty Submissions:

Mr Munro stated that Mr Shirley had driven very infrequently over recent times. He has 882 lifetime drives over 42 years of driving, 7 drives last season and one drive this season.

Mr Munro believed the breach was at the high end of the scale as Mr Shirley had simply continued with his action from the 200m to the winning post.

Mr Munro also stated that Mr Shirley had admitted the breach at the first opportunity. Mr Munro said the Adjudicative Committee may wish to reference a similar set of circumstances when Mr P Nairn was suspended for 6 weeks at the Methven Meeting on 11/04/21.

Mr Munro stated the Penalty Guide started with a 3 day suspension, however in this instance with Mr Shirley’s infrequency of driving, a suspension of up to 6 weeks may be appropriate.

Mr Shirley accepted Mr Munro’s submissions and said that he had only one horse in work and he intended POP DENARIO to race on the 9th April 2022, 14th April 2022, and 22nd April 2022 as the conditions of the races on these days suited his horse.

Mr Shirley also stated that POP DENARIO was, in his opinion, going not too bad at the time it entered the straight, hence he was eager to encourage the horse’s progress to the winning post.

Mr Munro confirmed that it was not unreasonable that Mr Shirley may race his horse on the dates that he has provided.

Mr Shirley confirmed that he would not be driving at the Diamonds Day Meeting and he did not seek deferment of his suspension.

Penalty Decision:

The race films of the incident are very clear and the facts are not contested. Clearly Mr Shirley has made an error or judgement and due to his infrequent driving he has reverted to old habits. The Adjudicative Committee agrees with Mr Munro that the breach is at the higher end of the scale as Mr Shirley has not made any adjustment from the 200m mark to the winning post.

The Adjudicative Committee has also reviewed the Nairn case where the infrequency in drives is similar.

In dealing with whip charges, we are dealing with animal welfare and public perception, and as a result the industry is taking a very strong view with respect to whip charges.

In considering penalty, a starting point of a three day suspension was uplifted a further two days, to five days, due to the high level of offending in this instance. A mitigating factor is Mr Shirley’s frank and quick admission of the breach and his very long driving record which is blemish free under this Rule.

Conclusion:

The Adjudicative Committee orders that Mr Shirley’s Driver’s license is suspended from the conclusion of racing today 31st March 2022 until the conclusion of racing on 7th May 2022, that is four driving days, or five weeks suspension. 9th April 2022 (Winton), 14th April 2022 (Wyndham), 22nd April 2022 (Invercargill), 7th May 2022 (Invercargill).