Westport TC 26 December 2021 – R10 (heard 30 December 2021 at Reefton) – Korbyn Newman

SUMMARY OF FACTS:

Following the final Race on the first day of racing at Westport an Information was filed alleging that the Respondent, Junior Driver Korbyn Newman, as the Driver of HIGH FLYING HARRY, failed to take all reasonable and permissible measures to improve his position wider on the track rounding the final bend when an opportunity existed resulting in his runner being held up.

The Respondent did not admit the breach and the hearing took place four days later at Reefton Trotting Club on 30 December 2021.

Mr Newman was assisted by Mr J Dunn at the hearing.

The Stewards dealing with this matter were Mr Williams and Mr Renault. Mr Renault appeared remotely.

The Charge and the Rule were read to the Respondent who confirmed that he denied the charge.

Following the hearing of the charge and some time for deliberation the Committee gave the result of the hearing, finding that the charge was not proved, and indicated that reasons in writing will be provided at a later date. These are those reasons.

EVIDENCE OF INFORMANT:

Mr Williams used the available race videos to show the field approaching the 600-metre mark. Mr Williams pointed out Mr Newman driving three back on the pylons. Mr Williams alleged that there was a gap on the outside of Mr Newman for some time that he should have taken. The Stewards referred to the runners ahead of Mr Newman. Ms Ottley’s runner was in the lead, then Mr Orange’s horse trailing behind that and Mr Markham’s horse on the outside of Mr Orange.  The other runners, the Stewards said, were well back of Mr Newman.

The Stewards said that there was an open window for 150-200 metres where Mr Newman could have moved his horse to the outside to trail Mr Markham in order to give his horse a clear run home. The Stewards allege that Mr Newman should have moved out during this point in the race and could have done so slowly. The Stewards then contend that as Mr Newman opted not to move out at the earlier stage, he should have done so later in the race when Mr Orange’s horse began to weaken.

Mr Williams pointed to the position just after the 400-metre mark as a pivotable point in the race. It is at this point that the Stewards say Mr Newman had room clear of the outside runner to shift outwards. The Stewards further alleged that the runner in front of Mr Newman was fading which was evident from the activation of the gear. The Stewards said that at this point Mr Newman was being held up by Mr Orange’s horse and should have moved wider on the track to have a clear run on the home straight. The Stewards conceded that Mr Markham’s wheel was not free of Mr Newman, who would have been required to take a hold of his horse to make the manoeuvre.

Mr Williams outlined that Mr Newman ran second but accepted that it was not clear that he would have won had he moved his horse to the outside, but that is not an important factor in the determination of this charge.

EVIDENCE OF THE RESPONDENT:

Mr Newman, with the assistance of Mr Dunn, provided an explanation that Mr Newman chose to remain in his racing position due to the track conditions, his horse and the difficulty in making the manoeuvre.

Dealing first with the track conditions. Mr Dunn outlined this was Race 10 and the track had been getting worse throughout the day due to the heavy rain. Mr Dunn said it was common knowledge that the best run on this track was on the inside. He said his own horse ended up three-wide and struggled. Mr Dunn spoke at length about the tightness of the bend.

Turning to the horse itself. Mr Dunn said he had told Mr Newman to be careful with this horse and he was like driving a trotter. Mr Dunn said the horse was close gaited. Mr Dunn pointed to the horse going rough for a period when pulled into the passing lane. Mr Newman said the horse tends to over race and wears an anti-choker.

Dealing now with the suggested manoeuvre. Mr Dunn said that Mr Newman was never clear of Mr Markham’s wheel and would have had to “strangle” the horse to pull it back in order to move wider on the track. Mr Dunn said this would have inevitably caused the horse to lose its momentum on the bend. He said the manoeuvre suggested by the Stewards was hard to undertake at that point on the bend. Mr Dunn said the bend is tight and it is a hard track on which to go three-wide. Mr Dunn said that the horse is not like a car as you cannot just pull it out and go.

Mr Dunn said that the footage clearly showed that Mr Orange’s horse was not under severe urging until about the 300-metre mark, where it is clear the gear was activated. Mr Dunn said at this point it was all over as Mr Newman would not have been able to move out as the manoeuvre would have been too hard.

Mr Newman also stated that if he were to move his horse wider on the track, he would have lost more ground on the leader due to the loss of forward momentum. He was firmly of the view that taking the horse wider of the track would have slowed him down.

Mr Newman believed his horse had a better chance to win if it were to stay in its current running line and attempt to drive up the inside.

As to why Mr Newman did not move the horse wider on the track from the 600-metre mark, Mr Newman said the horses in front of him were travelling well and he saw no reason to change his position. Mr Newman said that he was not clear of Mr Markham’s wheel at any point and that any movement wider would require him to take a hold of his horse losing momentum.

THE RULE:

The breach alleged is that Mr Newman failed to take all reasonable and permissible measures to improve his position wider on the track rounding the final bend when an opportunity existed resulting in his runner being held up.  The Rule states:

Every driver shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.

The use of the word “permissible” in this context means “lawful” in that the measures it is being suggested the driver should have taken are authorised by the Rules. The focus of the hearing is on what is considered reasonable to ensure a horse is given full opportunity to win the race or obtain the best possible position and/or finishing place.

The onus is on the Stewards to prove that a driver has been in breach of the Rule. Even though the onus is on the Stewards the Driver ordinarily is required to give an explanation for their actions.  The standard of proof in these cases is on the balance of probabilities, flexibly applied. This does not mean that the degree of probability required changes, but it means that as a matter of fact Adjudicators require stronger evidence for more serious allegations before the allegation is proved to their reasonable satisfaction.  This is a serious allegation.  The evidence outlined above includes the opinions and explanations of the Driver and the opinions of the Stewards. Importantly, there is the benefit of the available race videos.

The use of the word “reasonable” in the Rule imports an objective standard.  The subjective rationale of the Driver is relevant but not determinative.  A Driver is required to take all reasonable and permissible measures during the course of the race to ensure they give their horse the full opportunity to win the race or to obtain the best possible position or finishing place. Whether a particular instance is a breach of this Rule requires an assessment of what the driver reasonably would, could and/or should, have done in the circumstances to ensure they give their horse the full opportunity to win the race or to obtain the best possible position or finishing place.  Then the Adjudicator needs to determine whether the failure to do so was culpable or blameworthy in that it is deserving of the imposition of a disciplinary finding and penalty.  However, it must be remembered that a mere judgment error is not a sufficient basis for finding that there has been a breach.

It is well established that the Stewards do not need to prove that there was a deliberate act by the Driver to disadvantage the horse, however, there must be some degree of carelessness or incompetence in order to find the Driver’s actions blameworthy. As stated in HRNZ v W Higgs (2005):

There may be circumstances in which a driver’s manner of driving may amount to merely a permissible error of tactics but, when that error of tactics amounts to bad judgment, that results in disadvantage to [the driver’s] horse, then such manner of driving falls within the terms of the Rule.

Mere errors of tactics are in and of themselves not sufficient to found liability for a breach of this Rule.  Given the nature of Harness Racing, at any one point in a race a Driver may have a number of options available to him or her. The decisions made by the Driver are required to be made in a mere instant during the race with multiple uncontrollable variables.  A Driver must, relying upon his or her experience and expertise, balance up a number of competing factors and chose one.  The Driver does not have the benefit of hindsight, multiple video angles or the pause button. The Rule recognises this reality and does not hold a Driver to the standard of perfection.

Race situations arise where a Driver is presented with two reasonable and permissible options. Failure to implement one of these options could not merely in and of itself equate to a breach.  I am of the view that the purpose underpinning the Rule is to attribute blameworthiness when a Driver fails to take some measure which was the only reasonable and permissible measure open to them to ensure they give their horse the full opportunity to win the race or to obtain the best possible position or finishing place. The measure should be one they, in the circumstances which presented themselves, should have implemented to ensure they give their horse the full opportunity to win the race or to obtain the best possible position or finishing place. Their action or inaction in turn disadvantaged the horse. It is in those circumstances that the actions of the driver are blameworthy warranting a penalty because they have sufficiently deviated from a standard of driving the betting and racing public are entitled to expect.  This is the “bad judgment that results in disadvantage to [the driver’s] horse” outlined in the dicta from the W Higgs decision.

The betting and racing public are entitled to have confidence that the horse upon which they have bet is being driven in a manner which gives it the best opportunity to race to the best of its ability and, hopefully, win.  That this is a focus of the Rule is clear from the use of the phrase “to ensure they give their horse the full opportunity to win the race or to obtain the best possible position or finishing place.”

The betting and racing public are not, however, entitled to perfection from Drivers, though it is an aspirational goal.  That much is confirmed by the use of the qualifier “reasonable” in the Rule.  What is required when assessing manoeuvres and decisions by Drivers in alleged Rule breaches is a reasonable justification for the Driver taking particular measures at the relevant time with the purpose to obtain the best position in the race and, consequently, the best outcome.

DECISION:

This case does not involve an error of judgment. It involves a decision which was made, in the middle of the race, about two reasonable and permissible options which presented themselves. The decision to remain in Mr Newman’s position was supported by the evasive manoeuvre which the opposing option would necessarily require.

Given the particulars of the charge and the focus of the Stewards, assessing this breach narrows to two issues. First, should Mr Newman have moved wider on the track between the 600-metre mark and the 300-metre mark to give his horse full opportunity to win by obtaining the best possible position? Secondly, should Mr Newman have moved wider on the track when the horses in front of him began to weaken in order to give his horse full opportunity to win by obtaining the best possible position?

In relation to the first question, the view is that it was reasonable for Mr Newman to remain in his racing position without moving wider. The evidence presented to me clearly establishes that the horses in front of Mr Newman were travelling well and not losing ground on the leader. The Stewards agreed that the horses were going at speed. It was evident that Mr Newman was never clear of Mr Markham’s wheel which meant Mr Newman would have had to take a hold of his horse and therefore lose momentum moving forward. Such loss of momentum would have disadvantaged the horse rather than put it in the best possible position.

The second question relates to the point in the race where Mr Orange’s horse began to weaken shortly after Mr Orange pulled the deafeners. At this point Mr Newman was aware that he may be held up. This occurs around the 300-metre mark. It is only at that point that the leader begins to extend the lead, as up until that point then had all been travelling together. The view is that this is a turning point in the race where Mr Newman must review his racing position and decide, in real time, whether to move wider on the track or wait for the passing lane. It is trite to observe that Mr Newman could not predict that all of this was going to occur when he was at the 600-metre mark.

Initially, the Stewards contended Mr Newman should have moved wider at the 300-metre mark knowing that the horse in front of him was tiring. However, after being questioned further the Stewards conceded it would not have been practicable for Mr Newman to have pulled his horse wider on the track at that point.

The Committee is of the view that at the point in the race when Mr Newman became aware of Mr Orange’s horse weakening Mr Markham’s wheel was well back which would have required Mr Newman to have taken a severe hold of his horse if he were to attempt to move wider on the track. This move would have required Mr Newman to lose momentum by slowing down to safely shift out without hitting Mr Markham’s wheel.  Mr Newman would have been required to then move wider again, to the three-wide position, before then commencing the run home. The place at which this was all occurring was also on the tip of the final bend in wet conditions. Overall, it is accepted that this manoeuvre would have been difficult, and it is, therefore, reasonable that the better option was to wait for the passing lane.  This is one of those scenarios where the Driver had a number of options available to him.  Mr Newman’s decision was made in a mere instant during a race with multiple uncontrollable variables.  Mr Newman, relying upon his experience and expertise, balanced up a number of competing factors and chose one.  Mr Newman did not have the benefit of hindsight, multiple video angles or the pause button.  However, from the evidence presented to the Committee, it believes that Mr Newman made the correct decision.  Even if this was wrong about that, his decision was one which was reasonably open to him and could not be said to be a “bad judgment” deserving of disciplinary sanctions.  It is also important to note that when a Driver is confronted with two reasonable and permissible options if the wrong choice is made that would not in and of itself amount to a breach of the Rule.

The contention that Mr Newman should have moved earlier in the race so that he was never held up by Mr Orange relies too heavily on hindsight and ignores the reality of racing alluded to above. Mr Newman was not to know that Mr Orange’s horse would tire where and when it did. Mr Orange’s horse had been traveling well and there was no indication it would need urging on. Once again, on the evidence presented the Committee believes that Mr Newman’s decision was the correct one.  However, even if this is wrong about that his decision was an entirely reasonable one to make in the circumstances and as such is not deserving of a disciplinary finding.

The view is that it was reasonable for Mr Newman to remain on the pylons travelling forward with the other runners at the 600-metre mark. There were then two options which became available at the relevant time on the final bend. The Committee’s view is that to be blameworthy Mr Newman must have failed to take some measure which was the only reasonable and permissible option or the option which should have been taken to ensure his horse was given full opportunity to win the race or to obtain the best possible position or finishing place. The Stewards have not persuaded the Committee that it is more likely than not that Mr Newman failed to take all reasonable and permissible measures in not moving wider on the track at any point rounding the final bend to ensure that his horse was given the full opportunity to win the race or to obtain the best possible position or finishing place.

OUTCOME:

The charge is not proved.