Winton HRC 13 April 2024 – R11 (heard 21 April 2024 at Invercargill) – Jonny Cox

BACKGROUND:

Following the running of Race 11 at the Winton Harness Racing Club’s Meeting on 13 April 2024, Mr Munro alleged under Rule 869(3)(b) and the Shifting Ground Regulation, that Open Driver Jonny Cox drove carelessly when he shifted ground near the 1500m, causing interference to FIERY BANDITO, which broke in consequence, losing considerable ground.

Rule 869(3)(b) provides:

No Driver in any race shall drive carelessly.

The Shifting Ground Regulation provides:

Where a horse does not have a clear passage during a race the driver shall be permitted to shift ground:

1.  Inwards and ease another runner down the track provided such driver is in a position to do so by having sufficient advantage over the horse about to be shifted inwards and that horse is clear of other runners to its inside so it can be moved in.

For the avoidance of doubt, the following shall apply:

The onus shall be on the driver shifting ground to ensure the move is made with safety and does not cause interference by conducting it in a gradual and acceptable manner thereby enabling the driver of the runner being moved to be able to take the necessary action to accommodate the manoeuvre.

The hearing of the Information was adjourned sine die and heard at Ascot Park Raceway in Invercargill on 21 April 2024.

Mr Cox confirmed that he did not admit the breach and had signed the Information to that effect.

EVIDENCE:

Mr Munro and Mr Renault used the available films to identify PYRAMID MYSTIC (Mr Cox) and FIERY BANDITO (Ms Green). PYRAMID MYSTIC broke on the bend at the 1800m before settling 3 wide at the rear of the field, with FIERY BANDITO in the running line to its inside. Soon after passing the winning post near the 1500m, Mr Cox could be seen attempting to turn his horse’s head inwards and shift down to the running line. Mr Munro submitted that during this manoeuvre, Mr Cox made contact with Ms Green’s sulky, at which point FIERY BANDITO galloped.

Mr Munro said the films proved that Mr Cox did have an advantage and was entitled to shift ground. Stewards had charged Mr Cox because of the interference caused to Ms Green’s horse, Mr Munro said. Stewards did not believe Mr Cox had shifted inwards with safety in a gradual and acceptable manner, as required by the Regulation.

Stewards called Ms Green as a witness. She said she was at the back of the field on the running line following Carter Dalgety (OUR PINOCCHIO). She said Mr Cox had attempted to shift her down the track and her horse had galloped. She said there was room to her inside for her to be shifted down to the marker pegs. Ms Green said at the time of the incident, she did not believe Mr Cox had an advantage over her and that she was entitled to hold her line. She accepted after viewing the race films, that “potentially he did have a head advantage on me.” She held her line and resisted moving to the marker pegs because she felt she was following the horse and Driver (Mr Dalgety) that would bring her into the race at some stage.

Asked whether Mr Cox had, in her view, made the move in a safe and gradual manner that did not cause interference, Ms Green said, “I believe he was probably entitled to take that action, but I also believe that I was entitled to attempt to hold my ground.” Later in the hearing, Ms Green stated: “I was entitled to hold my line. He was entitled to do the move that he did.”
Ms Green said after viewing the race films, she believed Mr Cox had made “a gradual, safe move in.” She went on to say that FIERY BANDITO was a green horse that “wasn’t experienced enough to cope with the push and shove yet.” Ms Green said her sulky had been contacted as a result of Mr Cox attempting to shift inwards, and as a result, her horse had lost its balance. She felt Mr Cox’s move inwards and her horse’s inexperience probably contributed equally to her horse galloping.

In his defence, Mr Cox said that Ms Green had agreed that his move inwards was safe and gradual, and that his horse had, at the time, held an advantage over hers. He also referred to Ms Green’s statement that FIERY BANDITO was green and inexperienced when jostling for a position. Mr Cox believed he had made a slow, gradual movement in attempting to ease Ms Green down to the marker pegs, where there was room available to her inside. He described the fact that Ms Green’s horse had galloped as “a racing incident.”

The Adjudicative Committee asked the Respondent and the Informant for their assessments of the first line of the Shifting Ground Regulation, which states:

Where a horse does not have a clear passage during a race the driver shall be permitted to shift ground:
 
1.  Inwards and ease another runner down the track provided such driver is in a position to do so by having sufficient advantage over the horse about to be shifted inwards and that horse is clear of other runners to its inside so it can be moved in.

The Adjudicative Committee questioned whether this reference to “clear passage” could be interpreted as meaning that the Driver of any horse racing without cover (i.e. with a clear passage ahead) was therefore not permitted to attempt to shift ground inwards.

After reading the Shifting Ground Regulation, Mr Cox said the use of the phrase “clear passage” in the context expressed (without reference to any particular stage of the race), did not make sense to him. He said that Drivers were permitted to shift ground when their horse did not have clear passage in the home straight. In this case, near the 1500m mark and with clear passage ahead of his horse, he also believed he was entitled to shift inwards in an attempt to improve his position in the race. To say that Drivers could only shift ground when their horse was blocked for a run, would effectively mean “no pushing” at other stages of the race, Mr Cox said. He did not believe the question of clear passage had anything to do with this incident.

Mr Cox said he did not want to be left 3 wide progressing around the bend, adding: “I was entitled to make the shift I made. Ms Green has agreed that I did it in a safe manner.”

The Adjudicative Committee asked Mr Munro if he thought that because of the “clear passage” reference in the Regulation, Mr Cox was not entitled to even attempt to shift down in this case because he had clear passage.

“If you apply that clear passage, then you’re taking out competitive driving,” Mr Munro said. “You wouldn’t ease down anybody because you’ve got a clear passage… I don’t think it’s relevant here.”

Mr Munro concluded by saying that in this instance, Mr Cox had four options: to stay where he was, to push forward, to ease back or to shift down with safety.

REASONS FOR DECISION

The Adjudicative Committee identified four key elements contained in the Shifting Ground Regulation, and addressed each in turn:

1. At the time of the incident, did Mr Cox have a sufficient advantage over Ms Green?

The race films, while not optimal in terms of the available angles, clearly showed PYRAMID MYSTIC (Mr Cox) had its head in front of FIERY BANDITO (Ms Green) at the time Mr Cox made the shift inwards near the 1500m mark. Ms Green did not dispute this point.

2. Was there room inside Ms Green’s horse for it to be moved down to the marker pegs?

The race films showed that there was room available for Ms Green’s horse to be shifted down to the marker line. Ms Green agreed this was so.

3. Did Mr Cox make the inwards move with safety and in a gradual and acceptable manner?

Ms Green crucially supported Mr Cox in his contention that his move inwards was made with safety and in a gradual and acceptable manner. She also said that her horse’s inexperience with “the push and shove” of Racing, contributed significantly to it galloping. The race films indicated that the distance between Mr Cox turning his horse’s head inwards and Ms Green’s horse galloping, was some 25-30 metres. The Adjudicative Committee did not find Mr Cox moved inwards in an abrupt or unsafe manner.

4. What bearing, if any, does the reference to “clear passage” in the Regulation have with respect to this charge?

Stewards submitted that the “clear passage” element of the Regulation was not a relevant consideration in the laying of this charge. Mr Cox believed that even with the clear passage he had in this circumstance, he was entitled to attempt to shift Ms Green inwards to the marker line.

During its deliberations, the Adjudicative Committee tried to find a precedent in which the issue of clear passage, as expressed in the Shifting Ground Regulation, formed the basis of a charge or was held to be a relevant factor. It could find no such references in the time available. However, the question as to how “clear passage” might be interpreted in the context of shifting ground, was raised in the Jenkins Decision of 18 February 2022 (the Respondent in that case was charged with careless driving for failing to concede his position):

It is interesting to note the wording of the Regulation – “where a horse does not have a clear passage during a race the driver shall be permitted to shift ground”. This was not part of the Easing Down Regulation, which was replaced by the Shifting Ground Regulation in November 2018 but, rather, is a new provision. The Adjudicative Committee is unable to find any earlier decision in which this specific point has been considered. It could be argued, and it seems reasonably clear, that the wording is intended to limit the circumstances, in which a Driver is entitled to ease another runner down, to a situation where he does not himself have a clear passage in the race. 

This Adjudicative Committee reflected on whether a strict interpretation of the “clear passage” reference in the Regulation could preclude a Driver racing wide without cover, from making any attempt to shift inwards, a Driver racing to his or her inside. This was not the interpretation of Stewards in this case and, as mentioned, with its best efforts and to the best of its knowledge, the Adjudicative Committee could find no other careless driving Decision that relied upon such an interpretation.

Mr Cox said the use of the phrase “clear passage” in the Regulation in the context expressed (without reference to any particular stage of the race), did not make sense to him.

In this case, the Adjudicative Committee accepts the Stewards’ submission that the “clear passage” element of the Regulation was not relevant in the laying of the charge against Mr Cox.

DECISION

The Adjudicative Committee finds the charge is not proved.