Appeal S McNally v RIU – Written Decision of Appeals Tribunal dated 1 April 2019 – Chair, Mr T Utikere

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decisiondate: 01/04/2019

hearing_title: Appeal S McNally v RIU - Written Decision of Appeals Tribunal dated 1 April 2019 - Chair, Mr T Utikere

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE APPEALS TRIBUNAL OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Harness Racing

BETWEEN S McNally

Appellant

AND THE RACING INTEGRITY UNIT

Respondent

Appeals Tribunal: Mr T Utikere (Chairman)

Mr P Williams (Member)

Parties: Mr S McNally (Appellant)

Mr N Ydgren (RIU - Chief Stipendiary Steward)

Hearing: 26 March 2019 at Addington Raceway

Date of Oral Decision: 26 March 2019

Date of Written Decision: 1 April 2019

WRITTEN DECISION OF APPEALS TRIBUNAL DATED 1 APRIL 2019

INTRODUCTION

[1] Following the running of Race 4 (PGG Wrightson Sires Stakes “Harness 7000” Mobile Pace (Listed Race)) at the New Zealand Metropolitan Trotting Club’s Meeting on 15 February 2019, Licensed Open Driver Mr McNally was charged with a breach of Rule 869(3)(b). The specific allegation was that he “drove carelessly when shifting ground outwards near the 700 metres checking SHECANDANCE (G D Smith) which broke”.

[2] Rule 869(3)(b) states:

“No horseman in any race shall drive:- (b) carelessly;”

[3] The relevant Shifting Ground Regulation states:

“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”.

[4] Mr McNally, did not admit the breach, and following a defended hearing, the raceday Judicial Committee found him guilty of the charge and imposed a penalty of six days period of suspension.

[5] On 20 February 2019, Mr McNally lodged an appeal against the Finding and Penalty imposed by the raceday Judicial Committee stating in his Notice of Appeal – “I believe the decision is incorrect with the evidence/new evidence”. The Notice also sought a stay of penalty until the appeal was determined.

[6] The Tribunal has received a copy of Mr McNally’s Notice of Appeal, the Notice of Appointment of the Appeals Tribunal, the Raceday Decision from the New Zealand Metropolitan Meeting on 15 February 2019 and the transcript of the Raceday hearing.

[7] A pre-conference hearing with all parties was held via telephone on 22 February, and this matter was set down for 7 March. During the teleconference, Mr Ydgren indicated no opposition to the granting of the Appellant’s request for a stay. The request was subsequently granted by the Tribunal.

[8] On 5 March, the Appellant sought an adjournment on the basis that his two witnesses (Messrs Smith and Jones) were now unavailable. The RIU opposed the request. As indicated in a MInute dated 6 March, by a slim margin the request was granted and the matter adjourned for a hearing at Addington on 26 March.

THE APPEAL HEARING

[9] It was agreed that Mr Ydgren would present submissions to the hearing first; and in doing so he played all the available film angles to the Tribunal.

The RIU’s Submissions

[10] Mr Ydgren submitted that the raceday decision was thoroughly considered and the Committee were wholly correct in finding that Mr McNally had breached the rule. The written decision was comprehensively composed and the RIU were confident that once viewing the films the Tribunal would come to the same conclusion.

[11] Using the side-on film he identified that Mr McNally had been driving the horse ULTIMATE ROCKER for trainer Mr Laurence Hanrahan. ULTIMATE ROCKER raced mostly in the two wide line and with cover. Near the 1100 metres the favourite, CAST NO SHADOW, improves three-wide from the back of the field. Mr Smith (SHECANDANCE) who is following Mr McNally, shifts his runner outwards once Mr Orange is clear and drives his horse forwards to follow Mr Orange forward. Mr Smith was approximately half a length in arrears of Mr Orange but was encouraging his horse to make up that leeway so as to avoid him being forced wider.

[12] This move of the three wide line was at a crucial time as the field was entering the final stages of the race and drivers were vying for beneficial positions. The speed of the race had increased and horses were beginning to feel the pinch of having less economical runs. Mr Ydgren stated that it was imperative that at this stage of the race drivers show a higher degree of care for those reasons alone.

[13] Once Mr Smith draws up beside Mr McNally, the RIU identified that it was easy to see his horse blunder badly and gallop, losing its chance. From the back straight camera, it was clear that Mr McNally had moved outwards and his sulky had hooked the back leg of SHECANDANCE causing it to gallop.

[14] On the matter of advantage, Mr Ydgren said that a driver was entitled to shift another runner inwards or outwards provided they held a clear advantage, and that this had generally been accepted as anything greater than a head margin. Using the films, independently and then in unison, he pointed out that from the side on view, at the point where Mr Orange improves alongside Mr McNally, the latter was not in a position to come out initially. Instead Mr McNally must wait for Mr Orange to be fully past.

[15] Mr Ydgren did not believe Mr McNally did that, instead he believed he had shifted outwards into a half out position and effectively begin half carting. Not only was that against the rules, but it was also a dangerous manoeuvre in itself for the fact that when drivers trail a wheel they were prone to any easing or interference ahead, and could then potentially collide with that wheel.

[16] The position of the RIU was that not only had the appellant trailed a wheel in a half out position, but he had also done so in very tight quarters, making this movement even more careless. He had been able to move into this ‘half gap’ due to Mr Orange racing slightly looser than a three wide position. There was also a fundamental requirement placed on any driver that when they shifted into a gap they were to ensure that there was sufficient room.

[17] He believed that at no stage was there room in this gap for Mr McNally’s horse and his sulky. Mr McNally had moved out into ‘no man’s land’ and made things going forward very difficult. In referring back to the side on view, the Stewards submitted that Mr McNally was clear to come out as at that time CAST NO SHADOW and its sulky had gone past Mr McNally.

[18] Mr Ydgren suggested that if one removed SHECANDANCE and Mr Smith from the equation, then Mr McNally was able to shift outwards. At that time Mr McNally had a half-length advantage over Mr Smith. But what happened immediately once the films were rolled on was that SHECANDANCE was instantaneously checked. Mr Ydgren believed this clearly indicated that Mr Smith effectively had no time to respond.

[19] Mr Ydgren reiterated that the obligation was always on the driver shifting ground to ensure they were able to do so with safety. This meant it was the sole responsibility of the shifting driver to weigh up all factors relevant to the shift and consider if it was safe to do so. In general terms, it meant the driver has to consider if they have an advantage, if they have time to complete the shift in a gradual and acceptable manner. They also have to assess the speed with which the outside horse is improving and they have to consider whether they can make that shift without causing interference. Mr Ydgren also referred to the relevant Shifting Ground Regulation identified at para [3] above.

[20] When a driver did shift ground it was entirely their responsibility to ensure that shift would not cause interference. Mr Smith had not attempted to hold his position, he had simply not had time to. In this context, the RIU did not place any blame upon him; nor had his horse contributed to the incident in any manner.

[21] It was obvious, and from the evidence of Mr Smith at the raceday hearing apparent that, prior to this incident he was urging his horse forwards with the whip. Mr Ydgren believed that Mr McNally should have been aware of this; and that regardless of if he did or did not, he still had to make the shift with care. It was the position of the RIU that Mr McNally held absolute responsibility for shifting any runner wider with care; and that Mr Smith was absolutely entitled to be driving his horse forwards at this time and should have been able to do so without fear of interference.

[22] While it was common practice for horses to be placed under pressure at this stage of a race, drivers must be able to do so knowing their fellow reinsmen will grant them time to react if they have lost their position. Due to the speed with which Mr Smith was improving, the RIU contended that the available time frame for Mr McNally to complete an outwards shift was drastically reduced. Nonetheless, he needed to assess that prior to making the shift, and not just shift out regardless and expect the outside runner to accommodate him or to attempt to absorb that movement the best they could as the rules were unambiguous in that regard.

[23] Mr Ydgren stated that if Mr McNally was so intent on shifting outwards in such a manner, he could have at least ensured he was wheel to wheel with Mr Smith so the resulting interference was not a collision between the sulky wheel and the horse’s legs. This would have then assisted both runners in that Mr Smith’s horse, may not have broken. It may have ensured that SHECANDANCE was not injured as well.

[24] The RIU submitted that Mr McNally was lucky to only be facing a charge of careless driving as on the night, the manner in which he completed his shift could very well have brought about a more serious charge of dangerous or reckless driving. He was clearly aware of Mr Smith improving rapidly, yet despite this he had shifted outwards underneath him.

[25] This shift was not an ‘easing’ or a ‘gradual’ shift, and it was not done with safety in mind. It was done to benefit Mr McNally’s chances with very little regard given to any potential consequences. In this instance the position of the RIU was that Mr McNally had failed to not only show an extreme level of care, as required, but had in fact demonstrated no care whatsoever.

Witness: Mr Gavin Smith

[26] Mr Gavin Smith explained that he was in a three-wide position and as he was not keeping up with the pace, he chose to activate the gear in an attempt to try and close the gap between himself and Mr Orange. In his opinion, the contact that was made with his horse had occurred because he (Mr Smith) was not paying much attention to the manoeuvre being executed by Mr McNally.

[27] In response to questions from the RIU, he confirmed that the back straight film supported that the interference happened because there was not enough time for him to react. If he had more time and a rein in each hand, the incident would not have happened; however, he agreed that it was common for drivers to drive with the whip in one hand and the reins in the other at that stage of the race.

[28] He believed that having his horse under a vigorous drive was a contributing factor and that ‘in the moment’ the interference did not feel like it occurred as fast as the films may identify. He estimated that the distance from when Mr McNally moved out to when contact was made was approximately 20 metres. When Mr Ydgren identified the pylons that were spaced around the track on the side-on film, the witness conceded that the actual distance would have been not even 10 metres.

[29] Under cross-examination, Mr Smith agreed that a push out did not have to be defined by distance, but rather if it felt too fast in the circumstances. He also confirmed that his horse sustained a wee cut to its hind leg, but after talking with its trainer (Mr Burrows), it was not a significant laceration.

The Appellant’s Submissions

[30] Mr McNally believed that his appeal was well warranted as the Raceday Committee had erred in not taking into account the evidence from Mr Smith and himself on the night. He also believed he had a clear advantage over Mr Smith’s horse and that he executed a common manoeuvre in a manner that was not abrupt or done quickly.

[31] The Appellant confirmed his view that Mr Orange’s forward movement had allowed Mr Smith more time, and that to suggest that he and Mr Smith were “wheel to wheel” would be further from the truth. This was because his horse was already halfway out and in that situation, Mr Smith should have conceded his position.

[32] Under cross-examination from Mr Ydgren, Mr McNally identified that Mr Smith was to blame as he should have expected that he would be pushed out. He also disputed that Mr Smith’s driving pattern, with the whip and reins, was not irregular at the time. When asked if it was prudent for him to shift into a gap when there was insufficient room, Mr McNally indicated he was going on to Mr Orange’s back at the time.

Witness: Mr Mark Jones

[33] Mr Mark Jones was called as an expert witness, given his experience having driven in excess of 10,000 horses and more than 1,400 winners. All film angles were played for Mr Jones without comment as he had not seen all angles prior to the hearing.

[34] In giving his expert opinion, he identified that Mr McNally had a clear advantage as Mr Smith was well off the trail and should have expected to be pushed out. He believed that Mr Smith had plenty of time to react, and that he had contributed to it by not conceding when Mr McNally had a clear advantage. He also believed that Mr Smith had run in half a cart width immediately prior to the incident.

[35] In response to a question from the Chairman, he confirmed that he did not believe Mr McNally’s movement was abrupt, and that ‘gradual’ would be defined by three to four strides.

[36] Prior to cross-examination, Mr Ydgren confirmed that the question of advantage was not in dispute; but that the issue was with the nature of the shift. Using the side-on view, Mr Jones confirmed in his view, the point at which Mr McNally was clear of Mr Orange, which was challenged by Mr Ydgren. When synchronised with the head-on view, Mr Jones maintained the view that the movement was not abrupt in nature.

[37] Mr Jones then accepted that there was nothing wrong with Mr Smith’s driving with the reins in one hand and the whip in the other. He also agreed that any “in and out” movement from Mr Smith’s horse had nothing to do with the interference and that Mr Smith was entitled to try and maintain his position.

The RIU’s Summary

[38] Mr Ydgren expressed concern that the appeal had been filed before the Committee’s written decision, with its reasons, had been released. Mr Ydgren believed that Mr McNally had appealed the charge, simply in an attempt to lessen the penalty incurred; and that the appeal against finding must be seen as bordering on frivolous. In making this shift as he had, the RIU believed that he had vacated himself from any duty of care to his fellow drivers, and shifted in an aggressive manner with no regard to the consequences.

[39] Stewards did consider altering this charge to one of reckless driving but ultimately settled on high end careless, however they still felt as though a charge of reckless driving could be sustained as his shift was absolutely devoid of care. Mr Smith, and any driver, must be able to drive their runners competitively without fear or worry of being rammed out of the race. Mr Smith was well within his rights as a driver to be urging his horse forward at that time. The RIU reaffirmed their position that the onus was on Mr McNally to make the shift with care, to give Mr Smith ample time to respond to his shift, and to ensure that he completed his move without causing interference. The RIU believed he had ignored all three of those key aspects and had moved out regardless.

[40] Firstly, he had put himself in a dangerous position by moving into ‘no man’s land’ in a two and a half wide position. Secondly, he continued his movement out and made heavy contact with Mr Smith’s runner’s back legs. He not only removed that horse from the race but also caused that horse to be injured. Mr Ydgren identified that Harness Racing was not a contact sport and whilst it is accepted that contact may occur when drivers and horses compete for positions; it should never reach the level that had happened here.

[41] Finally, he pointed out that the Raceday Committee’s written decision stated that (on Mr McNally’s movement) “we find that it was done abruptly and certainly not with safety. It is relevant that the contact was heavy contact made with the back legs of SHECANDANCE. It would not be an exaggeration to say that Mr McNally has “barged” out into the 3-wide line causing the interference to that runner. So sudden and abrupt was Mr McNally’s move, that Mr Smith had no time to take evasive action”.

[42] In summary, Mr Ydgren submitted that the standard of driving in this instance fell so far below what was expected of any driver, let alone a driver of Mr McNally’s experience, and the RIU believed it was clear for all to see that the appeal should be dismissed.

The Appellant’s Summary

[43] Mr McNally reminded the Tribunal that it had heard from two very experienced drivers as expert witnesses. The evidence they had provided confirmed his view that his movement was not fast or abrupt and that at the time he made the manoeuvre, he had the advantage to do so. He identified that Mr Smith was not looking forward and paying attention at the time and the contact was unavoidable due to his coming half out and showing his intentions to Mr Smith beforehand. He concluded by stating that his movement had been done in a gradual and safe manner.

REASONS FOR DECISION

[44] The Tribunal had considered all of the evidence that has been placed before it. While we also have regard to the information placed before the Raceday Committee, we much reach our own conclusions in this matter.

[45] The first conclusion we reach, is that the Raceday Committee did not err in the manner suggested by the Appellant. It is clear to us that the Committee did consider all of the evidence put before it; including that of Messrs McNally and Smith. They formed a view regarding the credibility of some of the evidence provided by Mr Smith that the Appellant simply did not like. The transcript shows that they had addressed that on the night in response to a query from Mr McNally, along with referring to that in their written decision.

[46] In the context of this charge, we are required to consider whether the Appellant adequately discharged the onus that he was required to. In doing so, we should not be distracted by purely focussing on whether or not Mr Smith may have discharged any obligations that he may have had at the time. The Appellant and Mr Jones seem to rely far too heavily on this point, rather than focussing on the nature of the manoeuvre that Mr McNally had undertaken. It’s also apparent, and Mr Ydgren contends, that the issue of whether an advantage was gained by Mr McNally is not in contention. It is accepted that he did.

[47] From our review of the side-on film, it is clear that approaching the 700 metres, Mr McNally takes a look to his outside on at least two occasions, immediately prior to the incident. This meant he was aware of the close proximity of Mr Smith and his horse. While achieving such an awareness, he did not anticipate the speed at which Mr Smith was moving; which he should have done as an experienced driver.

[48] When looking at the synchronised view of the side-on and head-on films, Mr McNally was moving into a gap that was never going to be big enough at only half a cart width by the Appellant’s own admission. The Shifting Ground Regulation provides helpful guidance to all participants as to how such a movement is to occur.

[49] The manoeuvre took place from the time Mr Orange had cleared Mr McNally, which on our assessment of the spacing of the pylons, is a distance of between eight to ten metres, and within a total of four strides. While what is an acceptable distance or total number of strides is not defined in the Rules, on this occasion we believe the movement was abrupt, not gradual nor acceptable. This is due to the fact that it was not reasonable to expect that over that distance, the driver (Mr Smith) would have been able to take the necessary action to accommodate the manoeuvre.

[50] We also concur with the Raceday Committee in reaching the view that the video footage, and there are many camera angles that have been made available, is compelling in providing assistance in reaching a determination.

DECISION

[51] The Appeal against Finding is dismissed.

SUBMISSIONS ON PENALTY

[52] Mr Ydgren identified that the JCA Penalty Guide starting point for a breach of this Rule was a 10 drives suspension or a $500 fine. Where a second breach of the rule occurs within three months a three days suspension starting point applies.

[53] This was Mr McNally’s third breach with previous breaches at Timaru on 5 January (three days suspension) and Gore on 9 February (four days suspension). For the current breach the Raceday Committee had imposed a six days suspension which Mr Ydgren considered was correct and fair.

[54] As this was Mr McNally’s third breach. The RIU submitted this was an aggravating feature. A further aggravating feature was the fact that this occurred in a Listed Race, for which the JCA Penalty Guide identified a three days suspension as a starting point.

[55] Mr Ydgren submitted that there were no mitigating factors and that the level of carelessness sat at the mid to high end of the scale and that a penalty of not less than six days was appropriate.

[56] On the issue of costs, the RIU sought costs of $77.00 for the preparation of the raceday transcript.

[57] Mr McNally believed that a six day period of suspension was too high. He had no further reasons to give for adopting such a position but identified that any period of suspension could commence immediately.

[58] In looking at upcoming race meetings, he confirmed that he would drive at Invercargill and Mr Ydgren confirmed that he had driven there on 3 and 9 March.

REASONS FOR PENALTY

[59] The Tribunal has adopted the JCA Penalty Guide starting point of a three day suspension for a breach of Rule 869(3)(b), which relates to a breach in a major race which has stakes of $40,000 or more. We accept that there are no mitigating factors to apply.

[60] In aggravation we have considered that the level of carelessness falls above the mid-range. This is due to the abrupt nature of the movement and the level of interference sustained by SHECANDANCE; causing it to break and receive a superficial injury to the hind leg. Given this is the Appellant’s third breach in less than 40 drives, we also consider this to be an aggravating feature.

[61] We must have regard to the Penalty imposed by the Raceday Committee, and the reasons for such imposition. When we review that, we identify that these are factors that were also applied in aggravation. We accept that a cumulative uplift of three days in aggravation, for the reasons outlined above is appropriate. In this respect the penalty imposed was not manifestly excessive and we see no reason to interfere with the Committee’s penalty determination of a six days suspension.

PENALTY

[62] Mr McNally’s Open Driver’s Licence is suspended from Wednesday 27 March until the conclusion of racing on Friday 5 April. This period encompasses six South Island Harness Meetings at which it is accepted Mr McNally would have driven at.

COSTS

[63] The Appellant’s Appeal Fee is forfeited to the JCA.

[64] There is a costs order in favour of the RIU for $77.00 for the preparation of the Raceday transcript.

[65] There is also a costs order in favour of the JCA in the amount of $350, which is a part contribution to the costs that have been incurred.

Signed at Palmerston North this 1st day of April 2019.

Mr Tangi Utikere

Chairman

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