Appeal – R Waite v RIU – Decision dated 26 November 2013
ID: JCA10893
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY AT WHANGANUI
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr RICHARD WAITE of Whanganui, Licensed Owner / Trainer
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr P Williams, Member of Tribunal
Registrar: Mr B Bateup
Appearing: The appellant in person, assisted by Mrs A Waite
Mr G Whiterod for the respondent
DECISION
[1] Mr Waite has appealed against the decision of the Stipendiary Stewards at Hatrick Raceway Whanganui on 18 October 2013 to stand down the dog DASHER RUM for 28 days pursuant to r 80.1(b)(a).
[2] Rule 80.1(b) provides: “Where a Greyhound fails to pursue the lure in a race, the Stewards may impose the following periods of suspension: (a) in the case of a first offence, twenty-eight (28) days and until the completion of a satisfactory trial.”
[3] Mr Waite agreed that it was appropriate for Mr Whiterod to present his case first.
The respondent’s case
[4] DASHER RUM started from Box 1 in Race 3, The JJ Print Petone C3 305 metres. The dog finished last of 8 runners. DASHER RUM was the sixth favoured dog in the betting and the official race-book said of his chances: “He does own early pace, so consider here despite poor trap-1 form”.
[5] The Stipendiary Steward presiding on the day, Mr Whiterod, described DASHER RUM’s race performance in his report in the following terms: “DASHER RUM led to the first corner but then did not chase with due commitment and went back through the field to last before reaching the home turn where he then commenced to chase again and finished in last place.”
[6] Mr Whiterod stated that the previous meeting at the venue, which had been scheduled for Wednesday 16 October, had been abandoned on the Tuesday afternoon, due to the track conditions. Mr Austen, Stipendiary Steward, who had inspected the track on that day, had said he was sinking up to his ankles when walking parts of the track. There had been a storm and further bad weather was forecast.
[7] Mr Whiterod said he spoke by telephone to the Club Manager on both Wednesday and Thursday and was assured that staff had worked on the track and it was fine for racing on Friday. He said other than the track being a little softer than usual on Friday; he did not have any issues with it. It was “perfectly ok” and “safe to race”. No remedial work, other than the usual grooming between races, was required on raceday.
[8] Mr Whiterod said none of the three incidents on the day could be attributed to the condition of the track. The dog that was injured in race 1 had been checked and galloped on; in race 8 the dog was checked and fell; and in race 10 a dog had been forced wide on the first bend and had made firm contact with the outside fence. He added he had not observed that any dog in any race had had difficulties with the track.
[9] With respect to the official penetrometer readings, Mr Whiterod said he had not had access to these on raceday but the document that detailed these, which Mr Waite had placed before the Tribunal, raised no concerns.
[10] Mr Whiterod described race 3 to the Tribunal. He said he had watched it live through his binoculars from the Stewards’ Box. The race was also recorded for subsequent viewing. He said he had had no concerns until the first corner. DASHER RUM, which had been leading initially, was sharing the lead at this corner. The dog began to ease slightly and did not pursue with due commitment all the way around the bend. DASHER RUM went from first, or equal first, on entering the bend to a couple of lengths last on exiting the bend. He said DASHER RUM was the only dog that lost ground on that bend as the others “pretty much held” their respective positions.
[11] Mr Whiterod explained that DASHER RUM was railing at the time he entered the bend and he had moved away from the rail, which had allowed other dogs to pass him on his inner as well as on his outside. He said he had thought immediately when viewing the race through his binoculars that DASHER RUM was not pursuing the lure.
[12] Mr Whiterod was sufficiently concerned by DASHER RUM’s performance to refer the dog to the raceday veterinarian, Mr D Barton, for assessment. It was accepted by the parties that this veterinarian inspection occurred some one to one and half hours after the race. We were told that it is standard practice to allow a dog to cool off before examination. Mr Barton reported that the dog was “NAD” which we were informed, and Mr Waite accepted, was Mr Barton’s shorthand for “No Abnormality Detected”. Mr Barton also reported that DASHER RUM was difficult to check because the dog was very hypersensitive. He did not order any stand down due to injury.
[13] Mr Whiterod said after receiving the veterinarian report he had the Assistant Stipendiary Steward ask the Waites to come to the Stewards’ Room. They then went over the film together and Mr Whiterod explained to the Waites that, in his opinion, DASHER RUM did not pursue the lure. The Waites had disagreed, stating that DASHER RUM did not enjoy racing from the inside box. They said he never had, and that was why the dog did not perform satisfactorily in the run around the first bend.
[14] Mr Whiterod said he then informed the Waites that, after consultation with the Assistant Stipendiary Steward, he was standing DASHER RUM down for 28 days and a satisfactory trial. He advised the Waites they had the opportunity to re-present the dog within 72 hours for another veterinarian inspection. He had expected that they would have done this due to the hypersensitivity issue, but they did not. However, they did ask him to rescind the stand-down and he said he had explained that he could not do that and that they should lodge an appeal if they were unhappy with his decision.
[15] Mr Whiterod described DASHER RUM as being a sprinter. He disagreed with the Waites that the dog had a preference for outside traps. He said DASHER RUM had had placings from boxes 2 and 3 and there was nothing to suggest that the dog preferred even numbered boxes to odd ones. He added a dog was expected to pursue with due commitment throughout the race no matter what box the dog had drawn.
[16] Mr Whiterod produced the Guideline “GRNZ Application/Interpretation of Rule 80 in relation to Marring and Failing to Pursue the Lure” which had been compiled by Greyhound Racing New Zealand. He said it had been around for years, and had been reprinted from time to time in the Greyhound Magazine, although not in recent months. He said the purpose of the document was to give guidance to the Stewards and licence-holders. Mr Waite commented he had not seen the Guideline before.
[17] The Guideline states that “whilst failing to pursue the lure is not a definition as such in the Rules it is generally accepted that it is defined as an instance when a greyhound fails to pursue the lure with due commitment throughout the entirety of a race.” Mr Whiterod emphasised that this was what DASHER RUM had done. He had eased for no apparent reason after jumping away well. The dog had not been checked by any other dog during the running and the veterinarian inspection detected no injury. The dog had previously raced on the track on numerous occasions without any obvious difficulty.
[18] When questioned by the Tribunal, Mr Whiterod stated that he had had concerns with DASHER RUM failing to pursue on previous occasions and he had had discussions with the Waites, although he thought on one of those occasions the dog had had a 10-day stand-down due to injury. The other times, he said, he had given the dog the benefit of the doubt.
The appellant’s case
[19] Mr Waite commenced his submissions by stating that DASHER RUM had explosive speed but often had trouble on corners when other dogs were close to him. The dog raced best when he was able to jump clear of the field and hold on. He often lost a lot of speed on the corners. He said DASHER RUM should never have been put out for “failing to pursue the lure throughout”. He pointed to the dog’s statistics from trap 1, which was now 0 from 6. He had had 32 starts from other traps and had received 14 cheques. He said DASHER RUM had clearly found box 1 difficult to handle. This fact had obviously been taken into account on the night by the expert bookmakers as DASHER RUM was the outsider on the fixed odds.
[20] Mr Waite said that DASHER RUM was so keen to race that he worked himself up before a race and had run a race before a race. This stress was built up even more if he was in an odd box (boxed first) as he kicked and played up, sometimes cutting his back legs on the back of the box as a consequence. Therefore, very precious energy was used up and this was shown in the results (odd boxes, 22 starts, 0 wins 4 places – even boxes, 16 starts, 5 wins 5 places). The dog had become very worked up prior to his race on this day, he said.
[21] DASHER RUM finished last, 8.4 lengths from the winner. Mr Waite said this was not as big a distance between first and last as in the other 305 metre races on the day. He added DASHER RUM was usually very committed to chasing the lure, as was evident in a previous race where he had received a bloodied nose after crashing into the lure.
[22] With reference to the DVD of the race, Mr Waite said DASHER RUM did not handle the corner well but he never gave up chasing. He said DASHER RUM was in the wrong position as he entered the corner for this dog. The dog clearly was not worried about the other dogs in the race. He said DASHER RUM made contact with dog 2, UNO GREEN, in the back straight, in that they had brushed briefly, and then he had got in front of that dog after this contact, so the dog was not worried at that stage. He believed this showed that DASHER RUM had no issues with other dogs. As DASHER RUM took the corner the dog had found he was too close to the rail for him. He had to balance up to negotiate the remaining part of the bend and, in so doing; he lost a lot of speed. He pointed out on the DVD that the dog’s head was very awkward and DASHER RUM was struggling to maintain his balance. In the straight, DASHER RUM never gained any ground on the dogs in front of him, so the dog, he said, had never recovered from his loss of balance on the bend.
[23] Mr Waite demonstrated that in his view DASHER RUM was shortening stride before the bend. The dog’s head was moving, which was an indication that the dog was not confident and that the tightness of the bend was troubling him because he was racing close to the rail. He emphasised DASHER RUM would have entered the bend on a different angle had the dog not drawn trap one and might have coped with the bend better in those circumstances. He said the dog had not jumped as well as he could and could not get as wide on the track as he would have wished. DASHER RUM had not made up ground on the other dogs in the home straight, but had merely kept his position in the field.
[24] Mr Waite said the dog did want to chase the lure but was having to correct himself. The sideways movement of DASHER RUM’s tail and the tilting of his head showed that he was not balanced on the bend. He said DASHER RUM had wanted to run wider on the bend but could not do so because other dogs were outside him. He reiterated he was racing too close to the rail than was comfortable for him on that bend. He added that the dog was spent after having got worked up before the race. He said the dog was trying to keep his line and was not attempting to get away from the other dogs. He emphasised DASHER RUM was not afraid of other dogs and always lost ground on the corners.
[25] Mr Waite said DASHER RUM had clearly become unbalanced on the corner and in this regard the track was not ideal. He said there had been a one in 25 years flood and produced the penetrometer readings that had been taken by the Club. He questioned whether it was safe to race on the Friday after the meeting on Wednesday had been cancelled. In particular, he believed scientific tests should have been conducted on the track to ensure that two days later it was not only safe to race on but also provided a surface that gave even and fair racing conditions. He questioned whether some dogs, such as DASHER RUM, might have found the track difficult to negotiate, given the extreme weather conditions that had occurred. He said the RIU had failed to provide details of tests on things like the composition of the track, the materials and ratios, force absorption and surface traction. He further stated there were two layers to the track and questioned whether the Club could be certain the bottom layer, which the dogs used for traction, was not affected by the adverse weather event.
[26] Mr Waite said the veterinarian had not been able to properly test DASHER RUM because the dog was hypersensitive. He said a finding of “No Abnormality Detected” did not mean the dog was free of injury. He said there was certainly no evidence the dog was injured badly but he might have suffered a minor injury. He also said a dog going from first to last was not that uncommon. Mr Waite questioned the accuracy of the stipendiary stewards’ report in that it stated that DASHER RUM was “cleared of injury” by the Veterinarian. This was wrong as the veterinarian report said, “Difficult to check – very hypersensitive” so the dog, he said, was never cleared of injury.
[27] Mr Waite showed four previous race performances of DASHER RUM. These were all races where DASHER RUM either won or was not headed until the home straight. These were races on 11/9/13, 26/6/13, 5/6/13 and 15/4/13. On only one occasion was a dog racing alongside DASHER RUM on a bend, and that dog quickly faded. Significantly, in each of these starts DASHER RUM, after jumping quickly, went to the lead and, if headed, this was only in the home straight. In one race he demonstrated that the dog, when in the lead, had slowed on the bend and had put in a couple of short strides. He said the dog was obviously experiencing some discomfort on that bend.
[28] Mr Waite said DASHER RUM gave 100% every race. He was totally exhausted after this race, and had nothing left. In his best races he had jumped 3 to 4 lengths faster than anything out of the box and he had entered the bend in a better position (4 to 5 wide) to be able to balance up. He said he would prefer to race DASHER RUM at the Manawatu track as the corners were not so tight, but the distance was longer and the dog found it a bit of a struggle over the last 90 metres. With that track being softer, it was even a harder run but if the dog was to continue racing, it would most likely be there. Another very important factor to consider, he said, was that DASHER RUM had only had two grade 3 runs. He was up in grade and had found the rise in class difficult.
[29] Mr Waite questioned what he believed was “total inconsistency in evaluating performances” and “inconsistent application of the failing to pursue the lure rule”. This call, he said, was only based on the opinion of the Stipendiary Stewards and, if they applied this rule the way they had in DASHER RUM’s case, many other performances would have had to be questioned and the dogs given 28 days stand down and required to complete a satisfactory trial. He questioned whether certain trainers or owners influenced the Stewards on race day by approaching or ringing them. He believed that his dogs were analysed more than others. He had had only 11 race dogs and 4 had been put out for this offence. He was thus very frustrated. He said he found this rule and penalty were very tough and should only be used when it was “totally clear that there was no potential excuse”. The benefit of doubt, he said, should always be given to the dog.
Summing up
[30] Mr Whiterod summed up his case by stating DASHER RUM had failed to pursue throughout the race and, when racing around the first bend, had not wanted to be there with the other dogs and had gone from first to last over a distance of approximately 100 metres. He said DASHER RUM had eased because the number 8 dog, BOTANY JESSIE, was challenging him on the outside for the lead. He agreed with Mr Waite that a dog going from first to last was not that uncommon but this was usually due to a dog suffering injury, or being tightened or checked. These were not the circumstances that pertained in this case.
[31] Mr Whiterod reiterated dogs were expected to chase the lure no matter what box they had drawn and exceptions could not be made on this ground. He also said he believed the track conditions had had little impact on the day’s racing, as supported by the fact the times were little different to previous meetings on the track. He said the dog was not spent as Mr Waite alleged, as the dog had only gone 100 metres before easing and losing ground. He saw no significance in the tail movement of DASHER RUM. DASHER RUM had only eased once other dogs were around him. The dog was not under pressure from other dogs. There had only been a slight brush with the number 2 dog, UNO GREEN. DASHER RUM had only started chasing the lure after he was 2 lengths behind the last dogs and he had not lost ground on the other dogs in the run to the line.
[32] Mr Waite emphasised that DASHER RUM was a keen dog and had nothing in reserve when things went wrong, as had occurred on this occasion, when he was tired and unbalanced on the bend.
Decision
[33] Unfortunately there was a two-week delay in Trackside providing a DVD with the various angles of the race for the Tribunal to view during the course of its deliberation.
[34] We find that DASHER RUM was quickly into stride and was the leading dog into the first bend. The dog brushed briefly with the number 2 dog, UNO GREEN, but this did not appear to inconvenience DASHER RUM to any extent. As DASHER RUM entered the bend the dog drifted away from the rail and was challenged by the number 8 dog, BOTANY JESSIE, on his outside. DASHER RUM began to drift and the number 4 dog, THRILLING MIGHT, moved up on his outside and there were also dogs making runs to his inside. DASHER RUM lost considerable momentum. This loss was so marked, that DASHER RUM went from first to last in the space of some 50 to 60 metres. The dog exited the bend, which he had entered in first place, in last place, some 2 lengths behind the second last dog. DASHER RUM did not lose any ground on the field in the straight run to the line.
[35] Mr Waite has proffered many explanations as to why DASHER RUM raced so poorly on this first bend. We are not required to determine why DASHER RUM slowed so markedly but whether, in so doing, DASHER RUM has failed to pursue the lure with due commitment throughout the entirety of the race. Of particular concern to us is the speed with which DASHER RUM lost his position at the head of the field and the degree of momentum that the dog lost. DASHER RUM has not suffered interference from other dogs; he has brushed one dog — he certainly was not checked. The veterinarian on the day has reported “No Abnormality Detected”, although we note DASHER RUM was noted to be hypersensitive. Mr Waite has not reported that any significant injury was detected later with respect to the dog nor did he take the opportunity of a further veterinarian inspection, as is provided in the Rules. We have considered whether the dog was “spent” as Mr Waite has alleged and had thus simply performed very poorly on the day. We do not believe this to be the case as the dog was only 100 metres into the 305 metres race when it started easing and was clearly able to keep up with the field in the straight run to the finishing line.
[36] We are satisfied that DASHER RUM has eased for no apparent reason after jumping away well. While we accept Mr Waite is genuine in his belief that DASHER RUM has simply not handled the bend as a result of the dog starting from trap one, and this is the reason for DASHER RUM’s loss of momentum, we note the dog has raced on the track on numerous occasions without any difficulty of this magnitude. Indeed the dog has had 9 wins or placings on this track. There is nothing in the evidence before us that would lead us to believe that the track conditions on this day played any significant part in the dog’s loss of momentum in this race. We accept there had been a major flood in Whanganui earlier in the week and the track was a little softer than usual. But the times and the performances of other dogs on the day do not suggest that this is a factor that explains DASHER RUM’s run.
[37] Mr Waite has stated that 4 of his 11 dogs have been stood down for failing to pursue. He believes that his dogs are “picked on” by the Stipendiary Stewards. There is simply no evidence before us that would support this allegation.
[38] We find that DASHER RUM has failed to pursue the lure with due commitment throughout the entirety of a race, and, in particular, the dog has failed to pursue for the duration of the first bend of race 3 at Hatrick Raceway Whanganui on 18 October 2013.
[39] The appeal against the decision of the Stipendiary Stewards to stand down the dog DASHER RUM for 28 days pursuant to r 80.1(b)(a) is thus dismissed.
[40] We require the parties to file submissions as to costs, which will include the costs of the JCA, for which Mr Whiterod is to have responsibility. To that end the following timetable is to apply:
(i) Mr Whiterod is to file and serve on Mr Waite his submissions on costs within one week of the date of this decision;
(ii) Mr Waite will have a further week from the date of receipt of Mr Whiterod’s submissions to file his submissions in reply;
(iii) Leave is reserved to apply if for any valid reason there is difficulty with this timetable.
Dated this 26th day of November 2013
Geoff Hall, Chairman
Paul Williams, Member of Tribunal
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 30/11/2013
Publish Date: 30/11/2013
JCA Decision Fields (raw)
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hearing_title: Appeal - R Waite v RIU - Decision dated 26 November 2013
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Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY AT WHANGANUI
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Greyhound Racing
BETWEEN Mr RICHARD WAITE of Whanganui, Licensed Owner / Trainer
Appellant
AND RACING INTEGRITY UNIT (RIU)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr P Williams, Member of Tribunal
Registrar: Mr B Bateup
Appearing: The appellant in person, assisted by Mrs A Waite
Mr G Whiterod for the respondent
DECISION
[1] Mr Waite has appealed against the decision of the Stipendiary Stewards at Hatrick Raceway Whanganui on 18 October 2013 to stand down the dog DASHER RUM for 28 days pursuant to r 80.1(b)(a).
[2] Rule 80.1(b) provides: “Where a Greyhound fails to pursue the lure in a race, the Stewards may impose the following periods of suspension: (a) in the case of a first offence, twenty-eight (28) days and until the completion of a satisfactory trial.”
[3] Mr Waite agreed that it was appropriate for Mr Whiterod to present his case first.
The respondent’s case
[4] DASHER RUM started from Box 1 in Race 3, The JJ Print Petone C3 305 metres. The dog finished last of 8 runners. DASHER RUM was the sixth favoured dog in the betting and the official race-book said of his chances: “He does own early pace, so consider here despite poor trap-1 form”.
[5] The Stipendiary Steward presiding on the day, Mr Whiterod, described DASHER RUM’s race performance in his report in the following terms: “DASHER RUM led to the first corner but then did not chase with due commitment and went back through the field to last before reaching the home turn where he then commenced to chase again and finished in last place.”
[6] Mr Whiterod stated that the previous meeting at the venue, which had been scheduled for Wednesday 16 October, had been abandoned on the Tuesday afternoon, due to the track conditions. Mr Austen, Stipendiary Steward, who had inspected the track on that day, had said he was sinking up to his ankles when walking parts of the track. There had been a storm and further bad weather was forecast.
[7] Mr Whiterod said he spoke by telephone to the Club Manager on both Wednesday and Thursday and was assured that staff had worked on the track and it was fine for racing on Friday. He said other than the track being a little softer than usual on Friday; he did not have any issues with it. It was “perfectly ok” and “safe to race”. No remedial work, other than the usual grooming between races, was required on raceday.
[8] Mr Whiterod said none of the three incidents on the day could be attributed to the condition of the track. The dog that was injured in race 1 had been checked and galloped on; in race 8 the dog was checked and fell; and in race 10 a dog had been forced wide on the first bend and had made firm contact with the outside fence. He added he had not observed that any dog in any race had had difficulties with the track.
[9] With respect to the official penetrometer readings, Mr Whiterod said he had not had access to these on raceday but the document that detailed these, which Mr Waite had placed before the Tribunal, raised no concerns.
[10] Mr Whiterod described race 3 to the Tribunal. He said he had watched it live through his binoculars from the Stewards’ Box. The race was also recorded for subsequent viewing. He said he had had no concerns until the first corner. DASHER RUM, which had been leading initially, was sharing the lead at this corner. The dog began to ease slightly and did not pursue with due commitment all the way around the bend. DASHER RUM went from first, or equal first, on entering the bend to a couple of lengths last on exiting the bend. He said DASHER RUM was the only dog that lost ground on that bend as the others “pretty much held” their respective positions.
[11] Mr Whiterod explained that DASHER RUM was railing at the time he entered the bend and he had moved away from the rail, which had allowed other dogs to pass him on his inner as well as on his outside. He said he had thought immediately when viewing the race through his binoculars that DASHER RUM was not pursuing the lure.
[12] Mr Whiterod was sufficiently concerned by DASHER RUM’s performance to refer the dog to the raceday veterinarian, Mr D Barton, for assessment. It was accepted by the parties that this veterinarian inspection occurred some one to one and half hours after the race. We were told that it is standard practice to allow a dog to cool off before examination. Mr Barton reported that the dog was “NAD” which we were informed, and Mr Waite accepted, was Mr Barton’s shorthand for “No Abnormality Detected”. Mr Barton also reported that DASHER RUM was difficult to check because the dog was very hypersensitive. He did not order any stand down due to injury.
[13] Mr Whiterod said after receiving the veterinarian report he had the Assistant Stipendiary Steward ask the Waites to come to the Stewards’ Room. They then went over the film together and Mr Whiterod explained to the Waites that, in his opinion, DASHER RUM did not pursue the lure. The Waites had disagreed, stating that DASHER RUM did not enjoy racing from the inside box. They said he never had, and that was why the dog did not perform satisfactorily in the run around the first bend.
[14] Mr Whiterod said he then informed the Waites that, after consultation with the Assistant Stipendiary Steward, he was standing DASHER RUM down for 28 days and a satisfactory trial. He advised the Waites they had the opportunity to re-present the dog within 72 hours for another veterinarian inspection. He had expected that they would have done this due to the hypersensitivity issue, but they did not. However, they did ask him to rescind the stand-down and he said he had explained that he could not do that and that they should lodge an appeal if they were unhappy with his decision.
[15] Mr Whiterod described DASHER RUM as being a sprinter. He disagreed with the Waites that the dog had a preference for outside traps. He said DASHER RUM had had placings from boxes 2 and 3 and there was nothing to suggest that the dog preferred even numbered boxes to odd ones. He added a dog was expected to pursue with due commitment throughout the race no matter what box the dog had drawn.
[16] Mr Whiterod produced the Guideline “GRNZ Application/Interpretation of Rule 80 in relation to Marring and Failing to Pursue the Lure” which had been compiled by Greyhound Racing New Zealand. He said it had been around for years, and had been reprinted from time to time in the Greyhound Magazine, although not in recent months. He said the purpose of the document was to give guidance to the Stewards and licence-holders. Mr Waite commented he had not seen the Guideline before.
[17] The Guideline states that “whilst failing to pursue the lure is not a definition as such in the Rules it is generally accepted that it is defined as an instance when a greyhound fails to pursue the lure with due commitment throughout the entirety of a race.” Mr Whiterod emphasised that this was what DASHER RUM had done. He had eased for no apparent reason after jumping away well. The dog had not been checked by any other dog during the running and the veterinarian inspection detected no injury. The dog had previously raced on the track on numerous occasions without any obvious difficulty.
[18] When questioned by the Tribunal, Mr Whiterod stated that he had had concerns with DASHER RUM failing to pursue on previous occasions and he had had discussions with the Waites, although he thought on one of those occasions the dog had had a 10-day stand-down due to injury. The other times, he said, he had given the dog the benefit of the doubt.
The appellant’s case
[19] Mr Waite commenced his submissions by stating that DASHER RUM had explosive speed but often had trouble on corners when other dogs were close to him. The dog raced best when he was able to jump clear of the field and hold on. He often lost a lot of speed on the corners. He said DASHER RUM should never have been put out for “failing to pursue the lure throughout”. He pointed to the dog’s statistics from trap 1, which was now 0 from 6. He had had 32 starts from other traps and had received 14 cheques. He said DASHER RUM had clearly found box 1 difficult to handle. This fact had obviously been taken into account on the night by the expert bookmakers as DASHER RUM was the outsider on the fixed odds.
[20] Mr Waite said that DASHER RUM was so keen to race that he worked himself up before a race and had run a race before a race. This stress was built up even more if he was in an odd box (boxed first) as he kicked and played up, sometimes cutting his back legs on the back of the box as a consequence. Therefore, very precious energy was used up and this was shown in the results (odd boxes, 22 starts, 0 wins 4 places – even boxes, 16 starts, 5 wins 5 places). The dog had become very worked up prior to his race on this day, he said.
[21] DASHER RUM finished last, 8.4 lengths from the winner. Mr Waite said this was not as big a distance between first and last as in the other 305 metre races on the day. He added DASHER RUM was usually very committed to chasing the lure, as was evident in a previous race where he had received a bloodied nose after crashing into the lure.
[22] With reference to the DVD of the race, Mr Waite said DASHER RUM did not handle the corner well but he never gave up chasing. He said DASHER RUM was in the wrong position as he entered the corner for this dog. The dog clearly was not worried about the other dogs in the race. He said DASHER RUM made contact with dog 2, UNO GREEN, in the back straight, in that they had brushed briefly, and then he had got in front of that dog after this contact, so the dog was not worried at that stage. He believed this showed that DASHER RUM had no issues with other dogs. As DASHER RUM took the corner the dog had found he was too close to the rail for him. He had to balance up to negotiate the remaining part of the bend and, in so doing; he lost a lot of speed. He pointed out on the DVD that the dog’s head was very awkward and DASHER RUM was struggling to maintain his balance. In the straight, DASHER RUM never gained any ground on the dogs in front of him, so the dog, he said, had never recovered from his loss of balance on the bend.
[23] Mr Waite demonstrated that in his view DASHER RUM was shortening stride before the bend. The dog’s head was moving, which was an indication that the dog was not confident and that the tightness of the bend was troubling him because he was racing close to the rail. He emphasised DASHER RUM would have entered the bend on a different angle had the dog not drawn trap one and might have coped with the bend better in those circumstances. He said the dog had not jumped as well as he could and could not get as wide on the track as he would have wished. DASHER RUM had not made up ground on the other dogs in the home straight, but had merely kept his position in the field.
[24] Mr Waite said the dog did want to chase the lure but was having to correct himself. The sideways movement of DASHER RUM’s tail and the tilting of his head showed that he was not balanced on the bend. He said DASHER RUM had wanted to run wider on the bend but could not do so because other dogs were outside him. He reiterated he was racing too close to the rail than was comfortable for him on that bend. He added that the dog was spent after having got worked up before the race. He said the dog was trying to keep his line and was not attempting to get away from the other dogs. He emphasised DASHER RUM was not afraid of other dogs and always lost ground on the corners.
[25] Mr Waite said DASHER RUM had clearly become unbalanced on the corner and in this regard the track was not ideal. He said there had been a one in 25 years flood and produced the penetrometer readings that had been taken by the Club. He questioned whether it was safe to race on the Friday after the meeting on Wednesday had been cancelled. In particular, he believed scientific tests should have been conducted on the track to ensure that two days later it was not only safe to race on but also provided a surface that gave even and fair racing conditions. He questioned whether some dogs, such as DASHER RUM, might have found the track difficult to negotiate, given the extreme weather conditions that had occurred. He said the RIU had failed to provide details of tests on things like the composition of the track, the materials and ratios, force absorption and surface traction. He further stated there were two layers to the track and questioned whether the Club could be certain the bottom layer, which the dogs used for traction, was not affected by the adverse weather event.
[26] Mr Waite said the veterinarian had not been able to properly test DASHER RUM because the dog was hypersensitive. He said a finding of “No Abnormality Detected” did not mean the dog was free of injury. He said there was certainly no evidence the dog was injured badly but he might have suffered a minor injury. He also said a dog going from first to last was not that uncommon. Mr Waite questioned the accuracy of the stipendiary stewards’ report in that it stated that DASHER RUM was “cleared of injury” by the Veterinarian. This was wrong as the veterinarian report said, “Difficult to check – very hypersensitive” so the dog, he said, was never cleared of injury.
[27] Mr Waite showed four previous race performances of DASHER RUM. These were all races where DASHER RUM either won or was not headed until the home straight. These were races on 11/9/13, 26/6/13, 5/6/13 and 15/4/13. On only one occasion was a dog racing alongside DASHER RUM on a bend, and that dog quickly faded. Significantly, in each of these starts DASHER RUM, after jumping quickly, went to the lead and, if headed, this was only in the home straight. In one race he demonstrated that the dog, when in the lead, had slowed on the bend and had put in a couple of short strides. He said the dog was obviously experiencing some discomfort on that bend.
[28] Mr Waite said DASHER RUM gave 100% every race. He was totally exhausted after this race, and had nothing left. In his best races he had jumped 3 to 4 lengths faster than anything out of the box and he had entered the bend in a better position (4 to 5 wide) to be able to balance up. He said he would prefer to race DASHER RUM at the Manawatu track as the corners were not so tight, but the distance was longer and the dog found it a bit of a struggle over the last 90 metres. With that track being softer, it was even a harder run but if the dog was to continue racing, it would most likely be there. Another very important factor to consider, he said, was that DASHER RUM had only had two grade 3 runs. He was up in grade and had found the rise in class difficult.
[29] Mr Waite questioned what he believed was “total inconsistency in evaluating performances” and “inconsistent application of the failing to pursue the lure rule”. This call, he said, was only based on the opinion of the Stipendiary Stewards and, if they applied this rule the way they had in DASHER RUM’s case, many other performances would have had to be questioned and the dogs given 28 days stand down and required to complete a satisfactory trial. He questioned whether certain trainers or owners influenced the Stewards on race day by approaching or ringing them. He believed that his dogs were analysed more than others. He had had only 11 race dogs and 4 had been put out for this offence. He was thus very frustrated. He said he found this rule and penalty were very tough and should only be used when it was “totally clear that there was no potential excuse”. The benefit of doubt, he said, should always be given to the dog.
Summing up
[30] Mr Whiterod summed up his case by stating DASHER RUM had failed to pursue throughout the race and, when racing around the first bend, had not wanted to be there with the other dogs and had gone from first to last over a distance of approximately 100 metres. He said DASHER RUM had eased because the number 8 dog, BOTANY JESSIE, was challenging him on the outside for the lead. He agreed with Mr Waite that a dog going from first to last was not that uncommon but this was usually due to a dog suffering injury, or being tightened or checked. These were not the circumstances that pertained in this case.
[31] Mr Whiterod reiterated dogs were expected to chase the lure no matter what box they had drawn and exceptions could not be made on this ground. He also said he believed the track conditions had had little impact on the day’s racing, as supported by the fact the times were little different to previous meetings on the track. He said the dog was not spent as Mr Waite alleged, as the dog had only gone 100 metres before easing and losing ground. He saw no significance in the tail movement of DASHER RUM. DASHER RUM had only eased once other dogs were around him. The dog was not under pressure from other dogs. There had only been a slight brush with the number 2 dog, UNO GREEN. DASHER RUM had only started chasing the lure after he was 2 lengths behind the last dogs and he had not lost ground on the other dogs in the run to the line.
[32] Mr Waite emphasised that DASHER RUM was a keen dog and had nothing in reserve when things went wrong, as had occurred on this occasion, when he was tired and unbalanced on the bend.
Decision
[33] Unfortunately there was a two-week delay in Trackside providing a DVD with the various angles of the race for the Tribunal to view during the course of its deliberation.
[34] We find that DASHER RUM was quickly into stride and was the leading dog into the first bend. The dog brushed briefly with the number 2 dog, UNO GREEN, but this did not appear to inconvenience DASHER RUM to any extent. As DASHER RUM entered the bend the dog drifted away from the rail and was challenged by the number 8 dog, BOTANY JESSIE, on his outside. DASHER RUM began to drift and the number 4 dog, THRILLING MIGHT, moved up on his outside and there were also dogs making runs to his inside. DASHER RUM lost considerable momentum. This loss was so marked, that DASHER RUM went from first to last in the space of some 50 to 60 metres. The dog exited the bend, which he had entered in first place, in last place, some 2 lengths behind the second last dog. DASHER RUM did not lose any ground on the field in the straight run to the line.
[35] Mr Waite has proffered many explanations as to why DASHER RUM raced so poorly on this first bend. We are not required to determine why DASHER RUM slowed so markedly but whether, in so doing, DASHER RUM has failed to pursue the lure with due commitment throughout the entirety of the race. Of particular concern to us is the speed with which DASHER RUM lost his position at the head of the field and the degree of momentum that the dog lost. DASHER RUM has not suffered interference from other dogs; he has brushed one dog — he certainly was not checked. The veterinarian on the day has reported “No Abnormality Detected”, although we note DASHER RUM was noted to be hypersensitive. Mr Waite has not reported that any significant injury was detected later with respect to the dog nor did he take the opportunity of a further veterinarian inspection, as is provided in the Rules. We have considered whether the dog was “spent” as Mr Waite has alleged and had thus simply performed very poorly on the day. We do not believe this to be the case as the dog was only 100 metres into the 305 metres race when it started easing and was clearly able to keep up with the field in the straight run to the finishing line.
[36] We are satisfied that DASHER RUM has eased for no apparent reason after jumping away well. While we accept Mr Waite is genuine in his belief that DASHER RUM has simply not handled the bend as a result of the dog starting from trap one, and this is the reason for DASHER RUM’s loss of momentum, we note the dog has raced on the track on numerous occasions without any difficulty of this magnitude. Indeed the dog has had 9 wins or placings on this track. There is nothing in the evidence before us that would lead us to believe that the track conditions on this day played any significant part in the dog’s loss of momentum in this race. We accept there had been a major flood in Whanganui earlier in the week and the track was a little softer than usual. But the times and the performances of other dogs on the day do not suggest that this is a factor that explains DASHER RUM’s run.
[37] Mr Waite has stated that 4 of his 11 dogs have been stood down for failing to pursue. He believes that his dogs are “picked on” by the Stipendiary Stewards. There is simply no evidence before us that would support this allegation.
[38] We find that DASHER RUM has failed to pursue the lure with due commitment throughout the entirety of a race, and, in particular, the dog has failed to pursue for the duration of the first bend of race 3 at Hatrick Raceway Whanganui on 18 October 2013.
[39] The appeal against the decision of the Stipendiary Stewards to stand down the dog DASHER RUM for 28 days pursuant to r 80.1(b)(a) is thus dismissed.
[40] We require the parties to file submissions as to costs, which will include the costs of the JCA, for which Mr Whiterod is to have responsibility. To that end the following timetable is to apply:
(i) Mr Whiterod is to file and serve on Mr Waite his submissions on costs within one week of the date of this decision;
(ii) Mr Waite will have a further week from the date of receipt of Mr Whiterod’s submissions to file his submissions in reply;
(iii) Leave is reserved to apply if for any valid reason there is difficulty with this timetable.
Dated this 26th day of November 2013
Geoff Hall, Chairman
Paul Williams, Member of Tribunal
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