Appeal DD Schofield v NZGRA – 23 January 2011 – Decision dated 28 January 2011

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decisiondate: 31/12/2010

hearing_title: Appeal DD Schofield v NZGRA - 23 January 2011 - Decision dated 28 January 2011

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY AT AUCKLAND
UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN Mr DAVID DENIS SCHOFIELD of Huntly, Licensed public trainer
Appellant

AND NEW ZEALAND GREYHOUND RACING ASSOCIATION (INC)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr A Dooley, Member

Appearances: Mr D Schofield in person, with the assistance of Mrs I Schofield
Mr G Whiterod, for respondent
Date of hearing: 23 January 2011
Date of decision: 28 January 2011

DECISION OF APPEALS TRIBUNAL

[1] This was an appeal by Mr David Schofield against the decision of the stipendiary stewards at Cambridge on 30 December last to stand down STICKY BOY for 28 days pursuant to r 80.1.b(i) of the New Zealand Greyhound Racing Association (hereinafter GRNZ) Rules of Racing.
[2] Rule 80.1.b(i) states:
Where a greyhound in the opinion of the Stewards;
b. Fails to pursue a Lure in a Race, the Stewards may impose the following periods of suspension.
(i) in the case of a first offence, twenty-eight (28) days and until the completion of a Satisfactory Trial.

[3] Rule 97.4 provides that:
“All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.”
[4] There was no recording or transcript of the hearing by the stewards whose decision is being appealed. That being the case, this Tribunal decided that the appropriate manner in which to proceed was to rehear all the evidence in the matter. We invited GRNZ to present its case first.
The respondent’s case
[5] The respondent was represented by Mr Gavin Whiterod, stipendiary steward. He stated that he was present in his capacity as a stipendiary steward at the Waikato and Districts GRC meeting at Cambridge on 30 December last. Mr Whiterod said he was concerned that dog number 2, STICKY BOY, which started from box 2 and was 3/4 in the betting, and which had finished 4th in race 5, had eased for some 20 strides (which he estimated to be approximately 50 metres) and, in so doing, the dog had failed to pursue the lure. He said Mr Quirke, stipendiary steward, was officiating on the day and he had asked for the dog to be vetted by the raceday veterinarian to find out if there was any reason for the dog easing.
[6] The result of the veterinary examination was that STICKY BOY was found to have no apparent abnormality. The veterinary certificate (exhibit A) provided for no stand down.
[7] Mr Whiterod said he was the investigating stipendiary steward for the purpose of the Rules and, after hearing from Mr Schofield senior, interpreting the video, and discussing the matter with Mr Quirke, the decision was made that the dog was in breach of r 80 and STICKY BOY was stood down for 28 days and required to trial satisfactorily.
[8] Mr Whiterod produced the stipendiary stewards’ report for that day (exhibit B) and the greyhound profile of STICKY BOY by way of a printout from the GRNZ database (exhibit C). The printout stated STICKY BOY had had 85 starts for 22 wins. The dog had had a number of starts at the Cambridge raceway over the distance of 457 metres. Mr Whiterod took us through 8 races where the position of the dog on each bend and at the finish was recorded. He said these statistics demonstrated that STICKY BOY was able to “jump and run” in 5 of these races and maintain his place at the head of the field. In one race STICKY BOY had settled close to the rear and stayed there, in another he had entered the first bend in 2nd placing but had then dropped back to last. Mr Whiterod explained that STICKY BOY had met interference on this occasion. The final race was the one at issue in this case which showed that STICKY BOY was 2nd on entering the first bend, 6th at the next and 4th when he finished.
[9] Mr Whiterod then played the trackside video of the race in question. This demonstrated that STICKY BOY had jumped well and was in 2nd place when entering the first bend. The dog slowed when headed by the number 3 dog (ROLLED OATS) on his outside, and then eased for what Mr Whiterod estimated to be at least 20 strides. He said that the dog “had not put in” at an early stage of the race and had as a consequence ended up racing equal last with the number 4 dog (MIXED GRILL). Mr Whiterod said STICKY BOY then “puts in” and runs home quickly in the straight for 4th placing. He said STICKY BOY was still racing hard when ROLLED OATS went past but from that time he was not putting in until he was ultimately some 7 to 8 lengths behind that dog. He believed had STICKY BOY kept pursuing the lure this would have improved the dog’s chances of finishing in a better placing.
[10] Mr Whiterod demonstrated on the head-on video that in his view STICKY BOY was wandering about. About 100 metres after the start the dog had begun to ease. He said ROLLED OATS had never got into STICKY BOY’s running line but had run ahead of it, so STICKY BOY had not suffered interference. He accepted, however, that ROLLED OATS had moved in slightly and STICKY BOY had moved out slightly. He said there was never any pressure on the dog from ROLLED OATS; STICKY BOY had simply eased when ROLLED OATS moved up on his outside. He acknowledged, when questioned by Mr Schofield, that ROLLED OATS was perhaps going better than STICKY BOY when that dog went past STICKY BOY.
[11] Mr Whiterod called Mr Quirke to give evidence. Mr Quirke said he had officiated at a number of meetings where STICKY BOY had raced and had observed that the dog had a tendency to want to get to the outside of the track. On one occasion, at least, this had resulted in the dog coming into contact with other runners. He said the dog was “his own worst enemy”. One example he gave was a race at Cambridge on 24 December when the dog was handy on the first bend and had run out, coming into contact with other dogs, and being checked back to last. He said in the race at issue before us there was no evidence of contact with other dogs or that STICKY BOY had been cut-off by another dog. He said there was quite a margin between STICKY BOY and ROLLED OATS when that dog had come across. STICKY BOY had not had to check.
[12] Mr Quirke said he had been concerned on a previous occasion that STICKY BOY had not chased the lure but had given the dog the benefit of the doubt as there had been some contact, even though it was minimal. He said the dog’s running style was that it tries to get wide. When the dog was in the clear, he seemed to race okay. He further explained that when STICKY BOY was crowded with other dogs he tries to get out, especially on the bends. He said STICKY BOY usually raced at around 30.5 kgs and was thus not a big dog.
[13] When questioned by this Tribunal, Mr Quirke said that the trait of a dog running out was not unusual. There were often one or two in every race. STICKY BOY did not usually run out straight after the jump but usually on a bend. In this race, he said, STICKY BOY had jumped well and shown early pace. He said STICKY BOY had eased until there was clear space on his outside and had then run on. He emphasised there was no hindering of the dog by another runner. In his view STICKY BOY could have come out into the clear earlier. He said there was space once ROLLED OATS had come round. He also demonstrated a change in the action of STICKY BOY at this time.
The appellant’s case
[14] Mr Schofield is the trainer of STICKY BOY. He said he had trained some 1800 winners over 15 years and he knew when a dog was not chasing the lure, and this was not one of those cases. He said STICKY BOY was “a very very smart dog”. He had won 22 of 85 starts, with many of these being in top company.
[15] Mr Schofield’s case in a nutshell was that the dog needed “clear air” before producing his best in a race and, on this occasion, STICKY BOY had not received this until late in the piece. He said STICKY BOY was a wide racing dog who finished off his races strongly. Mr Schofield said STICKY BOY had adopted the same style of racing in all of the dog’s races. He had witnessed this on a regular basis in the 70 starts STICKY BOY had had in the two and a bit years he had been training the dog. He demonstrated this by showing a number of DVD’s of STICKY BOY’s races. These, he said, showed that STICKY BOY did not race until it got to the outside. He said the dog would not run if it was crowded; ie if there were dogs on his outside, as there were in the race in question.
[16] Mr Schofield said the statistics that Mr Whiterod had produced with respect to STICKY BOY’s position in races simply demonstrated that when racing without dogs on his outside STICKY BOY was able to maintain a strong run, but if dogs crowded him he tended to look for the outside.
[17] With regard to this particular race, the appellant said ROLLED OATS was a sprinter and thus it was understandable that that dog had raced past STICKY BOY. The number 7 dog (HARAJUKU BOY) was also able to run quicker times at the start of his races than STICKY BOY, so he was not surprised that that dog had got out ahead of STICKY BOY. He said once ROLLED OATS dog had come across in front of STICKY BOY it was not “his [STICKY BOY’s] go”. STICKY BOY could be seen to be angling out looking for a run. This was why the dog had been running about, as Mr Quirke had said. Once STICKY BOY had got clear air he had run on in the middle of the track. He was clearly hitting the line strongly. These, he said, were not the actions of a dog that was not chasing. He said Mr Whiterod had confused STICKY BOY’s racing style with that dog not pursuing the lure; STICKY BOY would often spend time in a race trying to get to the outside, but he was still pursuing. In the race in question, STICKY BOY had simply had no luck; the race had not gone STICKY BOY’s way this time. He concluded by stating the dog was “a hard chaser” that could not have a dog on his outside.

Summing up
[18] Mr Whiterod summed up by stating STICKY BOY’s record demonstrated he was a very good dog with very good speed. However, on this occasion in easing for some 20 strides back to equal last, the dog was not pursuing the lure. It had only begun to pursue the lure once it was equal last. He said greyhounds were bred to chase the lure at all times throughout a race; for example, a dog who was checked in a race would almost always pursue the lure again. He said the Rules do not allow for a dog to ease just because it is racing in crowded quarters. Had STICKY BOY immediately pursued the lure after ROLLED OATS had gone around, no charge would have been laid, but STICKY BOY had eased for some 20 strides. He said the betting public had to be protected: STICKY BOY had given away so much ground that he could never make it up, and they had not had a fair go with respect to their investment on that dog in this race. He said STICKY BOY was not happy where he was racing so the dog pulled back. The integrity of racing required that a dog could not be permitted to ease. It must chase the lure at all times.
[19] Mr Whiterod concluded by saying there was “no good reason” for STICKY BOY failing to chase. The dog had run home in the straight strongly and did not appear to be concerned at that time about the other dogs around him. The Rules did not permit a dog to wait for clear air. Easing for 20 strides when there was clear racing room ahead was not to pursue the lure. STICKY BOY was thus, in his submission, in breach of r 80.
[20] Mr Schofield in reply said STICKY BOY was at all times in the race trying to pursue. The dog was not easing but was simply trying to get to the outside of the other dogs. This was the dog’s racing style, and it did not mean STICKY BOY was failing to pursue. STICKY BOY’s style of racing had not changed throughout his racing career. He was a chaser who would not run until he had room and he had not found a gap until he was at the back of the field. He disagreed with Mr Whiterod that STICKY BOY had space once ROLLED OATS had come around. He said STICKY BOY was trying “to work out” and had had dogs on his outside until such time as he had run on.

Reasons for decision
[21] Rule 80.1.b refers to the opinion of the stewards. As we are hearing this matter de novo, we believe that we have to be satisfied that a steward could reasonably form the opinion that STICKY BOY is in breach of that rule. There is no reference to the necessary standard of proof in the Rules. We adopt a standard of proof of “on the balance of probabilities” but, in so doing, we have regard to the fact that the impact of a finding adverse to a greyhound is that it is suspended temporarily and possibly ultimately prevented from racing for 12 months.
[22] We make the following findings of fact:
• race 5 was raced over a distance of 457 metres;
• STICKY BOY was quick out of its box and settled 2nd;
• the dog was racing strongly entering the 1st bend;
• when STICKY BOY was still racing second, ROLLED OATS came up on that dog’s outside and STICKY BOY eased for about 20 strides;
• in so doing, STICKY BOY drifted back to equal last;
• STICKY BOY finished strongly in home straight, running past 2 dogs, finishing 4th;
• when running on in the straight, STICKY BOY had not raced to the outside of the track but had raced down the middle of the track between tiring runners.
[23] The issue is whether in easing, some 100 metres after the start, from 2nd place back to equal last, STICKY BOY has failed to pursue the lure. The nub of the respondent’s case is that if a dog eases during a race and then runs on, unless that dog eased because of interference, it has failed to chase the lure and is thus in breach of r 80. The appellant disagrees strongly with this interpretation and states there will be times, such as is the case with STICKY BOY, that a dog will ease, but that dog should be seen still to be chasing the lure.
[24] We are alert to the subjective nature of the determining of whether a dog has failed to pursue. While we are not required by the Rules to determine why STICKY BOY slowed as it was being crossed by ROLLED OATS, it is our view that this is relevant to the determination of the issue of whether that dog is still pursuing the lure. As was said in the Man Oh Man case (17 January 2011), it may often be of assistance in determining whether a dog has failed to chase, to examine the reason(s) why a dog may have eased during a race. The Tribunal said in that case that not every dog that eases in a race has failed to chase the lure. It stated at [33]:
“While injury is covered by r 80 itself, interference by another dog, tightening, or contact with the rail, for example, are, the respondent states, factored into a decision by the stipendiary steward as to whether or not to lay a charge. Issues such as track configuration (cambered/uncambered, transitional, tight or sweeping bends, short or long straight), or track conditions, to our mind, are some examples of further matters that may need to be factored into a determination of whether a dog has failed to pursue and is thus in breach of r 80.”
[25] There are no issues in this case with respect to the track configuration, track conditions, or injury to the dog. Mr Schofield suggested without a great deal of conviction that ROLLED OATS had cut STICKY BOY off when that dog crossed. Other than a change being evident in STICKY BOY’s action at this time (the dog shortens stride), there is nothing to suggest that ROLLED OATS has interfered with STICKY BOY but rather that STICKY BOY has resented that dog racing on its outside, has slowed, and ROLLED OATS has improved to ahead of STICKY BOY. It may be that ROLLED OATS, being a sprinter, was a quicker dog than STICKY BOY, as Mr Schofield has said, but this does not explain why STICKY BOY has continued to ease for some 20 strides. The explanation, we believe, is that given by Mr Schofield, and which is at the core of his defence to the charge: STICKY BOY simply does not like racing with dogs on his outside. This is his racing style; he needs “clear air”. The DVDs put him in breach of the Rules, in that the dog has failed to pursue the lure. Our answer to this question is in the affirmative. Rule 80 does not permit an interpretation that a dog may slow because a dog or dogs are racing on its outside and the dog in question does not like this. As Mr Whiterod said, a dog may slow for a stride or two as another dog races past or comes across, and remain within the Rules, but this will be a question of degree and will be a matter for the exercise of a discretion by the stipendiary steward, subject of course to further and later examination, on occasion, by an Appeals Tribunal.
[26] STICKY BOY has slowed for 20 strides, which is a distance estimated to be close to 50 metres. He has gone from racing 2nd in the field to equal last. He has then run on down the middle of the track. We accept that this was at a time the dog had “clear air”, but we note that in running on strongly the dog has raced inside another dog. So there is evidence that the dog when it wishes will race inside another dog. We also observe there was a time, and we accept it was fleeting, immediately after ROLLED OATS went by, that STICKY BOY could have moved to the outside. Had the dog done so then, a charge, we venture to state, may never have been laid. 
 

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[27] STICKY BOY’s racing manners on this occasion have, we find, placed him in breach of the Rules. We are satisfied to the necessary standard that the stewards did reasonably form the opinion that STICKY BOY failed to pursue the lure in breach of R 80.1.b(i). The consequence is that the stewards’ decision on 30 December last to impose a 28-day suspension on STICKY BOY is upheld.
[28] The parties are given leave to file submissions for costs within 7 days of the receipt of this decision.

Geoff Hall, Chairman
Adrian Dooley, Member

hearing_type: Non-race day

Rules: 80.1.b(i)

Informant: Mr David Denis Schofield

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PersonPresent: Mrs I Schofield assisting Mr Schofield

Respondent: NZGRA

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