Appeal RIU v J Patterson – 5 October 2011 – Decision 27 October 2011
ID: JCA14339
Decision:
BEFORE AN APPEALS TRIBUNAL HELD AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN The Racing Integrity Unit on behalf of Harness Racing New Zealand
Appellant
AND Mr J Patterson – Licensed Horseman
Respondent
Tribunal: BJ Scott (Chairman) – RG McKenzie (Panelist)
Date of Hearing: Wednesday the 5th of October 2011
Present: Mr CJ George (Chief Stipendiary Steward - representing the Appellant), Mr N Ydgren (Stipendiary Steward), Mr J Patterson (Respondent), Mr AM Butt (Licensed Open Horseman - representing Mr Patterson), Mr SP Renault (Registrar), Mr NG McIntyre (Stipendiary Steward – Observer) and Mr SW Wallis (Stipendiary Steward – Observer)
Date of Oral Decision: 5th of October 2011
Date of Written Decision: 27th October 2011
DECISION OF APPEALS TRIBUNAL
Background:
1.1 This Appeal arose from a Decision of Judicial Committee into Race 3 at the Oamaru Harness Racing Club’s Meeting on the 18th of December 2011.
1.2 The Informant on Race Day was Stipendary Steward Mr N Ydgren.
1.3 The Defendant on Race Day was Mr J Patterson the Trainer and Driver of LOOSE CANNON.
1.4 The charge on Race Day was pursuant to Rule 868(3) and it was alleged that Mr Patterson failed to drive out his horse LOOSE CANNON over the final stages of the race to an acceptable standard. The charge was defended.
1.5 The evidence before the Committee was that LOOSE CANNON finished second and the margin between first and second was a neck.
1.6 In its Decision the Committee found that LOOSE CANNON was making ground from midfield all the way up the straight and in the Committee’s opinion the sectional times for the last half and final 400 metres of the race were very good. The Committee accepted the evidence of Mr Patterson but did acknowledge Mr Ydgren’s concern about Mr Patterson’s lack of vigour over the final stages of the race and suggested that if Mr Patterson had at least urged his horse on with the reins then that would have removed any doubt that he was not driving LOOSE CANNON out to the finish of the race.
1.7 At the conclusion of the Hearing the Committee dismissed the charge.
1.8 Mr Ydgren appealed the Race Day Committee’s Decision and a Notice of Appeal dated the 21st of September 2011 was duly lodged.
Appellant’s Submission:
2.1 Mr George in his written submissions set out the provisions of Rule 868(3) which states:
“Every Horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth or sixth.”.
2.2 Mr George pointed out to the Committee that the margin between first and second on Race Day was a neck.
2.3 Mr George advised the Committee at the outset that there was no question about Mr Patterson’s integrity.
2.4 Mr George referred the Committee to three Australian Appeal Decisions each of which referred in part to either unacceptable driving or lack of riding vigour.
In the first Decision relating to an Appeal by Miss S, the Honourable Justice Haylen referred to a prior Appeal Decision in 2003 where Judge McNab in dealing with unacceptable driving said that he had simply applied his mind to the question of whether the Driver had exercised reasonable judgment in the handling of his horse or whether the driving exhibited a proper exercise of judgment by the Driver.
The Honourable Justice Haylen then provided his own interpretation as follows:
“That the sort of culpable action that is required to amount to a breach of this Rule might be such that in normal circumstances a reasonable and knowledgeable Harness Racing spectator might be expected to exclaim with words to the effect “what on earth is he doing?” or “my goodness look at that” or some such exclamation.”
In a 2006 Decision concerning Jockey I, Mr P Capelin QC the Principal Member of the Appeal Panel, stated:
“A Jockey is obligated, as this Panel has said on prior occasions, to use every endeavour to get the best out of the horse and to be, and appear to be, fully focused on getting the best out of the horse.”.
The Panel clearly is of the opinion that on this occasion the Appellant did not use sufficient vigour on the horse. He failed to ride his horse out to the end of the race. Not only was the failure culpable, but also it is patent, that is, clear, that any analysis of the film would lead an objective viewer to the conclusion that the horse was not ridden out to the end of the race and the Appellant must take responsibility for that.
In a 2004 Decision concerning Jockey P, Mr Capelin stated:
“The Panel finds that his obligation was to test the mare. It was not for him to jump to the conclusion that vigorous use of the whip for a further period would not produce a favourable response from the mare. However, he denied himself the opportunity to test the mare in this way, and the Panel finds that this was a contributing factor to the horse being beaten.
Mr George submitted that the statements from the above three cases were relevant to today’s Appeal.
2.5 Mr George then stated that the Stipendiary Stewards alleged that Mr Patterson’s lack of vigour in the particular race in the home straight was unacceptable in the circumstances. He went on to say that there is an obligation on any Driver when circumstances permit to leave no doubt in the minds of those who the view the race, be it the Judicial Control or the Public that the horse is being driven out to obtain the best possible position.
2.6 Mr George then stated that the Stipendiary Stewards and the RIU are not demanding that Drivers use their whip excessively or flog a horse when it is beaten but Drivers are expected to display a concerted effort especially when they are in contention for betting places. There is a level of expectation in these circumstances.
2.7 Mr George then referred to the standard of proof used under the Rules of Harness Racing New Zealand and that is the balance of probabilities.
2.8 Mr George then advised the Tribunal that the basis of the Appeal was that the Appellant was challenging three points that were considered by the Judicial Committee when dismissing the charge on Race Day. Mr George further submitted that the RIU respectfully believed that the Race Day Committee Members had erred in assessment of the points that they raised in their findings and further submitted that the evidence before the Tribunal today would support the charge against Mr Patterson under Rule 868(3).
2.9 The first point referred to by Mr George was the statement in the Race Day Decision “LOOSE CANNON was making ground from midfield all the way up the straight. In particular, we note from the Official Result Sheet that the last half was in 58.3 and the final 400 in 28.5. These are very good sectionals for this grade of horse.”.
Mr George stated that there were four races for horses classed as non winners on that day and he provided the times for those races. He stated that the final 400 metre time in LOOSE CANNON’S race was the third slowest of these four races and he stated that the maiden trotters in Race 2 ran a faster final 400 metres.
He also stated that the final 800 metres in LOOSE CANNON’S race was the slowest of the four races for the maiden horses.
Mr George then advised the Committee that there had been 10 races for non winners at Oamaru during the season on a track classed as good or better. LOOSE CANNON’S final 400 metres and final 800 metres times were the fifth fastest.
2.10 Mr George submitted that the final sectionals in this particular race were only average times and were certainly not “very good” as stated by the Committee.
2.11 Mr George then referred to a further statement in the Race Day Decision which was “when the Defendant uses the whip on LOOSE CANNON in the final stage of the race, there is no immediate or further response from the horse. It does not quicken markedly or suddenly surge past the horses on its inside.”
Mr George submitted that this statement was irrelevant on the basis that it was not of concern to the Stipendiary Stewards. He said that the charge was that Mr Patterson failed to drive his horse out over the final stages to an acceptable standard and that the Race Day Committee does not need to measure LOOSE CANNON’S response to the driving but rather needs to look to see whether Mr Patterson exhibited sufficient vigour in the final straight or not.
Mr George queried whether it was necessary for the horse to “quicken markedly” or “suddenly surge”. He wondered how that could be measured and he also submitted that in the timeframe that the whip was used he was not sure if a horse could respond as quickly as the Race Day Committee inferred in its Decision.
2.12 Mr George then referred to a third statement from the Race Day Decision which was “we thus accept Mr Patterson’s submission that LOOSE CANNON was giving its best”.
Mr George said that he challenged that statement strongly.
He submitted that he understood that weight would be placed on a Driver’s opinion as to how his/her horse was going but he said a significant amount of weight must be placed on the expectations of those who view the sport. He submitted that the perception of Mr Patterson’s lack of vigour was a very poor look and he said further that the JCA is charged with upholding the image of the sport.
Mr George also referred to the following statement from the Race Day Committee in its Decision:
“We understand Mr Ydgren’s concerns, and emphasise that the Defendant should not leave it open to question as to whether he is complying with the Rules. We draw to his attention the fact that some urging with the reins would have removed all doubt that he was driving LOOSE CANNON out to the finish of the race.”.
Mr George repeated again that there was a margin of a neck between first and second placings.
In referring to the reference concerning “all doubt” in the above statement, Mr George asked how much doubt must there be to prove a charge of this nature to the standard of proof required when the key facts are:
(a) LOOSE CANNON was in a reasonable position to win the race.
(b) The margin was a neck.
(c) The horse travelled 120-150 metres in the straight without any vigour from its Driver.
(d) The Race Day Committee stated that “some urging would have removed all doubt”.
(e) “Yelling” at his horse should not constitute a form of vigour or reason for not driving his horse out.
2.13 Mr George arranged for the film of the race to be shown and Mr Ydgren demonstrated the actions of Mr Patterson and also showed the position of LOOSE CANNON in relation to the other horses in the race. The film was shown several times.
2.14 Mr Ydgren using the film pointed out that LOOSE CANNON had come around four wide and that prior to the home turn Mr Patterson had tapped his horse once with the whip. He then showed that 200 metres from the finish Mr Patterson had hit the shaft of his horse’s sulky and then in the final 50 metres he tapped his horse twice with the whip again.
He said that there was a complete lack of vigour by Mr Patterson from the 200 metre mark to the 50 metre mark and then when he did finally use the whip again he only tapped his horse and in his opinion it was too little too late. In Mr Ydgren’s opinion Mr Patterson had not shown any vigour over the final 200 metres of the race and that was the reason for the charge against Mr Patterson on Race Day.
Mr Ydgren also pointed out that when Mr Patterson used the whip prior to the home turn it was merely a tap and that when he used it on the shaft at the 200 metre mark it was well back on the shaft.
Mr Ydgren also pointed to the actions of the other Drivers in the race who were in contention all the way down the straight.
Mr Ydgren stated that if Mr Patterson had have used the reins in the straight then that would have removed all doubt from Mr Ydgren’s mind.
2.15 Mr George said that there was no reason for Mr Patterson not driving the horse out.
He also stated that the horse was examined by the vet after the race and there were no abnormalities.
2.16 Mr Butt asked Mr Ydgren if the only part of the race he was concerned with was from the 200 metre to the 50 metre mark and he confirmed that that was correct. Mr Butt then asked him if he was happy with Mr Patterson’s driving over the last 50 metres and he said that he was because he was seen to be driving his horse.
Mr Butt further asked Mr Ydgren if he was happy with Mr Patterson’s driving actions before the final 200 metre mark and he said that he was.
2.17 Mr Butt asked if yelling at a horse was part of urging it on and if it was commonly used by Drivers. Mr Ydgren thought it was commonly used by Drivers but not on its own and there must be other means of urging a horse on used at the same time.
2.18 Mr Butt then referred to the films again and asked if they showed that Mr Patterson was about sixth at the 200 metre mark and this was confirmed. Mr Butt also asked if Mr Patterson’s horse had reached the lead in the straight. Mr Ydgren thought that it might have.
2.19 Mr George said that the winner of the race had come from behind Mr Patterson’s horse. Mr Butt suggested that the winner came from behind and was running away and that the film showed that LOOSE CANNON was not finishing on against the winner.
Mr George said that the Stewards were concerned with the provisions of the Rule and the lack of vigour from Mr Patterson and that if he had have been more vigorous then he might have finished first.
Respondent’s Submissions:
3.1 Mr Butt called Mr Blair Orange to give evidence on behalf of Mr Patterson. Mr Orange is a Licensed Open Horseman and was also driving in the same race as Mr Patterson.
3.2 Mr Orange said that Mr Patterson was outside him along the straight and he heard Mr Patterson doing a lot of yelling.
Mr Orange was asked if he considered that Mr Patterson was urging his horse on by yelling and Mr Orange said that he does the same thing himself.
3.3 Mr Orange was then asked if he always has to use the whip to urge his horse on and he said “not always”.
3.4 Mr Orange was asked if Mr Patterson’s horse was running away from him. Mr Orange said that he thought he had Mr Patterson’s horse beaten along the straight but that Mr Patterson had him beaten at the end.
3.5 Mr Orange was also asked if Mr Dunn on the inside was yelling. He said he did not hear him but that Mr Dunn does not yell a lot.
3.6 Mr Orange said that he does yell a lot and that yelling does occur often.
3.7 Mr Orange was asked about trying the horse with the whip. He said that a Driver can tell quickly if the horse is responding or not.
3.8 Mr Orange was asked if he drove his horse out and if he used the whip and he said yes he did.
3.9 Mr Butt then called Mr Patterson to give his evidence. He said he trains LOOSE CANNON, he drives it in all his work and in the trials.
3.10 He said that he had previously tried the horse with the whip but he did not get any great improvement out of him.
3.11 Mr Patterson said that he held the whip forward from the 200 metre mark and he was keeping the horse going and it was running home quite strongly. He said over the last 50 metres he did not think that there was any great improvement from using the whip.
3.12 In cross examination, Mr Patterson was asked if looking at the video of the race now he could have used more vigour. He said that in hindsight he probably could have.
3.13 He was asked if his horse was tractable when racing down the straight and he acknowledged that it was.
3.14 Mr Patterson was asked if he could have used more vigour and he said yes that he could have but that if he did have he might have put his horse off his concentration.
3.15 Mr Patterson said that he understood his obligations as a Driver and he was required to obtain the best possible position. He said that he was leaning forward and held the whip up and had been shouting at his horse and as far as he was concerned he was urging it on.
3.16 In answer to a further question Mr Patterson said that his horse wore an open bridle.
Appellant’s Summary:
4.1 Mr George submitted that objectively viewed and on the balance of probabilities Mr Patterson was in breach of Rule 868(3).
4.2 Mr George said that today Mr Patterson had acknowledged that he could have done more. He also said that Mr Patterson’s horse was racing tractably and further to that Mr George said that simply “yelling” at a horse cannot be accepted as a form of acceptable driving in the circumstances. He pointed to the actions of the other Drivers.
4.3 Mr George said that every Driver is obligated to drive in a manner that is not left open for query and that is very important given the exposure of Racing to the betting fraternity both domestically and internationally.
4.4 Mr George referred to the three parts of the Race Day Judicial Committee Decision that he had referred to earlier on and he also referred to what he called the five key elements that he had raised during this Hearing which proved that the charge should be upheld.
4.5 Mr George confirmed again that he did not question Mr Patterson’s integrity but did question his failure to fulfil an obligation which is placed on every Driver during a race.
4.6 Mr George submitted that the Tribunal should uphold the Decision.
Respondent’s Summary:
5.1 Mr Butt on behalf of Mr Patterson firstly submitted that he did not believe that the previous Australian cases referred to by Mr George were relevant.
5.2 Mr Butt also questioned the sectional times and questioned the fact that these times were only the last 800 and 400 metres and not for the whole race.
5.3 Mr Butt referred to the evidence today and the fact that the Race Day Stipendiary Stewards were concerned about Mr Patterson’s driving between the 200 metre mark and the 50 metre mark. He suggested that they had no problems with Mr Patterson’s driving outside that. He said that within the 200 metre mark and the 50 metre mark LOOSE CANNON went from sixth position to first. He also said that in the last 50 metres of the race Mr Patterson tried his horse with the whip again and there was no response.
5.4 Mr Butt also referred to Mr Orange’s evidence and referred to the horse that Mr Orange drove. He said that the replay showed that Mr Orange’s horse actually made ground on LOOSE CANNON again after having been passed by that horse earlier in the straight.
5.5 Mr Butt referred to the video evidence and Mr Patterson’s evidence and said that Mr Patterson tried the horse with the whip around the last bend, he then resorted to yelling at his horse for a period before using the whip again in the last part of the race. He said that Mr Patterson had stated that his horse was doing its best and there was nothing else he could have done to get it to go any better than it did.
5.6 Mr Butt said that as an experienced Horseman himself it is not always necessary to use the whip and often horses do not respond any better when the whip is used. He said that the Driver is the best person to know when to use the whip and when not to.
5.7 Mr Butt said that Mr Patterson was a hobby Trainer and he races horses for the sheer enjoyment. He was doing his best on the day.
5.8 Mr Butt also said that the Decision given by the Race Day Judicial Committee set out clear reasons for their Decision and he asked that this Tribunal dismiss the Appeal.
Reasons for Decision:
6.1 The Grounds of Appeal were that the Judicial Committee on the day erred in dismissing the charge. This was on the basis of the evidence presented on the day and the reasons given by the Committee in its Decision.
6.2 The Tribunal has listened to the evidence presented to it and concurs with the Appellant that Mr Patterson’s integrity is not in question.
6.3 We have watched the film on several occasions and the actions of Mr Patterson in driving his horse. The film clearly shows that Mr Patterson was not driving with any great vigour at all. Mr Patterson has used the whip briefly in the last 50 metres of the race but in our view it was too little, too late.
6.4 Rule 686(3) requires a Horseman to drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth or sixth. This does not mean that LOOSE CANNON was certain to run first but rather that it had a reasonable chance of doing so. We note that the margin at the end of the race was a neck, and we believe this to be significant.
6.5 Mr George tells us that every Driver is obligated to drive in a manner that is not left open for query. Has Mr Patterson driven in such a manner? We don’t think so.
We have been referred to Mr Justice Haylen’s definition and in the present circumstances we might say that a reasonable and knowledgeable Harness Racing spectator might be expected to exclaim with the words to the effect “what on earth is he doing?” or “my goodness look at that.”.
6.6 Mr George has referred to three parts of the Race Day Judicial Committee’s Decision and in particular refers to the times for the last 800 metres and 400 metres of the four races from non winners on the day. To be fair to the Race Day Committee they might well have only had the times for the last 800 metres and 400 metres of LOOSE CANNON’S race and might not have had the other statistics to compare those times against.
6.7 Mr Patterson via Mr Butt tells us that he had used the whip prior to the 200 metre mark, he hit the sulky at the 200 metre mark and he used it again in the last 50 metres. He said that his horse improved from sixth to first without the use of the whip although the angle of the film makes it difficult to assess the position of the horses with complete certainty. In any event, in our view, LOOSE CANNON was very near the lead at one stage of the race.
6.8 Mr Butt says that he sees no difference in the horse’s performance when tried with the whip and he also refers to the use of it over the last 50 metres.
6.9 In our view the point of the Rule is not about the horse but about the actions of the Horseman. The Rule in fact starts “Every Horseman shall”.
6.10 Mr Orange has given evidence about the use of “yelling” in urging a horse on. Mr Orange did however acknowledge that he not only yelled at his horse but he used other actions because he thought he was able to beat Mr Patterson’s horse and was in contention. It is worthwhile noting that in viewing the film and in viewing the actions of the other Horsemen including Mr Orange, they were taking all steps necessary drive their horses out and obtain the best possible finish. The film does not help Mr Patterson because of his lack of vigour.
6.11 This Rule has been dealt with in a number of prior Appeals and we have the benefit of the Decisions from those Appeals. We are obliged to those Appeal Tribunals.
It is relevant to record certain parts of the Decisions from three such Appeals and these are as follows:
(a) HRNZ v G:
“We find that the obligation that arises under this Rule requires at least some action by the Driver to urge his horse on, that is, some demonstrable or discernable movement by the Driver so that the Driver can be seen to be driving his horse out.”
(b) HRNZ v F:
“To a degree, compliance with the particular Rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a Driver in the latter stages of a race. The purpose of the Rule is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing.”. That Tribunal agreed with the interpretation of the Rule in the prior case of HRNZ v G.
(c) HRNZ v M:
“The question which this Tribunal must answer is this:
Has the Informant satisfied us, on the balance of probabilities, that Mr M’s drive over the concluding stages of the race, (his actions or more significantly inactions) breached the Rule?”.
The Rule requires the Horseman to drive the horse out to the end of the race where there is a reasonable chance of a first to sixth placing. The purpose of the Rule appears to be to ensure that the horse finishes in the best possible position from first to sixth.
6.12 The above Decisions all relate to professional Horsemen. We are told today that Mr Patterson is a hobby Trainer and Driver but when driving in a Totalisator Race he must not only meet the driving standards displayed by the professional Horsemen but he must also comply with his obligations under the Rule. We do not believe that he has met those standards nor has he satisfied his obligations under the Rule.
The Race Day Committee has advised Mr Patterson in its Decision that he should not leave any room for doubt in the future. The Race Day Committee, in the hurly burly of a Race Day Hearing, has in our view given Mr Patterson the benefit of the doubt. We of course have had more time to consider this matter and have also had more evidence placed before us.
6.13 We believe that the lack of action by Mr Patterson was not sufficient to satisfy his obligations to drive his horse out to the end of the race and we believe that he has breached his obligations under Rule 868(3).
Decision:
7.1 We accordingly uphold the Appeal.
Submissions as to Penalty:
8.1 Mr George said that Mr Patterson has had no previous breaches. He has a good record although he does drive only very infrequently.
Mr George said that any penalty needs to be a deterrent for others who are in the same position in the final stages of a race. He believed that a suspension was appropriate and he drew the Tribunal’s attention to the fact that there was a possibility of LOOSE CANNON achieving first placing and he drew a distinction between that and a horse achieving a fifth or sixth placing. With particular regard to the placing involved, Mr George submitted that a suspension of Mr Patterson’s Horseman’s Licence for 2-3 months was warranted.
Mr Butt on behalf of Mr Patterson said that he had been driving since 2003. He said that he believed that it was doubtful whether LOOSE CANNON might have reached first placing. He said that it was at the lower end of the scale and that there was no intent on the part of Mr Patterson. He said that the penalty submitted by Mr George was way too severe and each case has to be taken on its merits.
Decision as to Penalty:
9.1 The Tribunal has listened to the submissions as to penalty from both parties. Clearly there is no intent on the part of Mr Patterson but it is an error of judgement on his part and as far as anyone watching the race was concerned his lack of vigour did not look good.
The prior Appeal cases all referred to the requirement of Drivers to show vigour over the concluding stages of the race and showing vigour does not mean excessively using the whip but does mean urging the horse on with all necessary actions within the ambit of the Rules.
In our view Mr Patterson has fallen well short of the required standard and it may be that his lack of experience as a Driver has contributed to that.
9.2 In imposing penalty we are conscious of the fact that Mr Patterson drives infrequently and any suspension of his Licence must be meaningful.
9.3 Prior to setting a penalty we have asked Mr Patterson if he had entered his horse at the Methven Meeting this coming Sunday (9 October 2011) and if he was driving it and he replied that the horse was not entered and he was not driving.
Penalty:
10.1 We accordingly suspend Mr Patterson’s Horseman’s Licence from today up to and including the 8th of January 2012.
10.2 Mr George did not seek costs and that is appropriate and in the circumstances of the case there is no Order as to Costs. Furthermore, there is no Order as to JCA costs.
BJ Scott RG McKenzie
Chairman Panelist
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 26/10/2011
Publish Date: 26/10/2011
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 26/10/2011
hearing_title: Appeal RIU v J Patterson - 5 October 2011 - Decision 27 October 2011
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE AN APPEALS TRIBUNAL HELD AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN The Racing Integrity Unit on behalf of Harness Racing New Zealand
Appellant
AND Mr J Patterson – Licensed Horseman
Respondent
Tribunal: BJ Scott (Chairman) – RG McKenzie (Panelist)
Date of Hearing: Wednesday the 5th of October 2011
Present: Mr CJ George (Chief Stipendiary Steward - representing the Appellant), Mr N Ydgren (Stipendiary Steward), Mr J Patterson (Respondent), Mr AM Butt (Licensed Open Horseman - representing Mr Patterson), Mr SP Renault (Registrar), Mr NG McIntyre (Stipendiary Steward – Observer) and Mr SW Wallis (Stipendiary Steward – Observer)
Date of Oral Decision: 5th of October 2011
Date of Written Decision: 27th October 2011
DECISION OF APPEALS TRIBUNAL
Background:
1.1 This Appeal arose from a Decision of Judicial Committee into Race 3 at the Oamaru Harness Racing Club’s Meeting on the 18th of December 2011.
1.2 The Informant on Race Day was Stipendary Steward Mr N Ydgren.
1.3 The Defendant on Race Day was Mr J Patterson the Trainer and Driver of LOOSE CANNON.
1.4 The charge on Race Day was pursuant to Rule 868(3) and it was alleged that Mr Patterson failed to drive out his horse LOOSE CANNON over the final stages of the race to an acceptable standard. The charge was defended.
1.5 The evidence before the Committee was that LOOSE CANNON finished second and the margin between first and second was a neck.
1.6 In its Decision the Committee found that LOOSE CANNON was making ground from midfield all the way up the straight and in the Committee’s opinion the sectional times for the last half and final 400 metres of the race were very good. The Committee accepted the evidence of Mr Patterson but did acknowledge Mr Ydgren’s concern about Mr Patterson’s lack of vigour over the final stages of the race and suggested that if Mr Patterson had at least urged his horse on with the reins then that would have removed any doubt that he was not driving LOOSE CANNON out to the finish of the race.
1.7 At the conclusion of the Hearing the Committee dismissed the charge.
1.8 Mr Ydgren appealed the Race Day Committee’s Decision and a Notice of Appeal dated the 21st of September 2011 was duly lodged.
Appellant’s Submission:
2.1 Mr George in his written submissions set out the provisions of Rule 868(3) which states:
“Every Horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth or sixth.”.
2.2 Mr George pointed out to the Committee that the margin between first and second on Race Day was a neck.
2.3 Mr George advised the Committee at the outset that there was no question about Mr Patterson’s integrity.
2.4 Mr George referred the Committee to three Australian Appeal Decisions each of which referred in part to either unacceptable driving or lack of riding vigour.
In the first Decision relating to an Appeal by Miss S, the Honourable Justice Haylen referred to a prior Appeal Decision in 2003 where Judge McNab in dealing with unacceptable driving said that he had simply applied his mind to the question of whether the Driver had exercised reasonable judgment in the handling of his horse or whether the driving exhibited a proper exercise of judgment by the Driver.
The Honourable Justice Haylen then provided his own interpretation as follows:
“That the sort of culpable action that is required to amount to a breach of this Rule might be such that in normal circumstances a reasonable and knowledgeable Harness Racing spectator might be expected to exclaim with words to the effect “what on earth is he doing?” or “my goodness look at that” or some such exclamation.”
In a 2006 Decision concerning Jockey I, Mr P Capelin QC the Principal Member of the Appeal Panel, stated:
“A Jockey is obligated, as this Panel has said on prior occasions, to use every endeavour to get the best out of the horse and to be, and appear to be, fully focused on getting the best out of the horse.”.
The Panel clearly is of the opinion that on this occasion the Appellant did not use sufficient vigour on the horse. He failed to ride his horse out to the end of the race. Not only was the failure culpable, but also it is patent, that is, clear, that any analysis of the film would lead an objective viewer to the conclusion that the horse was not ridden out to the end of the race and the Appellant must take responsibility for that.
In a 2004 Decision concerning Jockey P, Mr Capelin stated:
“The Panel finds that his obligation was to test the mare. It was not for him to jump to the conclusion that vigorous use of the whip for a further period would not produce a favourable response from the mare. However, he denied himself the opportunity to test the mare in this way, and the Panel finds that this was a contributing factor to the horse being beaten.
Mr George submitted that the statements from the above three cases were relevant to today’s Appeal.
2.5 Mr George then stated that the Stipendiary Stewards alleged that Mr Patterson’s lack of vigour in the particular race in the home straight was unacceptable in the circumstances. He went on to say that there is an obligation on any Driver when circumstances permit to leave no doubt in the minds of those who the view the race, be it the Judicial Control or the Public that the horse is being driven out to obtain the best possible position.
2.6 Mr George then stated that the Stipendiary Stewards and the RIU are not demanding that Drivers use their whip excessively or flog a horse when it is beaten but Drivers are expected to display a concerted effort especially when they are in contention for betting places. There is a level of expectation in these circumstances.
2.7 Mr George then referred to the standard of proof used under the Rules of Harness Racing New Zealand and that is the balance of probabilities.
2.8 Mr George then advised the Tribunal that the basis of the Appeal was that the Appellant was challenging three points that were considered by the Judicial Committee when dismissing the charge on Race Day. Mr George further submitted that the RIU respectfully believed that the Race Day Committee Members had erred in assessment of the points that they raised in their findings and further submitted that the evidence before the Tribunal today would support the charge against Mr Patterson under Rule 868(3).
2.9 The first point referred to by Mr George was the statement in the Race Day Decision “LOOSE CANNON was making ground from midfield all the way up the straight. In particular, we note from the Official Result Sheet that the last half was in 58.3 and the final 400 in 28.5. These are very good sectionals for this grade of horse.”.
Mr George stated that there were four races for horses classed as non winners on that day and he provided the times for those races. He stated that the final 400 metre time in LOOSE CANNON’S race was the third slowest of these four races and he stated that the maiden trotters in Race 2 ran a faster final 400 metres.
He also stated that the final 800 metres in LOOSE CANNON’S race was the slowest of the four races for the maiden horses.
Mr George then advised the Committee that there had been 10 races for non winners at Oamaru during the season on a track classed as good or better. LOOSE CANNON’S final 400 metres and final 800 metres times were the fifth fastest.
2.10 Mr George submitted that the final sectionals in this particular race were only average times and were certainly not “very good” as stated by the Committee.
2.11 Mr George then referred to a further statement in the Race Day Decision which was “when the Defendant uses the whip on LOOSE CANNON in the final stage of the race, there is no immediate or further response from the horse. It does not quicken markedly or suddenly surge past the horses on its inside.”
Mr George submitted that this statement was irrelevant on the basis that it was not of concern to the Stipendiary Stewards. He said that the charge was that Mr Patterson failed to drive his horse out over the final stages to an acceptable standard and that the Race Day Committee does not need to measure LOOSE CANNON’S response to the driving but rather needs to look to see whether Mr Patterson exhibited sufficient vigour in the final straight or not.
Mr George queried whether it was necessary for the horse to “quicken markedly” or “suddenly surge”. He wondered how that could be measured and he also submitted that in the timeframe that the whip was used he was not sure if a horse could respond as quickly as the Race Day Committee inferred in its Decision.
2.12 Mr George then referred to a third statement from the Race Day Decision which was “we thus accept Mr Patterson’s submission that LOOSE CANNON was giving its best”.
Mr George said that he challenged that statement strongly.
He submitted that he understood that weight would be placed on a Driver’s opinion as to how his/her horse was going but he said a significant amount of weight must be placed on the expectations of those who view the sport. He submitted that the perception of Mr Patterson’s lack of vigour was a very poor look and he said further that the JCA is charged with upholding the image of the sport.
Mr George also referred to the following statement from the Race Day Committee in its Decision:
“We understand Mr Ydgren’s concerns, and emphasise that the Defendant should not leave it open to question as to whether he is complying with the Rules. We draw to his attention the fact that some urging with the reins would have removed all doubt that he was driving LOOSE CANNON out to the finish of the race.”.
Mr George repeated again that there was a margin of a neck between first and second placings.
In referring to the reference concerning “all doubt” in the above statement, Mr George asked how much doubt must there be to prove a charge of this nature to the standard of proof required when the key facts are:
(a) LOOSE CANNON was in a reasonable position to win the race.
(b) The margin was a neck.
(c) The horse travelled 120-150 metres in the straight without any vigour from its Driver.
(d) The Race Day Committee stated that “some urging would have removed all doubt”.
(e) “Yelling” at his horse should not constitute a form of vigour or reason for not driving his horse out.
2.13 Mr George arranged for the film of the race to be shown and Mr Ydgren demonstrated the actions of Mr Patterson and also showed the position of LOOSE CANNON in relation to the other horses in the race. The film was shown several times.
2.14 Mr Ydgren using the film pointed out that LOOSE CANNON had come around four wide and that prior to the home turn Mr Patterson had tapped his horse once with the whip. He then showed that 200 metres from the finish Mr Patterson had hit the shaft of his horse’s sulky and then in the final 50 metres he tapped his horse twice with the whip again.
He said that there was a complete lack of vigour by Mr Patterson from the 200 metre mark to the 50 metre mark and then when he did finally use the whip again he only tapped his horse and in his opinion it was too little too late. In Mr Ydgren’s opinion Mr Patterson had not shown any vigour over the final 200 metres of the race and that was the reason for the charge against Mr Patterson on Race Day.
Mr Ydgren also pointed out that when Mr Patterson used the whip prior to the home turn it was merely a tap and that when he used it on the shaft at the 200 metre mark it was well back on the shaft.
Mr Ydgren also pointed to the actions of the other Drivers in the race who were in contention all the way down the straight.
Mr Ydgren stated that if Mr Patterson had have used the reins in the straight then that would have removed all doubt from Mr Ydgren’s mind.
2.15 Mr George said that there was no reason for Mr Patterson not driving the horse out.
He also stated that the horse was examined by the vet after the race and there were no abnormalities.
2.16 Mr Butt asked Mr Ydgren if the only part of the race he was concerned with was from the 200 metre to the 50 metre mark and he confirmed that that was correct. Mr Butt then asked him if he was happy with Mr Patterson’s driving over the last 50 metres and he said that he was because he was seen to be driving his horse.
Mr Butt further asked Mr Ydgren if he was happy with Mr Patterson’s driving actions before the final 200 metre mark and he said that he was.
2.17 Mr Butt asked if yelling at a horse was part of urging it on and if it was commonly used by Drivers. Mr Ydgren thought it was commonly used by Drivers but not on its own and there must be other means of urging a horse on used at the same time.
2.18 Mr Butt then referred to the films again and asked if they showed that Mr Patterson was about sixth at the 200 metre mark and this was confirmed. Mr Butt also asked if Mr Patterson’s horse had reached the lead in the straight. Mr Ydgren thought that it might have.
2.19 Mr George said that the winner of the race had come from behind Mr Patterson’s horse. Mr Butt suggested that the winner came from behind and was running away and that the film showed that LOOSE CANNON was not finishing on against the winner.
Mr George said that the Stewards were concerned with the provisions of the Rule and the lack of vigour from Mr Patterson and that if he had have been more vigorous then he might have finished first.
Respondent’s Submissions:
3.1 Mr Butt called Mr Blair Orange to give evidence on behalf of Mr Patterson. Mr Orange is a Licensed Open Horseman and was also driving in the same race as Mr Patterson.
3.2 Mr Orange said that Mr Patterson was outside him along the straight and he heard Mr Patterson doing a lot of yelling.
Mr Orange was asked if he considered that Mr Patterson was urging his horse on by yelling and Mr Orange said that he does the same thing himself.
3.3 Mr Orange was then asked if he always has to use the whip to urge his horse on and he said “not always”.
3.4 Mr Orange was asked if Mr Patterson’s horse was running away from him. Mr Orange said that he thought he had Mr Patterson’s horse beaten along the straight but that Mr Patterson had him beaten at the end.
3.5 Mr Orange was also asked if Mr Dunn on the inside was yelling. He said he did not hear him but that Mr Dunn does not yell a lot.
3.6 Mr Orange said that he does yell a lot and that yelling does occur often.
3.7 Mr Orange was asked about trying the horse with the whip. He said that a Driver can tell quickly if the horse is responding or not.
3.8 Mr Orange was asked if he drove his horse out and if he used the whip and he said yes he did.
3.9 Mr Butt then called Mr Patterson to give his evidence. He said he trains LOOSE CANNON, he drives it in all his work and in the trials.
3.10 He said that he had previously tried the horse with the whip but he did not get any great improvement out of him.
3.11 Mr Patterson said that he held the whip forward from the 200 metre mark and he was keeping the horse going and it was running home quite strongly. He said over the last 50 metres he did not think that there was any great improvement from using the whip.
3.12 In cross examination, Mr Patterson was asked if looking at the video of the race now he could have used more vigour. He said that in hindsight he probably could have.
3.13 He was asked if his horse was tractable when racing down the straight and he acknowledged that it was.
3.14 Mr Patterson was asked if he could have used more vigour and he said yes that he could have but that if he did have he might have put his horse off his concentration.
3.15 Mr Patterson said that he understood his obligations as a Driver and he was required to obtain the best possible position. He said that he was leaning forward and held the whip up and had been shouting at his horse and as far as he was concerned he was urging it on.
3.16 In answer to a further question Mr Patterson said that his horse wore an open bridle.
Appellant’s Summary:
4.1 Mr George submitted that objectively viewed and on the balance of probabilities Mr Patterson was in breach of Rule 868(3).
4.2 Mr George said that today Mr Patterson had acknowledged that he could have done more. He also said that Mr Patterson’s horse was racing tractably and further to that Mr George said that simply “yelling” at a horse cannot be accepted as a form of acceptable driving in the circumstances. He pointed to the actions of the other Drivers.
4.3 Mr George said that every Driver is obligated to drive in a manner that is not left open for query and that is very important given the exposure of Racing to the betting fraternity both domestically and internationally.
4.4 Mr George referred to the three parts of the Race Day Judicial Committee Decision that he had referred to earlier on and he also referred to what he called the five key elements that he had raised during this Hearing which proved that the charge should be upheld.
4.5 Mr George confirmed again that he did not question Mr Patterson’s integrity but did question his failure to fulfil an obligation which is placed on every Driver during a race.
4.6 Mr George submitted that the Tribunal should uphold the Decision.
Respondent’s Summary:
5.1 Mr Butt on behalf of Mr Patterson firstly submitted that he did not believe that the previous Australian cases referred to by Mr George were relevant.
5.2 Mr Butt also questioned the sectional times and questioned the fact that these times were only the last 800 and 400 metres and not for the whole race.
5.3 Mr Butt referred to the evidence today and the fact that the Race Day Stipendiary Stewards were concerned about Mr Patterson’s driving between the 200 metre mark and the 50 metre mark. He suggested that they had no problems with Mr Patterson’s driving outside that. He said that within the 200 metre mark and the 50 metre mark LOOSE CANNON went from sixth position to first. He also said that in the last 50 metres of the race Mr Patterson tried his horse with the whip again and there was no response.
5.4 Mr Butt also referred to Mr Orange’s evidence and referred to the horse that Mr Orange drove. He said that the replay showed that Mr Orange’s horse actually made ground on LOOSE CANNON again after having been passed by that horse earlier in the straight.
5.5 Mr Butt referred to the video evidence and Mr Patterson’s evidence and said that Mr Patterson tried the horse with the whip around the last bend, he then resorted to yelling at his horse for a period before using the whip again in the last part of the race. He said that Mr Patterson had stated that his horse was doing its best and there was nothing else he could have done to get it to go any better than it did.
5.6 Mr Butt said that as an experienced Horseman himself it is not always necessary to use the whip and often horses do not respond any better when the whip is used. He said that the Driver is the best person to know when to use the whip and when not to.
5.7 Mr Butt said that Mr Patterson was a hobby Trainer and he races horses for the sheer enjoyment. He was doing his best on the day.
5.8 Mr Butt also said that the Decision given by the Race Day Judicial Committee set out clear reasons for their Decision and he asked that this Tribunal dismiss the Appeal.
Reasons for Decision:
6.1 The Grounds of Appeal were that the Judicial Committee on the day erred in dismissing the charge. This was on the basis of the evidence presented on the day and the reasons given by the Committee in its Decision.
6.2 The Tribunal has listened to the evidence presented to it and concurs with the Appellant that Mr Patterson’s integrity is not in question.
6.3 We have watched the film on several occasions and the actions of Mr Patterson in driving his horse. The film clearly shows that Mr Patterson was not driving with any great vigour at all. Mr Patterson has used the whip briefly in the last 50 metres of the race but in our view it was too little, too late.
6.4 Rule 686(3) requires a Horseman to drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth or sixth. This does not mean that LOOSE CANNON was certain to run first but rather that it had a reasonable chance of doing so. We note that the margin at the end of the race was a neck, and we believe this to be significant.
6.5 Mr George tells us that every Driver is obligated to drive in a manner that is not left open for query. Has Mr Patterson driven in such a manner? We don’t think so.
We have been referred to Mr Justice Haylen’s definition and in the present circumstances we might say that a reasonable and knowledgeable Harness Racing spectator might be expected to exclaim with the words to the effect “what on earth is he doing?” or “my goodness look at that.”.
6.6 Mr George has referred to three parts of the Race Day Judicial Committee’s Decision and in particular refers to the times for the last 800 metres and 400 metres of the four races from non winners on the day. To be fair to the Race Day Committee they might well have only had the times for the last 800 metres and 400 metres of LOOSE CANNON’S race and might not have had the other statistics to compare those times against.
6.7 Mr Patterson via Mr Butt tells us that he had used the whip prior to the 200 metre mark, he hit the sulky at the 200 metre mark and he used it again in the last 50 metres. He said that his horse improved from sixth to first without the use of the whip although the angle of the film makes it difficult to assess the position of the horses with complete certainty. In any event, in our view, LOOSE CANNON was very near the lead at one stage of the race.
6.8 Mr Butt says that he sees no difference in the horse’s performance when tried with the whip and he also refers to the use of it over the last 50 metres.
6.9 In our view the point of the Rule is not about the horse but about the actions of the Horseman. The Rule in fact starts “Every Horseman shall”.
6.10 Mr Orange has given evidence about the use of “yelling” in urging a horse on. Mr Orange did however acknowledge that he not only yelled at his horse but he used other actions because he thought he was able to beat Mr Patterson’s horse and was in contention. It is worthwhile noting that in viewing the film and in viewing the actions of the other Horsemen including Mr Orange, they were taking all steps necessary drive their horses out and obtain the best possible finish. The film does not help Mr Patterson because of his lack of vigour.
6.11 This Rule has been dealt with in a number of prior Appeals and we have the benefit of the Decisions from those Appeals. We are obliged to those Appeal Tribunals.
It is relevant to record certain parts of the Decisions from three such Appeals and these are as follows:
(a) HRNZ v G:
“We find that the obligation that arises under this Rule requires at least some action by the Driver to urge his horse on, that is, some demonstrable or discernable movement by the Driver so that the Driver can be seen to be driving his horse out.”
(b) HRNZ v F:
“To a degree, compliance with the particular Rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a Driver in the latter stages of a race. The purpose of the Rule is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing.”. That Tribunal agreed with the interpretation of the Rule in the prior case of HRNZ v G.
(c) HRNZ v M:
“The question which this Tribunal must answer is this:
Has the Informant satisfied us, on the balance of probabilities, that Mr M’s drive over the concluding stages of the race, (his actions or more significantly inactions) breached the Rule?”.
The Rule requires the Horseman to drive the horse out to the end of the race where there is a reasonable chance of a first to sixth placing. The purpose of the Rule appears to be to ensure that the horse finishes in the best possible position from first to sixth.
6.12 The above Decisions all relate to professional Horsemen. We are told today that Mr Patterson is a hobby Trainer and Driver but when driving in a Totalisator Race he must not only meet the driving standards displayed by the professional Horsemen but he must also comply with his obligations under the Rule. We do not believe that he has met those standards nor has he satisfied his obligations under the Rule.
The Race Day Committee has advised Mr Patterson in its Decision that he should not leave any room for doubt in the future. The Race Day Committee, in the hurly burly of a Race Day Hearing, has in our view given Mr Patterson the benefit of the doubt. We of course have had more time to consider this matter and have also had more evidence placed before us.
6.13 We believe that the lack of action by Mr Patterson was not sufficient to satisfy his obligations to drive his horse out to the end of the race and we believe that he has breached his obligations under Rule 868(3).
Decision:
7.1 We accordingly uphold the Appeal.
Submissions as to Penalty:
8.1 Mr George said that Mr Patterson has had no previous breaches. He has a good record although he does drive only very infrequently.
Mr George said that any penalty needs to be a deterrent for others who are in the same position in the final stages of a race. He believed that a suspension was appropriate and he drew the Tribunal’s attention to the fact that there was a possibility of LOOSE CANNON achieving first placing and he drew a distinction between that and a horse achieving a fifth or sixth placing. With particular regard to the placing involved, Mr George submitted that a suspension of Mr Patterson’s Horseman’s Licence for 2-3 months was warranted.
Mr Butt on behalf of Mr Patterson said that he had been driving since 2003. He said that he believed that it was doubtful whether LOOSE CANNON might have reached first placing. He said that it was at the lower end of the scale and that there was no intent on the part of Mr Patterson. He said that the penalty submitted by Mr George was way too severe and each case has to be taken on its merits.
Decision as to Penalty:
9.1 The Tribunal has listened to the submissions as to penalty from both parties. Clearly there is no intent on the part of Mr Patterson but it is an error of judgement on his part and as far as anyone watching the race was concerned his lack of vigour did not look good.
The prior Appeal cases all referred to the requirement of Drivers to show vigour over the concluding stages of the race and showing vigour does not mean excessively using the whip but does mean urging the horse on with all necessary actions within the ambit of the Rules.
In our view Mr Patterson has fallen well short of the required standard and it may be that his lack of experience as a Driver has contributed to that.
9.2 In imposing penalty we are conscious of the fact that Mr Patterson drives infrequently and any suspension of his Licence must be meaningful.
9.3 Prior to setting a penalty we have asked Mr Patterson if he had entered his horse at the Methven Meeting this coming Sunday (9 October 2011) and if he was driving it and he replied that the horse was not entered and he was not driving.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
10.1 We accordingly suspend Mr Patterson’s Horseman’s Licence from today up to and including the 8th of January 2012.
10.2 Mr George did not seek costs and that is appropriate and in the circumstances of the case there is no Order as to Costs. Furthermore, there is no Order as to JCA costs.
BJ Scott RG McKenzie
Chairman Panelist
hearing_type: Non-race day
Rules: 868(3)
Informant: Racing Integrity Unit
JockeysandTrainer:
Otherperson:
PersonPresent: Mr SW Wallis - Observer, Mr CJ George - Chief Stipendiary Steward representing the Appellant, Mr N Ydgren - Stipendiary Steward, Mr AM Butt - Licensed Open Horseman representing Mr Patterson, Mr SP Renault - Registrar, Mr NG McIntyre - Observer
Respondent: J Patterson - Licensed Horseman
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