Appeal – RIU v C DeFilippi – Decision dated 18 December 2013
ID: JCA14738
Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
NICK YDGREN, Stipendiary Steward for the Racing Integrity Unit (RIU)
Appellant
COLIN DE FILIPPI, Licensed Public Trainer/ Open Horseman
Respondent
Information: No. A2432
Appearing: The appellant in person
The respondent in person
APPEALS TRIBUNAL: Prof G Hall, Chairman - Mr P Knowles, Member
DECISION OF APPEALS TRIBUNAL
[1] The RIU has appealed against the decision of the Raceday Committee at Ashburton on 14 November to dismiss a charge laid by the RIU alleging a breach of r 868(3) in that Mr DeFilippi failed to drive out FANCY PANTS over the concluding stages of race 10 on that day, the GARTH JEMMETT CONSTRUCTION HANDICAP TROT.
[2] Rule 868(3) 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.
Informant’s submissions
[3] The RIU alleged that with 70 to 80 metres of the race remaining Mr DeFilippi, who was racing in fourth position, ceased in his efforts to drive the horse FANCY PANTS out. FANCY PANTS finished in fifth place, 1/2 a head behind the fourth placed horse, TAKE FOR GRANTED (Mr Nyhan), which finished on the outside of the field down the centre of the track.
[4] Mr Ydgren stated that until the 70 to 80 metres point in the run home Mr DeFilippi had placed his runner under pressure with his whip and had driven in a manner that any reasonable person would expect of any horseman when in a stakes and/or dividend bearing position. Mr De Filippi used his whip on the horse on six occasions throughout the final straight, but then stopped his urgings and turned his whip around and put it away prior to the finishing line. Significantly, he said, at no stage from the 70 to 80 metres point onwards did the respondent make any attempt to push the horse with the reins or implement any other form of urging upon FANCY PANTS.
[5] Mr Ydgren emphasised that in his view Mr DeFilippi had simply misjudged the situation by believing that he had fourth placing covered when this in fact was not the case. The Stewards did not challenge Mr DeFilippi’s integrity nor did they allege that he had intentionally held FANCY PANTS back, but rather that he got it wrong by failing to drive his horse to the line when he was required to do so under the Rules.
[6] With respect to the decision of the Judicial Committee on the day, Mr Ydgren submitted that they had reached their decision by looking at the matter from two aspects: the racing history of the horse; and the fact that Mr DeFilippi was a senior and highly experienced driver. He said that the weight placed by the Committee on Mr DeFilippi’s experience was heavily disproportionate to the facts as they were presented. Additionally, he said, a significant amount of weight should be placed on the expectations of those who view the sport. Perceptually, he believed the respondent’s drive was “a very poor look” and the Stewards and the JCA were “charged with upholding the image of the sport.”
[7] Mr Ydgren submitted there were two matters to be considered under the Rule:
(1) did Mr DeFilippi drive his horse out to the end of the race; and
(2) did he have a reasonable chance of running in one of the first six placings.
[8] Mr Ydgren stated there was no impediment to Mr DeFilippi driving FANCY PANTS out to the finish. There was no anomaly or discernible change apparent with the horse’s gait, which would lead the respondent to stop driving his horse. The horse had trotted fluently in the home straight, as evidenced by Mr DeFilippi pulling the ear-plugs and striking the horse six times earlier in the straight.
[9] The Stipendiary Stewards did not accept the argument put forward by Mr DeFilippi throughout the hearing before the Judicial Committee that his horse was tired and doing her best, and he was wary of her galloping. These were said by the Stewards to be his subjective views and were not supported by any video evidence. In any event, he said, Mr DeFilippi was not relieved of his obligations to drive a horse out to the end of a race, which was in a stakes or dividend bearing place, if it was tired and still in contention for stakes or dividend money. It would have been appropriate for Mr DeFilippi to implement some less vigorous form of urging to pressure the horse to hold her fourth position. Had he hit the sulky or dustsheet or reined the horse to the finishing line, he would have satisfied the Stewards on the day.
[10] Mr Ydgren alleged it was clear from the films that from about the 75 metres point Mr DeFilippi had stopped driving his horse. There was no film that showed any form of urging on his part from this point onwards. Mr DeFilippi turned his whip around and sat motionless for the final portion of the race. This was the stage where most people viewing, especially those who stood to gain financially from the horse’s performance, would expect to see a driver doing everything reasonable to ensure the horse was driven fully to the line. Instead, what they saw was a horseman who gave up driving inside the final 80 metres to eventually lose his fourth placing.
[11] Mr Ydgren explained that when the whip is carried in a forward position a horse will have heightened sense of awareness insomuch that it will, in essence, know that it is still required to produce an effort. However, in contrast when the whip is withdrawn and the driver’s hands are commensurately lowered, a horse would naturally relax as it believed its race had been run and no further effort was required. He said there is ample anecdotal evidence that shows that when the whip is no longer applied or vigour is reduced then the horse will ease.
[12] Mr Ydgren further stated that a driver may take into account the known characteristics of a horse, just as a driver may act on instructions from an owner or trainer, but may only do so to the extent that the provisions of r 868(3) are not breached.
[13] Mr Ydgren demonstrated on two video angles that Mr DeFilippi had struck FANCY PANTS once at the 100 metres and then again at the 80 metre mark. From that point, he said, the respondent sat motionless other than to put the whip away with about 40 metres left to race. He said there was no shaking of the reins and that FANCY PANTS was put under no pressure in the final 70 to 80 metres. He believed FANCY PANTS was able to be driven out as she had already been struck with the whip on six occasions and had continued to trot without any flaw in her gait.
[14] Mr Ydgren also played a video of race 6 at Addington on 29 November and asked us to contrast the respondent’s drive in this race with that in the race at issue. He demonstrated that FANCY PANTS was in contention for fourth and Mr DeFilippi used the whip five times and the whip and reins twice in the run to the line. The horse did not break on this occasion.
Respondent’s submissions
[15] Mr DeFilippi stated that FANCY PANTS had had 18 starts and had broken from her gait in more than half of these. In the race in question he said the horse had got away cleanly but had broken soon after. He said FANCY PANTS galloped most commonly in the last 200 metres of a race and had had five different drivers and had galloped for four of them. In recent times, the only driver who had managed to get FANCY PANTS around the course was Mr Robbie Close, a junior driver, but Mr DeFilippi believed this was because the horse had not been pressured and had finished third last. He played three races in which the horse had galloped when tired or when the plugs were pulled or the whip was used.
[16] Mr DeFilippi stated that FANCY PANTS had one win, a second and a third from her 18 starts. He had driven the horse when she won and when she ran second. He said that when asked to improve the horse would lengthen stride but would often break when put under pressure. For that reason FANCY PANTS had to be driven on a tight rein. He said the horse had galloped at her start prior to Ashburton, at Kaikoura, when he had pulled the plugs. He had not even turned the stick on that occasion.
[17] FANCY PANTS is trained by Mr John Howe, who we were informed was an experienced trainer who generally left it up to Mr DeFilippi to determine the manner in which the horse would be driven. Mr DeFilippi said on this occasion had had been told “to see if he could get round in one piece”. Mr DeFilippi said he had planned to be handy or in front but this had “gone out the window” when FANCY PANTS galloped after first going away. He said he had settled behind the horses on the 10 metres mark and beside the eventual winner, which was off 20 metres. He said the first mile was not particularly quick and he had had the chance to get into the race. He said while he had eventually slotted into the one/one position, he had done more work than any other horse in the race.
[18] Mr DeFilippi said it was ironic that he faced this charge as he had hit FANCY PANTS six times and he had never hit the horse this many times in a race before. He said his practice was to hit a horse having regard to how he felt the horse was travelling and in this instance he believed he was the first driver to strike their horse. He said he had gone past Mr Nyhan because TAKE FOR GRANTED had not handled the bend. He said Mr Nyhan had hit his horse the same number of times as him but he accepted Mr Nyhan had hit his horse later in the run to the line. He questioned whether this charge would have been laid had he commenced to hit FANCY PANTS later than he had on this occasion.
[19] Mr DeFilippi said he thought FANCY PANTS had run a very good race considering she had lost ground at the start. He said every time he hit the horse he was holding his breath hoping she would be okay as he had it in the back of his mind that the horse had galloped the last three times he had used the whip. He said he had not used the reins, and he demonstrated a race on Show Day at Addington where Mr M Williamson had run the reins over IDLE BONES when challenging for the lead in the run home and the horse had broken. He said he believed FANCY PANTS had given her best and that was why he was sitting still. He said he felt she was getting tired and she had shortened stride after the last time he had hit her with the stick. He added she had felt good on the bend and when he first came out for a run.
[20] Mr DeFilippi said he was aware that Mr Nyhan was outside him and was finishing on but he was not concentrating on that horse but rather on getting FANCY PANTS over the line without breaking. He was not aware at the time whether he had finished fourth or fifth. He pointed out FANCY PANTS was the first to pull up. This was further evidence that she was tired. He agreed he had turned his stick at the 30 to 40 metres mark.
[21] In response to Mr Ydgren’s statement that FANCY PANTS had responded to the stick each time he had used it, Mr DeFilippi said the horse had not on the last occasion and that was why he had put the stick away. He believed he had put the horse in the race and he could not have done any more. He had driven the horse as well as he could have.
[22] With reference to race 6 at Addington on 29 November, to which Mr Ydgren had made reference, Mr DeFilippi replied that FANCY PANTS was in half hobbles in that race and also in the race at issue before us. He believed this had helped the horse and he emphasised FANCY PANTS had not lost 30 metres at the start at Addington. He added he was now using very little force when using the stick on the horse. He reiterated that he believed he had done well to hit the horse six times without her breaking and he emphasised he did not “chuck the reins” at trotters.
Decision
[23] The appeal is by way of a rehearing. We have looked at the videos of the race in question, videos of a number of other races in which FANCY PANTS has competed, the evidence before the Judicial Committee and, after hearing submissions we have reached our own conclusion on the facts of the case. We take guidance from Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 where the Supreme Court stated at [16]:
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.
[24] With reference to r 868(3), Judge Bisphan said in HRNZ v D (2006):
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. We agree with the Judicial Committee's interpretation of the rule which is an interpretation taken from the 1998 appeal case of Greer. In that case, the Appeals Tribunal stated: “We find that the obligation that arises under Rule 868(3) requires at least some action by the driver to urge his horse on, that is some demonstrable or discernible movement by the driver so that the driver can be seen to be driving his horse out.”
[25] With respect to the first element of the Rule, as identified by Mr Ydgren, that a driver is required to drive his horse out to the end of the race, the Judicial Committee in HRNZ v Tomlinson (2008) said:
Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.
[26] We have viewed the video of the race. FANCY PANTS lost some 30 to 40 metres just after the start and settled second last of the pack. With just over 800 metres to race the horse moved around the field three wide before taking up a one out and one back position with just over 500 metres to run. FANCY PANTS was thus in a challenging position. As the field turned for home FANCY PANTS was third. XMAS JOYELLA went past FANCY PANTS early in the run. At the 70 to 80 metre mark, which is the point of concern, FANCY PANTS was fourth and while the distance back to TAKE FOR GRANTED, which was racing in fifth place, is difficult to determine accurately from the two available video angles, it would appear to be about 1/2 a length. TAKE FOR GRANTED made a determined run down the middle of the track to take fourth place off FANCY PANTS on the line.
[27] Mr DeFilippi has struck FANCY PANTS six times with his whip in the run home until a point some 70 to 80 metres from the winning post. Until this point in the race he has placed the horse under sufficient pressure to show interested persons that he has attempted to do his best to ensure the horse finishes in the best position it can, and, in particular, for the purposes of r 868(3), in a top six placing. Significantly, the horse does not appear to flinch in her work and at no stage does a viewing of the video suggest to us that the vigorous urgings of Mr DeFilippi are having an adverse impact upon the gait of FANCY PANTS. We accept, therefore, the appellant’s submission that there is no visible reason for Mr DeFilippi not to drive his horse out.
[28] Mr DeFilippi justified his driving over the last 70 to 80 metres of the race by saying he believed FANCY PANTS had given her best. The horse, he said, had had a tough run, was tiring, and he was wary of her breaking from her gait when struck with the stick, as had been her want in previous races.
[29] The respondent’s obligation under r 868(3) is to test the mare. It is not sufficient compliance with the Rule for him to conclude that a vigorous or even a not so vigorous use of the stick (which he has now concluded will get the best response from the mare), whether on the dust cart or to the horse, or a shake of the reins would not produce a favourable response. By merely sitting still in the cart and then putting the stick away Mr DeFilippi has denied himself the opportunity to test his horse in a manner that is in accordance with the Rule. His obligation is to continue to put his horse under some form of discernible pressure until the horse has reached the winning post.
[30] We find that up until the last 70 to 80 metres there is no question that the horse was given every chance to run in the first six placings. Indeed at this point in the race FANCY PANTS was in fourth position and the horse, which we accept can be difficult to drive, had been the beneficiary of an excellent drive. However near the 70 to 80 metres mark the respondent simply held the horse together for some 40 metres with the stick up. At approximately the 30 to 40 metres mark he turned the stick around and put it away. There is no further urging of the horse to the winning post by any means whatsoever.
[31] We thus find that Mr DeFilippi has not driven FANCY PANTS out to the end of the race.
[32] We believe Mr Ydgren is correct when he says there are two elements to the Rule. Thus the second issue is whether FANCY PANTS had any reasonable chance of running first, second, third, fourth, fifth, or sixth.
[33] FANCY PANTS has finished fifth. Significantly, the margin was close, with FANCY PANTS being beaten for fourth by TAKE FOR GRANTED by 1/2 a head. As we have previously noted the distance back to that horse at the time Mr DeFilippi ceases to drive out FANCY PANTS is difficult to determine accurately, but it would appear to be about 1/2 a length. TAKE FOR GRANTED has made a determined run down the middle of the track to take fourth place off FANCY PANTS on the line. We believe FANCY PANTS had a reasonable chance of running fourth when Mr DeFilippi stopped driving her out.
[34] In summary, we find that Mr DeFilippi has failed to drive out FANCY PANTS to the end of the race when that horse had a chance of finishing in fourth placing. We thus uphold the appeal.
Penalty submissions
[35] The appellant submitted that the breach was at the low end of the scale. Mr Ydgren stated that the respondent was a very experienced horseman who should have done better, but he had misjudged the situation.
[36] The RIU drew the attention of the Tribunal to r 114(2)(c) and (d) — the consequential effects of the breach, and the need to uphold the integrity and public confidence in Harness Racing.
[37] The appellant emphasised that the effect of Mr DeFilippi’s failure to drive out FANCY PANTS to the end of the race may have been that it cost the horse fourth placing. The stakes money for fourth was $241.36. The horse was the second favoured runner in the field and while the respondent’s action might have only affected those who had invested upon the horse in the First 4 pool, the confidence of the betting public was essential to the betterment of and confidence in the industry.
[38] Mr Ydgren produced Mr DeFilippi’s record. This evidenced a previous breach of this Rule in February 2010 when he was fined $600. The circumstances of that breach were different in that he had run second, beaten by a nose.
[39] Mr Ydgren referred to the very recent decision in N (2013), which he believed was particularly relevant to the imposition of penalty in this case.
[40] Mr Ydgren submitted that a fine in the vicinity of $400 was the appropriate penalty. The RIU did not seek costs.
[41] Mr DeFilippi was also of the view that the breach was low end and was due simply to a misjudgment on his part. His previous breach of r 868(3), he said, was very different to this. He believed the RIU’s penalty and costs submissions were realistic.
Penalty
[42] The JCA Penalty Guide provides a starting point of a fine of $600, with particular regard being had to the placing involved.
[43] A breach of this particular Rule is one that invariably jeopardises the integrity of Harness Racing. However, on this occasion the breach can fairly be described as being at the lower end of the scale. Up until the last 70 or 80 metres of the race, there is no question that FANCY PANTS was given every chance to run in the first six placings. It was an excellent drive from a very experienced horseman.
[44] The respondent’s previous breach is three and a half years ago and in very different circumstances to the matter before us. We do not regard this breach as an aggravating factor. Mr DeFilippi is a very busy driver with what can be described in general terms as a very good record.
[45] The very recent decision in N that the appellant has placed before the Tribunal is of assistance. It involved a horse finishing in sixth placing when having a chance of finishing fourth. The margin was similar to that before us (1/2 a head). N also stopped driving some 80 metres from the line, putting his stick away 30 metres from the finish. The penalty in that case was a fine of $300, with the Committee giving a $200 discount for the fact it was only a First 4 dividend that was possibly denied by N’s inaction. A distinguishing feature is that N admitted the breach whereas the respondent has not. This of course is not an aggravating factor, but the absence of a mitigating one. The admission merited a further $100 discount in N.
[46] We believe a fine a little above that imposed in N is appropriate having regard to the clear similarities with this case, the respondent’s record, and the absence of an admission of the breach. Mr DeFilippi is fined the sum of $350 and reminded of his professional obligations with respect to r 868(3).
[47] In the particular circumstances of this case, we accept the submissions of the parties and make no award of costs.
Dated this 18th day of December 2013
Geoff Hall Chairman
Paul Knowles Member of the Tribunal
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 17/12/2013
Publish Date: 17/12/2013
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.
hearingid: 75f2e92277efdbe1e73ed674728af9cd
informantnumber:
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 17/12/2013
hearing_title: Appeal - RIU v C DeFilippi - Decision dated 18 December 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
NICK YDGREN, Stipendiary Steward for the Racing Integrity Unit (RIU)
Appellant
COLIN DE FILIPPI, Licensed Public Trainer/ Open Horseman
Respondent
Information: No. A2432
Appearing: The appellant in person
The respondent in person
APPEALS TRIBUNAL: Prof G Hall, Chairman - Mr P Knowles, Member
DECISION OF APPEALS TRIBUNAL
[1] The RIU has appealed against the decision of the Raceday Committee at Ashburton on 14 November to dismiss a charge laid by the RIU alleging a breach of r 868(3) in that Mr DeFilippi failed to drive out FANCY PANTS over the concluding stages of race 10 on that day, the GARTH JEMMETT CONSTRUCTION HANDICAP TROT.
[2] Rule 868(3) 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.
Informant’s submissions
[3] The RIU alleged that with 70 to 80 metres of the race remaining Mr DeFilippi, who was racing in fourth position, ceased in his efforts to drive the horse FANCY PANTS out. FANCY PANTS finished in fifth place, 1/2 a head behind the fourth placed horse, TAKE FOR GRANTED (Mr Nyhan), which finished on the outside of the field down the centre of the track.
[4] Mr Ydgren stated that until the 70 to 80 metres point in the run home Mr DeFilippi had placed his runner under pressure with his whip and had driven in a manner that any reasonable person would expect of any horseman when in a stakes and/or dividend bearing position. Mr De Filippi used his whip on the horse on six occasions throughout the final straight, but then stopped his urgings and turned his whip around and put it away prior to the finishing line. Significantly, he said, at no stage from the 70 to 80 metres point onwards did the respondent make any attempt to push the horse with the reins or implement any other form of urging upon FANCY PANTS.
[5] Mr Ydgren emphasised that in his view Mr DeFilippi had simply misjudged the situation by believing that he had fourth placing covered when this in fact was not the case. The Stewards did not challenge Mr DeFilippi’s integrity nor did they allege that he had intentionally held FANCY PANTS back, but rather that he got it wrong by failing to drive his horse to the line when he was required to do so under the Rules.
[6] With respect to the decision of the Judicial Committee on the day, Mr Ydgren submitted that they had reached their decision by looking at the matter from two aspects: the racing history of the horse; and the fact that Mr DeFilippi was a senior and highly experienced driver. He said that the weight placed by the Committee on Mr DeFilippi’s experience was heavily disproportionate to the facts as they were presented. Additionally, he said, a significant amount of weight should be placed on the expectations of those who view the sport. Perceptually, he believed the respondent’s drive was “a very poor look” and the Stewards and the JCA were “charged with upholding the image of the sport.”
[7] Mr Ydgren submitted there were two matters to be considered under the Rule:
(1) did Mr DeFilippi drive his horse out to the end of the race; and
(2) did he have a reasonable chance of running in one of the first six placings.
[8] Mr Ydgren stated there was no impediment to Mr DeFilippi driving FANCY PANTS out to the finish. There was no anomaly or discernible change apparent with the horse’s gait, which would lead the respondent to stop driving his horse. The horse had trotted fluently in the home straight, as evidenced by Mr DeFilippi pulling the ear-plugs and striking the horse six times earlier in the straight.
[9] The Stipendiary Stewards did not accept the argument put forward by Mr DeFilippi throughout the hearing before the Judicial Committee that his horse was tired and doing her best, and he was wary of her galloping. These were said by the Stewards to be his subjective views and were not supported by any video evidence. In any event, he said, Mr DeFilippi was not relieved of his obligations to drive a horse out to the end of a race, which was in a stakes or dividend bearing place, if it was tired and still in contention for stakes or dividend money. It would have been appropriate for Mr DeFilippi to implement some less vigorous form of urging to pressure the horse to hold her fourth position. Had he hit the sulky or dustsheet or reined the horse to the finishing line, he would have satisfied the Stewards on the day.
[10] Mr Ydgren alleged it was clear from the films that from about the 75 metres point Mr DeFilippi had stopped driving his horse. There was no film that showed any form of urging on his part from this point onwards. Mr DeFilippi turned his whip around and sat motionless for the final portion of the race. This was the stage where most people viewing, especially those who stood to gain financially from the horse’s performance, would expect to see a driver doing everything reasonable to ensure the horse was driven fully to the line. Instead, what they saw was a horseman who gave up driving inside the final 80 metres to eventually lose his fourth placing.
[11] Mr Ydgren explained that when the whip is carried in a forward position a horse will have heightened sense of awareness insomuch that it will, in essence, know that it is still required to produce an effort. However, in contrast when the whip is withdrawn and the driver’s hands are commensurately lowered, a horse would naturally relax as it believed its race had been run and no further effort was required. He said there is ample anecdotal evidence that shows that when the whip is no longer applied or vigour is reduced then the horse will ease.
[12] Mr Ydgren further stated that a driver may take into account the known characteristics of a horse, just as a driver may act on instructions from an owner or trainer, but may only do so to the extent that the provisions of r 868(3) are not breached.
[13] Mr Ydgren demonstrated on two video angles that Mr DeFilippi had struck FANCY PANTS once at the 100 metres and then again at the 80 metre mark. From that point, he said, the respondent sat motionless other than to put the whip away with about 40 metres left to race. He said there was no shaking of the reins and that FANCY PANTS was put under no pressure in the final 70 to 80 metres. He believed FANCY PANTS was able to be driven out as she had already been struck with the whip on six occasions and had continued to trot without any flaw in her gait.
[14] Mr Ydgren also played a video of race 6 at Addington on 29 November and asked us to contrast the respondent’s drive in this race with that in the race at issue. He demonstrated that FANCY PANTS was in contention for fourth and Mr DeFilippi used the whip five times and the whip and reins twice in the run to the line. The horse did not break on this occasion.
Respondent’s submissions
[15] Mr DeFilippi stated that FANCY PANTS had had 18 starts and had broken from her gait in more than half of these. In the race in question he said the horse had got away cleanly but had broken soon after. He said FANCY PANTS galloped most commonly in the last 200 metres of a race and had had five different drivers and had galloped for four of them. In recent times, the only driver who had managed to get FANCY PANTS around the course was Mr Robbie Close, a junior driver, but Mr DeFilippi believed this was because the horse had not been pressured and had finished third last. He played three races in which the horse had galloped when tired or when the plugs were pulled or the whip was used.
[16] Mr DeFilippi stated that FANCY PANTS had one win, a second and a third from her 18 starts. He had driven the horse when she won and when she ran second. He said that when asked to improve the horse would lengthen stride but would often break when put under pressure. For that reason FANCY PANTS had to be driven on a tight rein. He said the horse had galloped at her start prior to Ashburton, at Kaikoura, when he had pulled the plugs. He had not even turned the stick on that occasion.
[17] FANCY PANTS is trained by Mr John Howe, who we were informed was an experienced trainer who generally left it up to Mr DeFilippi to determine the manner in which the horse would be driven. Mr DeFilippi said on this occasion had had been told “to see if he could get round in one piece”. Mr DeFilippi said he had planned to be handy or in front but this had “gone out the window” when FANCY PANTS galloped after first going away. He said he had settled behind the horses on the 10 metres mark and beside the eventual winner, which was off 20 metres. He said the first mile was not particularly quick and he had had the chance to get into the race. He said while he had eventually slotted into the one/one position, he had done more work than any other horse in the race.
[18] Mr DeFilippi said it was ironic that he faced this charge as he had hit FANCY PANTS six times and he had never hit the horse this many times in a race before. He said his practice was to hit a horse having regard to how he felt the horse was travelling and in this instance he believed he was the first driver to strike their horse. He said he had gone past Mr Nyhan because TAKE FOR GRANTED had not handled the bend. He said Mr Nyhan had hit his horse the same number of times as him but he accepted Mr Nyhan had hit his horse later in the run to the line. He questioned whether this charge would have been laid had he commenced to hit FANCY PANTS later than he had on this occasion.
[19] Mr DeFilippi said he thought FANCY PANTS had run a very good race considering she had lost ground at the start. He said every time he hit the horse he was holding his breath hoping she would be okay as he had it in the back of his mind that the horse had galloped the last three times he had used the whip. He said he had not used the reins, and he demonstrated a race on Show Day at Addington where Mr M Williamson had run the reins over IDLE BONES when challenging for the lead in the run home and the horse had broken. He said he believed FANCY PANTS had given her best and that was why he was sitting still. He said he felt she was getting tired and she had shortened stride after the last time he had hit her with the stick. He added she had felt good on the bend and when he first came out for a run.
[20] Mr DeFilippi said he was aware that Mr Nyhan was outside him and was finishing on but he was not concentrating on that horse but rather on getting FANCY PANTS over the line without breaking. He was not aware at the time whether he had finished fourth or fifth. He pointed out FANCY PANTS was the first to pull up. This was further evidence that she was tired. He agreed he had turned his stick at the 30 to 40 metres mark.
[21] In response to Mr Ydgren’s statement that FANCY PANTS had responded to the stick each time he had used it, Mr DeFilippi said the horse had not on the last occasion and that was why he had put the stick away. He believed he had put the horse in the race and he could not have done any more. He had driven the horse as well as he could have.
[22] With reference to race 6 at Addington on 29 November, to which Mr Ydgren had made reference, Mr DeFilippi replied that FANCY PANTS was in half hobbles in that race and also in the race at issue before us. He believed this had helped the horse and he emphasised FANCY PANTS had not lost 30 metres at the start at Addington. He added he was now using very little force when using the stick on the horse. He reiterated that he believed he had done well to hit the horse six times without her breaking and he emphasised he did not “chuck the reins” at trotters.
Decision
[23] The appeal is by way of a rehearing. We have looked at the videos of the race in question, videos of a number of other races in which FANCY PANTS has competed, the evidence before the Judicial Committee and, after hearing submissions we have reached our own conclusion on the facts of the case. We take guidance from Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 where the Supreme Court stated at [16]:
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.
[24] With reference to r 868(3), Judge Bisphan said in HRNZ v D (2006):
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. We agree with the Judicial Committee's interpretation of the rule which is an interpretation taken from the 1998 appeal case of Greer. In that case, the Appeals Tribunal stated: “We find that the obligation that arises under Rule 868(3) requires at least some action by the driver to urge his horse on, that is some demonstrable or discernible movement by the driver so that the driver can be seen to be driving his horse out.”
[25] With respect to the first element of the Rule, as identified by Mr Ydgren, that a driver is required to drive his horse out to the end of the race, the Judicial Committee in HRNZ v Tomlinson (2008) said:
Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.
[26] We have viewed the video of the race. FANCY PANTS lost some 30 to 40 metres just after the start and settled second last of the pack. With just over 800 metres to race the horse moved around the field three wide before taking up a one out and one back position with just over 500 metres to run. FANCY PANTS was thus in a challenging position. As the field turned for home FANCY PANTS was third. XMAS JOYELLA went past FANCY PANTS early in the run. At the 70 to 80 metre mark, which is the point of concern, FANCY PANTS was fourth and while the distance back to TAKE FOR GRANTED, which was racing in fifth place, is difficult to determine accurately from the two available video angles, it would appear to be about 1/2 a length. TAKE FOR GRANTED made a determined run down the middle of the track to take fourth place off FANCY PANTS on the line.
[27] Mr DeFilippi has struck FANCY PANTS six times with his whip in the run home until a point some 70 to 80 metres from the winning post. Until this point in the race he has placed the horse under sufficient pressure to show interested persons that he has attempted to do his best to ensure the horse finishes in the best position it can, and, in particular, for the purposes of r 868(3), in a top six placing. Significantly, the horse does not appear to flinch in her work and at no stage does a viewing of the video suggest to us that the vigorous urgings of Mr DeFilippi are having an adverse impact upon the gait of FANCY PANTS. We accept, therefore, the appellant’s submission that there is no visible reason for Mr DeFilippi not to drive his horse out.
[28] Mr DeFilippi justified his driving over the last 70 to 80 metres of the race by saying he believed FANCY PANTS had given her best. The horse, he said, had had a tough run, was tiring, and he was wary of her breaking from her gait when struck with the stick, as had been her want in previous races.
[29] The respondent’s obligation under r 868(3) is to test the mare. It is not sufficient compliance with the Rule for him to conclude that a vigorous or even a not so vigorous use of the stick (which he has now concluded will get the best response from the mare), whether on the dust cart or to the horse, or a shake of the reins would not produce a favourable response. By merely sitting still in the cart and then putting the stick away Mr DeFilippi has denied himself the opportunity to test his horse in a manner that is in accordance with the Rule. His obligation is to continue to put his horse under some form of discernible pressure until the horse has reached the winning post.
[30] We find that up until the last 70 to 80 metres there is no question that the horse was given every chance to run in the first six placings. Indeed at this point in the race FANCY PANTS was in fourth position and the horse, which we accept can be difficult to drive, had been the beneficiary of an excellent drive. However near the 70 to 80 metres mark the respondent simply held the horse together for some 40 metres with the stick up. At approximately the 30 to 40 metres mark he turned the stick around and put it away. There is no further urging of the horse to the winning post by any means whatsoever.
[31] We thus find that Mr DeFilippi has not driven FANCY PANTS out to the end of the race.
[32] We believe Mr Ydgren is correct when he says there are two elements to the Rule. Thus the second issue is whether FANCY PANTS had any reasonable chance of running first, second, third, fourth, fifth, or sixth.
[33] FANCY PANTS has finished fifth. Significantly, the margin was close, with FANCY PANTS being beaten for fourth by TAKE FOR GRANTED by 1/2 a head. As we have previously noted the distance back to that horse at the time Mr DeFilippi ceases to drive out FANCY PANTS is difficult to determine accurately, but it would appear to be about 1/2 a length. TAKE FOR GRANTED has made a determined run down the middle of the track to take fourth place off FANCY PANTS on the line. We believe FANCY PANTS had a reasonable chance of running fourth when Mr DeFilippi stopped driving her out.
[34] In summary, we find that Mr DeFilippi has failed to drive out FANCY PANTS to the end of the race when that horse had a chance of finishing in fourth placing. We thus uphold the appeal.
Penalty submissions
[35] The appellant submitted that the breach was at the low end of the scale. Mr Ydgren stated that the respondent was a very experienced horseman who should have done better, but he had misjudged the situation.
[36] The RIU drew the attention of the Tribunal to r 114(2)(c) and (d) — the consequential effects of the breach, and the need to uphold the integrity and public confidence in Harness Racing.
[37] The appellant emphasised that the effect of Mr DeFilippi’s failure to drive out FANCY PANTS to the end of the race may have been that it cost the horse fourth placing. The stakes money for fourth was $241.36. The horse was the second favoured runner in the field and while the respondent’s action might have only affected those who had invested upon the horse in the First 4 pool, the confidence of the betting public was essential to the betterment of and confidence in the industry.
[38] Mr Ydgren produced Mr DeFilippi’s record. This evidenced a previous breach of this Rule in February 2010 when he was fined $600. The circumstances of that breach were different in that he had run second, beaten by a nose.
[39] Mr Ydgren referred to the very recent decision in N (2013), which he believed was particularly relevant to the imposition of penalty in this case.
[40] Mr Ydgren submitted that a fine in the vicinity of $400 was the appropriate penalty. The RIU did not seek costs.
[41] Mr DeFilippi was also of the view that the breach was low end and was due simply to a misjudgment on his part. His previous breach of r 868(3), he said, was very different to this. He believed the RIU’s penalty and costs submissions were realistic.
Penalty
[42] The JCA Penalty Guide provides a starting point of a fine of $600, with particular regard being had to the placing involved.
[43] A breach of this particular Rule is one that invariably jeopardises the integrity of Harness Racing. However, on this occasion the breach can fairly be described as being at the lower end of the scale. Up until the last 70 or 80 metres of the race, there is no question that FANCY PANTS was given every chance to run in the first six placings. It was an excellent drive from a very experienced horseman.
[44] The respondent’s previous breach is three and a half years ago and in very different circumstances to the matter before us. We do not regard this breach as an aggravating factor. Mr DeFilippi is a very busy driver with what can be described in general terms as a very good record.
[45] The very recent decision in N that the appellant has placed before the Tribunal is of assistance. It involved a horse finishing in sixth placing when having a chance of finishing fourth. The margin was similar to that before us (1/2 a head). N also stopped driving some 80 metres from the line, putting his stick away 30 metres from the finish. The penalty in that case was a fine of $300, with the Committee giving a $200 discount for the fact it was only a First 4 dividend that was possibly denied by N’s inaction. A distinguishing feature is that N admitted the breach whereas the respondent has not. This of course is not an aggravating factor, but the absence of a mitigating one. The admission merited a further $100 discount in N.
[46] We believe a fine a little above that imposed in N is appropriate having regard to the clear similarities with this case, the respondent’s record, and the absence of an admission of the breach. Mr DeFilippi is fined the sum of $350 and reminded of his professional obligations with respect to r 868(3).
[47] In the particular circumstances of this case, we accept the submissions of the parties and make no award of costs.
Dated this 18th day of December 2013
Geoff Hall Chairman
Paul Knowles Member of the Tribunal
sumissionsforpenalty:
reasonsforpenalty:
penalty:
hearing_type: Non-race day
Rules:
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent:
StipendSteward:
raceid:
race_expapproval:
racecancelled:
race_noreport:
race_emailed1:
race_emailed2:
race_title:
submittochair:
race_expappcomment:
race_km:
race_otherexp:
race_chair:
race_pm1:
race_pm2:
meetid:
meet_expapproval:
meet_noreport:
waitingforpublication:
meet_emailed1:
meet_emailed2:
meetdate: no date provided
meet_title:
meet_expappcomment:
meet_km:
meet_otherexp:
tracklocation:
meet_racingtype:
meet_chair:
meet_pm1:
meet_pm2:
name: