Non Raceday Inquiry RIU v D Branch 12 October 2012 – Decision dated 18 October 2012
ID: JCA14928
Decision:
NON RACEDAY INQUIRY
HRNZ v Mr D Branch
Rule: 869(3)(b)
Held: Friday, 12 October 2012 at Alexandra Park, Auckland
Judicial Committee: B J Scott, Chairman - A J Dooley, Committee Member
Present: Mr J M Muirhead - Stipendiary Steward, Mr M D Branch - representing Mr D Branch, Mr D Branch - Junior Horseman
DECISION OF JUDICIAL COMMITTEE
Evidence:
An Information was lodged by Stipendiary Steward Mr JM Muirhead against Licensed Junior Driver Mr D Branch alleging that Mr Branch drove CUEDEE ALGRANCO carelessly causing the progress of IDOLISE ME (Driver JI Dickie) to be impeded over the concluding stages of the race.
The Information was served on Mr Branch at the Meeting on the 21st of September 2012 and he advised the Committee that he did not admit the breach of the Rule.
In view of the fact that this matter was presented to the Committee after the last race on the 21st of September 2012 and following new JCA policy, this charge was adjourned for a date to be fixed.
The adjourned charge was then heard prior to the Auckland Trotting Club’s Meeting on the 12th of October 2012.
Mr Branch was present and was represented by Mr MD Branch.
Rule 869(3)(b) provides:
“No horseman in any race shall drive carelessly”.
The Rule was read to Mr Branch.
Mr Muirhead at the outset of the Hearing also referred to Clause 7 of the Passing Lanes and Home Straight Regulations. He said that the regulation provided that all horses upon entering the home straight prior to the finish shall maintain as straight a course as possible to the finish line.
Mr Branch (Snr) pointed out that Mr Branch (Jnr) had not been charged under these regulations.
1.1 Mr Muirhead then gave evidence and said he was on duty on the 21st of September 2012 and he watched the race from the Steward’s viewing position on the fifth floor. He said that Mr Branch driving CUEDEE ALGRANCO trailed the leader RYKAARD and that LIQUIDITY was in the parked position and that IDOLISE ME was in the one one position.
He said that around the final bend CUEDEE ALGRANCO was hanging and the leader was under pressure. He said that Mr Branch moved outwards and that after he moved out he then began to release the removable deafeners. He said that CUEDEE ALGRANCO was tracking outwards while Mr Branch was releasing the deafeners.
He said that prior to the release of the deafeners CUEDEE ALGRANCO was already two cart widths out. He further said that during the process of releasing the deafeners CUEDEE ALGRANCO continued to run out and that Mr Branch struck his horse a couple of times with the whip. He also said that on the outside of Mr Branch’s horse was IDOLISE ME which was improving. Mr Muirhead said that there was interference caused to Mr Dickie’s horse and as a result he had to stop driving and then lost momentum. He said Mr Dickie started driving his horse again and was closing on CUEDEE ALGRANCO at the finishing line and that the margin between Mr Branch’s horse and Mr Dickie’s horse at the finish was a neck.
1.2 Mr Muirhead said that Mr Dickie had called out to Mr Branch at about the time of the interference. This evidence was challenged by Mr Branch (Snr) because Mr Dickie had not been called today as a witness.
1.3 Mr Muirhead said that there was a subsequent protest into the finish of the race and that CUEDEE ALGRANCO was relegated from second to third and IDOLISE ME was promoted from third to second.
Mr Muirhead also said that during the evening Mr Branch (Jnr) attended an enquiry with the Stewards with several different Senior Horsemen.
1.4 Mr Muirhead said that the Stewards were unanimous in relation to the interference in that Mr Branch had allowed his horse to run out in the straight and still he had used the whip on his horse prior to the interference and that he was careless because he should have kept his horse straight.
1.5 Mr Muirhead then demonstrated the incident by use of the video films.
1.6 Mr Branch (Snr) accepted that interference had been caused but did not accept that Mr Branch (Jnr) had caused it.
1.7 Mr Muirhead showed that Mr Branch started to move out with 200 metres to run and that with 150 metres to run his horse was tracking out wider in the straight. He said that although Mr Branch used his whip on his horse even though it was running out that when Mr Dickie called out Mr Branch responded and was able to straighten his horse.
He said that this was over a distance of about 100 metres and that Mr Branch should have acted much sooner. He pointed out that the film showed that Mr Branch moved out at least five cart widths prior to the interference and he again said that Mr Branch should have straightened his horse earlier.
1.8 At the conclusion of Mr Muirhead addressing the Committee and presented the film Mr Branch (Snr) then challenged Mr Muirhead’s position at the Hearing. He submitted that Mr Muirhead cannot be both the Prosecutor and a witness. He submitted that on that basis Mr Muirhead had only presented opening submissions to the Committee and not evidence and that he had of course produced the films to the Committee. Mr Muirhead’s response was that the procedure was how the Stewards conducted Hearings on race night and that this was the continuation of the race night Hearing.
Mr Branch (Snr) did not accept this.
1.9 Mr Branch (Snr) then requested that a film be shown of race 7 from the 9th of December 2011. This film involved a Protest where the placings stood. Mr Branch (Snr) talked to the home straight view of this race and asked Mr Muirhead if interference had occurred. Mr Muirhead said that there was minor interference to the second horse in that race but Mr Branch (Snr) pointed to what appeared to be more severe interference to a horse further out. Mr Branch (Snr) noted that the Protest was dismissed but he asked why the Driver of the horse concerned was not charged with careless driving. Mr Muirhead said that it was minor interference and that there was no change to the placings.
Mr Branch (Snr) then asked Mr Muirhead if he was saying that, because there was no change to the placings, the Driver shouldn’t be charged. Mr Muirhead said that that was not the case and it was based on the fact that there was minor interference.
1.10 Mr Branch (Snr) further asked Mr Muirhead if the relegation in the present case was relevant to Mr Branch (Jnr) being charged. Mr Muirhead responded that it was based on the driving actions in the particular case.
1.11 Mr Branch (Snr) then asked Mr Muirhead if he accepted that a horse could be relegated for causing interference and the Driver not charged. Mr Muirhead agreed with that and said that it could be the horse’s fault.
Mr Branch (Snr) then asked Mr Muirhead if he accepted that horses run out in the straight and that sometimes when a Driver pulls on the right rein the horse goes left and so on. Mr Muirhead accepted that.
1.12 Mr Muirhead was further asked if he accepted that a Driver has the option to keep driving his horse out until he has to straighten it. Mr Muirhead said that he did accept that as long as the Driver did not cause interference.
1.13 Mr Muirhead was asked if he accepted that CUEDEE ALGRANCO was intractable and therefore sometimes difficult to control. Mr Muirhead said that he did not accept that and he said that the horse reacted to being steered so it was tractable.
Mr Muirhead was asked further if CUEDEE ALGRANCO ran out in the back straight. He thought it did a little bit and the back straight film was shown to the Committee. Mr Muirhead said that the horse ran out but Mr Branch steered it back in and it was fine.
There was a dispute between Mr Branch (Snr) and Mr Muirhead as to whether the horse was tractable or not.
1.14 An email from the Trainer of CUEDEE ALGRANCO was presented in evidence. Mr Muirhead said that he did not accept the opinion set out in the email.
1.15 Mr Muirhead was then asked what the Driver’s do when they pull the plugs. He said that the Driver’s would normally put the reins in one hand and pull the plugs with the other and he acknowledged that in that case the Driver doesn’t have as much control as usual.
Mr Muirhead was further asked if Mr Branch was hitting his horse at the time he caused the interference. Mr Muirhead said that it was just prior to the interference being caused.
1.16 Mr Branch (Snr) said that they were not contesting the interference but what they were saying was that the horse was intractable and it did not react to Mr Branch (Jnr) when he tried to move it inwards.
1.17 Mr Branch (Jnr) then gave evidence and made use of the video films. He said his horse was on a loose rein prior to the turn and he had to chase it up. He said that he was driving his horse to get the best possible finishing position that he could. The horse was running out but there was plenty of room outside him and he was finishing on. He said he tried to correct his horse but it had “dogged up” and had run harder into Mr Dickie.
1.18 In answer to a question Mr Branch said that he had already corrected his horse when Mr Dickie called but his horse kept moving out.
Mr Branch was asked if the Trainer had given him any driving instructions and he said no and that he had driven the horse before.
He was asked if he had struck his horse with a whip at least twice and he said he did so because it was running out.
1.19 Mr Branch was further asked if his horse had reacted to him immediately when he took corrective action and he thought that the horse had continued on its outward movement despite his efforts.
1.20 In answer to a question from the Committee, Mr Branch said he did not take the passing lane because the other horses from behind were “swooping”. He also said that he didn’t know if his horse would be running in or out and whether it would take the passing lane in time.
1.21 Mr Branch said again that he made an attempt to correct his horse and when he hit it his horse continued to run out and he had made contact with the sulky of Mr Dickie’s horse.
Submissions for Decision:
2.1 Mr Muirhead submitted that the standard of proof is on the balance of probabilities.
2.2 He said that the Committee should weigh up the horse’s manners against the Driver’s duty of care. He further submitted that the horse was tractable and that Mr Branch had not driven with enough attentive care. He had pulled the plugs and used the whip while continually driving the horse and during that time it was running out and he said that this was over a period of 100 metres.
2.3 He said that Mr Branch had no regard to the horses on the outside and that he was careless.
2.4 Mr Muirhead also submitted that Mr Branch was pre-warned about the horse’s racing manners in the way it had been running about.
2.5 He submitted that the charge should be upheld.
2.6 Mr Branch (Snr) submitted that the position is that just because a horse is relegated and caused interference it doesn’t mean that the Driver is charged.
2.7 In support of the above statement Mr Branch (Snr) referred to the Protest Decision in respect to this race and the Protest Decision in the race from the 9th of December that he had shown. He submitted that both Protest Decisions were correct and it was merely the charge of careless driving that he was dealing with. The purpose of the prior decision was to show that even if there was a Protest and that interference had been caused that the Driver is not always charged.
In support of that also Mr Branch (Snr) submitted to the Committee a copy of the Steward’s Report from the Australian Turf Club Meeting at Royal Randwick Racecourse on the 22nd of September 2012. He drew the Committee’s attention to the decision in Race 4 at that Meeting in respect to a Protest between the 2nd placed horse LONG PORT against the winner NORZITA. He submitted that that was an example where placings were changed but the Jockey was not charged and this supported his contention that Drivers and Jockeys are not always charged even though there has been a Protest.
2.8 He further submitted that if the Driver does something about his horse and it doesn’t respond then the Driver is not careless.
2.9 He further submitted that if the horse had have been tractable then interference may not have occurred.
2.1. Mr Branch (Snr) said that the onus was on the Stipendiary Stewards and if it is a 50/50 call then any doubt must go in favour of the Driver and the charge must fail.
Reasons for Decision:
3.1 The Committee has carefully assessed the evidence of the Witnesses and viewed the video footage several times. In view of Mr Branch’s (Snr) submission that Mr Muirhead had not presented any evidence other than the films, the Committee has spent some time viewing the films.
3.2 The Committee does however accept that the verbal evidence presented by Mr Muirhead can be treated as evidence because this is a continuation of a Race Night Judicial Hearing.
3.3 Clearly it would be preferable if, in these adjourned cases, that the RIU adopted the approach of having say, Mr Muirhead as the Prosecutor and one of the other Stipendiary Stewards on duty that evening as the witness. This is something that the RIU should look into.
3.4 In the present matter however the Committee has the benefit of Rule 1111(1)(a) which provides:
“The Judicial Committee shall conduct the Hearing as it thinks fit”.
and Rule 1111(1)(b) which provides:
“The Judicial Committee may, in its discretion admit any evidence it deems relevant whether admissible in a court of law or not”.
3.5 The Committee takes the view that the evidence given by Mr Muirhead is relevant but Mr Branch’s (Snr) objection is noted.
3.6 The thrust of Mr Branch’s (Jnr) argument is that it was his horse that was at fault and not him. It should be noted that at the Protest Hearing Mr Branch did not blame his horse.
3.7 It is easy for a horseman to blame the horse and the Committee acknowledges that there are occasions when the horse is at fault. There is an onus on the Driver however to prove that the horse was at fault and not the Driver.
3.8 Mr Branch has told us that his horse was running out in the straights and running in on the bends. We have seen both movements on the films presented to us.
3.9 The films have clearly shown the actions of Mr Branch in that on the home turn and prior to the passing lane he slapped his horse up a couple of times and then in the straight he elected to come out rather than go into the passing lane. Mr Branch’s explanation for this was that because of his horse’s racing habits he was not sure whether it would take the passing lane or not. He also told us that there were other horses swooping from the back and he quite correctly wanted to keep his advantage over those horses and finish in the best possible position.
3.10 The films then showed that after Mr Branch came out from the trail he moved out at least two cart widths and that he continued to press his horse to do its best and in doing so it continued to run outwards another three or possibly four cart widths. Mr Branch also used his whip to encourage his horse and this was despite it running out.
3.11 His reason for the manner in which he drove was that firstly he was trying to obtain the best possible position in the race and secondly when he was moving out there were no horses outside him.
3.12 In response to that however, the Committee takes the view that Mr Branch could not blindly continue on driving his horse out when he knew of its propensity for running out in the straight and also he should have been aware that in the run home it was likely that other horses would either come alongside his horse or even go past it.
3.13 We have heard that Mr Dickie called out to Mr Branch and he tells us that that was after he had taken corrective action. Mr Branch, in our view, took corrective action too late and it would seem strange that Mr Dickie would call out to him at a very late stage and after the interference had occurred.
3.14 We have been advised that it has been accepted that interference to Mr Dickie’s horse did occur but as stated above, Mr Branch’s defence is based on the tractability of his horse and the fact that the horse continued to run out even though Mr Branch had taken corrective action.
3.15 Mr Muirhead tells us that Mr Branch’s horse was tractable because firstly when it moved out in the back straight Mr Branch was able to move it back in, secondly when it was running in on the home turn Mr Branch was able to move it out and finally that when Mr Branch took corrective action in the straight his horse responded.
3.16 We are of the view that this is supported by the films.
3.17 The Rule that we are dealing with specifies that no horseman in any race shall drive carelessly. In assessing whether Mr Branch was careless or not we have to take into account his knowledge of his horse, its racing manners during the race and the steps that he took in the straight. We believe that Mr Branch was forewarned about his horse’s propensity for running out in the straight and that he should have taken much more care in the run home. To say that he was driving his horse out to obtain the best possible position does not in our view discharge the onus on him to drive carefully.
3.18 He tells us that he took corrective action, but in our view that was far too late and as a result interference was caused. We are of the view that that interference was as a result of Mr Branch’s careless driving and as such the charge should be upheld.
3.19 We can say that we have not taken into account Clause 7 of the Passing Lanes and Home Straight Regulations because that was not part of the original charge.
Penalty:
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 30/10/2012
Publish Date: 30/10/2012
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: 8d2d6155d68921153acd12c53c6b32ce
informantnumber: A2479
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 30/10/2012
hearing_title: Non Raceday Inquiry RIU v D Branch 12 October 2012 - Decision dated 18 October 2012
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
NON RACEDAY INQUIRY
HRNZ v Mr D Branch
Rule: 869(3)(b)
Held: Friday, 12 October 2012 at Alexandra Park, Auckland
Judicial Committee: B J Scott, Chairman - A J Dooley, Committee Member
Present: Mr J M Muirhead - Stipendiary Steward, Mr M D Branch - representing Mr D Branch, Mr D Branch - Junior Horseman
DECISION OF JUDICIAL COMMITTEE
Evidence:
An Information was lodged by Stipendiary Steward Mr JM Muirhead against Licensed Junior Driver Mr D Branch alleging that Mr Branch drove CUEDEE ALGRANCO carelessly causing the progress of IDOLISE ME (Driver JI Dickie) to be impeded over the concluding stages of the race.
The Information was served on Mr Branch at the Meeting on the 21st of September 2012 and he advised the Committee that he did not admit the breach of the Rule.
In view of the fact that this matter was presented to the Committee after the last race on the 21st of September 2012 and following new JCA policy, this charge was adjourned for a date to be fixed.
The adjourned charge was then heard prior to the Auckland Trotting Club’s Meeting on the 12th of October 2012.
Mr Branch was present and was represented by Mr MD Branch.
Rule 869(3)(b) provides:
“No horseman in any race shall drive carelessly”.
The Rule was read to Mr Branch.
Mr Muirhead at the outset of the Hearing also referred to Clause 7 of the Passing Lanes and Home Straight Regulations. He said that the regulation provided that all horses upon entering the home straight prior to the finish shall maintain as straight a course as possible to the finish line.
Mr Branch (Snr) pointed out that Mr Branch (Jnr) had not been charged under these regulations.
1.1 Mr Muirhead then gave evidence and said he was on duty on the 21st of September 2012 and he watched the race from the Steward’s viewing position on the fifth floor. He said that Mr Branch driving CUEDEE ALGRANCO trailed the leader RYKAARD and that LIQUIDITY was in the parked position and that IDOLISE ME was in the one one position.
He said that around the final bend CUEDEE ALGRANCO was hanging and the leader was under pressure. He said that Mr Branch moved outwards and that after he moved out he then began to release the removable deafeners. He said that CUEDEE ALGRANCO was tracking outwards while Mr Branch was releasing the deafeners.
He said that prior to the release of the deafeners CUEDEE ALGRANCO was already two cart widths out. He further said that during the process of releasing the deafeners CUEDEE ALGRANCO continued to run out and that Mr Branch struck his horse a couple of times with the whip. He also said that on the outside of Mr Branch’s horse was IDOLISE ME which was improving. Mr Muirhead said that there was interference caused to Mr Dickie’s horse and as a result he had to stop driving and then lost momentum. He said Mr Dickie started driving his horse again and was closing on CUEDEE ALGRANCO at the finishing line and that the margin between Mr Branch’s horse and Mr Dickie’s horse at the finish was a neck.
1.2 Mr Muirhead said that Mr Dickie had called out to Mr Branch at about the time of the interference. This evidence was challenged by Mr Branch (Snr) because Mr Dickie had not been called today as a witness.
1.3 Mr Muirhead said that there was a subsequent protest into the finish of the race and that CUEDEE ALGRANCO was relegated from second to third and IDOLISE ME was promoted from third to second.
Mr Muirhead also said that during the evening Mr Branch (Jnr) attended an enquiry with the Stewards with several different Senior Horsemen.
1.4 Mr Muirhead said that the Stewards were unanimous in relation to the interference in that Mr Branch had allowed his horse to run out in the straight and still he had used the whip on his horse prior to the interference and that he was careless because he should have kept his horse straight.
1.5 Mr Muirhead then demonstrated the incident by use of the video films.
1.6 Mr Branch (Snr) accepted that interference had been caused but did not accept that Mr Branch (Jnr) had caused it.
1.7 Mr Muirhead showed that Mr Branch started to move out with 200 metres to run and that with 150 metres to run his horse was tracking out wider in the straight. He said that although Mr Branch used his whip on his horse even though it was running out that when Mr Dickie called out Mr Branch responded and was able to straighten his horse.
He said that this was over a distance of about 100 metres and that Mr Branch should have acted much sooner. He pointed out that the film showed that Mr Branch moved out at least five cart widths prior to the interference and he again said that Mr Branch should have straightened his horse earlier.
1.8 At the conclusion of Mr Muirhead addressing the Committee and presented the film Mr Branch (Snr) then challenged Mr Muirhead’s position at the Hearing. He submitted that Mr Muirhead cannot be both the Prosecutor and a witness. He submitted that on that basis Mr Muirhead had only presented opening submissions to the Committee and not evidence and that he had of course produced the films to the Committee. Mr Muirhead’s response was that the procedure was how the Stewards conducted Hearings on race night and that this was the continuation of the race night Hearing.
Mr Branch (Snr) did not accept this.
1.9 Mr Branch (Snr) then requested that a film be shown of race 7 from the 9th of December 2011. This film involved a Protest where the placings stood. Mr Branch (Snr) talked to the home straight view of this race and asked Mr Muirhead if interference had occurred. Mr Muirhead said that there was minor interference to the second horse in that race but Mr Branch (Snr) pointed to what appeared to be more severe interference to a horse further out. Mr Branch (Snr) noted that the Protest was dismissed but he asked why the Driver of the horse concerned was not charged with careless driving. Mr Muirhead said that it was minor interference and that there was no change to the placings.
Mr Branch (Snr) then asked Mr Muirhead if he was saying that, because there was no change to the placings, the Driver shouldn’t be charged. Mr Muirhead said that that was not the case and it was based on the fact that there was minor interference.
1.10 Mr Branch (Snr) further asked Mr Muirhead if the relegation in the present case was relevant to Mr Branch (Jnr) being charged. Mr Muirhead responded that it was based on the driving actions in the particular case.
1.11 Mr Branch (Snr) then asked Mr Muirhead if he accepted that a horse could be relegated for causing interference and the Driver not charged. Mr Muirhead agreed with that and said that it could be the horse’s fault.
Mr Branch (Snr) then asked Mr Muirhead if he accepted that horses run out in the straight and that sometimes when a Driver pulls on the right rein the horse goes left and so on. Mr Muirhead accepted that.
1.12 Mr Muirhead was further asked if he accepted that a Driver has the option to keep driving his horse out until he has to straighten it. Mr Muirhead said that he did accept that as long as the Driver did not cause interference.
1.13 Mr Muirhead was asked if he accepted that CUEDEE ALGRANCO was intractable and therefore sometimes difficult to control. Mr Muirhead said that he did not accept that and he said that the horse reacted to being steered so it was tractable.
Mr Muirhead was asked further if CUEDEE ALGRANCO ran out in the back straight. He thought it did a little bit and the back straight film was shown to the Committee. Mr Muirhead said that the horse ran out but Mr Branch steered it back in and it was fine.
There was a dispute between Mr Branch (Snr) and Mr Muirhead as to whether the horse was tractable or not.
1.14 An email from the Trainer of CUEDEE ALGRANCO was presented in evidence. Mr Muirhead said that he did not accept the opinion set out in the email.
1.15 Mr Muirhead was then asked what the Driver’s do when they pull the plugs. He said that the Driver’s would normally put the reins in one hand and pull the plugs with the other and he acknowledged that in that case the Driver doesn’t have as much control as usual.
Mr Muirhead was further asked if Mr Branch was hitting his horse at the time he caused the interference. Mr Muirhead said that it was just prior to the interference being caused.
1.16 Mr Branch (Snr) said that they were not contesting the interference but what they were saying was that the horse was intractable and it did not react to Mr Branch (Jnr) when he tried to move it inwards.
1.17 Mr Branch (Jnr) then gave evidence and made use of the video films. He said his horse was on a loose rein prior to the turn and he had to chase it up. He said that he was driving his horse to get the best possible finishing position that he could. The horse was running out but there was plenty of room outside him and he was finishing on. He said he tried to correct his horse but it had “dogged up” and had run harder into Mr Dickie.
1.18 In answer to a question Mr Branch said that he had already corrected his horse when Mr Dickie called but his horse kept moving out.
Mr Branch was asked if the Trainer had given him any driving instructions and he said no and that he had driven the horse before.
He was asked if he had struck his horse with a whip at least twice and he said he did so because it was running out.
1.19 Mr Branch was further asked if his horse had reacted to him immediately when he took corrective action and he thought that the horse had continued on its outward movement despite his efforts.
1.20 In answer to a question from the Committee, Mr Branch said he did not take the passing lane because the other horses from behind were “swooping”. He also said that he didn’t know if his horse would be running in or out and whether it would take the passing lane in time.
1.21 Mr Branch said again that he made an attempt to correct his horse and when he hit it his horse continued to run out and he had made contact with the sulky of Mr Dickie’s horse.
Submissions for Decision:
2.1 Mr Muirhead submitted that the standard of proof is on the balance of probabilities.
2.2 He said that the Committee should weigh up the horse’s manners against the Driver’s duty of care. He further submitted that the horse was tractable and that Mr Branch had not driven with enough attentive care. He had pulled the plugs and used the whip while continually driving the horse and during that time it was running out and he said that this was over a period of 100 metres.
2.3 He said that Mr Branch had no regard to the horses on the outside and that he was careless.
2.4 Mr Muirhead also submitted that Mr Branch was pre-warned about the horse’s racing manners in the way it had been running about.
2.5 He submitted that the charge should be upheld.
2.6 Mr Branch (Snr) submitted that the position is that just because a horse is relegated and caused interference it doesn’t mean that the Driver is charged.
2.7 In support of the above statement Mr Branch (Snr) referred to the Protest Decision in respect to this race and the Protest Decision in the race from the 9th of December that he had shown. He submitted that both Protest Decisions were correct and it was merely the charge of careless driving that he was dealing with. The purpose of the prior decision was to show that even if there was a Protest and that interference had been caused that the Driver is not always charged.
In support of that also Mr Branch (Snr) submitted to the Committee a copy of the Steward’s Report from the Australian Turf Club Meeting at Royal Randwick Racecourse on the 22nd of September 2012. He drew the Committee’s attention to the decision in Race 4 at that Meeting in respect to a Protest between the 2nd placed horse LONG PORT against the winner NORZITA. He submitted that that was an example where placings were changed but the Jockey was not charged and this supported his contention that Drivers and Jockeys are not always charged even though there has been a Protest.
2.8 He further submitted that if the Driver does something about his horse and it doesn’t respond then the Driver is not careless.
2.9 He further submitted that if the horse had have been tractable then interference may not have occurred.
2.1. Mr Branch (Snr) said that the onus was on the Stipendiary Stewards and if it is a 50/50 call then any doubt must go in favour of the Driver and the charge must fail.
Reasons for Decision:
3.1 The Committee has carefully assessed the evidence of the Witnesses and viewed the video footage several times. In view of Mr Branch’s (Snr) submission that Mr Muirhead had not presented any evidence other than the films, the Committee has spent some time viewing the films.
3.2 The Committee does however accept that the verbal evidence presented by Mr Muirhead can be treated as evidence because this is a continuation of a Race Night Judicial Hearing.
3.3 Clearly it would be preferable if, in these adjourned cases, that the RIU adopted the approach of having say, Mr Muirhead as the Prosecutor and one of the other Stipendiary Stewards on duty that evening as the witness. This is something that the RIU should look into.
3.4 In the present matter however the Committee has the benefit of Rule 1111(1)(a) which provides:
“The Judicial Committee shall conduct the Hearing as it thinks fit”.
and Rule 1111(1)(b) which provides:
“The Judicial Committee may, in its discretion admit any evidence it deems relevant whether admissible in a court of law or not”.
3.5 The Committee takes the view that the evidence given by Mr Muirhead is relevant but Mr Branch’s (Snr) objection is noted.
3.6 The thrust of Mr Branch’s (Jnr) argument is that it was his horse that was at fault and not him. It should be noted that at the Protest Hearing Mr Branch did not blame his horse.
3.7 It is easy for a horseman to blame the horse and the Committee acknowledges that there are occasions when the horse is at fault. There is an onus on the Driver however to prove that the horse was at fault and not the Driver.
3.8 Mr Branch has told us that his horse was running out in the straights and running in on the bends. We have seen both movements on the films presented to us.
3.9 The films have clearly shown the actions of Mr Branch in that on the home turn and prior to the passing lane he slapped his horse up a couple of times and then in the straight he elected to come out rather than go into the passing lane. Mr Branch’s explanation for this was that because of his horse’s racing habits he was not sure whether it would take the passing lane or not. He also told us that there were other horses swooping from the back and he quite correctly wanted to keep his advantage over those horses and finish in the best possible position.
3.10 The films then showed that after Mr Branch came out from the trail he moved out at least two cart widths and that he continued to press his horse to do its best and in doing so it continued to run outwards another three or possibly four cart widths. Mr Branch also used his whip to encourage his horse and this was despite it running out.
3.11 His reason for the manner in which he drove was that firstly he was trying to obtain the best possible position in the race and secondly when he was moving out there were no horses outside him.
3.12 In response to that however, the Committee takes the view that Mr Branch could not blindly continue on driving his horse out when he knew of its propensity for running out in the straight and also he should have been aware that in the run home it was likely that other horses would either come alongside his horse or even go past it.
3.13 We have heard that Mr Dickie called out to Mr Branch and he tells us that that was after he had taken corrective action. Mr Branch, in our view, took corrective action too late and it would seem strange that Mr Dickie would call out to him at a very late stage and after the interference had occurred.
3.14 We have been advised that it has been accepted that interference to Mr Dickie’s horse did occur but as stated above, Mr Branch’s defence is based on the tractability of his horse and the fact that the horse continued to run out even though Mr Branch had taken corrective action.
3.15 Mr Muirhead tells us that Mr Branch’s horse was tractable because firstly when it moved out in the back straight Mr Branch was able to move it back in, secondly when it was running in on the home turn Mr Branch was able to move it out and finally that when Mr Branch took corrective action in the straight his horse responded.
3.16 We are of the view that this is supported by the films.
3.17 The Rule that we are dealing with specifies that no horseman in any race shall drive carelessly. In assessing whether Mr Branch was careless or not we have to take into account his knowledge of his horse, its racing manners during the race and the steps that he took in the straight. We believe that Mr Branch was forewarned about his horse’s propensity for running out in the straight and that he should have taken much more care in the run home. To say that he was driving his horse out to obtain the best possible position does not in our view discharge the onus on him to drive carefully.
3.18 He tells us that he took corrective action, but in our view that was far too late and as a result interference was caused. We are of the view that that interference was as a result of Mr Branch’s careless driving and as such the charge should be upheld.
3.19 We can say that we have not taken into account Clause 7 of the Passing Lanes and Home Straight Regulations because that was not part of the original charge.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
Chairman Committee Member
hearing_type: Non-race day
Rules: 869(3)(b)
Informant: Mr J M Muirhead - Stipendiaray Steward
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent: Mr M D Branch - representing Mr D Branch, Mr D Branch - Junior Horseman
StipendSteward:
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