Non Raceday Inquiry RIU v B N Orange – Decision dated 21 March 2014

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decisiondate: 21/03/2014

hearing_title: Non Raceday Inquiry RIU v B N Orange - Decision dated 21 March 2014

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A4304

BETWEEN N G McINTYRE, Co-Chief Stipendiary Steward for the Racing Integrity Unit

Informant

AND BLAIR NATHAN ORANGE of Rolleston, Licensed Open Driver

Respondent

Date of Hearing: Friday, 21 March 2014

Venue: Addington Raceway, Christchurch

Judicial Committee: R G McKenzie, Chairman - S C Ching, Committee Member

Present: Mr N G McIntyre (the Informant)

Mr B N Orange (the Respondent)

Mr S P Renault (Registrar)

Date of Decision: 21 March 2014

DECISION OF JUDICIAL COMMITTEE

THE CHARGE

[1] Information No. A4304 alleges that Mr Orange, as the driver of ROCKNROLL ARDEN in Race 12, Direct Security Services Mobile Pace, at the meeting of Auckland Trotting Club held at Alexandra Park Raceway, Auckland, on 7 March 2014, “failed to take all reasonable and permissible measures available between the 500 and 300 metres to ensure that ROCKNROLL ARDEN was given every opportunity to obtain the best possible finishing place”.

[2] Mr McIntyre produced a letter dated 14 March 2014 from Mr M R Godber, Operations Manager for the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 1103 (4) (c).

[3] Mr Orange was present at the hearing of the information. The charge was read to him, together with the relevant Rule, and he indicated that he denied the charge.

THE RULE

[4] The relevant Rule is as follows:

868 (2) Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.

INFORMANT’S SUBMISSIONS

[5] Mr Orange was the driver of ROCKNROLL ARDEN which was correctly entered for and raced in Race 12, Direct Security Services Mobile Pace, at the Auckland Trotting Club’s meeting at Alexandra Park on 7 March 2014.

[6] The race was contested over 2200 metres from a mobile start. ROCKNROLL ARDEN drew barrier 6 and started from barrier 5 following a scratching. ROCKNROLL ARDEN was the win and place favourite.

[7] It is the allegation of the Stipendiary Stewards that Mr Orange failed to take all reasonable and permissible measures between the 500 and 300 metres to ensure that ROCKNROLL ARDEN was given every opportunity to obtain the best possible finishing place.

[8] ROCKNROLL ARDEN underwent a post-race veterinary examination which failed to detect any abnormalities on the night. This was noted in the Stewards’ Report.

[9] Mr McIntyre then showed video replays of the relevant part of the race from approximately the 1300 metres to the finish, with particular reference to that part between the 500 metres and the 300 metres.

[10] He pointed out ROCKNROLL ARDEN, driven by Mr Orange, positioned in the one/one from the 1300 metres following REAL STAR (M W McKendry), which was 6/5 in the betting.

[11] Passing the 1000 metres, RUSSLEY HASTE (A G Herlihy), which was 4/4 in the betting, improved 3-wide and attempted to gain the parked position from the overracing REAL STAR. REAL STAR did not yield the parked position and this resulted in RUSSLEY HASTE being forced to race 3-wide without cover until the 300 metres. During this part of the race, ROCKNROLL ARDEN was directly behind REAL STAR. The sectional time for the quarter between the 800 and the 400 metres was 28 seconds.

[12] Mr McIntyre said that the Stewards had no concerns over Mr Orange’s drive prior to the 500 metres.

[13] The Stewards were submitting that, due to what happened directly in front of Mr Orange, where both REAL STAR and RUSSLEY HASTE raced at a fast pace without cover for some time, it was unreasonable and not permissible for Mr Orange to stay in his position and leave it to chance, when a clear run to the outside of RUSSLEY HASTE was available which would have allowed ROCKNROLL ARDEN a clear an unobstructed run to the line.

[14] Mr McIntyre submitted that it was almost inevitable that both REAL STAR and RUSSLEY HASTE would not have been able to sustain their very hard runs and that, as a consequence, they would have succumbed and yielded ground.

[15] In addition, because the run from the 800 metres to the 400 metres was run at high speed, then it was highly probable that back runners would be able to “swoop” over the latter stages and these runners would be coming wide round RUSSLEY HASTE.

[16] By staying in, Mr Orange ultimately became covered up by the improving SWEET ARTS (S D T Phelan) and became held up until passing the 180 metres. Once ROCKNROLL ARDEN was clear, the horse made ground well, finishing in 2nd placing, beaten by a neck. Mr McIntyre, when asked by the Committee, estimated that ROCKNROLL ARDEN had made up 2½ lengths on ROCKNRUBY in the final straight.

[17] Mr Orange had some time to make a decision due to no horse shifting to his outside until the final 300 metres.

[18] Finally, Mr McIntyre submitted, ROCKNROLL ARDEN was on a significant downgrade from the horses which the filly had been racing.

SUBMISSIONS BY THE RESPONDENT

[19] Mr Orange said the he is employed by trainer, Mark Purdon, the previous trainer of RUSSLEY HASTE. He showed a video replay of the race from approximately the 1300 metres and submitted that Mr Herlihy had used the whip on that horse from the time he pulled out. He pulled the horse’s earplugs at the same time. He had asked his horse from the 1100 or 1200 metres to “run flat out” to try to get to the parked position off Mr McKendry.

[20] Mr Orange said that he was aware of this. RUSSLEY HASTE commenced to pace roughly and hang. He said that he did not believe that Mr Herlihy could keep asking his horse for more and have it carry on. Mr Orange reminded the Committee that he knew Mr Herlihy’s horse.

[21] Mr Orange submitted that Mr McKendry’s stature did not change. His horse, REAL STAR, was travelling as well as the leader and the trailing horse and a lot better than RUSSLEY HASTE. Mr Orange had every reason to believe that REAL STAR was going to “keep running” at that stage, having regard to the hold that Mr McKendry had on REAL STAR. At this point, Mr Orange said that he asked himself why, even when he had the chance to come out, would he come out onto the back of a horse that had been under a vigorous drive from the 1100 metres and was going to be tiring.

[22] To come into the straight 4-wide at Alexandra, which he would have to have done, you lose a length or two – it is one of the worst bends in racing, he submitted. It is very hard to come wide and win a race.

[23] Mr Orange explained to the Committee that his thinking was that Mr McKendry’s horse was travelling a lot better than Mr Herlihy’s at that stage. He reasoned that RUSSLEY HASTE would stop and enable him to come out underneath that runner thereby saving himself at least 4 lengths by not having to go wide.

[24] He also had the option, Mr Orange submitted, to wait for the passing lane and get straight onto the back of the leader ROCKN RUBY when the trailing horse took the passing lane. He believed that he had “a couple of options”. He said that, as a driver, he was always thinking ahead about what was going to happen in the next 50 metres. A driver has to make a decision “there and then”. He believed that he had made the best decision to win the race to save ground with his filly. The question also arose – would ROCKNROLL ARDEN have won the race had she come wide? The answer would never be known, he said. ROCKN RUBY had “kicked” and was holding his filly at the finish, he submitted. He demonstrated this on the video.

[25] When Mr McKendry went for his horse, although appearing to be travelling well, it gave him nothing, Mr Orange submitted. Horses are inclined to do this, he said. He believed that Mr McKendry’s horse would have carried him further than it actually did. At the same time as Mr McKendry went for his horse, he got a run straight away, Mr Orange said. He questioned whether the filly had been held up that much.

[26] Mr Orange submitted that he had given his filly every chance, having regard to the way the race was run. The trainer, Mr Purdon, and the owner were more that satisfied with the way he had driven the filly, he said, hence he was driving it in the race later on this night.

[27] Mr McIntyre was given the opportunity to comment. He said that, obviously, a horse wide on the track turning for home was going to lose ground. However, he said, Mr Orange only needed to go one horse wider to get onto Mr Herlihy’s back, and then go and have his momentum up. Mr Orange had taken the chance that Mr McKendry would continue to take him into the race, Mr McIntyre said.

[28] Mr McIntyre agreed with Mr Orange that RUSSLEY HASTE had been under a drive from the 1000 metres but, Mr McIntyre said, that horse had lost no ground until the 300 metres. Mr McIntyre agreed with Mr Orange that Mr McKendry’s horse was “on the bit”.

CLOSING SUBMISSIONS OF THE INFORMANT

[29] Mr McIntyre submitted that the Rule does not exist to punish a driver who makes a sudden decision which is right or wrong in the end. The Rule exists to ensure that all actions are reasonable and permissible at all times.

[30] The Informant is not in possession of any evidence that questions the integrity of Mr Orange. However, the Informant does question his failure to fulfil an obligation which is placed on every driver when they step onto the racetrack.

[31] Mr McIntyre referred to a quote from the Honourable Mr Justice W R Haylen in Harness Racing NSW v Fitzpatrick. In a ruling dated 20 May 2009, he said the following:

Perhaps to throw my own interpretation into the mix I might view it this way – 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.

[32] It is absolutely imperative that, when circumstances permit, drivers meet their requirements within the Rules. In this particular case, the Stewards say that the evidence overwhelmingly supports a charge brought under the Rule. If this race is viewed objectively as a “punter”, Mr McIntyre submitted, that punter would be asking questions regarding the drive of Mr Orange. The onus is solely on Mr Orange to ensure those questions do not arise.

[33] A breach of this particular Rule is one that invariably jeopardises the integrity of harness racing for reasons which are self-evident. Harness races are based on the requirement that all contestants in a race are given every possible opportunity by their drivers. This has to be the case in order that the betting public, so important to the industry, can have confidence that they have had a run for their money when they have invested their money on contestants in a harness race. Any suggestion that a horse has not been given every possible opportunity will result in loss of public confidence in harness racing.

[34] The drive by Mr Orange between the 500 and 300 metres has fallen well short of what a reasonable-minded person would expect. Had Mr Orange shifted to the outside between the 500 and 300 metres it is reasonable to think he would have won the race.

REASONS FOR DECISION

[35] The Committee believes that the test to be applied to Mr Orange in respect of Rule 868 (2) is whether he gave a reasonable and reasoned response to the situations that arose between the 500 and 300 metres and whether he displayed professional competence in his drive on ROCKNROLL ARDEN. It is a well-established principle that an error of judgement does not amount to a breach of the Rule. For a charge under the Rule to be proved, it needs to be shown that a driver has displayed culpable behaviour – that is to say, that his drive was blameworthy on an objective basis.

[36] The opinion of Mr Orange’s drive formed by the Stewards was understandable. Their observation that he did not bring his horse out between the 500 and 300 metres, when he was able to, was quite correct.

[37] The Stewards were not alleging that Mr Orange had not reasonably and appropriately driven ROCKNROLL ARDEN up until the 500 metres.

[38] It was agreed by the parties that it was permissible for Mr Orange to shift his drive outwards between the 500 and 300 metres. It was also reasonable for him to do so.

[39] This Committee has had the benefit of hearing Mr Orange’s explanation for the course of action adopted by him.

[40] Mr Orange submitted to the Committee that there were other options available to him, which were both reasonable and permissible.

[41] Mr Orange told the Committee that he had other options open to him during the relevant part of the race. Specifically, he could wait for RUSSLEY HASTE, which had had a hard run 3-wide in the open when Mr Herlihy had driven it hard in an attempt to get past REAL STAR to the parked position, to stop thereby giving Mr Orange the opportunity to obtain a run for his horse on the inside of a tiring RUSSLEY HASTE.

[42] Mr Orange rightly observed that had he pulled his horse out when, according to the Stewards, he ought to have, he would have been required to go 4-wide around a tiring RUSSLEY HASTE, which is not generally a wise move at that particular track. He said that was not an option that he favoured, based on his knowledge and experience of the Alexandra Park track. He said that it was disadvantageous to be wide on the track turning for home there. We accept Mr Orange’s explanation that he did not go wide because of his knowledge of the track.

[43] In his judgement and experience, Mr Orange favoured either the option already referred to – waiting for Mr Herlihy’s horse to stop which he expected on reasonable grounds would happen – or, he said, to wait for the passing lane when the trailing horse would take the passing lane leaving, in all likelihood, a clear run for himself for the length of the straight.

[44] In support of his submission that the other two options were reasonable, Mr Orange submitted that both the leader, ROCKN RUBY, driven by Mr B Mangos, and REAL STAR, driven by Mr McKendry, were still travelling well at that stage of the race. The video evidence supported this. Mr Orange’s assessment of that was reasonable. It is significant that ROCKN RUBY went on to win the race.

[45] The Committee has considered all relevant matters in making an objective judgement as to whether Mr Orange’s actions were reasonable and whether he drove his horse to obtain the best possible placing in the field. On the facts, the sole issue is whether he was giving his horse full opportunity to win the race – it was win or finish 2nd.

[46] The Committee finds that the decision made by Mr Orange between the 500 and 300 metres, to remain on the back of REAL STAR, was a reasonable and reasoned response to the situation as it was unfolding and was professionally competent.

[47] The Committee finds that there was nothing culpable about Mr Orange’s decision and that part of his drive was not blameworthy. The course adopted by him was a reasonable and permissible one to give ROCKNROLL ARDEN a full opportunity to win. If Mr Orange is guilty of anything, he is guilty of a mere error of judgement.

[48] Furthermore, there was no certainty that ROCKNROLL ARDEN would have won the race had Mr Orange adopted the tactics which the Stewards alleged he should have.

[49] We are of the view that the charge should be dismissed.

DECISION

[50] The charge was dismissed.

COSTS

[51] No order for costs was made.

R G McKenzie             S C Ching

CHAIR                        COMMITTEE MEMBER

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