Non Raceday Inquiry RIU v B R Shirley 13 May 2013 – Decision dated 4 July 2013
ID: JCA18149
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
CHRISTOPHER JOHN ALLISON, Stipendiary Steward for the Racing Integrity Unit (RIU)
Informant
BRENT ROBERT SHIRLEY, Licensed Public Trainer/ Open Horseman
Respondent
Information: No. A5904
Appearing: Mr C Lange for the informant, Ms M Thomas for the respondent
Judicial Committee: Prof G Hall, Chairman - Mr S Ching, Member
Date of hearing: 13 May 2013
DECISION OF JUDICIAL COMMITTEE
[1] Information A5904 alleges the respondent, Mr Shirley, in race 12 at the Invercargill Harness Racing Club’s meeting on 26 January 2013, drove in an improper manner near the 800 metres mark in that he steered LITTLE EINSTEIN inwards onto SUPERSUB, driven by Mr J Dunn, resulting in both these runners locking sulky stays for a considerable distance.
[2] Mr Shirley was represented by Ms Thomas. He stated that he denied the charge.
[3] Rule 869 provides:
(3) No horseman in any race shall drive: …
(f) improperly;
[4] Mr Lange first sought leave of the Committee to amend the particulars of the charge to one alleging that Mr Shirley drove in an improper manner from the vicinity of the 900 metres mark by driving LITTLE EINSTEIN inwards onto SUPERSUB or failing to correct LITTLE EINSTEIN after it moved inwards.
[5] Ms Thomas did not object to this amendment and, as we saw no material disadvantage to the respondent by so doing, we permitted the information to be amended pursuant to r 1111(3).
[6] Mr Lange stated there was no definition of improper driving in the Rules of Harness Racing. He referred the Committee to a number of cases where definitions had been proffered. We found two to be of particular assistance. In Sarina 22 September 2009 the Racing Appeals Tribunal of NSW commented that:
“But a charge of driving improperly is nevertheless appropriate having regard to the normal meaning of the word ‘improper’; while the normal meaning of the word includes being used in an incorrect manner, it also embraces that which is abnormal or irregular. ”
And in Devcic 23 May 2007 the Racing Appeals Tribunal of Victoria noted:
“There has been instructed assistance given in reference to a number of authorities and also the standard dictionary definition of the word ‘improper’. In the appeal of Hartnett (18/12/1989) His Honour Judge Forest found that improper means: (a) not in accordance with the Rules; (b) abnormal; (c) incorrect; or (d) wrong.”
[7] The informant submitted that the word “improper” should be given its ordinary meaning: viz, driving in a manner that was not in accordance with the Rules, incorrect, irregular or wrong.
[8] We note that Ms Thomas in presenting her defence asked us to consider whether the respondent’s driving was abnormal or out of the ordinary.
[9] We adopt as a definition of improper driving, driving that is abnormal, irregular or not in accordance with the rules.
[10] Relevant rules include r 869(4), (6)(a), and (7A)(c) which state:
(4) No horseman shall during any race do anything which interferes or is likely to interfere with his own horse and/or any other horse or its progress.
(6) Subject to sub-rule (4) hereof:-
(a) horseman [sic] are permitted to move ground inwards or outwards at any stage of the race to improve their racing position;
(7A) Every horseman who moves inwards shall ensure: …
(c) that the movement does not cause any other horseman, horse or sulky to contact any track marker or protrude inside the marker line.
It shall be a defence to a breach of this sub-rule if the horseman establishes that the breach was attributable to the behaviour of his own horse or any other horse or horseman in the race.
[11] The informant submitted that the scheme of the Rules permits a driver to move ground inwards to improve their racing position provided it does not interfere with another horse or its progress, and the movement does not cause a horse or sulky to contact or intrude inside track markers (pylons). We accept that this is an accurate summation of the Rules as they apply to the respondent with respect to this alleged breach.
The informant’s case
[12] It was the informant’s case that Mr Shirley’s driving was improper in that he drove LITTLE EINSTEIN inwards on to SUPERSUB and as a result the sulkies came into contact and locked up, or in the alternative, at the very least, he failed to drive the horse back out once it had moved inwards.
[13] The informant called four witnesses, the first of whom was Mr Chris Allison, Stipendiary Steward.
[14] Mr Allison produced an authority dated 22 February 2013 signed by Mr Mike Godber, General Manager of the RIU, to lodge an information charging the respondent with a breach of r 869(3)(f).
[15] Mr Allison said Mr Shirley was subsequently served the information in person on 28 February 2013 at his stable address Findlay Road, Invercargill.
[16] Mr Allison stated he had been employed as a Stipendiary Steward for approximately eight and a half years, initially by Harness Racing New Zealand (HRNZ) and since February 2011, by the RIU.
[17] Mr Allison said that on 26 January 2013 he was Chairman of Stewards at the Invercargill Harness Racing Club’s meeting at Ascot Park Raceway. Following Race 12 he was concerned about an incident involving Mr John Dunn driving SUPERSUB and Mr Brent Shirley driving LITTLE EINSTEIN. He interviewed Mr Shirley on race day and again on 19 February 2013.
[18] Mr Allison played a DVD of the race and gave his interpretation of it. He used a number of different camera angles: trackside; side-on; back straight; and head-on.
[19] Race 12 was for 3 year-old and older non-winners and was run over 2200 metres from a mobile start. Mr Allison demonstrated that LITTLE EINSTEIN, Mr Shirley, which had drawn 5 on the front line, settled last early in the race. ITS OLLIES EXCUSE, Mr Barron, took an early lead and handed up to SUPERSUB, Mr Dunn, when that horse worked up on his outside. Near the 1600 metre mark Mr Shirley made a long run from the back, improving LITTLE EINSTEIN three wide around the field, to sit in the parked position outside the leader near the 1100 metre mark. He then briefly challenged SUPERSUB for the lead but was unsuccessful, as Mr Dunn resisted Mr Shirley’s efforts. Mr Allison said “things became tight” and the horses came together at this point and they locked sulky stays.
[20] Mr Allison elaborated by stating that upon leaving the home straight for the last time LITTLE EINSTEIN shifted ground inwards onto SUPERSUB. He said he did not observe Mr Shirley taking any evasive action to avoid contact with Mr Dunn’s horse, nor did he observe LITTLE EINSTEIN duck inwards prior to contact.
[21] Mr Allison stated he believed the respondent had urged his horse onto SUPERSUB. He pointed out that LITTLE EINSTEIN’s head was turned inwards on to SUPERSUB as the horses left the home straight with a lap to run. This was just before the sulky wheel stays of Mr Dunn and Mr Shirley come into contact. He believed LITTLE EINSTEIN’s head continued to be steered inwards on to SUPERSUB throughout the entire back straight. The stays had remained locked from approximately the 900 metres until the 400 metres mark. He said it was not possible to tell from any camera angle the point at which the stays had first become locked but it was very close to the 900 metres mark.
[22] Mr Allison demonstrated that on the bend SUPERSUB ran down one pylon and brushed the next. He pointed out that the head of Mr Dunn’s horse was to the left (inwards) and that SUPERSUB was not hanging out as it was racing close to the pylons. There were no horses to Mr Shirley’s outside, so he was not receiving any pressure. He thus did not believe any other horse or horseman contributed to the incident.
[23] Mr Allison alleged that the respondent was pulling on the left rein, although he accepted he could not say how the sulkies became locked. He said there was no evidence that Mr Shirley was urging his horse on in the back straight after the sulkies had become locked. He demonstrated on the trackside angle that the respondent tucked his whip away just before the 700 metres mark.
[24] Mr Allison stated that Mr Dunn increased the pace as Mr Shirley came up outside him and, as a consequence, Mr Shirley was unable to get to the lead. He demonstrated that Mr Barron was close up on Mr Dunn’s back and Mr Cox, driving HOMEFORABUBBLY, was immediately outside him, sitting one out and one back. Mr Barron thus had nowhere to go when SUPERSUB and LITTLE EINSTEIN locked stays and these two horses started to come back.
[25] Mr Allison commented on the concluding stages of the race, which demonstrated HOMEFORABUBBLY shooting to the lead when SUPERSUB and LITTLE EINSTEIN drifted back. That horse got run down, eventually finishing 5th. The stays of the carts of SUPERSUB and LITTLE EINSTEIN came apart near the 400 metres mark when the horses were at the rear of the field. Both horses tired and finished 2nd last and last, respectively. Both were over 25 lengths from the winner. Mr Barron was badly held up, and ITS OLLIES EXCUSE ran on from the back on the inner and finished in 6th place.
[26] Mr Allison stated that the respondent was a very experienced driver, having driven in over 3000 races and having won 229 of these as at 26 January 2013. He said in the race in question LITTLE EINSTEIN was 5/6 in the betting and SUPERSUB was the favourite.
[27] Mr Allison was cross-examined. He agreed with Ms Thomas that improper driving was a more serious charge than careless driving.
[28] Ms Thomas asked that if Mr Shirley was ahead of Mr Dunn when the stays became locked, should Mr Dunn not have taken hold. Mr Allison replied, “Yes”. Ms Thomas pointed out on the DVD that Mr Dunn at one point was hitting his horse. Again, Mr Allison agreed he was, but emphasised that this was “further down the back straight and the stays had been locked for some time by this stage”. He said, however, it was also his view that Mr Shirley was not urging his horse on, which he believed he should have been doing to facilitate the unlocking.
[29] Ms Thomas stated that Mr Shirley would state that he believed that had he pulled away aggressively to the right (outwards) this could have tipped him out. He was thus pulling to the inside, having regard to the safety issue. He was keeping the carts close so he would not flip out. Mr Allison was asked to comment on this. He said that the respondent kept pressure on Mr Dunn and that this was wrong as this “kept the horses locked up”.
[30] Ms Thomas questioned Mr Allison as to whether Mr Dunn had stated when he was interviewed after the race that SUPERSUB had run out. Mr Allison said he had, but he had not said that this movement was when the stays had first locked.
[31] Mr Allison agreed that Mr Shirley going to the front and putting pressure on the leader did not, in itself, constitute improper driving. He believed that Mr Dunn’s horse had run out prior to Mr Shirley coming up on its outside. He demonstrated that the head of Mr Dunn’s horse was pulled in and that he was steering it back to the left. He said it was apparent that SUPERSUB had responded to Mr Dunn’s actions as that horse was close to the pylons on the bend when the pressure was coming from his outer from Mr Shirley. He added it was his view that the head of LITTLE EINSTEIN was turned to the left once it was unable to get to the lead and this had resulted in the sulky wheel stays locking.
[32] In response to the suggestion by Ms Thomas that the actions of Mr Shirley were merely careless, Mr Allison stated that it was his view Mr Shirley’s actions were intentional and that a charge of improper driving was appropriate. He confirmed for Ms Thomas that the respondent was driving the usual New Zealand cart (referred to by some witnesses as a sprinter cart) and that Mr Dunn was driving an American cart.
[33] When re-examined by Mr Lange, Mr Allison said the preferred option to unlock stays, whether they be American or New Zealand carts, was that the driver in front move forward and the driver behind move back. He reiterated that he could not see any evidence on the DVDs of Mr Shirley trying to move forward. He emphasised Mr Shirley had in fact put his whip under his arm. He also stated that he believed Mr Dunn’s initial response when the sulky stays became locked was to take hold of his horse and that he had only urged his horse forward in the back straight when the stays had continued to remain locked.
[34] The informant then called Mr John Dunn to give evidence. He stated he was currently licensed with HRNZ as an Open Horseman and he had been licensed since 2001. He had driven in excess of 4,500 races and had won just over 500 of these.
[35] Mr Dunn stated that he drove SUPERSUB in race 12 at the Invercargill Harness Racing Club’s meeting on 26 January for trainer Mr Murray Swain.
[36] Mr Dunn stated he was initially in the parked position but he improved to the lead with 1600 metres to run. Approaching the 1100 metres mark he was in front and LITTLE EINSTEIN, driven by Mr Shirley, moved up on his outside looking for the lead.
[37] Mr Dunn said he looked across and said, “ No. I’m staying here.” He said he held his ground and made it clear he was going to hold the lead. He said Mr Shirley’s response was to angle his horse inwards and place SUPERSUB under pressure. LITTLE EINSTEIN was left in the parked position on his outside and the stay of Mr Shirley’s cart was in front of his.
[38] Mr Dunn acknowledged he had been half a cart out off the markers but this was before he entered the bend and when he was holding the lead quite comfortably. By the time Mr Shirley had come up on his outside, he said, he was back down on the markers.
[39] Mr Dunn continued by stating that as he travelled around the bend after leaving the home straight for the last time LITTLE EINSTEIN, which was on his outer, was getting closer to him. He said he could see Mr Shirley pull his horse’s head in by pulling on the left rein. He said Mr Shirley was guiding his horse down and putting inwards pressure on his horse, SUPERSUB. He tried to steer SUPERSUB away from him but Mr Shirley just kept on applying pressure and the carts came into contact. He believed this was on the point of the bend. Mr Shirley stayed in front and continued putting pressure back and down on to him and the sulky stays locked up.
[40] Mr Dunn said his response was not to drive his horse forward. He said he was going backwards and it was Mr Shirley that needed to go forward but Mr Shirley was not doing this. He said he realised he was hindering the horses behind him but he was unable to get clear. Mr Shirley only had to go forward a few centimetres but he did not do this. He said his horse was slowing down and he was coming back but because of the pressure from Mr Shirley his cart ended up going sideways. He demonstrated that down the back straight Mr Shirley’s wheel was straight; his was on an angle being pushed sideways, inwards. He reiterated that he was pushing Mr Shirley’s horse down the back straight. He added that the sulky suffered a punctured tyre on the left hand side and a buckled right wheel.
[41] Mr Dunn stated that Mr Shirley’s cart stayed in front of his for some distance and they started getting slower and slower until he eventually broke free. He said this distance was from the 900 to the 400 metres. He added SUPERSUB had been pushing Mr Shirley’s horse the whole way and did not run on when the stays became free.
[42] Mr Dunn confirmed he never spoke during the incident other than when he told Mr Shirley he was going to stay in front. He said he never heard Mr Shirley say anything to him and he did not believe Mr Shirley’s horse had ducked in.
[43] Mr Dunn stated because Mr Shirley had continued to steer his horse onto his throughout the back straight and had not taken his chance to go forward, he had eventually urged his horse on some 200 metres after they had locked stays because he believed he was never going to break free. He added he had never encountered a similar problem to this before. He had nowhere to go and went down inside the pylons in an endeavour to get inside Mr Shirley’s cart. He was pulling his horse down constantly to get away from Mr Shirley.
[44] When questioned by Ms Thomas as to what evidence there was that he was trying to break free, Mr Dunn stated there was no need for him to lean out of the cart to take a hold as he had a firm grip on the horse’s mouth until the 700 metres when pressure from Mr Shirley started to push his cart sideways. That was when they started to go slower and slower. He said he was pulling his horse’s head away from Mr Shirley and was doing everything he could to break free. He demonstrated on the DVD that at one point in the back straight he dropped his foot from the rest as he endeavoured to alter the balance of the cart to stop it sliding sideways.
[45] Mr Dunn emphasised all the person on the outside, Mr Shirley, had to do was to guide his horse forward and out, and the stays would have been free. Mr Shirley should have initiated this procedure. He did not believe Mr Shirley risked tipping himself out of his cart by doing this. All Mr Shirley did was to “put the stick under his arm”. He said he did not believe Mr Shirley’s horse was tired. Mr Shirley had “never slapped it on the arse with the rein.”
[46] When told by Ms Thomas that Mr Shirley would give evidence that he said, “Take a f** hold son”, Mr Dunn replied he never heard Mr Shirley say this.
[47] The next witness for the informant was Mr Clark Barron. He stated he was licensed with HRNZ as an Open Horseman and as a Public Trainer. He had been licensed in the Harness Racing industry for 30 years. He said he had driven in excess of 7800 races and driven the winners of over 900.
[48] Mr Barron stated that on 26 January 2013 he trained and drove ITS OLLIES EXCUSE, which was entered for Race 12 at the Invercargill Harness Racing Club’s meeting. He said it was going “pretty well for a young horse” and its owner had travelled down from Cambridge to watch the race.
[49] Mr Barron described the race. At the start of the race ITS OLLIES EXCUSE had plenty of gate speed and led out. With 1600 metres to run he handed up the lead to SUPERSUB. He was happy to do so as he thought SUPERSUB would be the horse to beat. With approximately a round to go, Mr Shirley driving LITTLE EINSTEIN improved around the field and attempted to gain the lead. He was unsuccessful and sat outside the leader, Mr Dunn.
[50] Mr Barron said he initially thought the wheels of the carts of SUPERSUB and LITTLE EINSTEIN had locked but then realised the stays on the two carts were tied. He said it was not a scenario of one horse hanging out and the other hanging in, but rather Mr Shirley had hung down on to the leading horse and continued to pressure it.
[51] Mr Barron said Mr Shirley was not doing anything to shift his horse off Mr Dunn but was just leaning on him, pulling his horse (LITTLE EINSTEIN) inwards.
[52] Mr Barron said that by the 750 to 700 metres the two horses slowed down, and Mr Dunn hit a few markers “after the half”. He believed Mr Dunn had tried to unlock the stays. Mr Dunn had moved inside the markers and had wiggled his cart. He reinforced the fact he did not see the respondent taking any steps to unlock the stays.
[53] Mr Barron said he had never personally been in a situation where stays had locked but he believed contact forward or back or sideways was required. Just half an inch movement was necessary and a wiggling of the cart, with one going forward and the other back.
[54] Mr Barron said he never heard words exchanged between Mr Dunn and Mr Shirley. Something could have been said, but he never heard it.
[55] Mr Barron said Mr Shirley spoke to him when pulling up after the race and before they left the track. Mr Shirley said, “That fixed him” or “That fixed the bastard”. He could not recall which expression was used. However, he recalled saying, “You stuffed me as well.” He said he thought he initiated the conversation by asking, “What happened there Brent?”
[56] When cross-examined, Mr Barron stated it was his view that Mr Shirley was deliberately ensuring that the stays did not get unlocked. It was his belief that Mr Shirley should have pulled the right rein as soon as the stays became locked. Just a movement of half an inch was sufficient and he should have tried to unlock the stays as soon as possible. Mr Dunn had to pull down or in, and Mr Shirley should have gone out. He had never seen stays not unlock if this were done. He said he did not see Mr Dunn pull back but Mr Dunn had pulled his horse left and had held his ground. He believed Mr Dunn had no choice in the matter because of the pressure from Mr Shirley. He stated, “Mr Dunn was dictated by the horse [LITTLE EINSTEIN] leaning on him from the outside. He couldn’t pull back because of the pressure.” He later added he was not aware at the time which sulky stay was in front of which and he would not expect Mr Dunn to want to pull back as he was entitled to try to win the race.
[57] Mr Barron stated that viewing the videos again confirmed his view at the time that there was deliberate steering down by Mr Shirley. It was intentional, he said.
[58] When asked if he had said that to Mr Allison when first questioned, he said he had said very little at that time. However, he said, the locking of the stays was significantly different from what you might see from day to day. “The interference went on and on.” From past the 800 metres, in his view, this was not “squeezing in a bit”, but was “to the interference stage”.
[59] The final witness for the informant was Jonathan Cox. He stated he was currently licensed with HRNZ as an Open Horseman and a Public Trainer. He had been licensed for around 10 years with and had driven in excess of 3000 races and around 280 winners.
[60] Mr Cox stated that on 26 January he was the driver of HOMEFORABUBBLY in Race 12 at the Invercargill Harness Racing Club’s meeting. Over the early stages he was caught three wide. He was then in the parked position outside the leader from about the 1600 metres mark.
[61] Mr Cox described that with around 1100 metres to run he got cover when LITTLE EINSTEIN improved to the parked position. Mr Shirley attempted to gain the lead with around a lap to go. He followed Mr Shirley until the 500 metres before going to the front. Mr Cox said his horse tired and he finished 5th.
[62] Mr Cox stated that the carts of Mr Shirley and Mr Dunn came into contact at the 900 metres. He described Mr Shirley’s horse as “racing into Mr Dunn’s horse”. He said he believed Mr Shirley was steering his horse into Mr Dunn’s. The head of Mr Shirley’s horse was facing inwards and he believed this was why contact was made.
[63] Mr Cox said he was racing outside Mr Barron’s horse and Mr Shirley was inside his (Mr Cox’s) racing line by half a cart after contact.
[64] Mr Cox said Mr Shirley pulled the earplugs on his horse before the contact and was urging his horse. He was not sure what Mr Dunn was doing after contact but he was sure that Mr Shirley was doing nothing to unlock the carts. In fact he believed Mr Shirley at around the 900 metres was pulling the inside rein to pull his horse’s head in, in order to make contact, and then again, after contact, to squeeze Mr Dunn.
[65] Mr Cox said in order to unlock the stays the inside horse should pull back and in and the outside horse should move out and forward. It did not take a lot to unlock them and there was no risk of tipping a cart. He said it was up to both drivers to unhook and communication between the drivers would help.
The respondent’s case
[66] Ms Thomas opened her case by stating that the defence accepted that the respondent’s initial actions leading to the contact were careless but not improper. Mr Shirley, as the outside runner, should not have got close enough to Mr Dunn for the stays to be locked. But there was no intention on the part of Mr Shirley to lock stays or to cause any other issue. She said the respondent’s actions had to be considered prior to the stays becoming locked, and then after. She said his intention once the stays were locked was not to unhook them because of safety concerns. The issue for the Committee, she said, was: Was the respondent’s inaction so out of the ordinary that it was improper? She submitted after the stays were locked, Mr Shirley was neither careless nor improper.
[67] Ms Thomas further submitted that the respondent was entitled to take the view that Mr Dunn would pull back and the stays would be disconnected. She emphasised Mr Shirley would state in his evidence that he continued to press downwards because he was frightened if he did not do so, his cart would flip. The horses were at the head of the field so there were genuine health and safety issues.
[68] Ms Thomas called Mr Shirley to give evidence. He confirmed that shortly after he came up outside Mr Dunn, Mr Dunn said he was staying in the lead. He said he did not respond but pulled the ear-plugs on LITTLE EINSTEIN and decided to have “a crack at the lead”. He said he was past Mr Dunn by half a length before Mr Dunn hunted up SUPERSUB.
[69] Mr Shirley stated that Mr Dunn carried on driving his horse for some 75 metres after the stays became locked. He said he yelled out, “For f** sake take a hold.”
[70] Mr Shirley said he did consider pulling his cart out but he had locked carts with an American sulky before and decided against it. He said the New Zealand and American carts were incompatible and Mr Dunn was wedged in behind his stay. Mr Shirley stated he had been tapping up his horse and flicking the reins after the stays had locked.
[71] Mr Shirley accepted he had decided to put the whip away but said this was after Mr Dunn had not taken a hold. He said he had done this so he would be better able to control his horse. He said safety issues led him to take hold and stay with Mr Dunn. He reiterated he was concerned that Mr Dunn was not taking hold and was shunting him forward.
[72] Mr Shirley said he was putting downwards pressure on Mr Dunn because if he had not done so, his cart would have flicked up, as the American cart was heavier.
[73] Mr Shirley stated the locking of stays had ruined his own chances as well as those of Mr Dunn. He said he had no issues with Mr Dunn, and he told us that Mr Dunn’s brother, Dexter, often drove for his stable.
[74] With respect to the conversation with Mr Barron when pulling up, he said that he had said to Mr Barron, “That dirty little c** needs to be taught a f** lesson over that.”
[75] As to not telling Mr Allison when questioned by him after the race, that he had said to Mr Dunn, “F**ing pull back son, it’s not a contact sport”, Mr Shirley said he did not believe it was important enough and he did not want to be seen to be complaining all the time. He had not realised at the time he was being interviewed that it was in connection with a charge being brought against him. He thought Mr Dunn might be charged, so he did not mention he had called out to him, in an endeavour to protect Mr Dunn.
[76] When cross-examined by Mr Lange, Mr Shirley stated that he believed Mr Dunn had drifted out at the winning post and around the bend. The contact between the carts was because Mr Dunn had come out after hitting a marker peg.
[77] Mr Shirley emphasised his horse was hanging in and he was not careless or at least no more than careless.
[78] Mr Shirley explained he had not said to Mr Barron, “That will teach the bastard a lesson, but rather, “Someone needs to teach the bastard a lesson.”
[79] As to when he pulled on the left rein, Mr Shirley said this was not before contact but just after. LITTLE EINSTEIN was hanging in and after contact he stayed with Mr Dunn. He had not put pressure on Mr Dunn. The position was quite the opposite, he said. Mr Dunn had put pressure on him because he was urging his horse forward after the stays became locked and he was simply trying to stay with Mr Dunn. He was steering his horse but staying with Mr Dunn, so he went in Mr Dunn’s direction.
[80] Mr Shirley stated LITTLE EINSTEIN had not moved in when contact was made. He was not trying to squeeze Mr Dunn, as had been alleged. He reiterated he had not pulled on the left rein prior to contact. LI
Penalty:
[114] We now require submissions from counsel as to penalty and costs, which will include the costs of the JCA that Mr Lange will have responsibility for. To that end the following timetable is to apply:
(i) Mr Lange is to file and serve on Ms Thomas his submissions on penalty and costs within one week of the date of this decision;
(ii) Ms Thomas will have a further week from the date of receipt of Mr Lange’s submissions to file her submissions in reply;
(iii) Leave is reserved to apply if for any valid reason there is difficulty with this timetable.
Dated this 4th day of July 2013
Geoff Hall
Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 24/06/2013
Publish Date: 24/06/2013
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: f3892b0fe746566649465a47e5ca1a80
informantnumber: A5904
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 24/06/2013
hearing_title: Non Raceday Inquiry RIU v B R Shirley 13 May 2013 - Decision dated 4 July 2013
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
CHRISTOPHER JOHN ALLISON, Stipendiary Steward for the Racing Integrity Unit (RIU)
Informant
BRENT ROBERT SHIRLEY, Licensed Public Trainer/ Open Horseman
Respondent
Information: No. A5904
Appearing: Mr C Lange for the informant, Ms M Thomas for the respondent
Judicial Committee: Prof G Hall, Chairman - Mr S Ching, Member
Date of hearing: 13 May 2013
DECISION OF JUDICIAL COMMITTEE
[1] Information A5904 alleges the respondent, Mr Shirley, in race 12 at the Invercargill Harness Racing Club’s meeting on 26 January 2013, drove in an improper manner near the 800 metres mark in that he steered LITTLE EINSTEIN inwards onto SUPERSUB, driven by Mr J Dunn, resulting in both these runners locking sulky stays for a considerable distance.
[2] Mr Shirley was represented by Ms Thomas. He stated that he denied the charge.
[3] Rule 869 provides:
(3) No horseman in any race shall drive: …
(f) improperly;
[4] Mr Lange first sought leave of the Committee to amend the particulars of the charge to one alleging that Mr Shirley drove in an improper manner from the vicinity of the 900 metres mark by driving LITTLE EINSTEIN inwards onto SUPERSUB or failing to correct LITTLE EINSTEIN after it moved inwards.
[5] Ms Thomas did not object to this amendment and, as we saw no material disadvantage to the respondent by so doing, we permitted the information to be amended pursuant to r 1111(3).
[6] Mr Lange stated there was no definition of improper driving in the Rules of Harness Racing. He referred the Committee to a number of cases where definitions had been proffered. We found two to be of particular assistance. In Sarina 22 September 2009 the Racing Appeals Tribunal of NSW commented that:
“But a charge of driving improperly is nevertheless appropriate having regard to the normal meaning of the word ‘improper’; while the normal meaning of the word includes being used in an incorrect manner, it also embraces that which is abnormal or irregular. ”
And in Devcic 23 May 2007 the Racing Appeals Tribunal of Victoria noted:
“There has been instructed assistance given in reference to a number of authorities and also the standard dictionary definition of the word ‘improper’. In the appeal of Hartnett (18/12/1989) His Honour Judge Forest found that improper means: (a) not in accordance with the Rules; (b) abnormal; (c) incorrect; or (d) wrong.”
[7] The informant submitted that the word “improper” should be given its ordinary meaning: viz, driving in a manner that was not in accordance with the Rules, incorrect, irregular or wrong.
[8] We note that Ms Thomas in presenting her defence asked us to consider whether the respondent’s driving was abnormal or out of the ordinary.
[9] We adopt as a definition of improper driving, driving that is abnormal, irregular or not in accordance with the rules.
[10] Relevant rules include r 869(4), (6)(a), and (7A)(c) which state:
(4) No horseman shall during any race do anything which interferes or is likely to interfere with his own horse and/or any other horse or its progress.
(6) Subject to sub-rule (4) hereof:-
(a) horseman [sic] are permitted to move ground inwards or outwards at any stage of the race to improve their racing position;
(7A) Every horseman who moves inwards shall ensure: …
(c) that the movement does not cause any other horseman, horse or sulky to contact any track marker or protrude inside the marker line.
It shall be a defence to a breach of this sub-rule if the horseman establishes that the breach was attributable to the behaviour of his own horse or any other horse or horseman in the race.
[11] The informant submitted that the scheme of the Rules permits a driver to move ground inwards to improve their racing position provided it does not interfere with another horse or its progress, and the movement does not cause a horse or sulky to contact or intrude inside track markers (pylons). We accept that this is an accurate summation of the Rules as they apply to the respondent with respect to this alleged breach.
The informant’s case
[12] It was the informant’s case that Mr Shirley’s driving was improper in that he drove LITTLE EINSTEIN inwards on to SUPERSUB and as a result the sulkies came into contact and locked up, or in the alternative, at the very least, he failed to drive the horse back out once it had moved inwards.
[13] The informant called four witnesses, the first of whom was Mr Chris Allison, Stipendiary Steward.
[14] Mr Allison produced an authority dated 22 February 2013 signed by Mr Mike Godber, General Manager of the RIU, to lodge an information charging the respondent with a breach of r 869(3)(f).
[15] Mr Allison said Mr Shirley was subsequently served the information in person on 28 February 2013 at his stable address Findlay Road, Invercargill.
[16] Mr Allison stated he had been employed as a Stipendiary Steward for approximately eight and a half years, initially by Harness Racing New Zealand (HRNZ) and since February 2011, by the RIU.
[17] Mr Allison said that on 26 January 2013 he was Chairman of Stewards at the Invercargill Harness Racing Club’s meeting at Ascot Park Raceway. Following Race 12 he was concerned about an incident involving Mr John Dunn driving SUPERSUB and Mr Brent Shirley driving LITTLE EINSTEIN. He interviewed Mr Shirley on race day and again on 19 February 2013.
[18] Mr Allison played a DVD of the race and gave his interpretation of it. He used a number of different camera angles: trackside; side-on; back straight; and head-on.
[19] Race 12 was for 3 year-old and older non-winners and was run over 2200 metres from a mobile start. Mr Allison demonstrated that LITTLE EINSTEIN, Mr Shirley, which had drawn 5 on the front line, settled last early in the race. ITS OLLIES EXCUSE, Mr Barron, took an early lead and handed up to SUPERSUB, Mr Dunn, when that horse worked up on his outside. Near the 1600 metre mark Mr Shirley made a long run from the back, improving LITTLE EINSTEIN three wide around the field, to sit in the parked position outside the leader near the 1100 metre mark. He then briefly challenged SUPERSUB for the lead but was unsuccessful, as Mr Dunn resisted Mr Shirley’s efforts. Mr Allison said “things became tight” and the horses came together at this point and they locked sulky stays.
[20] Mr Allison elaborated by stating that upon leaving the home straight for the last time LITTLE EINSTEIN shifted ground inwards onto SUPERSUB. He said he did not observe Mr Shirley taking any evasive action to avoid contact with Mr Dunn’s horse, nor did he observe LITTLE EINSTEIN duck inwards prior to contact.
[21] Mr Allison stated he believed the respondent had urged his horse onto SUPERSUB. He pointed out that LITTLE EINSTEIN’s head was turned inwards on to SUPERSUB as the horses left the home straight with a lap to run. This was just before the sulky wheel stays of Mr Dunn and Mr Shirley come into contact. He believed LITTLE EINSTEIN’s head continued to be steered inwards on to SUPERSUB throughout the entire back straight. The stays had remained locked from approximately the 900 metres until the 400 metres mark. He said it was not possible to tell from any camera angle the point at which the stays had first become locked but it was very close to the 900 metres mark.
[22] Mr Allison demonstrated that on the bend SUPERSUB ran down one pylon and brushed the next. He pointed out that the head of Mr Dunn’s horse was to the left (inwards) and that SUPERSUB was not hanging out as it was racing close to the pylons. There were no horses to Mr Shirley’s outside, so he was not receiving any pressure. He thus did not believe any other horse or horseman contributed to the incident.
[23] Mr Allison alleged that the respondent was pulling on the left rein, although he accepted he could not say how the sulkies became locked. He said there was no evidence that Mr Shirley was urging his horse on in the back straight after the sulkies had become locked. He demonstrated on the trackside angle that the respondent tucked his whip away just before the 700 metres mark.
[24] Mr Allison stated that Mr Dunn increased the pace as Mr Shirley came up outside him and, as a consequence, Mr Shirley was unable to get to the lead. He demonstrated that Mr Barron was close up on Mr Dunn’s back and Mr Cox, driving HOMEFORABUBBLY, was immediately outside him, sitting one out and one back. Mr Barron thus had nowhere to go when SUPERSUB and LITTLE EINSTEIN locked stays and these two horses started to come back.
[25] Mr Allison commented on the concluding stages of the race, which demonstrated HOMEFORABUBBLY shooting to the lead when SUPERSUB and LITTLE EINSTEIN drifted back. That horse got run down, eventually finishing 5th. The stays of the carts of SUPERSUB and LITTLE EINSTEIN came apart near the 400 metres mark when the horses were at the rear of the field. Both horses tired and finished 2nd last and last, respectively. Both were over 25 lengths from the winner. Mr Barron was badly held up, and ITS OLLIES EXCUSE ran on from the back on the inner and finished in 6th place.
[26] Mr Allison stated that the respondent was a very experienced driver, having driven in over 3000 races and having won 229 of these as at 26 January 2013. He said in the race in question LITTLE EINSTEIN was 5/6 in the betting and SUPERSUB was the favourite.
[27] Mr Allison was cross-examined. He agreed with Ms Thomas that improper driving was a more serious charge than careless driving.
[28] Ms Thomas asked that if Mr Shirley was ahead of Mr Dunn when the stays became locked, should Mr Dunn not have taken hold. Mr Allison replied, “Yes”. Ms Thomas pointed out on the DVD that Mr Dunn at one point was hitting his horse. Again, Mr Allison agreed he was, but emphasised that this was “further down the back straight and the stays had been locked for some time by this stage”. He said, however, it was also his view that Mr Shirley was not urging his horse on, which he believed he should have been doing to facilitate the unlocking.
[29] Ms Thomas stated that Mr Shirley would state that he believed that had he pulled away aggressively to the right (outwards) this could have tipped him out. He was thus pulling to the inside, having regard to the safety issue. He was keeping the carts close so he would not flip out. Mr Allison was asked to comment on this. He said that the respondent kept pressure on Mr Dunn and that this was wrong as this “kept the horses locked up”.
[30] Ms Thomas questioned Mr Allison as to whether Mr Dunn had stated when he was interviewed after the race that SUPERSUB had run out. Mr Allison said he had, but he had not said that this movement was when the stays had first locked.
[31] Mr Allison agreed that Mr Shirley going to the front and putting pressure on the leader did not, in itself, constitute improper driving. He believed that Mr Dunn’s horse had run out prior to Mr Shirley coming up on its outside. He demonstrated that the head of Mr Dunn’s horse was pulled in and that he was steering it back to the left. He said it was apparent that SUPERSUB had responded to Mr Dunn’s actions as that horse was close to the pylons on the bend when the pressure was coming from his outer from Mr Shirley. He added it was his view that the head of LITTLE EINSTEIN was turned to the left once it was unable to get to the lead and this had resulted in the sulky wheel stays locking.
[32] In response to the suggestion by Ms Thomas that the actions of Mr Shirley were merely careless, Mr Allison stated that it was his view Mr Shirley’s actions were intentional and that a charge of improper driving was appropriate. He confirmed for Ms Thomas that the respondent was driving the usual New Zealand cart (referred to by some witnesses as a sprinter cart) and that Mr Dunn was driving an American cart.
[33] When re-examined by Mr Lange, Mr Allison said the preferred option to unlock stays, whether they be American or New Zealand carts, was that the driver in front move forward and the driver behind move back. He reiterated that he could not see any evidence on the DVDs of Mr Shirley trying to move forward. He emphasised Mr Shirley had in fact put his whip under his arm. He also stated that he believed Mr Dunn’s initial response when the sulky stays became locked was to take hold of his horse and that he had only urged his horse forward in the back straight when the stays had continued to remain locked.
[34] The informant then called Mr John Dunn to give evidence. He stated he was currently licensed with HRNZ as an Open Horseman and he had been licensed since 2001. He had driven in excess of 4,500 races and had won just over 500 of these.
[35] Mr Dunn stated that he drove SUPERSUB in race 12 at the Invercargill Harness Racing Club’s meeting on 26 January for trainer Mr Murray Swain.
[36] Mr Dunn stated he was initially in the parked position but he improved to the lead with 1600 metres to run. Approaching the 1100 metres mark he was in front and LITTLE EINSTEIN, driven by Mr Shirley, moved up on his outside looking for the lead.
[37] Mr Dunn said he looked across and said, “ No. I’m staying here.” He said he held his ground and made it clear he was going to hold the lead. He said Mr Shirley’s response was to angle his horse inwards and place SUPERSUB under pressure. LITTLE EINSTEIN was left in the parked position on his outside and the stay of Mr Shirley’s cart was in front of his.
[38] Mr Dunn acknowledged he had been half a cart out off the markers but this was before he entered the bend and when he was holding the lead quite comfortably. By the time Mr Shirley had come up on his outside, he said, he was back down on the markers.
[39] Mr Dunn continued by stating that as he travelled around the bend after leaving the home straight for the last time LITTLE EINSTEIN, which was on his outer, was getting closer to him. He said he could see Mr Shirley pull his horse’s head in by pulling on the left rein. He said Mr Shirley was guiding his horse down and putting inwards pressure on his horse, SUPERSUB. He tried to steer SUPERSUB away from him but Mr Shirley just kept on applying pressure and the carts came into contact. He believed this was on the point of the bend. Mr Shirley stayed in front and continued putting pressure back and down on to him and the sulky stays locked up.
[40] Mr Dunn said his response was not to drive his horse forward. He said he was going backwards and it was Mr Shirley that needed to go forward but Mr Shirley was not doing this. He said he realised he was hindering the horses behind him but he was unable to get clear. Mr Shirley only had to go forward a few centimetres but he did not do this. He said his horse was slowing down and he was coming back but because of the pressure from Mr Shirley his cart ended up going sideways. He demonstrated that down the back straight Mr Shirley’s wheel was straight; his was on an angle being pushed sideways, inwards. He reiterated that he was pushing Mr Shirley’s horse down the back straight. He added that the sulky suffered a punctured tyre on the left hand side and a buckled right wheel.
[41] Mr Dunn stated that Mr Shirley’s cart stayed in front of his for some distance and they started getting slower and slower until he eventually broke free. He said this distance was from the 900 to the 400 metres. He added SUPERSUB had been pushing Mr Shirley’s horse the whole way and did not run on when the stays became free.
[42] Mr Dunn confirmed he never spoke during the incident other than when he told Mr Shirley he was going to stay in front. He said he never heard Mr Shirley say anything to him and he did not believe Mr Shirley’s horse had ducked in.
[43] Mr Dunn stated because Mr Shirley had continued to steer his horse onto his throughout the back straight and had not taken his chance to go forward, he had eventually urged his horse on some 200 metres after they had locked stays because he believed he was never going to break free. He added he had never encountered a similar problem to this before. He had nowhere to go and went down inside the pylons in an endeavour to get inside Mr Shirley’s cart. He was pulling his horse down constantly to get away from Mr Shirley.
[44] When questioned by Ms Thomas as to what evidence there was that he was trying to break free, Mr Dunn stated there was no need for him to lean out of the cart to take a hold as he had a firm grip on the horse’s mouth until the 700 metres when pressure from Mr Shirley started to push his cart sideways. That was when they started to go slower and slower. He said he was pulling his horse’s head away from Mr Shirley and was doing everything he could to break free. He demonstrated on the DVD that at one point in the back straight he dropped his foot from the rest as he endeavoured to alter the balance of the cart to stop it sliding sideways.
[45] Mr Dunn emphasised all the person on the outside, Mr Shirley, had to do was to guide his horse forward and out, and the stays would have been free. Mr Shirley should have initiated this procedure. He did not believe Mr Shirley risked tipping himself out of his cart by doing this. All Mr Shirley did was to “put the stick under his arm”. He said he did not believe Mr Shirley’s horse was tired. Mr Shirley had “never slapped it on the arse with the rein.”
[46] When told by Ms Thomas that Mr Shirley would give evidence that he said, “Take a f** hold son”, Mr Dunn replied he never heard Mr Shirley say this.
[47] The next witness for the informant was Mr Clark Barron. He stated he was licensed with HRNZ as an Open Horseman and as a Public Trainer. He had been licensed in the Harness Racing industry for 30 years. He said he had driven in excess of 7800 races and driven the winners of over 900.
[48] Mr Barron stated that on 26 January 2013 he trained and drove ITS OLLIES EXCUSE, which was entered for Race 12 at the Invercargill Harness Racing Club’s meeting. He said it was going “pretty well for a young horse” and its owner had travelled down from Cambridge to watch the race.
[49] Mr Barron described the race. At the start of the race ITS OLLIES EXCUSE had plenty of gate speed and led out. With 1600 metres to run he handed up the lead to SUPERSUB. He was happy to do so as he thought SUPERSUB would be the horse to beat. With approximately a round to go, Mr Shirley driving LITTLE EINSTEIN improved around the field and attempted to gain the lead. He was unsuccessful and sat outside the leader, Mr Dunn.
[50] Mr Barron said he initially thought the wheels of the carts of SUPERSUB and LITTLE EINSTEIN had locked but then realised the stays on the two carts were tied. He said it was not a scenario of one horse hanging out and the other hanging in, but rather Mr Shirley had hung down on to the leading horse and continued to pressure it.
[51] Mr Barron said Mr Shirley was not doing anything to shift his horse off Mr Dunn but was just leaning on him, pulling his horse (LITTLE EINSTEIN) inwards.
[52] Mr Barron said that by the 750 to 700 metres the two horses slowed down, and Mr Dunn hit a few markers “after the half”. He believed Mr Dunn had tried to unlock the stays. Mr Dunn had moved inside the markers and had wiggled his cart. He reinforced the fact he did not see the respondent taking any steps to unlock the stays.
[53] Mr Barron said he had never personally been in a situation where stays had locked but he believed contact forward or back or sideways was required. Just half an inch movement was necessary and a wiggling of the cart, with one going forward and the other back.
[54] Mr Barron said he never heard words exchanged between Mr Dunn and Mr Shirley. Something could have been said, but he never heard it.
[55] Mr Barron said Mr Shirley spoke to him when pulling up after the race and before they left the track. Mr Shirley said, “That fixed him” or “That fixed the bastard”. He could not recall which expression was used. However, he recalled saying, “You stuffed me as well.” He said he thought he initiated the conversation by asking, “What happened there Brent?”
[56] When cross-examined, Mr Barron stated it was his view that Mr Shirley was deliberately ensuring that the stays did not get unlocked. It was his belief that Mr Shirley should have pulled the right rein as soon as the stays became locked. Just a movement of half an inch was sufficient and he should have tried to unlock the stays as soon as possible. Mr Dunn had to pull down or in, and Mr Shirley should have gone out. He had never seen stays not unlock if this were done. He said he did not see Mr Dunn pull back but Mr Dunn had pulled his horse left and had held his ground. He believed Mr Dunn had no choice in the matter because of the pressure from Mr Shirley. He stated, “Mr Dunn was dictated by the horse [LITTLE EINSTEIN] leaning on him from the outside. He couldn’t pull back because of the pressure.” He later added he was not aware at the time which sulky stay was in front of which and he would not expect Mr Dunn to want to pull back as he was entitled to try to win the race.
[57] Mr Barron stated that viewing the videos again confirmed his view at the time that there was deliberate steering down by Mr Shirley. It was intentional, he said.
[58] When asked if he had said that to Mr Allison when first questioned, he said he had said very little at that time. However, he said, the locking of the stays was significantly different from what you might see from day to day. “The interference went on and on.” From past the 800 metres, in his view, this was not “squeezing in a bit”, but was “to the interference stage”.
[59] The final witness for the informant was Jonathan Cox. He stated he was currently licensed with HRNZ as an Open Horseman and a Public Trainer. He had been licensed for around 10 years with and had driven in excess of 3000 races and around 280 winners.
[60] Mr Cox stated that on 26 January he was the driver of HOMEFORABUBBLY in Race 12 at the Invercargill Harness Racing Club’s meeting. Over the early stages he was caught three wide. He was then in the parked position outside the leader from about the 1600 metres mark.
[61] Mr Cox described that with around 1100 metres to run he got cover when LITTLE EINSTEIN improved to the parked position. Mr Shirley attempted to gain the lead with around a lap to go. He followed Mr Shirley until the 500 metres before going to the front. Mr Cox said his horse tired and he finished 5th.
[62] Mr Cox stated that the carts of Mr Shirley and Mr Dunn came into contact at the 900 metres. He described Mr Shirley’s horse as “racing into Mr Dunn’s horse”. He said he believed Mr Shirley was steering his horse into Mr Dunn’s. The head of Mr Shirley’s horse was facing inwards and he believed this was why contact was made.
[63] Mr Cox said he was racing outside Mr Barron’s horse and Mr Shirley was inside his (Mr Cox’s) racing line by half a cart after contact.
[64] Mr Cox said Mr Shirley pulled the earplugs on his horse before the contact and was urging his horse. He was not sure what Mr Dunn was doing after contact but he was sure that Mr Shirley was doing nothing to unlock the carts. In fact he believed Mr Shirley at around the 900 metres was pulling the inside rein to pull his horse’s head in, in order to make contact, and then again, after contact, to squeeze Mr Dunn.
[65] Mr Cox said in order to unlock the stays the inside horse should pull back and in and the outside horse should move out and forward. It did not take a lot to unlock them and there was no risk of tipping a cart. He said it was up to both drivers to unhook and communication between the drivers would help.
The respondent’s case
[66] Ms Thomas opened her case by stating that the defence accepted that the respondent’s initial actions leading to the contact were careless but not improper. Mr Shirley, as the outside runner, should not have got close enough to Mr Dunn for the stays to be locked. But there was no intention on the part of Mr Shirley to lock stays or to cause any other issue. She said the respondent’s actions had to be considered prior to the stays becoming locked, and then after. She said his intention once the stays were locked was not to unhook them because of safety concerns. The issue for the Committee, she said, was: Was the respondent’s inaction so out of the ordinary that it was improper? She submitted after the stays were locked, Mr Shirley was neither careless nor improper.
[67] Ms Thomas further submitted that the respondent was entitled to take the view that Mr Dunn would pull back and the stays would be disconnected. She emphasised Mr Shirley would state in his evidence that he continued to press downwards because he was frightened if he did not do so, his cart would flip. The horses were at the head of the field so there were genuine health and safety issues.
[68] Ms Thomas called Mr Shirley to give evidence. He confirmed that shortly after he came up outside Mr Dunn, Mr Dunn said he was staying in the lead. He said he did not respond but pulled the ear-plugs on LITTLE EINSTEIN and decided to have “a crack at the lead”. He said he was past Mr Dunn by half a length before Mr Dunn hunted up SUPERSUB.
[69] Mr Shirley stated that Mr Dunn carried on driving his horse for some 75 metres after the stays became locked. He said he yelled out, “For f** sake take a hold.”
[70] Mr Shirley said he did consider pulling his cart out but he had locked carts with an American sulky before and decided against it. He said the New Zealand and American carts were incompatible and Mr Dunn was wedged in behind his stay. Mr Shirley stated he had been tapping up his horse and flicking the reins after the stays had locked.
[71] Mr Shirley accepted he had decided to put the whip away but said this was after Mr Dunn had not taken a hold. He said he had done this so he would be better able to control his horse. He said safety issues led him to take hold and stay with Mr Dunn. He reiterated he was concerned that Mr Dunn was not taking hold and was shunting him forward.
[72] Mr Shirley said he was putting downwards pressure on Mr Dunn because if he had not done so, his cart would have flicked up, as the American cart was heavier.
[73] Mr Shirley stated the locking of stays had ruined his own chances as well as those of Mr Dunn. He said he had no issues with Mr Dunn, and he told us that Mr Dunn’s brother, Dexter, often drove for his stable.
[74] With respect to the conversation with Mr Barron when pulling up, he said that he had said to Mr Barron, “That dirty little c** needs to be taught a f** lesson over that.”
[75] As to not telling Mr Allison when questioned by him after the race, that he had said to Mr Dunn, “F**ing pull back son, it’s not a contact sport”, Mr Shirley said he did not believe it was important enough and he did not want to be seen to be complaining all the time. He had not realised at the time he was being interviewed that it was in connection with a charge being brought against him. He thought Mr Dunn might be charged, so he did not mention he had called out to him, in an endeavour to protect Mr Dunn.
[76] When cross-examined by Mr Lange, Mr Shirley stated that he believed Mr Dunn had drifted out at the winning post and around the bend. The contact between the carts was because Mr Dunn had come out after hitting a marker peg.
[77] Mr Shirley emphasised his horse was hanging in and he was not careless or at least no more than careless.
[78] Mr Shirley explained he had not said to Mr Barron, “That will teach the bastard a lesson, but rather, “Someone needs to teach the bastard a lesson.”
[79] As to when he pulled on the left rein, Mr Shirley said this was not before contact but just after. LITTLE EINSTEIN was hanging in and after contact he stayed with Mr Dunn. He had not put pressure on Mr Dunn. The position was quite the opposite, he said. Mr Dunn had put pressure on him because he was urging his horse forward after the stays became locked and he was simply trying to stay with Mr Dunn. He was steering his horse but staying with Mr Dunn, so he went in Mr Dunn’s direction.
[80] Mr Shirley stated LITTLE EINSTEIN had not moved in when contact was made. He was not trying to squeeze Mr Dunn, as had been alleged. He reiterated he had not pulled on the left rein prior to contact. LI
sumissionsforpenalty:
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[114] We now require submissions from counsel as to penalty and costs, which will include the costs of the JCA that Mr Lange will have responsibility for. To that end the following timetable is to apply:
(i) Mr Lange is to file and serve on Ms Thomas his submissions on penalty and costs within one week of the date of this decision;
(ii) Ms Thomas will have a further week from the date of receipt of Mr Lange’s submissions to file her submissions in reply;
(iii) Leave is reserved to apply if for any valid reason there is difficulty with this timetable.
Dated this 4th day of July 2013
Geoff Hall
Chairman
hearing_type: Non-race day
Rules: 869(3)(f)
Informant: C J Allison - Stipendiary Steward for the Racing Integrity Unit
JockeysandTrainer:
Otherperson:
PersonPresent: Mr C Lange - for the informant, Ms M Thomas - for the respondent
Respondent: B R Shirley - Licensed Public Trainer/Open Horseman
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