Wyndham HRC 13 November 2016 – R 2 (heard 24 November 2016 at Invercargill) Chair, Prof G Hall
ID: JCA18169
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR ALAN BECK
Open Horseman
Respondent
Information: A8422
Judicial Committee Prof G Hall, Chairman
Mr N Skelt, Member
Appearing: Mr S Wallis, Stipendiary Steward, for the Informant
The Respondent in person, with the assistance of Mr D Baynes
Date of hearing and oral decision: 24 November 2016
Date of written decision: 5 December 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr Beck is charged under r 868(2) that on 13 November last in race 2, the A ROCKNROLL DANCE ‘SIRING OUTSTANDING FOALS’ mobile pace, at the Wyndham Harness Racing Club’s meeting he failed to take all reasonable and permissible measures in the home straight to ensure that DON SEBASTIAN was given full opportunity to win the race.
[2] Specifically, r 868(2) provides:
“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.”
[3] The information was laid on raceday and a hearing of the information was opened and adjourned on the day. The matter was heard at Invercargill on 24 November with the agreement of the parties concerned.
Informant’s case
[4] Mr Wallis opened the RIU case by stating they alleged that the degree of vigour shown by Mr Beck over the concluding stages of race 2 was unacceptable in the circumstances. The RIU believed it was both reasonable and permissible for him to demonstrate a more concerted effort to encourage his runner when holding a reasonable chance of winning the race.
[5] Mr Wallis showed the race in question. DON SEBASTIAN had drawn 2 on the second line and had received an economical trip in the race. The horse was one out with cover for most of the race and eventually ended up in the one one behind Mr Walkinshaw, who was driving CULLENS AVENUE, as they straightened for the run home.
[6] At the top of the straight the respondent had given the horse one small strike with the whip and, as he improved the horse outwards, he looked to his outside. After giving DON SEBASTIAN 3 backhanders over the next 50 metres, Mr Wallis stated from the 100 metres to the 50 metres Mr Beck had not urged the horse with the whip and he had only used the reins on the horse in a circular motion. It was this point in the race that was of most concern to the Stewards. He said Mr Beck later gave the horse 3 more backhanders prior to the post although the video was not clear in this regard.
[7] DON SEBASTIAN finished second behind LADY GO CULLECT. The official margin was half a neck.
[8] Mr Wallis produced an analysis of betting (exhibit B) which showed that DON SEBASTIAN, by start time, had attracted 18.53% of the win pool to pay $4.50 and 16.56% of the place pool to pay $1.70.
[9] Mr Wallis then concentrated on the final stages of the race. He used the videos to demonstrate that on the final bend Mr Beck had positioned DON SEBASTIAN into a position where he was within striking distance of the leaders. He said with 100 metres to run, DON SEBASTIAN was one length off the leading horse, and winner, LADY GO CULLECT.
[10] In the final straight Mr Beck utilised back hand whip strikes on DON SEBASTIAN only three times between the 150 metres and 100 metres before ceasing in his urgings. Mr Beck then minimally pushed the gelding with a circular motion with the reins before stopping again. Passing the 50 metres he again used a backhand motion to urge the gelding with his whip on 2 occasions. Mr Beck then ceased with any urgings before 1 final backhand prior to the finish line.
[11] Mr Wallis submitted that under minimal urgings DON SEBASTIAN had made up a significant amount of ground on the winner LADY GO CULLECT over the final 150 metres to be only beaten by half a neck. The Stewards believed it was not unreasonable to suggest that DON SEBASTIAN could have made up that half neck had Mr Beck placed that horse under more pressure throughout the run home.
[12] Mr Wallis pointed out on the videos that DON SEBASTIAN was pacing fluently and was running in a straight line. He described the respondent’s lack of vigour as being simply unacceptable. Mr Beck’s actions, he said, could, at best, be described as intermittent or sporadic.
[13] Mr Wallis emphasised that at no stage had Mr Beck urged his runner for any extended period but instead he opted to encourage DON SEBASTIAN occasionally with sparse use of the whip or reins. While drivers were not encouraged by the Stewards to use excessive force to drive a runner out, there was a clear and well-defined area between driving with excessive force and the driving that Mr Beck had demonstrated in this race, which the Stewards viewed as being unacceptable. Mr Beck had several alternative actions available to him that he could have successfully employed which would have removed any doubt in viewers’ eyes as to his actions or intentions. These included running the reins through the tail or more urgent urging of the horse.
[14] The RIU did not allege that Mr Beck had acted in a dishonest manner but that he had simply made an error of judgement. The extent of Mr Beck’s urgings in the final 150 metres amounted to a total of 6 backhand urgings with his whip and a brief moment where he used his reins in a circular motion. Given the fact DON SEBASTIAN was beaten by a half neck, the Stewards were satisfied that the vigour displayed fell well below the expected standards of a horseman who was involved in a tight finish. The actions of Mr Beck at this time were detrimental to the chances of his horse winning.
[15] The RIU alleged that at a time of the race when the public should be able to witness drivers doing everything they could within the rules to encourage their runners, what was demonstrated from the respondent was a very relaxed style whereby only a minimal amount of pressure was placed on DON SEBASTIAN. Mr Wallis asked this Committee to compare Mr Beck’s actions to those of other drivers involved in the finish. These drivers were doing everything within their capabilities to urge their horses whilst at the same time remaining fully compliant with the rules.
[16] The informant referred this Committee to the well-known statement by Haylen J in Fitzpatrick 20 May 2009 (NSW) as to what may amount to unacceptable driving: “[P]erhaps 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.” This statement, the RIU said, demonstrated how r 868(2) should be applied in this country and represented a common-sense application of the rule.
[17] The informant continued by stating there was no clear or obvious impediment to Mr Beck placing his runner under more pressure. It was pacing cleanly and was not hanging. Mr Beck had accepted these points on the day. Furthermore, DON SEBASTIAN was accepting of Mr Beck’s urgings as evidenced by the fact that it continued to make ground on the leader throughout the run home. Given that DON SEBASTIAN was not in danger of breaking and was steering well, it was reasonable for the respondent to apply more vigour during the outlined stages of concern.
[18] When asked on the day as to the reasoning behind his actions, Mr Beck had offered that he felt he had the inside horses and the horse on his outside covered. Mr Wallis submitted that this statement “confirm[ed] the Stewards position that he has made an error of judgement. Simply put, his reason for not showing more vigour in the final straight was that he thought he had the field covered and the race won. He did not. He erred in his summation of how much pressure he needed to place his runner under to win the race and the consequential effects of that are that he may have cost that horse’s connections and the punters who invested on it the win.”
[19] Mr Wallis concluded his submissions by stating that the Stewards did not and could not accept drivers applying such minimal pressure without valid cause or justifiable reasoning. On this occasion, Mr Beck’s explanation for his drive was unreasonable. Mr Beck had made an error of judgement. He had failed to give DON SEBASTIAN its chance to race to its full potential and finish in the highest possible place. As with every horseman who takes their place in a race, Mr Beck had a very clear and a very important obligation placed upon him: he had to leave no doubt in the minds of the viewing public that he had afforded his runner every chance to win the race or obtain the best possible finishing position. At the conclusion of every race there should be no doubt in the mind of any person watching that each driver had taken all available measures that were both reasonable and permissible to ensure their horse received every chance to run to its full capabilities.
[20] The informant believed Mr Beck had fallen short of this required standard and had failed in his duties to ensure these obligations were not compromised. DON SEBASTIAN had not been given every chance to win the race by the simple fact that it had not been asked for its best. Mr Beck should have made more of an attempt to encourage his runner throughout the length of the straight which would have ensured not only his horse was tested to its full capabilities but also that his driving would not be called into question.
Respondent’s case
[21] Mr Beck addressed the Committee with the assistance of Mr D Baynes and he also called Mr M Swain as a witness.
[22] Mr Beck stated that DON SEBASTIAN had a tendency to lie in under pressure and that was why he was hitting the horse on the left side. He said it had been his practice to drive the horse in this manner and he believed that despite these actions the horse had moved in half a cart on this occasion. He emphasised he was moving the reins on the inside and was not just sitting there in the cart. He was trying to drive the horse so as to time his run in order that the horse was still trying at the line. He was thus driving DON SEBASTIAN with this in mind.
[23] On an earlier occasion DON SEBASTIAN had hit the lead and had stopped trying. He had not changed his driving on this occasion. It was the same as previously. He played a video of the race at Wyndham the previous week where DON SEBASTIAN had challenged for the lead early in the home straight and looked the winner, only to be run down and finish third a long neck and another long neck behind the winner.
[24] Mr Beck agreed he had had an economical trip in the one out line with cover for much of the race. He stated that currently DON SEBASTIAN had serious limitations as to its courage and strength in the straight. It was the third time he had driven the horse. It had only had 5 starts and was still very green. In his view it was correctly assessed as a lower class maiden.
[25] Mr Beck emphasised he had driven DON SEBASTIAN to its strength; the horse could not carry a long sustained burst and was doing its best. He pointed out that at the top of the straight he was tucked in behind CULLENS AVENUE and when he had pulled out for a run over the final stages of the race, although he had urged DON SEBASTIAN with the whip and reins, the horse could not bridge what he assessed to be a half length gap between him and the winner of the race. He pointed out that after the horses had crossed the line DON SEBASTIAN was still not in front of LADY GO CULLECT. He believed that horse had put a length on his horse and this was further evidence that DON SEBASTIAN had come to the end of it. LADY GO CULLECT, in his mind, was simply the better horse on the day.
[26] Mr Beck challenged whether or not the informant was judging whether he had shown the necessary aggression by counting the number of strikes with the whip. If so, this was in error. He also emphasised he used an “American whip” which was demonstrated to this Committee to be more rigid than the other types of whip. A horse would thus be more likely to feel the strikes.
[27] Mr Beck said he was looking for Mr Hunter to come down the outside and was aware Mr McLellan was to his inside. He believed LADY GO CULLECT was a neck in front at the 50 metres and he felt DON SEBASTIAN could make this distance up but it could not and did not.
[28] Mr Baynes, the trainer of DON SEBASTIAN, assisted the respondent. Mr Baynes in effect gave evidence. He stated that both he and the syndicate that raced the horse thought the respondent’s drive was “ok”. With reference to the fact Mr Beck had hit the horse with backhanders, Mr Baynes produced images on a cellphone of marks to the left rump of DON SEBASTIAN that had been taken the following Monday.
[29] Mr Baynes detailed the history of the horse. DON SEBASTIAN had been purchased in Canterbury. It had had 5 starts, 4 for him. Mr Beck had driven it in 3 of those starts. Mr McLellan drove DON SEBASTIAN at its second start for Mr Baynes and it did not perform well, finishing out of the money. Mr Baynes was disappointed at DON SEBASTIAN’s performance at his third start for him (a week prior to the race at issue) and he had increased its workload as a consequence. He was also concerned that on the Friday before racing DON SEBASTIAN’s heart rate was 7 or 8 beats too high. He had instructed Mr Beck before the race that the horse would need an economical trip and to be easy with the whip.
[30] Mr Baynes stated he was happy with the options Mr Beck had taken. He knew Mr Beck was not an aggressive driver and that he would look around in races and assess the situation, as he had done on this occasion. He said some drivers jump up and down in the cart and use the whip. Mr Beck was not one of those drivers and, if he was, Mr Baynes said he would not engage him to drive any horses that he trained as he believed animal welfare was paramount and he did not believe it was necessary to whip a horse to get it to do its best.
[31] Mr Baynes confirmed there had been no issues with DON SEBASTIAN that required veterinarian attention after the race but on the day of the hearing he had noticed the horse had a swollen jaw, and he intended to ease him in his work as a consequence. He concluded by stating that the respondent was a driver of such calibre that he would know when a horse was giving its best and, in response to a question from this Committee, he said he believed the horse had given its best on the day. The horse had had every chance but had come up short.
[32] Mr Swain also gave evidence to the effect that Mr Beck was not an aggressive driver. He believed Mr Beck had used the reins and some backhanders to encourage the horse. He noted the plugs had been pulled in the back straight, and Mr Beck confirmed this. He emphasised the time of the race was 2.58.32, which was a good time considering the conditions on the day. (We note the weather was overcast, the track fast, and that this was the quickest 2400 metres on the day.) He also pointed out that DON SEBASTIAN had not got past the winner after the post and indeed LADY GO CULLECT had made more ground on DON SEBASTIAN. He said it was a disappointing run from DON SEBASTIAN, which was a favoured horse on the day. He did not believe the respondent’s driving style was any different on the second day to the first. He emphasised DON SEBASTIAN runs down under pressure.
[33] Mr Beck said he had thought he would “win for fun” on the first day and the horse had knocked off once it hit the lead. He had tried to time its run this time and had not got the response in the last 7 or 8 strides that he thought he would get.
Summing up
[34] Mr Wallis summed up by stating that the respondent’s vigour was unacceptable in the circumstances and more encouragement was needed. The Stewards were firm in their belief that the vigour of Mr Beck over the concluding stages was both insufficient and unacceptable. Mr Beck should have shown more discernible action in urging his horse during the last 150 metres of the race when it was both completely reasonable and permissible to do so. Any viewer watching this race, especially those who had invested their money on DON SEBASTIAN, would rightly feel aggrieved that the driver of this horse had not taken all available steps to ensure it was given its chance to win the race.
[35] Mr Wallis stated that DON SEBASTIAN was steering good and there had been no veterinarian examination of the horse after the race. With more vigour earlier in the straight, he believed Mr Beck could have got a gap between himself and Mr McLellan.
[36] The Stewards understood that this Committee would give weight to Mr Beck’s professional opinion that the horse was doing its best or had nothing left to give but in their view more weight had to be given to the expectations of those who viewed the sport. It was not possible to accept his opinion when the horse was not placed under reasonable pressure at this stage of the run home. The Stewards contended that the public’s perception would be poor at best and it was imperative that the image and integrity of racing was not placed in jeopardy or compromised as they had been on this occasion.
[37] It was accepted by the Stewards that r 868(2) does not seek to punish mere errors of judgment during the race but rather it requires that the driver's conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy. The Stewards were not required to prove that DON SEBASTIAN would have won the race if placed under sufficient pressure. Rather, Mr Beck was required to leave no doubt in viewers’ minds that the horse had had every question asked of it, and in this instance the informant believed Mr Beck had failed to do so. The Stewards accepted that Mr Beck had given the horse at least 6 backhanders from the 400 metres but were concerned with the drive over the final 150 metres in that they believed the respondent had mistakenly thought he could pull the horse out late for a run and beat the other horses.
[38] Mr Beck summed up by simply confirming he believed he had given DON SEBASTIAN every chance to win having regard to the capabilities of the horse, and the better horse on the day had won. He had not wanted to hit the front too early and was waiting for the final 50 metres and there was simply nothing more there.
Decision
[39] The informant referred this Committee to the decision in RIU v McLellan 21 May 2015. The Committee in that case stated at [32] to [36]:
“A number of principles emerge from the various cases decided under Rule 868 (2). Those principles are as follows:
(1) It is the quality of the drive in the circumstances of the particular case, which has to be judged;
(2) That judgement must be based on an objective assessment of the drive in the particular race;
(3) A mere error of judgement by a driver is not a sufficient basis for an adverse finding that the Rule has been breached; and
(4) The driver’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.
The core focus of the Rule is the quality or otherwise of the drive. That is to say, if the driver fails, given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field, then he is in breach of the Rule and liable to penalty.
The Rule imposes an objective standard of care. The standard of care takes into account, among other things, the views and explanation of the driver and the opinion of the Stewards.
The onus is on the Stewards to prove that a driver has been in breach of the Rule. A driver is required to give an explanation for his actions, but the onus always remains with the Stewards.
The standard of proof is on the balance of probabilities….”
[40] We apply the principles identified in McLellan. The stage of the race that is in question is the final 200 metres, and more particularly, the manner in which the respondent drove from the 200 to the 50-metre mark.
[41] Mr Beck has stated that he believes he gave DON SEBASTIAN every opportunity to win the race having regard to the horse’s racing manners and ability. The horse’s trainer, Mr Baynes, has supported Mr Beck’s comments in this regard, as has Mr Swain, who is a very experienced driver.
[42] The informant on the other hand alleges that the respondent’s actions are blameworthy in that he has failed to show the vigour necessary at this stage in the race. The informant has asked us to compare the vigour displayed by other drivers at this time and to draw the conclusion that more urgency was required of the respondent in order that his drive not fall foul of the rule. There is no doubt that the video evidences more vigour by the other drivers fighting out the finish of the race than that that is demonstrated by Mr Beck. There is no video evidence to the effect that DON SEBASTIAN was in danger of breaking or that Mr Beck was having difficulty steering the horse.
[43] Mr Beck has also asked us to consider the manner in which he drove DON SEBASTIAN on the first day of the meeting, namely 6 November 2016. We accept that the drive is similar in that the use of the whip is by backhanders to the left rump of DON SEBASTIAN. However, we cannot escape the conclusion that these are with a great deal more urgency and are more frequent than the strikes in the race at issue, as also was his running of the reins over the horse’s hindquarters.
[44] We are in no doubt that the respondent thought he was doing his best by the horse in not pushing the horse too soon in the straight in that he thought if DON SEBASTIAN obtained the lead it might stop as he believed it had on 6 November. However, the run that he intended to time to perfection proved to be a little short of this.
[45] Mr Beck has stated that DON SEBASTIAN was never going to beat LADY GO CULLECT on the day and both Mr Baynes and Mr Swain have also given evidence to this effect. This issue is somewhat beside the point. We do not need to determine whether or not DON SEBASTIAN would have beaten LADY GO CULLECT but whether DON SEBASTIAN was given every chance or opportunity to do so. It is our view that DON SEBASTIAN was not. We understand why Mr Beck drove DON SEBASTIAN as he did, in that he did not, as we have said, want to get to the lead too early. But we believe he underestimated the strength and courage that LADY GO CULLECT was showing at the end of the race and the degree of effort that he required of DON SEBASTIAN to ensure that the horse gave its best and, if this was good enough, won the race.
[46] Mr Beck can clearly be seen on the videos to look around early in the run home and to look at the other runners. We draw the conclusion that this was to assess the extent of the effort that he had to require of DON SEBASTIAN in order to win the race. As the horses straightened, DON SEBASTIAN was perhaps a length behind LADY GO CULLECT. At this time (with approximately 200 metres to run) the other drivers whose horses had a chance to win the race were working on their horses. Mr Beck is not. He simply looks to his outside and then to his inside and does not shift his horse out looking for a run until just before the 150 metres mark. After some 3 or 4 backhanders just after the 150 metres, to which DON SEBASTIAN appeared to respond, the margin to LADY GO CULLECT was again about a length. After these backhanders, Mr Beck simply used the reins in a light circular motion on the rump of DON SEBASTIAN. Over the last 50 metres Mr Beck again worked on DON SEBASTIAN and the horse responded finishing half a neck behind LADY GO CULLECT. We believe the informant’s description of Mr Beck’s actions over the concluding stages of the race as minimal and intermittent is apt.
[47] We are satisfied that this is not a mere error of judgement by the respondent, despite it being so described by the informant at one point in their submissions. When we analyse the informant’s submissions we believe the use of this expression was in order to emphasise that the RIU was not alleging that the respondent’s actions were deliberate. We agree there is no evidence of any dishonest intent by Mr Beck.
[48] When we examine the quality of the respondent’s drive in the circumstances of this particular case we believe that the betting public were entitled to expect that DON SEBASTIAN would be required to give every effort over the final 200 metres. Objectively judged, we find the respondent’s drive to be blameworthy in that there were some 6 backhand strikes delivered with little sense of urgency and for some 50 metres the reins were used in a light circular motion. Mr Beck clearly endeavoured to time his finishing run so that DON SEBASTIAN would be in front on the line and not some distance before. He miscalculated; he may have left his run too late, as the RIU allege, or LADY GO CULLECT may have been the better horse on the day, as the respondent alleges. As we have said, this is not determinative of whether or not he is in breach of the rule.
[49] We are satisfied that the degree of vigour that Mr Beck has displayed over the final 200 metres has fallen below the standards to be expected of a horseman who is involved in a close finish and, in so doing, his actions are in breach of r 868(2).
[50] We thus find the information to be proved.
[51] We require submissions from the parties as to penalty.
[52] The informant is to produce the respondent’s record and is to file written submissions by 4 pm 12 December.
[53] The respondent is to file his submissions within 5 working days of his receiving the informant’s submissions.
[54] The issue of costs may also be addressed by either party.
Dated at Dunedin this 5th day of December 2016.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 06/12/2016
Publish Date: 06/12/2016
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 06/12/2016
hearing_title: Wyndham HRC 13 November 2016 - R 2 (heard 24 November 2016 at Invercargill) Chair, Prof G Hall
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
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR ALAN BECK
Open Horseman
Respondent
Information: A8422
Judicial Committee Prof G Hall, Chairman
Mr N Skelt, Member
Appearing: Mr S Wallis, Stipendiary Steward, for the Informant
The Respondent in person, with the assistance of Mr D Baynes
Date of hearing and oral decision: 24 November 2016
Date of written decision: 5 December 2016
RESERVED DECISION OF JUDICIAL COMMITTEE
[1] Mr Beck is charged under r 868(2) that on 13 November last in race 2, the A ROCKNROLL DANCE ‘SIRING OUTSTANDING FOALS’ mobile pace, at the Wyndham Harness Racing Club’s meeting he failed to take all reasonable and permissible measures in the home straight to ensure that DON SEBASTIAN was given full opportunity to win the race.
[2] Specifically, r 868(2) provides:
“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.”
[3] The information was laid on raceday and a hearing of the information was opened and adjourned on the day. The matter was heard at Invercargill on 24 November with the agreement of the parties concerned.
Informant’s case
[4] Mr Wallis opened the RIU case by stating they alleged that the degree of vigour shown by Mr Beck over the concluding stages of race 2 was unacceptable in the circumstances. The RIU believed it was both reasonable and permissible for him to demonstrate a more concerted effort to encourage his runner when holding a reasonable chance of winning the race.
[5] Mr Wallis showed the race in question. DON SEBASTIAN had drawn 2 on the second line and had received an economical trip in the race. The horse was one out with cover for most of the race and eventually ended up in the one one behind Mr Walkinshaw, who was driving CULLENS AVENUE, as they straightened for the run home.
[6] At the top of the straight the respondent had given the horse one small strike with the whip and, as he improved the horse outwards, he looked to his outside. After giving DON SEBASTIAN 3 backhanders over the next 50 metres, Mr Wallis stated from the 100 metres to the 50 metres Mr Beck had not urged the horse with the whip and he had only used the reins on the horse in a circular motion. It was this point in the race that was of most concern to the Stewards. He said Mr Beck later gave the horse 3 more backhanders prior to the post although the video was not clear in this regard.
[7] DON SEBASTIAN finished second behind LADY GO CULLECT. The official margin was half a neck.
[8] Mr Wallis produced an analysis of betting (exhibit B) which showed that DON SEBASTIAN, by start time, had attracted 18.53% of the win pool to pay $4.50 and 16.56% of the place pool to pay $1.70.
[9] Mr Wallis then concentrated on the final stages of the race. He used the videos to demonstrate that on the final bend Mr Beck had positioned DON SEBASTIAN into a position where he was within striking distance of the leaders. He said with 100 metres to run, DON SEBASTIAN was one length off the leading horse, and winner, LADY GO CULLECT.
[10] In the final straight Mr Beck utilised back hand whip strikes on DON SEBASTIAN only three times between the 150 metres and 100 metres before ceasing in his urgings. Mr Beck then minimally pushed the gelding with a circular motion with the reins before stopping again. Passing the 50 metres he again used a backhand motion to urge the gelding with his whip on 2 occasions. Mr Beck then ceased with any urgings before 1 final backhand prior to the finish line.
[11] Mr Wallis submitted that under minimal urgings DON SEBASTIAN had made up a significant amount of ground on the winner LADY GO CULLECT over the final 150 metres to be only beaten by half a neck. The Stewards believed it was not unreasonable to suggest that DON SEBASTIAN could have made up that half neck had Mr Beck placed that horse under more pressure throughout the run home.
[12] Mr Wallis pointed out on the videos that DON SEBASTIAN was pacing fluently and was running in a straight line. He described the respondent’s lack of vigour as being simply unacceptable. Mr Beck’s actions, he said, could, at best, be described as intermittent or sporadic.
[13] Mr Wallis emphasised that at no stage had Mr Beck urged his runner for any extended period but instead he opted to encourage DON SEBASTIAN occasionally with sparse use of the whip or reins. While drivers were not encouraged by the Stewards to use excessive force to drive a runner out, there was a clear and well-defined area between driving with excessive force and the driving that Mr Beck had demonstrated in this race, which the Stewards viewed as being unacceptable. Mr Beck had several alternative actions available to him that he could have successfully employed which would have removed any doubt in viewers’ eyes as to his actions or intentions. These included running the reins through the tail or more urgent urging of the horse.
[14] The RIU did not allege that Mr Beck had acted in a dishonest manner but that he had simply made an error of judgement. The extent of Mr Beck’s urgings in the final 150 metres amounted to a total of 6 backhand urgings with his whip and a brief moment where he used his reins in a circular motion. Given the fact DON SEBASTIAN was beaten by a half neck, the Stewards were satisfied that the vigour displayed fell well below the expected standards of a horseman who was involved in a tight finish. The actions of Mr Beck at this time were detrimental to the chances of his horse winning.
[15] The RIU alleged that at a time of the race when the public should be able to witness drivers doing everything they could within the rules to encourage their runners, what was demonstrated from the respondent was a very relaxed style whereby only a minimal amount of pressure was placed on DON SEBASTIAN. Mr Wallis asked this Committee to compare Mr Beck’s actions to those of other drivers involved in the finish. These drivers were doing everything within their capabilities to urge their horses whilst at the same time remaining fully compliant with the rules.
[16] The informant referred this Committee to the well-known statement by Haylen J in Fitzpatrick 20 May 2009 (NSW) as to what may amount to unacceptable driving: “[P]erhaps 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.” This statement, the RIU said, demonstrated how r 868(2) should be applied in this country and represented a common-sense application of the rule.
[17] The informant continued by stating there was no clear or obvious impediment to Mr Beck placing his runner under more pressure. It was pacing cleanly and was not hanging. Mr Beck had accepted these points on the day. Furthermore, DON SEBASTIAN was accepting of Mr Beck’s urgings as evidenced by the fact that it continued to make ground on the leader throughout the run home. Given that DON SEBASTIAN was not in danger of breaking and was steering well, it was reasonable for the respondent to apply more vigour during the outlined stages of concern.
[18] When asked on the day as to the reasoning behind his actions, Mr Beck had offered that he felt he had the inside horses and the horse on his outside covered. Mr Wallis submitted that this statement “confirm[ed] the Stewards position that he has made an error of judgement. Simply put, his reason for not showing more vigour in the final straight was that he thought he had the field covered and the race won. He did not. He erred in his summation of how much pressure he needed to place his runner under to win the race and the consequential effects of that are that he may have cost that horse’s connections and the punters who invested on it the win.”
[19] Mr Wallis concluded his submissions by stating that the Stewards did not and could not accept drivers applying such minimal pressure without valid cause or justifiable reasoning. On this occasion, Mr Beck’s explanation for his drive was unreasonable. Mr Beck had made an error of judgement. He had failed to give DON SEBASTIAN its chance to race to its full potential and finish in the highest possible place. As with every horseman who takes their place in a race, Mr Beck had a very clear and a very important obligation placed upon him: he had to leave no doubt in the minds of the viewing public that he had afforded his runner every chance to win the race or obtain the best possible finishing position. At the conclusion of every race there should be no doubt in the mind of any person watching that each driver had taken all available measures that were both reasonable and permissible to ensure their horse received every chance to run to its full capabilities.
[20] The informant believed Mr Beck had fallen short of this required standard and had failed in his duties to ensure these obligations were not compromised. DON SEBASTIAN had not been given every chance to win the race by the simple fact that it had not been asked for its best. Mr Beck should have made more of an attempt to encourage his runner throughout the length of the straight which would have ensured not only his horse was tested to its full capabilities but also that his driving would not be called into question.
Respondent’s case
[21] Mr Beck addressed the Committee with the assistance of Mr D Baynes and he also called Mr M Swain as a witness.
[22] Mr Beck stated that DON SEBASTIAN had a tendency to lie in under pressure and that was why he was hitting the horse on the left side. He said it had been his practice to drive the horse in this manner and he believed that despite these actions the horse had moved in half a cart on this occasion. He emphasised he was moving the reins on the inside and was not just sitting there in the cart. He was trying to drive the horse so as to time his run in order that the horse was still trying at the line. He was thus driving DON SEBASTIAN with this in mind.
[23] On an earlier occasion DON SEBASTIAN had hit the lead and had stopped trying. He had not changed his driving on this occasion. It was the same as previously. He played a video of the race at Wyndham the previous week where DON SEBASTIAN had challenged for the lead early in the home straight and looked the winner, only to be run down and finish third a long neck and another long neck behind the winner.
[24] Mr Beck agreed he had had an economical trip in the one out line with cover for much of the race. He stated that currently DON SEBASTIAN had serious limitations as to its courage and strength in the straight. It was the third time he had driven the horse. It had only had 5 starts and was still very green. In his view it was correctly assessed as a lower class maiden.
[25] Mr Beck emphasised he had driven DON SEBASTIAN to its strength; the horse could not carry a long sustained burst and was doing its best. He pointed out that at the top of the straight he was tucked in behind CULLENS AVENUE and when he had pulled out for a run over the final stages of the race, although he had urged DON SEBASTIAN with the whip and reins, the horse could not bridge what he assessed to be a half length gap between him and the winner of the race. He pointed out that after the horses had crossed the line DON SEBASTIAN was still not in front of LADY GO CULLECT. He believed that horse had put a length on his horse and this was further evidence that DON SEBASTIAN had come to the end of it. LADY GO CULLECT, in his mind, was simply the better horse on the day.
[26] Mr Beck challenged whether or not the informant was judging whether he had shown the necessary aggression by counting the number of strikes with the whip. If so, this was in error. He also emphasised he used an “American whip” which was demonstrated to this Committee to be more rigid than the other types of whip. A horse would thus be more likely to feel the strikes.
[27] Mr Beck said he was looking for Mr Hunter to come down the outside and was aware Mr McLellan was to his inside. He believed LADY GO CULLECT was a neck in front at the 50 metres and he felt DON SEBASTIAN could make this distance up but it could not and did not.
[28] Mr Baynes, the trainer of DON SEBASTIAN, assisted the respondent. Mr Baynes in effect gave evidence. He stated that both he and the syndicate that raced the horse thought the respondent’s drive was “ok”. With reference to the fact Mr Beck had hit the horse with backhanders, Mr Baynes produced images on a cellphone of marks to the left rump of DON SEBASTIAN that had been taken the following Monday.
[29] Mr Baynes detailed the history of the horse. DON SEBASTIAN had been purchased in Canterbury. It had had 5 starts, 4 for him. Mr Beck had driven it in 3 of those starts. Mr McLellan drove DON SEBASTIAN at its second start for Mr Baynes and it did not perform well, finishing out of the money. Mr Baynes was disappointed at DON SEBASTIAN’s performance at his third start for him (a week prior to the race at issue) and he had increased its workload as a consequence. He was also concerned that on the Friday before racing DON SEBASTIAN’s heart rate was 7 or 8 beats too high. He had instructed Mr Beck before the race that the horse would need an economical trip and to be easy with the whip.
[30] Mr Baynes stated he was happy with the options Mr Beck had taken. He knew Mr Beck was not an aggressive driver and that he would look around in races and assess the situation, as he had done on this occasion. He said some drivers jump up and down in the cart and use the whip. Mr Beck was not one of those drivers and, if he was, Mr Baynes said he would not engage him to drive any horses that he trained as he believed animal welfare was paramount and he did not believe it was necessary to whip a horse to get it to do its best.
[31] Mr Baynes confirmed there had been no issues with DON SEBASTIAN that required veterinarian attention after the race but on the day of the hearing he had noticed the horse had a swollen jaw, and he intended to ease him in his work as a consequence. He concluded by stating that the respondent was a driver of such calibre that he would know when a horse was giving its best and, in response to a question from this Committee, he said he believed the horse had given its best on the day. The horse had had every chance but had come up short.
[32] Mr Swain also gave evidence to the effect that Mr Beck was not an aggressive driver. He believed Mr Beck had used the reins and some backhanders to encourage the horse. He noted the plugs had been pulled in the back straight, and Mr Beck confirmed this. He emphasised the time of the race was 2.58.32, which was a good time considering the conditions on the day. (We note the weather was overcast, the track fast, and that this was the quickest 2400 metres on the day.) He also pointed out that DON SEBASTIAN had not got past the winner after the post and indeed LADY GO CULLECT had made more ground on DON SEBASTIAN. He said it was a disappointing run from DON SEBASTIAN, which was a favoured horse on the day. He did not believe the respondent’s driving style was any different on the second day to the first. He emphasised DON SEBASTIAN runs down under pressure.
[33] Mr Beck said he had thought he would “win for fun” on the first day and the horse had knocked off once it hit the lead. He had tried to time its run this time and had not got the response in the last 7 or 8 strides that he thought he would get.
Summing up
[34] Mr Wallis summed up by stating that the respondent’s vigour was unacceptable in the circumstances and more encouragement was needed. The Stewards were firm in their belief that the vigour of Mr Beck over the concluding stages was both insufficient and unacceptable. Mr Beck should have shown more discernible action in urging his horse during the last 150 metres of the race when it was both completely reasonable and permissible to do so. Any viewer watching this race, especially those who had invested their money on DON SEBASTIAN, would rightly feel aggrieved that the driver of this horse had not taken all available steps to ensure it was given its chance to win the race.
[35] Mr Wallis stated that DON SEBASTIAN was steering good and there had been no veterinarian examination of the horse after the race. With more vigour earlier in the straight, he believed Mr Beck could have got a gap between himself and Mr McLellan.
[36] The Stewards understood that this Committee would give weight to Mr Beck’s professional opinion that the horse was doing its best or had nothing left to give but in their view more weight had to be given to the expectations of those who viewed the sport. It was not possible to accept his opinion when the horse was not placed under reasonable pressure at this stage of the run home. The Stewards contended that the public’s perception would be poor at best and it was imperative that the image and integrity of racing was not placed in jeopardy or compromised as they had been on this occasion.
[37] It was accepted by the Stewards that r 868(2) does not seek to punish mere errors of judgment during the race but rather it requires that the driver's conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy. The Stewards were not required to prove that DON SEBASTIAN would have won the race if placed under sufficient pressure. Rather, Mr Beck was required to leave no doubt in viewers’ minds that the horse had had every question asked of it, and in this instance the informant believed Mr Beck had failed to do so. The Stewards accepted that Mr Beck had given the horse at least 6 backhanders from the 400 metres but were concerned with the drive over the final 150 metres in that they believed the respondent had mistakenly thought he could pull the horse out late for a run and beat the other horses.
[38] Mr Beck summed up by simply confirming he believed he had given DON SEBASTIAN every chance to win having regard to the capabilities of the horse, and the better horse on the day had won. He had not wanted to hit the front too early and was waiting for the final 50 metres and there was simply nothing more there.
Decision
[39] The informant referred this Committee to the decision in RIU v McLellan 21 May 2015. The Committee in that case stated at [32] to [36]:
“A number of principles emerge from the various cases decided under Rule 868 (2). Those principles are as follows:
(1) It is the quality of the drive in the circumstances of the particular case, which has to be judged;
(2) That judgement must be based on an objective assessment of the drive in the particular race;
(3) A mere error of judgement by a driver is not a sufficient basis for an adverse finding that the Rule has been breached; and
(4) The driver’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.
The core focus of the Rule is the quality or otherwise of the drive. That is to say, if the driver fails, given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field, then he is in breach of the Rule and liable to penalty.
The Rule imposes an objective standard of care. The standard of care takes into account, among other things, the views and explanation of the driver and the opinion of the Stewards.
The onus is on the Stewards to prove that a driver has been in breach of the Rule. A driver is required to give an explanation for his actions, but the onus always remains with the Stewards.
The standard of proof is on the balance of probabilities….”
[40] We apply the principles identified in McLellan. The stage of the race that is in question is the final 200 metres, and more particularly, the manner in which the respondent drove from the 200 to the 50-metre mark.
[41] Mr Beck has stated that he believes he gave DON SEBASTIAN every opportunity to win the race having regard to the horse’s racing manners and ability. The horse’s trainer, Mr Baynes, has supported Mr Beck’s comments in this regard, as has Mr Swain, who is a very experienced driver.
[42] The informant on the other hand alleges that the respondent’s actions are blameworthy in that he has failed to show the vigour necessary at this stage in the race. The informant has asked us to compare the vigour displayed by other drivers at this time and to draw the conclusion that more urgency was required of the respondent in order that his drive not fall foul of the rule. There is no doubt that the video evidences more vigour by the other drivers fighting out the finish of the race than that that is demonstrated by Mr Beck. There is no video evidence to the effect that DON SEBASTIAN was in danger of breaking or that Mr Beck was having difficulty steering the horse.
[43] Mr Beck has also asked us to consider the manner in which he drove DON SEBASTIAN on the first day of the meeting, namely 6 November 2016. We accept that the drive is similar in that the use of the whip is by backhanders to the left rump of DON SEBASTIAN. However, we cannot escape the conclusion that these are with a great deal more urgency and are more frequent than the strikes in the race at issue, as also was his running of the reins over the horse’s hindquarters.
[44] We are in no doubt that the respondent thought he was doing his best by the horse in not pushing the horse too soon in the straight in that he thought if DON SEBASTIAN obtained the lead it might stop as he believed it had on 6 November. However, the run that he intended to time to perfection proved to be a little short of this.
[45] Mr Beck has stated that DON SEBASTIAN was never going to beat LADY GO CULLECT on the day and both Mr Baynes and Mr Swain have also given evidence to this effect. This issue is somewhat beside the point. We do not need to determine whether or not DON SEBASTIAN would have beaten LADY GO CULLECT but whether DON SEBASTIAN was given every chance or opportunity to do so. It is our view that DON SEBASTIAN was not. We understand why Mr Beck drove DON SEBASTIAN as he did, in that he did not, as we have said, want to get to the lead too early. But we believe he underestimated the strength and courage that LADY GO CULLECT was showing at the end of the race and the degree of effort that he required of DON SEBASTIAN to ensure that the horse gave its best and, if this was good enough, won the race.
[46] Mr Beck can clearly be seen on the videos to look around early in the run home and to look at the other runners. We draw the conclusion that this was to assess the extent of the effort that he had to require of DON SEBASTIAN in order to win the race. As the horses straightened, DON SEBASTIAN was perhaps a length behind LADY GO CULLECT. At this time (with approximately 200 metres to run) the other drivers whose horses had a chance to win the race were working on their horses. Mr Beck is not. He simply looks to his outside and then to his inside and does not shift his horse out looking for a run until just before the 150 metres mark. After some 3 or 4 backhanders just after the 150 metres, to which DON SEBASTIAN appeared to respond, the margin to LADY GO CULLECT was again about a length. After these backhanders, Mr Beck simply used the reins in a light circular motion on the rump of DON SEBASTIAN. Over the last 50 metres Mr Beck again worked on DON SEBASTIAN and the horse responded finishing half a neck behind LADY GO CULLECT. We believe the informant’s description of Mr Beck’s actions over the concluding stages of the race as minimal and intermittent is apt.
[47] We are satisfied that this is not a mere error of judgement by the respondent, despite it being so described by the informant at one point in their submissions. When we analyse the informant’s submissions we believe the use of this expression was in order to emphasise that the RIU was not alleging that the respondent’s actions were deliberate. We agree there is no evidence of any dishonest intent by Mr Beck.
[48] When we examine the quality of the respondent’s drive in the circumstances of this particular case we believe that the betting public were entitled to expect that DON SEBASTIAN would be required to give every effort over the final 200 metres. Objectively judged, we find the respondent’s drive to be blameworthy in that there were some 6 backhand strikes delivered with little sense of urgency and for some 50 metres the reins were used in a light circular motion. Mr Beck clearly endeavoured to time his finishing run so that DON SEBASTIAN would be in front on the line and not some distance before. He miscalculated; he may have left his run too late, as the RIU allege, or LADY GO CULLECT may have been the better horse on the day, as the respondent alleges. As we have said, this is not determinative of whether or not he is in breach of the rule.
[49] We are satisfied that the degree of vigour that Mr Beck has displayed over the final 200 metres has fallen below the standards to be expected of a horseman who is involved in a close finish and, in so doing, his actions are in breach of r 868(2).
[50] We thus find the information to be proved.
[51] We require submissions from the parties as to penalty.
[52] The informant is to produce the respondent’s record and is to file written submissions by 4 pm 12 December.
[53] The respondent is to file his submissions within 5 working days of his receiving the informant’s submissions.
[54] The issue of costs may also be addressed by either party.
Dated at Dunedin this 5th day of December 2016.
Geoff Hall, Chairman
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