Cambridge – Te Awamutu HRC – 1 April 2010 – R 6

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startdate: 01/04/2010

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hearing_title: Cambridge - Te Awamutu HRC - 1 April 2010 - R 6

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Decision:

RACEDAY JUDICIAL COMMITTEE DECISION

Informant:  Mr T W Taumanu

Defendant:  Mr G C Small

Information No:  68514

Meeting:  Cambridge-Te Awamutu Harness Racing Club

Date:  1 April 2010

Venue:  Cambridge Raceway

Race:  6

Rule No:  869 (3)(b)

Judicial Committee:  B J Scott, Chairman – B J Rowe, Committee Member 

An Information was lodged by Stipendiary Steward Mr TW Taumanu alleging that Horseman Mr GC Small as the Driver of Zenola Seelster allowed his horse to move inwards shortly after the start causing a check to Millwood Manhattan (AG Herlihy) which broke and lost approximately 40 metres.

Mr Small did not admit the charge and was present at the hearing.

Rule 869 (3)(b) was read to Mr Small and this Rule states “no horseman in any race shall drive carelessly.”  Mr Small asked what carelessly meant and was advised that generally it meant “failing to exercise the normal degree of care that a prudent driver would exercise.” 

Mr Taumanu in giving evidence called on Stipendiary Steward Mr NG McIntyre to demonstrate by use of the video films the positions of the sulky wheels of both Zenola Seelster and Millwood Manhattan.  Mr McIntyre showed that the sulky on Zenola Seelster had black wheel disks and the sulky on Millwood Manhattan had patterned wheel disks.  He clearly demonstrated where the wheel of Zenola Seelster’s sulky was located inside the wheel of Millwood Manhattan’s sulky prior to that horse going into a break.

Mr McIntyre also pointed out where contact was made and that Millwood Manhattan went into a break as a result of that contact which was caused by Mr Small and Zenola Seelster.

Mr McIntyre also showed that Mr Small was not getting any pressure from any other runners and that his horse had come across and put pressure on Mr Herlihy’s horse.  Mr McIntyre showed the footage frame by frame to clearly show the location of the sulky wheels and also the moment of contact at which Millwood Manhattan broke.

Mr Small was given the opportunity to cross examine but did not do so.

Mr Taumanu then called Mr AG Herlihy the Driver of Millwood Manhattan to give evidence.  He stated that shortly after the start he drove out of the mobile gate and he had moved down and he was endeavouring to follow Mr Phelan driving Intrepid Traveller.  He said that he was just outside Mr Phelan’s sulky and that Mr Small came down on him and he said that he called out a couple of times to  Mr Small.  He said that to be fair Mr Small did take some corrective action but that it was far too late and that the damage had already been done.  Mr Herlihy confirmed that there was contact and that he was tightened up by Mr Small and Millwood Manhattan’s hind leg hit the sulky wheel of Mr Small’s sulky and his horse broke.  Mr Herlihy said that Mr Small’s horse did get its head around a little bit but that this was as a result of the corrective action that Mr Small was endeavouring to take but he confirmed again that it was far too late and that the damage had already been done.

In response to questions from Mr Taumanu, Mr Herlihy confirmed that he had called out twice to Mr Small, that there was contact, and that Mr Small took some corrective action but that it was far too late.

Mr Small was then given the opportunity to cross examine Mr Herlihy and he first made a statement as to what he thought had happened and in response to that Mr Herlihy said that “we have a variation of opinion as far as that is concerned.”  Mr Small was then advised that he needed to ask Mr Herlihy a question in cross examination rather than make a statement and he asked Mr Herlihy to point out where he thought that firstly contact had been made and secondly that Mr Herlihy’s horse had broken.  Mr Herlihy made use of the films to respond to Mr Small’s questions.  Mr Small disputed Mr Herlihy’s interpretation of the film and contact and Mr Herlihy said to Mr Small “did you not hear the bang?”  Mr Small then tried to point out that Mr Herlihy’s horse had not broken until after Mr Small’s horse came backwards and Mr Herlihy pointed out that Mr Small’s sulky wheel was under the stomach of Mr Herlihy’s horse.  Mr Herlihy pointed out that his horse was pacing forward before it broke.  Mr Small disputed that his sulky wheel was under the stomach of Millwood Manhattan and by using the film tried to show Mr Herlihy that there was a space between the two horses and that contact was not made until after Mr Herlihy’s horse had broken.  There was a dispute between Messrs Herlihy and Small over the point of contact and in response to a question from Mr Small, Mr Herlihy pointed out several occasions on which contact had been made.

Mr Herlihy was very strong in his view that his horse had not broken free of interference and that she would not have broken unless she had touched the sulky wheel of Mr Small’s horse.  Mr Herlihy was firmly of the view that the interference was caused to his horse by Mr Small and even queried why Mr Small did not see what had happened by using the video films.  Mr Herlihy said to Mr Small that he was trying to be lenient with him but that Mr Small was ignoring what had happened and Mr Herlihy said that “even blind Neddy could see that.” 

In response to a question from this Committee Mr Herlihy said that his horse had not previously broken on the journey and in response to a further question he viewed the film again and in his opinion Mr Small’s horse was not hanging when it was coming across but had it’s head around just at the point of contact and this was a result of correction action taken by Mr Small.

Mr Small then gave evidence and his evidence was both by use of the video films and his own oral evidence.  He again endeavoured to show the Committee that his sulky wheel was not inside the sulky wheel of Mr Herlihy’s horse and that he had not made any contact with Mr Herlihy’s horse before it broke and as far as he was concerned Mr Herlihy’s horse broke free of interference.  Mr Small was of the view that the films clearly supported his position and while he acknowledged that there had been contact he again repeated that it was not until after Mr Herlihy’s horse had broken.  Mr Small in his evidence repeated a number of the matters that he had put to Mr Herlihy and he was of the view that if there was contact then that contact was not the cause of Mr Herlihy’s horse breaking.  Mr Small is firmly of the view that Mr Herlihy’s horse had broken free of interference despite what was shown on the film and despite the tight racing conditions.

In response to a question from Mr Taumanu Mr Small that two year old racers are no different to other races and there was no rule preventing him racing tightly alongside Mr Herlihy.  Mr Taumanu put it to Mr Small that it was not necessary to have contact to make a horse break but was only necessary to tighten a horse up.  Mr Small did not agree with this. 

Mr Taumanu asked Mr Small if the sulkys had touched had he said that they touch all the time.  He said that was normal in racing.

In response to a further question he said he did not take corrective action when Mr Herlihy called out and he said that once Mr Herlihy’s horse had galloped then contact was made and he took evasive action at that stage.  He said that Mr Herlihy’s horse was galloping when contact was made.  Mr Small was also asked if he had tightened Mr Herlihy and he had said no that there was room on the inside of Mr Herlihy.  Mr Small acknowledged that there was no pressure on the outside of him. 

GC Small Summary

In summing up Mr Small said that there was no jostling, no body movement and no force being applied.  He said that there was no evidence of him doing anything on purpose to cause Mr Herlihy’ horse to break.  He said that there was no decisive evidence of Mr Herlihy’s horse touching Mr Small’s wheel and the only evidence is after Mr Herlihy’s horse has galloped for a number of strides.

Mr Small said that close racing is common in any race.  Mr Small again said that he was firmly of the view that Mr Herlihy’s horse has broken free of interference and that contact was made after that.

TW Taumanu Summary

Mr Taumanu in summing up said that it is not necessary to make contact for a horse to break or to cause interference and that you only had to tighten a horse for room.

Mr Taumanu said that the video evidence shown by Mr McIntyre clearly showed the location of the sulky wheels.

Mr Taumanu also said that Mr Herlihy is a very experienced and senior Horseman and he was adamant that contact had been made with Mr Small’s sulky and that had caused Mr Herlihy’s horse to break.

Mr Taumanu further said that Mr Small’s horse wasn’t hanging and that it had been driven across towards Mr Herlihy’s horse and that it had its head around as a result of the corrective action taken too late. 

Mr Taumanu said that Stipendiary Stewards are of the opinion that Mr Small was at fault and he had caused the interference and that a charge of careless driving should be upheld. 

GC Small Response

Mr Small said that as the Driver of his horse that he would feel the contact.  He again asserted that Mr Herlihy’s horse had broken free on interference and that any contact that was made was after it had broken.

Decision

This Committee has had considerable evidence put before it in relation to this charge.  The video evidence is very telling not only from the Committee’s only observations but also from the detailed presentation made by Mr McIntyre.  It is very clear that prior to Mr Herlihy’s horse breaking the sulky wheel of Zenola Seelster was inside the sulky wheel of Millwood Manhattan.

The Committee noted that Mr Small when given the opportunity did not challenge this evidence at all. 

Mr Small is trying to rely on video evidence alone but the evidence presented to this Committee is of course not only by video but is also oral evidence from the drivers concerned.   The video evidence clearly showed Mr Small moving in after the start and tightening Mr Herlihy.  The evidence clearly showed Mr Herlihy’s horse broke.  Mr Small had admitted that the sulky had touched as a result of him moving inwards and he did admit that Mr Herlihy was entitled to stay where he was.

Mr Herlihy has given very clear evidence as to what happened and in the Committee’s view this evidence is corroborated by the video evidence.

The Committee is satisfied that Mr Small failed to exercise the degree of care that a prudent driver would exercise and as a result the Committee finds the charge proven.

Penalty Submissions

Mr Taumanu pointed out that Mr Small has a clear record over the last twelve months.  He also said that this is not a major race and that on the scale of seriousness this was just below middle.  Mr Taumanu said however that Mr Small’s actions resulted in a relegation and that the Stipendiary Stewards were looking for a fine between $300.00 and $400.00 

Mr Small for his part said that he could not believe that the charge was proven and that he felt that a fine of $300.00 to $400.00 was excessive. 

Penalty

In arriving at penalty the Committee has taken into account all of the evidence as outlined above. 

The Committee referred to the JCA Guidelines and pointed out very clearly to Mr Small that the Guidelines provide where careless driving results in a relegation the recommendation is a fine of $600.00 and/or a suspension of three weeks.  The Committee pointed out to Mr Small that a penalty of the fine and suspension could have been imposed on him.

In the Committee’s view Mr Small was clearly at fault.  Mr Small is given credit for his driving record.

Taking all of the above matters into account the Committee in this instance has decided to impose a fine of $300.00 on Mr Small.

BJ Scott                       BJ Rowe

CHAIR                        Committee Member

68514

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hearing_type: Old Hearing

Rules: 869 (3)(b)

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