Appeal – HRNZ v B Mangos

hearingid: 1e61810279a40377ae1d2e68866ec934

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - HRNZ v B Mangos

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The Appellant appeals from a decision of the Judicial Committee given at Thames on 21 January 2007. A charge of careless driving preferred against Mr Mangos was dismissed by the Judicial Committee.

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN      HARNESS RACING NZ

                         Appellant

AND                 BRENT MANGOS

                         Respondent

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DECISION OF APPEAL TRIBUNAL

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1. Nature of appeal

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1. The Appellant appeals from a decision of the Judicial Committee given at Thames on 21 January 2007. A charge of careless driving preferred against Mr Mangos was dismissed by the Judicial Committee.
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2. The allegation against Mr Mangos was that in race 5 he had carelessly driven the horse Pocket Full of Stars thereby causing interference to Best Buck. This was said to have occurred when Mr Mangos moved out from three deep on the running rail to four wide with 200 metres to run.
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3. This appeal is by way of a rehearing. The Tribunal must, and has, paid careful attention to the finding of the race day Judicial Committee.
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2.1 The Tribunal has carefully considered the transcript of the hearing on the race day and the videotapes.

2.2 Both Mr Muirhead and Mr Taumanu, for HRNZ, and Mr Mangos gave detailed explanations. Mr Mangos is a leading driver of considerable experience.

3.1 Mr Muirhead and Mr Taumanu, for the Appellant, contended that the race day Committee erred in its appreciation of the evidence. Further, it was said that in the decision given on the race day ? later expanded by written reasons ? the Committee may have applied the incorrect standard of proof. In this regard Mr Muirhead drew attention to the words "there is an element of doubt from the horse of Mr Butcher ?.". This passage occurred in the race day transcript of the decision.

3.2 Rule 1008A provides:

"Where in any proceeding any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities".

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3. The Appellant pointed to the sharp movement of Pocket Full of Stars away from the running rail. This had been preceded by the outward movement of the horse Best Buck. When Best Buck, driven by Mr Scaife, moved out the horse on the outside of it was Merri Go Round, driven by Mr David Butcher. The informant contended that the race day Committee were in error in apportioning significant responsibility for the breaking of Mr Scaife's mount to Merri Go Round and its driver, Mr Butcher. Reference was made in the decision to Mr Butcher wriggling in the sulky.
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4. The primary focus of the Appellant's submission was the finding by the race day Committee that Mr Butcher, on Merri Go Round, was the major contributor to the breaking of Mr Scaife's horse, Best Buck. The videos were played repeatedly to demonstrate to the Tribunal the role played by each of the horses. It was said that Mr Butcher's horse held its line and that it was allowed to do so.
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4.1 Mr Mangos adhered to the position which he took on race day; namely that it was, to use his expression, a 50/50 call. He emphasised his view that Mr Butcher had made a significant effort to straighten his horse and that this was in large part responsible for the breaking of Best Buck.

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1. Mr Mangos contended that when he began his movement away from the fence there was ample room and that Best Buck had broken before his horse made any contact.
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5.1 A careful study of the videos demonstrates that the horse Merri Go Round, driven by Mr Butcher, did no more than endeavour to hold its line. The Tribunal does not accept that Mr Butcher came in upon the horse Best Buck. It follows that the Tribunal cannot accept the race day Committee's finding that Mr Butcher was the major contributor to the breaking of Best Buck; indeed the Tribunal's appreciation of the evidence is that Merri Go Round had little part in what occurred.

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2. By far the most dramatic movement at the 200 metre mark was by Pocket Full of Stars, driven by Mr Mangos. The horse moved sharply away from the running rail and was soon hard against Best Buck. A close examination of the videos shows that the sulky shaft of Pocket Full of Stars was underneath the shaft of Best Buck. This movement of Pocket Full of Stars, particularly from the rear on view, is quite sharp and sudden. The Tribunal does not accept that Best Buck was in a break before contact was made by Pocket Full of Stars and it follows that the Tribunal does not accept that the breaking of Best Buck was caused by Merri Go Round and its driver, Mr Butcher. The driver held his line as he was entitled to do in the circumstances.
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3. It is clear from the videos that Mr Mangos was entitled to commence the move which he did make away from the running rail. There was space to his outside but the videos clearly show that the horse went significantly further from the rail than it was entitled to do and then made contact with Best Buck. In the Tribunal's judgment this would not have happened if Mr Mangos had been exercising the standard of care and skill required by the holder of an open horseman's licence. Mr Mangos is a very experienced driver. On this occasion his manoeuvre on Pocket Full of Stars fell significantly below the standard of care required when undertaking the manoeuvre which he chose.
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4. Mr Butcher, the driver of Merri Go Round, did not appear before the Race Day Committee. On reflection that may have been regrettable. Both parties could have requested the presence of Mr Butcher. Neither did. It is moreover regrettable that the Race Day Committee made a finding of culpability against Mr Butcher when he had not given evidence.
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5. The Tribunal is not persuaded that the Judicial Committee necessarily applied the incorrect standard of proof. It was nonetheless appropriate for Mr Muirhead to draw attention to the wording of the race day decision. In the Tribunal's view the decision does not turn upon whether or not the correct standard of proof was applied. In the Tribunal's view the evidence is in fact quite clear cut.
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6. The material which has been viewed by the Tribunal satisfies it very clearly and distinctly that the Race Day Committee erred in its decision. By a substantial margin ? significantly beyond the balance of probabilities ? the Tribunal is satisfied that Mr Mangos was careless and that the charge has been proved.
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6.1 Mr Mangos is convicted of careless driving pursuant to Rule 869(3)(b).

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2. The Tribunal sought submissions from both parties as to an appropriate penalty. Mr Muirhead advocated three days and pointed to the recent record of Mr Mangos. This involves careless driving offences at Auckland on 3 November 2006 and again at Cambridge?Te Awamutu HRC on 9 November 2006. On the former occasion Mr Mangos was fined $350 and on the latter occasion $500.
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3. Mr Mangos contended that three days was harsh and this would involve his not being able to drive at Auckland on the night of the Derby heats on Friday 23 February. Between the pronouncement of this decision on 14 February and 23 February there are race days at Wanganui on the 18^th and Christchurch on the 22^nd. Mr Mangos advised that he would not in any event be driving at Christchurch on the 22^nd.
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4. The NZ Derby is raced at Alexandra Park on 2 March and Mr Muirhead submitted that it would be harsh to impose a suspension which would prevent Mr Mangos driving on that day. This was as responsible submission.
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5. Mr Mangos also drew attention to his request to have this appeal heard at the earliest opportunity. This he said had not been possible. Apparently his request could not be accommodated as certain members of Harness Racing NZ were committed to periods of leave.
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6. Weighing all the relevant considerations in relation to penalty, and having particular regard to the fact that Mr Mangos has twice been suspended for careless driving in recent times, the Tribunal takes the view that a period of suspension is required. This will be from the close of racing on Friday 16 February 2007 until the conclusion of racing on Thursday 22 February 2007. This will allow Mr Mangos to drive on 23 February and is, in effect, a 1 day suspension. Further, Mr Mangos will be fined the sum of $500.
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Dated this 20th day of February 2007

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Murray McKechnie

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John Phelan

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hearing_type: Old Hearing

Rules: 869.3.b

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