Non Raceday Inquiry – D Walsh

hearingid: 361412d86ba77b2b365c898fc68bf1ba

informantnumber:

horsename:

hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Non Raceday Inquiry - D Walsh

charge:

facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

IN THE MATTER           of the New Zealand Rules of Racing

AND

IN THE MATTER           of Information No.65261

BETWEEN                    Cameron George, Senior Stipendiary Steward

                                       for New Zealand Thoroughbred Racing  -  Informant

AND                               David Walsh of Cambridge, Licensed Jockey  

                                                                                                                -  Defendant      

DATE OF HEARING:          Friday 17 November 2006     

VENUE:                               Boardroom, Waikato Racing Club, Hamilton

JUDICIAL COMMITTEE:   GG Hall  (Chairman),   RM Seabrook  (Member)

PRESENT:                         Mr C George       (Informant)

                                           Mr D Walsh          (Defendant)

                                           Mr D Alderslade   (Counsel for the Defendant)

                                           Mr F Powrie           (NZTR)

                                           Mr J Oatham          (Stipendiary Steward)

                                           Ms M Stanbury       (Registrar)

DATE OF DECISION:     27 November 2006

________________________________________________________________

RESERVED DECISION OF JUDICIAL COMMITTEE

________________________________________________________________

THE CHARGES:

Information number 65261 alleges as follows:

The relevant Rule provides as follows:

Mr George, senior stipendiary steward, produced a report dated 24 September last from Mr AJ Gibbs, veterinarian, (exhibit 1) that stated a post-race inspection of RATIONALIZE detected no abnormalities.

Mr George demonstrated the defendant's riding on the various video angles. These showed that RATIONALIZE received pressure from both the inside and outside shortly after she jumped away at the start and thereafter she settled at the rear of the field. It was RATIONALIZE's first race after a spell, she having last raced on 22 April 2006 in Australia. He stated in his opinion the videos clearly showed there was sufficient room when racing between the 600 and 400m for the defendant to have improved his horse on the inside of DEZIGNA and on to the back of FREE SEA. At this time he estimated the defendant was some 6 to 7 lengths off the leader MANTEN. The run closed at the 150m when FREE SEA came across when under a hard ride. He demonstrated that the defendant was sitting on RATIONALIZE and did not give her one or two behind the saddle, but only gave her one when she was well into the straight. He stated that had the defendant used more vigour, he would have obtained the run on the fence that was eventually obtained by FREE SEA. The margin between the winner and RATIONALIZE was 5.8 lengths.

Mr Alderslade, on behalf of the defendant, stated that RATIONALIZE was having her first race in New Zealand, having previously raced in Sydney. He produced her racing history and this was admitted as exhibit 2. The horse's form in Sydney had tapered off and in her last three races in Sydney she had run fifth out of 12 (Warwick Farm on 11 March 2006), thirteenth out of 15 (Rosehill on 1 April 2006) and eighth out of 12 (Randwick on 22 April 2006). She had one trial under trainer, Murray Baker at Te Teko on 5 September last where she ran a battling 5th out of 9 on a soft track over 1000m. Apart from that trial, this was her first start for 154 days. RATIONALIZE was racing on a left-handed track for the first time in a race. Her racing history in Sydney had shown that she had a clear preference for racing on or near the pace. The Hastings track often has a front running bias and this was borne out in this race as the eventual winner MANTEN led almost the entire race. He stated RATIONALIZE had slipped at the start and experienced a check which forced her to the back of the field in a position against her usual racing preference. At least for the early part of the race this dictated her position in the field.

Mr Alderslade introduced evidence of sectional times for the race in question and also with reference to other races at the Carnival. This was in the form of a printout from FORMPRO website, a report and an email. The author of each of these items was Mr Neil Davis and they were admitted as exhibits 4, 5 and 6, respectively. This evidence was to the effect that unlike perhaps most 1200m races, race 9 at Hastings on 23 September was run somewhat upside down, in that the first 600m was run in 35.54 seconds and the last 600m in 34.8 seconds. RATIONALIZE came home the last 600m in 34.56 seconds which was the second fastest last 600m in the race behind DEZIGNA at 34.36 seconds. The eventual winner MANTEN came home the last 600m in 34.80 seconds. This demonstrated that the pace started to be applied from the 600m mark. A further breakdown of the last 600m of this race showed that the leader (MANTEN) covered the 600m to the 400m in 12.16, the 400m to the 200m in 11.28 and the final 200m in 11.36. Of these 3 sectionals the fastest was the 400m to the 200m, when he said the informant was alleging that RATIONALIZE should have been making up ground. Disregarding the 800m race run on that day, RATIONALIZE ran the third fastest last 600m on the day. Over the 3 days of racing at Hastings (September 23, October 7 and 28), there was no other race that had a faster last 600m except for the 2yo sprint over 800m.

Mr Walsh stated that RATIONALIZE was a forward running horse and had never raced inside horses and been crowded. He said he had ridden RATIONALIZE in track-work at slow speed on a left-handed plough. He thought the horse was not entirely comfortable left-handed and had expressed his concern to the trainer of the horse, Mr M Baker. RATIONALIZE had a trial off the pace on 5 September. Mr Baker's instructions on raceday were to be handy, but not to lead. RATIONALIZE slipped and got bumped after the start and "the initial plans were out the door". He had no choice but to be where he was, whereas he had hoped to be 4^th or 5^th on the inner. He described himself as "a victim of circumstances". He said he was keeping away from FREE SEA as it was clearly up behind horses. He was trying to stay off the rail, but when DEZIGNA came across there was nowhere else to be. RATIONALIZE, in his opinion, was racing like a 2 year-old on the corner. She did not appreciate the horse racing outside her and the rail on the other, when going the opposite way to that which she was used to. At the 600m mark he was travelling fairly and was balancing the horse. He slapped her on the shoulder, she was not on the bit and she was struggling to maintain her position, let alone improve it.

Mr Walsh stated that he thought between the 400m and 150m mark he had made up a length. He would have made up more had it not been for the interference from FREE SEA. He used his spur on his left riding boot once, but there was no response. He said applying severe pressure was not appropriate 400m out. He was endeavouring to build up momentum for the last 200m and he used the stick just outside the 200m mark. RATIONALIZE had responded to this by "starting to build". When the stick was used on FREE SEA at the 150m that horse took his line and cost RATIONALIZE any further chance. He said he had expected FREE SEA to do this when Lee Callaway used the stick. He did not believe it was appropriate for him to have used more vigour between the 400 and 200m as he did not want to put pressure on the horse at that time. It was not the right thing to do; RATIONALIZE could only sprint 200m flat out. He also drew the Committee? s attention to the sectional times and said RATIONALIZE was simply not going good enough to have done any better. He was pushing RATIONALIZE along, applying pressure between the 400m and 150m, while trying to get her balanced. He felt he was doing the appropriate things at all stages after he had ended up where he did after the start. Unfortunately, he was "never going good enough to do a DEZIGNA." The only possibility was to continue his line. He demonstrated on a number of video tapes that the vigour he had showed in the straight was consistent with other rides. Mr George also showed tapes which demonstrated greater vigour on other occasions than that which was evidenced by the ride on RATIONALIZE.

Mr Alderslade called Mr Lance O'Sullivan as an expert witness. He stated that the Hastings track had a front-runners' bias when fast to easy and that it was a difficult track to make ground on. He stated that had RATIONALIZE been pushed up inside FREE SEA the defendant would have been unable to have come out for a run. He said the defendant had read Lee Callaway "really well". If he had pushed up he would have been "wiped out" by that jockey. However, he added that because of the sectional times that were run, he doubted that RATIONALIZE could have got up on the inside of FREE SEA anyway. The defendant's well balanced ride, pushing with his hands and not using the whip was appropriate having regard to the sectionals. Using the whip, in his view, would not have helped. The application of physical vigour in one form or another does not suggest that a horse's performance can be improved; indeed, this often works to the detriment of the horse's performance.

Mr Murray Baker, trainer of RATIONALIZE stated that the horse had been in work 81 days prior to her race. She had worked "average" and had finished 5 of 9 in her only trial. She did not show a lot on that occasion. He said he had a $20 investment on her in the race. After her race, he upped her work and as an experienced trainer felt that he had her as fit as he could get her. He said her 2 subsequent starts were disappointing. When she raced 3 weeks later she challenged briefly then stopped. The horse was simply not holding her Sydney form in New Zealand despite 11 weeks in work. His observations and comments from other track riders and jockeys suggested that no matter how hard he worked her she continually appeared to be puffing after work. There was something stopping the horse. He said he had been told by a member of the Gai Waterhouse stable (which had previously trained RATIONALIZE) that she was a bleeder. This led him to believe that she had some internal damage (possibly lung damage) that was restricting her ability to race. These thoughts were borne out by her next 2 races in which she failed to flatter and was accordingly retired and sent to stud. With reference to the race in question, he said RATIONALIZE could not keep up. She was trying to win. He had certainly not told the defendant not to give her a hard race. He said she had slipped when bumped shortly after the start. She had run the 3rd fastest 600m and, in his view, she could not run any faster. He said the defendant? s ride was "fair enough" given the pattern of racing at Hastings, the horse's misfortune at the start, and the sectional times.

Mr George in closing said he was concerned how far back Mr Walsh was at the 600m mark. The defendant should have been pushing RATIONALIZE along, while trying to get her balanced. Mr George said that once "plan A" was lost because of the trouble at the start and the horse got further back than anticipated, Mr Walsh had no alternative plan. He said the charge was based on the defendant's ride in the circumstances that had presented themselves to Mr Walsh on the day. He believed a reasonable person witnessing the race would form the view that the defendant had not used sufficient vigour. The adoption of all reasonable and permissible measures would have seen RATIONALIZE closer to the leader at the 400m and Mr Walsh's vigour was again not sufficient from the 400 to the 150m mark. He said the defendant had sat on RATIONALIZE for a long time and did not move into the gap that presented itself inside FREE SEA. He said the defendant had not ridden competitively. It was not acceptable for a jockey to allow a horse to balance up and to decide itself when to move forward, which he believed had occurred on this occasion. Applying an objective standard, he submitted the defendant's ride lacked judgment, purpose and vigour.

Mr Alderslade closed his submissions by stating that the Committee had to be satisfied beyond reasonable doubt that the defendant had failed to take all reasonable measures to give the horse the opportunity to finish in the best finishing place. All of the objective factors strongly pointed to the fact that RATIONALIZE was doing her best and the evidence of Mr O'Sullivan and the defendant supported the fact that Mr Walsh was taking all reasonable steps to finish in the best possible place.

RATIONALIZE was slow away and was bumped shortly thereafter, before settling at the rear of the field. This dictated her position in the field in the early stages of the race. This was contrary to the horse's usual pattern of racing which, as was demonstrated on a number of videos of its runs in Sydney, was to settle handy. In addition, we accept Mr Walsh's evidence that he did start to try and improve RATIONALIZE's position from the 600m mark. The mare was off the bit. She was also showing some greenness. This may well have been due to the fact that RATIONALIZE was racing left-handed for the first time and had previously shown that she had a clear preference for racing on or near the pace. Mr Walsh could have asked RATIONALIZE for more, but in light of the sectionals we accept that RATIONALIZE would have had to have worked extremely hard to have made up more ground at this stage of the race. We accept Mr O?Sullivan's statement that Hastings on this day had a strong front running bias.

Between the 400m and 150m marks, Mr Walsh's evidence is that he was endeavouring to make up ground and this can be seen from the side-on tape from the inside of the course. Taking into account the pace of the race at this stage, Mr Walsh thought that the mare was doing her best to improve into the race and was gradually making some inroads when FREE SEA (ridden by Lee Callaway) rolled inwards and took RATIONALIZE 's line. This cost RATIONALIZE any chance of making any further improvement into the race at this point.

We have some concern at the extent of vigour displayed by the defendant from the 400m to 150m but heard evidence from Mr O?Sullivan that a quiet balanced ride at this time was as advantageous, if not more so, than a vigorous ride, involving for example, the use of the whip; and that the application of physical vigour in one form or another does not necessarily suggest that a horse's performance can be improved. Indeed, Mr O'Sullivan's evidence was that this often works to the detriment of the horse's performance. Again we view these comments in the light of the evidence from the sectionals that RATIONALIZE was making good ground at this time. The pace from the 600m mark to the finish was quicker than the initial 600m. Despite this she put up a very creditable performance in coming home in the last 600m in the 2^nd fastest time of the horses in the race.

The videos demonstrate that the defendant slapped the horse at around the 500m mark. The defendant says he also used the spur he has on his left riding boot, and the horse showed no immediate response. We take into account also that Mr Baker, the trainer of RATIONALIZE and one of New Zealand's most experienced trainers, has said in his view, all things considered (viz, the pattern of racing at Hastings, the horse's troubles at the start, and the sectional times), it was "a fair enough ride".

We accept the defendant's statement that further progress on the inside of FREE SEA at the 400m mark would have restricted the options available to him and would have left him with only the possibility of a rails run had it become available to him. We are aware that he was also concerned that FREE SEA may have rolled in when hit with the whip by jockey Lee Callaway and indeed this was what eventuated. Mr Walsh was blocked for a run because of this incident and, had he been in a more prominent position, contact was a likely consequence.

The sectionals on the day suggest RATIONALIZE did the best she was capable of over the last 600m. While evidence as to her subsequent performances are not strictly relevant to our assessment of the defendant's ride, RATIONALIZE's two subsequent starts before she was retired we were informed were very disappointing runs. This is also to be considered in the light of the fact that she was alleged to have been a bleeder and Mr Baker's assessment that she had probably suffered lung damage.

Mr Alderslade asked us to apply the criminal standard of proof of beyond reasonable doubt. We do not apply that standard but rather, having regard to the seriousness of the nature of the charge, whether we are satisfied, on the basis of credible evidence, that the charge has been proved. In this case, we are not satisfied that the defendant failed to take all reasonable measures to give RATIONALIZE the opportunity to finish in the best finishing place, and thus the charge against Mr Walsh is dismissed.

The parties may make written submissions on the issue of costs within 10 days from the date of this decision.

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Old Hearing

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: