Non Raceday Inquiry – HRNZ v NC Molander 17 January 2010 – decision

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startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non Raceday Inquiry - HRNZ v NC Molander 17 January 2010 - decision

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THAMES HARNESS RACING CLUB

NON RACEDAY JUDICIAL COMMITTEE DECISION

17 JANUARY 2010

JCA PANEL:   B Rowe – Chairman,  J Holloway

RACE NO:   3    INFORMATION NO: 68471  RULE NO:  869 (2) (b) and 303 (2)

This is an information filed by Stipendiary Steward Mr J MUIRHEAD at the Thames Harness Racing Club
Meeting on 10 January 2010 against Mrs N MOLANDER alleging breaches of the above rules.  On that day Mrs MOLANDER denied both breaches and the hearing was adjourned.  Mr MUIRHEAD is present today as is Mrs MOLANDER and her counsel Mr M BRANCH.  Mr MUIRHEAD requested and has been granted leave to amend the information by withdrawing the charge relating to Rule 303 (2).  The information now reads “horsewoman N MOLANDER struck horseman P YOUNG on his elbow with her whip when driving IWI TROUBLE after contesting a position with P YOUNG driving PERIGO with approximately 700 metres to run.”  Mrs MOLANDER admits that breach. 

THAMES HARNESS RACING CLUB

NON RACEDAY JUDICIAL COMMITTEE DECISION

17 JANUARY 2010

JCA PANEL:   B Rowe – Chairman,  J Holloway

RACE NO:   3    INFORMATION NO: 68471  RULE NO:  869 (2) (b) and 303 (2)

This is an information filed by Stipendiary Steward Mr J MUIRHEAD at the Thames Harness Racing Club
Meeting on 10 January 2010 against Mrs N MOLANDER alleging breaches of the above rules.  On that day Mrs MOLANDER denied both breaches and the hearing was adjourned.  Mr MUIRHEAD is present today as is Mrs MOLANDER and her counsel Mr M BRANCH.  Mr MUIRHEAD requested and has been granted leave to amend the information by withdrawing the charge relating to Rule 303 (2).  The information now reads “horsewoman N MOLANDER struck horseman P YOUNG on his elbow with her whip when driving IWI TROUBLE after contesting a position with P YOUNG driving PERIGO with approximately 700 metres to run.”  Mrs MOLANDER admits that breach. 

Mr MUIRHEAD presented a copy of the Appeals Tribunal decision in the case HRNZ v M dated 8 June 2006.  In that case M was found guilty of a breach of Rule 869 (2) (b) in that he struck another driver with his whip in the neck area.  A fine of $400 was imposed.  The Tribunal held the offence is one of strict liability and accordingly there is no requirement on the informant to prove intent.

Mr MUIRHEAD showed the video film of the incident which is the subject of this hearing.  He said Mrs MOLANDER and Mr YOUNG were both looking for the same position of three wide at the rear of the field but Mrs MOLANDER was not in a position to compete.  He said she “clicked up” her horse, struck it with her whip and then flicked the whip sideways and hit Mr YOUNG on his arm.  He said that action was rash and impetuous.  He said there was a level of intent but not sufficient to warrant a charge of foul driving.  He said the offending was more serious than that in the case of M.  Mr MUIRHEAD sought leave to call evidence that there was some intent involved.   Mr BRANCH had no objection.  Leave was granted.

Stipendiary Steward Mr T TAUMANU said Mrs MOLANDER’s whip did not get caught in the tail of her horse, the hitting of Mr YOUNG was not accidental and her use of the whip was rash and impetuous.  To Mr BRANCH he acknowledged Mr YOUNG was leaning in and out, drove with his elbows wider than other drivers and that the two horses were racing in close quarters.  He acknowledged Mrs MOLANDER usually pleaded guilty when charged and that when first interviewed about this incident she said she had been trying to clear her whip from her horses tail and when she realised she had hit Mr YOUNG said “whoops I’m sorry.”  Mr TAUMANU confirmed that Mr YOUNG had said he had been flicked on the elbow and he agreed that on occasions drivers are accidentally hit with a whip when racing in close quarters.

Mr YOUNG said Mrs MOLANDER hit her dust sheet or sulky shaft with her whip on a couple of occasions then the whip came across his elbow.  To the committee he said he did not know whether or not Mrs MOLANDER’s whip got caught in the tail of her horse.

Mr BRANCH called senior horseman Mr J STORMONT.  He said he had driven in many races with Mrs MOLANDER and she was not likely to act in an impetuous way – she would not have hit Mr YOUNG on purpose.  Mrs MOLANDER gave evidence.  She said she hit her horse twice with the whip – the horse holds its tail quite high – the second time she felt a restriction on the whip – she went to clear it, flicked it out, found it wasn’t as entangled as she thought it was – that was when Mr YOUNG was hit – she said “whoops sorry” then hit the horse again.  She got a fright when she hit something outside her.  She apologised during the hearing to Mr YOUNG for hitting him.

PENALTY SUBMISSIONS

Mr MUIRHEAD said Mrs MOLANDER had no relevant breaches of the rules recorded against her and conceded she was of good character.  He said her use of the whip when hitting Mr YOUNG was impulsive/rash and not malicious.  He said this was a rare type of case.  He said the decision in the case of M stated charges involving intent could be brought under rule 869 (2) (b).  He said the offending was mid-range on the scale of seriousness and the fine of $400 in that case was the bottom line.  Overall Mr MUIRHEAD was saying the present case was more serious than the case of M because he believed there was an element of intent.  He recommended a fine in the range $400 - $800.

Mr BRANCH said the real issue was that of intent and that Mr MUIRHEAD had failed to establish there was any intent on the part of Mrs MOLANDER.  He said the only evidence was the film which does not assist because it does not show the tail of the horse.  He referred to the evidence given by Mrs MOLANDER and Mr STORMONT and also referred to the explanation given by Mrs MOLANDER when first interviewed.  He referred to the good driving record of Mrs MOLANDER, her guilty plea, the driving style of Mr YOUNG and the acknowledgement by Mr TAUMANU that accidental hits with the whip do occur.  He referred to the apology by Mrs MOLANDER at the time of the incident and her apology to Mr YOUNG during the hearing.  He said the bottom line set by the Tribunal in the case of M was in the range $250 - $500 and also said that whereas M had been careless, Mrs MOLANDER had not been.  The thrust of the submissions of Mr BRANCH was that the hitting of Mr YOUNG was simply accidental.  He suggested a fine well below $250.

PENALTY DECISION

In determining penalty the committee takes into account the guilty plea, the submissions of Mr MUIRHEAD and Mr BRANCH, the clear driving record of Mrs MOLANDER and our view that the offending is below mid-range on the scale of seriousness.  This was a mere flick of the whip.  The penalty guide recommends a starting point of a fine of $200 or two weeks suspension.  The fine component is out of kilter with the fine component for a breach of Rule 869 (2) (a) and clearly should be in the region of $400.   We agree with Mr MUIRHEAD and Mr BRANCH that the main issue is that of intent.  The fundamental question is “did Mrs MOLANDER’s whip get entangled in the tail of her horse.”  On the evidence before us we accept on the balance of probabilities that it did.  Mrs MOLANDER gave this explanation when first interviewed and she apologised at the time of the incident.  She impressed us as being a truthful witness.  There is the evidence of Mr STORMONT as to her good character.  The evidence from the film is inconclusive but not inconsistent with the version of Mrs MOLANDER.  By accepting the whip did get entangled we are rejecting there was any intent by Mrs MOLANDER.  However, she was careless in the way she freed the whip given she was racing in close quarters.  Because of its similarity to this case we see the fine imposed in the case of M as being an appropriate starting point for penalty.  We believe Mrs MOLANDER is entitled to a lesser penalty because of her guilty plea, her apologies to Mr YOUNG and the mitigating factor of her whip having been caught in the tail of her horse.  We impose a fine of $300.

B Rowe
Chairman

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hearing_type: Old Hearing

Rules: 303.2, 869.2.b, 869.2.a

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