NZ Metro TC – 19 June 2009 – Race 2

hearingid: 74932a87445c6b74d5573f24c4a7a6b9

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hearing_racingtype: harness-racing

startdate: 19/06/2009

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hearing_title: NZ Metro TC - 19 June 2009 - Race 2

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Following the running of Race 2, Maxwell Plumbing Limited Mobile Pace, an information was filed by Chief Stipendiary Steward, Mr N R Escott, against Licensed Trainer, Mr N R McGrath, alleging a breach of Rule 864 (2) (d) in that Mr McGrath, as the trainer of CULLENS CHARM in the Race, “failed to affix the pull down blinds so as not to malfunction”.
 

Following the running of Race 2, Maxwell Plumbing Limited Mobile Pace, an information was filed by Chief Stipendiary Steward, Mr N R Escott, against Licensed Trainer, Mr N R McGrath, alleging a breach of Rule 864 (2) (d) in that Mr McGrath, as the trainer of CULLENS CHARM in the Race, “failed to affix the pull down blinds so as not to malfunction”.
 
Mr McGrath was present at the hearing of the information and indicated that he did not admit the breach.

Mr Escott showed a video replay of the final 200-300 metres of the Race. He pointed out CULLENS CHARM, driven by Mr McGrath, and showed the near side pull down blind which had failed to activate and was still up, the off side blind having functioned correctly. Mr Escott said that Mr McGrath normally has “fairly good gear” but, on this occasion, the pull down blinds had malfunctioned.

Mr McGrath requested an explanation of the Rule under which he had been charged. He then submitted that he could not have foreseen that the gear would malfunction. He produced the gear in question and explained to the Committee how the pull down blinds worked. He demonstrated that both blinds were in working order. He could not foresee when he put the gear on the horse that one blind would come down and the other would not. He could not explain why the gear had malfunctioned. He had taken all steps to ensure that the gear functioned properly. He freely acknowledged that the gear had malfunctioned. He said its malfunctioning was due to “an act of God”.

Following a deliberation, the Committee delivered the following oral decision:
“The Stipendiary Stewards showed to the hearing a video replay of the final 200-300 metres of Race 2. It could be clearly seen from that video replay that the nearside pull down blind on CULLENS CHARM had malfunctioned and failed to pull down. Mr McGrath did not deny that the gear had malfunctioned. He presented the gear to the Committee for inspection. It was apparent that the gear was of good quality and in good order and condition. Mr Escott acknowledged that the gear was in good condition and, further, that Mr McGrath always presents his horses to race in good quality gear.

Mr McGrath’s defence to the charge was that he could not have foreseen that the blind would malfunction and what happened was beyond his control – effectively, an “act of God”, he called it.

The key to this charge is that the pull down blind did malfunction and this was common ground between the parties. The reason for the malfunction is not known. However, the Committee has had regard to Rule 1008 (b) which provides:
In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:-
(b) any breach of a Rule shall be considered as an offence of strict liability.

In other words, the Stewards do not have to show any fault on Mr McGrath’s part to prove the charge provided they can prove a malfunction.

The Committee is clearly satisfied that the gear malfunctioned and, even in the absence of fault on Mr McGrath’s part, we are satisfied that the breach has been proved”.

In relation to penalty, Mr Escott submitted that the usual fine for a breach of the Rule is a fine of $100. Mr McGrath had no previous breaches of the Rule.

Mr McGrath submitted that the Committee should take into account that he had never denied that the gear had malfunctioned. He repeated that what hat happened was beyond his control and was not his fault.

Mr McGrath was fined the sum of $100.

R G McKenzie
CHAIR
67520

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Rules: 1008.b, 864.2.d

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