Wyndham HRC 18 November 2018 – R 9 (heard 23 November 2018 at Invercargill) – Chair, Prof G Hall
ID: JCA21655
Hearing Type (Code):
harness-racing
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN-RACING INTEGRITY UNIT (RIU)
Informant
AND-PETER HUNTER
Open Horseman
Respondent
Information: ----A12457
Judicial Committee: ---Prof G Hall, Chairman
Mr M Conway, Member
Appearing: -Mr V Munro, Stipendiary Steward, for the Informant
Ms MJ Thomas for the respondent
Date of hearing: ---23 November 2018
RESERVED DECISION OF JUDICIAL COMMITTEE
[1]-The Respondent, Mr P Hunter, is the holder of an Open Horseman’s licence under the NZ Rules of Harness Racing.
[2]-The informant has alleged that the respondent was the driver/trainer of BUNTER’S DREAM in Race 9 at the Wyndham HRC meeting on 18 November 2018 and he failed to drive the horse out when it had a reasonable chance of running fourth. The information was lodged on the day and the matter was adjourned sine die.
[3]-Rule 868(3) states:
Every horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth, or sixth.
[4]-The matter was heard at Invercargill raceway at Ascot Park on 23 November.
[5]-Mr Munro has referred us to a number of cases. The leading case appears to be that of Greer 1998. A copy of that case was not before us and the writing of this decision was delayed for a time until this case could be located. It was found to be a decision of Judge Clapham at Alexandra Park on 21 January 1998. Significantly, Judge Clapham in interpreting r 868(3) stated:
We find that the obligation that arises under this rule requires at least some action by the driver to urge his horse on ie some demonstrable or discernible movement by the driver so that the driver can be seen to be "driving his horse out."
Informant’s case
[6]-Mr Munro demonstrated the incident on the films. He was able to synchronise the head and side on films. We were only able to view the race in split screen. Had Mr Hunter submitted that he had actively urged BUNTER’S DREAM over the final 50 metres we would have been disadvantaged through not having a full screen view of the incident. This is a matter that perhaps needs to be addressed by Trackside.
[7]-Mr Munro read from written submissions and, using the films as appropriate, described the race as follows.
[8]-BUNTER’S DREAM drew barrier 13 on the second row over a mobile mile. After the start Mr Hunter received a good run through to be in the 1/1 after 300 metres. Shortly thereafter he was left in the parked position from approximately the 1200 metres.
[9]-Nearing the 600 metres Mr Hunter edged forward to be a neck from the leader. From about the 500 metres Mr Hunter started to get busy tapping his horse up using both reins. As Mr Hunter drove off the final bend, he activated the sliding blinds on the filly.
[10]-Approximately 200 metres from the line, Mr Hunter used his whip in a striking motion on two occasions. The remainder of the time he used his whip by running it through the horse’s tail. The last urging by Mr Hunter was about the 50-metre mark. He then tucked his whip away and sat in the sulky motionless to the finish line.
[11]-Of note, Mr Munro said, was ELEGANT JEWEL, driven by Mr Morrison, on the outside. At the 50 metre mark, this horse was 3/4 of length behind Mr Hunter and was finishing at a fast rate. It beat Mr Hunter out of 4th position. The official margin was 1/2 a neck.
[12]-Mr Munro said clearly Mr Hunter’s horse was tired and stopping, which made Mr Morrison’s horse look like it was finishing even faster. He believed Mr Hunter had made an error of judgement and had been passed by this horse near the finish line.
[13]-Mr Munro noted that when Mr Hunter was spoken to by the Stewards post-race, he made the following comments: “I was up her with 500 to go. She had had enough.” “Then that was it.” “She was all gassed out and I know it doesn’t look good.” “I’m better off not hitting her.” “She has tried her guts out.”
[14]-Mr Munro then referred the Committee to HRNZ v Tomlinson (2008) where the Judicial Committee said: “Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.”
[15]-Mr Munro submitted that it was Mr Hunter’s obligation under r 868(3) to ensure that he drove his horse out to the end of the race. He had to display actions that were both demonstrable and discernible. Stewards were not suggesting that he had to continue to drive the horse solely by striking it with the whip. Mr Hunter had alternative actions that he could have employed. These actions were stated in the Use of Whip Regulations to be: running the reins over the horse's rump; using the whip in a pushing motion through the horse's tail; or holding the whip on the horse's tail or rump.
[16]-Mr Munro made reference to two further cases.
[17]-A Judicial Committee in RIU v Anderson (2016) said:
It is a mandatory requirement of r 868(3) that a driver "shall drive his horse out". "Drive" is not defined in the Rules. The most authoritative statement of the obligation placed on a driver under the Rule was made in the decision of the Appeals Tribunal in the 1998 case of Greer in which the Tribunal stated as follows: “We find that the obligation that arises under [r 868(3)] requires at least some action by the driver to urge his horse on: that is, some demonstrable or discernible movement by the driver so that the driver can be seen to be "driving his horse out". This had been the test applied by Judicial Committees and Appeals Tribunals since that time in cases involving a breach of r 868(3).
[18]-The Appeals Tribunal in DeFilippi v HRNZ (2006) said:
To a degree, compliance with the particular rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a driver in the latter stages of a race. The purpose of the rules is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing.
[19]-Mr Munro summed up the informant’s case by stating that Mr Hunter in turning the whip around at the 50 metres and sitting still in the cart had breached r 868(3) by not driving his horse out to the finish line and his being beaten into 4th place when he had a reasonable chance of finishing 4th.
Respondent’s case
[20]-Mr Hunter was represented by Ms Thomas. She had the assistance of Mr Brownlie.
[21]-Ms Thomas said Mr Hunter accepted that he had put the whip away just after the 50 metre mark. She accepted “he didn't jiggle or whoop or scream or carry on, or hit.” She questioned what is meant by “urging” a horse and said “he certainly puts his whip … under his [arm], and you can see clearly that what he's doing, he's sitting.”
[22]-Ms Thomas emphasised that the Committee had to view the whole race, especially the final 400 metres. She believed that the perception of the punter, to which the RIU had made reference, was not “Joe Bloggs on the street” but rather “a punter with a working knowledge of racing”. She said the public perception would be that the respondent has done the best job he could.
[23]-Ms Thomas stated it was relevant that BUNTER’S DREAM was a 3-year-old filly and that Mr Hunter had driven her in every start.
[24]-Ms Thomas said most fillies react differently to geldings. “You get the old geldings and you can hit the living hell out of them and that tends to make a difference. A lot of fillies drop their head.”
[25]-Ms Thomas said the filly had “run out of puff… at about the 500 and was actually doing the best she could.” Mr Hunter poking the horse with the end of the whip would be “ridiculous” as the horse had given her best. An objective observer would not question Mr Hunter’s drive.
[26]-Ms Thomas believed if the incident was 200 metres out, she could understand why the charge was laid but we were dealing with the last 30 or 40 or 50 metres of the race.
[27]-Mr Hunter gave evidence. He described the last 600 metres of the race. He said the blinds were pulled down just inside the 400 metres and he had been niggling at his filly on the home turn. She had had a tough run and she was giving her best. He said, "Coming to the straight, she's trying her guts out. She's all done about the 200, all done, but I'm still trying my best to get more out of her... and once the 3rd horse [EXCELLENT] passes me, when she doesn't compete, that's it, she's had enough, and by that stage, if you see the head-on, I got cut off at the same time, and that was enough. Actually the 3rd horse ran in and actually bumped her so her race was over by interference anyway - if she was full of running, but she wasn't full of running so it didn't matter because she was all gassed out."
[28]-Mr Hunter believed BUNTER’S DREAM was wanting to shift away from the third horse. When questioned by the Committee as to whether there had been contact Mr Hunter replied, “The horse is clever enough to miss the contact”.
[29]-The Committee further questioned Mr Hunter about his comment that the horse “was all gassed out”. He had also said this to the Stewards on the day and was asked to what part of the race was he referring. He said, “The last 200 metres, probably... I'm on a loose rein since the 600 metres to be honest. She's on a loose rein, so she's given her best. But definitely the last 200 when I hit her a couple of times with no response and shortly before the line once that 3rd horse has gone past me when she hasn't competed with it, that just told me 'girl, you've done your best today. I can't do anymore.' I've got to look after the horse for the owner, for the trainer and her future racing.”
[30]-Mr Hunter stated that BUNTER’S DREAM was a very tired horse. He believed about 35 metres out or perhaps a stride earlier, he had put the whip away.
[31]-When questioned by the Committee as to what he was doing over the final 50 metres, Mr Hunter replied, “Fillies, sometimes you get more out of them if you just leave them alone... and I've tried everything the last 570 metres. Nothing that I did made her run faster, right. And sometimes if you back off them they can give you more. As the video will show, side-on, she never lost anything on the 5th horse BETTER GALLEON, so she never went backwards. She just went the same speed and all the way up the straight she went the same speed. She never lost and never gained. Regarding the 4th horse, he had momentum so you can't stop a horse from momentum…. If I gave her more, it would have made things worse."
[32]-Mr Hunter later added, "I think I made the call the last bit by not driving her, to keep maintaining her, letting her find the line on her own free will because she'd done enough.”
[33]-The Committee asked Mr Hunter were there not alternative actions he could have used over the last 50 metres. He replied, "The last 600… 570 metres, I done all those things. I've hit the horse, I've slapped it, I've put the stick through the tail, I've done it all." When the Committee questioned whether this was only until the 50 metres, stating, “Is that accepted?” Mr Hunter replied, "Yeah accepted."
[34]- Mr Hunter said BUNTER’S DREAM had run her race. She “went huge, massive”. He said, “A filly's different, and her case is different because the more I did, the worse it was going to be. And I thought, she's tired. The filly's tired. To do more with them can be a negative result. I could chuck firecrackers at her, it wouldn't make her go any quicker."
[35]-Mr Hunter said the mile rate of 1.56.26, which was confirmed by Mr Munro, was a personal best by some 3 or 4 seconds.
[36]-Mr Hunter emphasised in conclusion that the other horse, ELEGANT JEWEL, had momentum. That was why BUNTER’S DREAM was beaten for fourth. He believed BUNTER’S DREAM did not lose ground over the last 50 metres, she was “grinding away and gave her best”.
[37]-Ms Thomas continued with her submissions. She said the starting point was that punters would not want to see the driver use a whip in the last 50 metres on a filly who had run the race of her life. BUNTER’S DREAM had been bumped by the third horse which had been lugging in. That horse had impeded BUNTER’S DREAM. Knowledgeable punters would refer to the race time and know the filly had done her best. It was a “smoking hot time”. If Mr Hunter had used his whip punters might have reacted adversely to this.
[38]-Ms Thomas said Mr Hunter could have jiggled around over the last 50 metres but persons watching, she believed, would have known it would not have made a difference. There was nothing to be gained by prodding the horse over the final 50 metres.
[39]-Ms Thomas said this was not an integrity issue. The filly had never run this fast. Mr Hunter in trying to kid her along was getting the best out of her and he had done “pretty well” in this regard.
Summing up
[40]-Mr Munro was brief. He said there were two parts to the rule. Did Mr Hunter stop driving? The answer was “Yes”. Did Mr Hunter have a reasonable chance of finishing fourth? Again, the answer was “Yes”.
[41]-Ms Thomas questioned how could it be said that Mr Hunter had a reasonable prospect of finishing fourth. The answer was “No”.
[42]-Ms Thomas then questioned what is “driving”. She said it included use of the hands, and that someone sitting quietly in the in the cart is still driving a horse out. To suggest that “jiggling and yahooing and carrying on” is necessary is ridiculous. She added, “ I think it's ludicrous to suggest that in that [the last 50 metres] he should have poked her in the butt with the back of his whip." An objective observer would not question Mr Hunter’s drive.
[43]-Ms Thomas concluded by stating that Mr Hunter knows the horse. He wanted to get the best out of a 3-year-old filly. There was no error of judgement. He had done as well as he could.
Decision
[44]-The Judicial Committee in HRNZ v Tomlinson (2008) said, citing Greer (1998): “Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.”
[45]-Mr Munro submitted that it was Mr Hunter’s obligation under r 868(3) to ensure that he drove his horse out to the end of the race. He had to display actions that were both demonstrable and discernible. Mr Hunter had alternative actions that he could have employed to drive the horse out other than solely by using the whip.
[46]-Mr Hunter by his own admission has stopped driving BUNTER’S DREAM over the last 50 metres of race 9. He refers to the filly having given her best and that nothing further he could have done would have assisted her to finish the race off any better.
[47]-Mr Hunter has referred to receiving interference from the third horse, EXCELLENT. The alleged interference is some 30 to 35 metres from the line. Mr Hunter acknowledged he had put his whip away a stride earlier. There was never contact. As Mr Hunter said, BUNTER’S DREAM was clever enough to avoid this. We do not believe this had any material impact on the manner in which Mr Hunter drove the filly over the final 50 metres of the race.
[48]-Prior to the last 50 metres Mr Hunter had employed measures from approximately the 550 metre mark that can be seen to have been successful in terms of keeping BUNTER’S DREAM in contention for a minor placing. These measures included light slapping with the reins, more urgent slapping with the reins, activating the pull-down blinds (at about the 300 metres mark), two whip strikes and running the whip through the tail.
[49]-Significantly, the measures employed by Mr Hunter appear to have helped his filly remain in contention for a minor placing despite BUNTER’S DREAM experiencing the onset of fatigue after racing outside the leader. BUNTER’S DREAM appeared to maintain her finishing speed during the last action Mr Hunter took in driving her out, namely running the whip through her tail.
[50]-We are satisfied that Mr Hunter has turned the whip around at the 50 metres and has sat still in the cart until the winning post. To use his words, he was “letting her find the line on her own free will because she'd done enough.” With reference to the cases, there are no discernible or demonstrable measures adopted by Mr Hunter at this time. In so doing, we believe he has breached r 868(3) by not driving his horse out to the finish line with the consequence that he was beaten into 4th place when he had a reasonable chance of finishing 4th as is demonstrated by the fact that the margin between 4th and 5th was only half a neck.
[51]-This consequence is unfortunate in that prior to the last 50 metres Mr Hunter’s drive was such that we accept until that time he was getting his best out of the 3-year-old filly. It would not be an exaggeration to state he had done an exemplary job. BUNTER’S DREAM had responded to his urgings by maintaining her speed and these urgings need only to have been continued for a further 50 metres. They were not and, in failing to do so, Mr Hunter is in breach of the rule.
[52]-We require submissions as to penalty. There is a race meeting at Winton on 16 December at which we believe the parties will be present. We will hear oral submissions at that time. Should either party wish to make a written submission we require them to contact the Executive Officer of the JCA and we will arrange scheduling.
Dated at Dunedin this 12th day of December 2018.
Geoff Hall, Chairman
Decision Date: 18/11/2018
Publish Date: 18/11/2018
JCA Decision Fields (raw)
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Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: e440f20d5ef9eb66554a359cbcd5922a
informantnumber:
horsename:
hearing_racingtype: harness-racing
startdate: 18/11/2018
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Wyndham HRC 18 November 2018 - R 9 (heard 23 November 2018 at Invercargill) - Chair, Prof G Hall
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN-RACING INTEGRITY UNIT (RIU)
Informant
AND-PETER HUNTER
Open Horseman
Respondent
Information: ----A12457
Judicial Committee: ---Prof G Hall, Chairman
Mr M Conway, Member
Appearing: -Mr V Munro, Stipendiary Steward, for the Informant
Ms MJ Thomas for the respondent
Date of hearing: ---23 November 2018
RESERVED DECISION OF JUDICIAL COMMITTEE
[1]-The Respondent, Mr P Hunter, is the holder of an Open Horseman’s licence under the NZ Rules of Harness Racing.
[2]-The informant has alleged that the respondent was the driver/trainer of BUNTER’S DREAM in Race 9 at the Wyndham HRC meeting on 18 November 2018 and he failed to drive the horse out when it had a reasonable chance of running fourth. The information was lodged on the day and the matter was adjourned sine die.
[3]-Rule 868(3) states:
Every horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth, or sixth.
[4]-The matter was heard at Invercargill raceway at Ascot Park on 23 November.
[5]-Mr Munro has referred us to a number of cases. The leading case appears to be that of Greer 1998. A copy of that case was not before us and the writing of this decision was delayed for a time until this case could be located. It was found to be a decision of Judge Clapham at Alexandra Park on 21 January 1998. Significantly, Judge Clapham in interpreting r 868(3) stated:
We find that the obligation that arises under this rule requires at least some action by the driver to urge his horse on ie some demonstrable or discernible movement by the driver so that the driver can be seen to be "driving his horse out."
Informant’s case
[6]-Mr Munro demonstrated the incident on the films. He was able to synchronise the head and side on films. We were only able to view the race in split screen. Had Mr Hunter submitted that he had actively urged BUNTER’S DREAM over the final 50 metres we would have been disadvantaged through not having a full screen view of the incident. This is a matter that perhaps needs to be addressed by Trackside.
[7]-Mr Munro read from written submissions and, using the films as appropriate, described the race as follows.
[8]-BUNTER’S DREAM drew barrier 13 on the second row over a mobile mile. After the start Mr Hunter received a good run through to be in the 1/1 after 300 metres. Shortly thereafter he was left in the parked position from approximately the 1200 metres.
[9]-Nearing the 600 metres Mr Hunter edged forward to be a neck from the leader. From about the 500 metres Mr Hunter started to get busy tapping his horse up using both reins. As Mr Hunter drove off the final bend, he activated the sliding blinds on the filly.
[10]-Approximately 200 metres from the line, Mr Hunter used his whip in a striking motion on two occasions. The remainder of the time he used his whip by running it through the horse’s tail. The last urging by Mr Hunter was about the 50-metre mark. He then tucked his whip away and sat in the sulky motionless to the finish line.
[11]-Of note, Mr Munro said, was ELEGANT JEWEL, driven by Mr Morrison, on the outside. At the 50 metre mark, this horse was 3/4 of length behind Mr Hunter and was finishing at a fast rate. It beat Mr Hunter out of 4th position. The official margin was 1/2 a neck.
[12]-Mr Munro said clearly Mr Hunter’s horse was tired and stopping, which made Mr Morrison’s horse look like it was finishing even faster. He believed Mr Hunter had made an error of judgement and had been passed by this horse near the finish line.
[13]-Mr Munro noted that when Mr Hunter was spoken to by the Stewards post-race, he made the following comments: “I was up her with 500 to go. She had had enough.” “Then that was it.” “She was all gassed out and I know it doesn’t look good.” “I’m better off not hitting her.” “She has tried her guts out.”
[14]-Mr Munro then referred the Committee to HRNZ v Tomlinson (2008) where the Judicial Committee said: “Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.”
[15]-Mr Munro submitted that it was Mr Hunter’s obligation under r 868(3) to ensure that he drove his horse out to the end of the race. He had to display actions that were both demonstrable and discernible. Stewards were not suggesting that he had to continue to drive the horse solely by striking it with the whip. Mr Hunter had alternative actions that he could have employed. These actions were stated in the Use of Whip Regulations to be: running the reins over the horse's rump; using the whip in a pushing motion through the horse's tail; or holding the whip on the horse's tail or rump.
[16]-Mr Munro made reference to two further cases.
[17]-A Judicial Committee in RIU v Anderson (2016) said:
It is a mandatory requirement of r 868(3) that a driver "shall drive his horse out". "Drive" is not defined in the Rules. The most authoritative statement of the obligation placed on a driver under the Rule was made in the decision of the Appeals Tribunal in the 1998 case of Greer in which the Tribunal stated as follows: “We find that the obligation that arises under [r 868(3)] requires at least some action by the driver to urge his horse on: that is, some demonstrable or discernible movement by the driver so that the driver can be seen to be "driving his horse out". This had been the test applied by Judicial Committees and Appeals Tribunals since that time in cases involving a breach of r 868(3).
[18]-The Appeals Tribunal in DeFilippi v HRNZ (2006) said:
To a degree, compliance with the particular rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a driver in the latter stages of a race. The purpose of the rules is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing.
[19]-Mr Munro summed up the informant’s case by stating that Mr Hunter in turning the whip around at the 50 metres and sitting still in the cart had breached r 868(3) by not driving his horse out to the finish line and his being beaten into 4th place when he had a reasonable chance of finishing 4th.
Respondent’s case
[20]-Mr Hunter was represented by Ms Thomas. She had the assistance of Mr Brownlie.
[21]-Ms Thomas said Mr Hunter accepted that he had put the whip away just after the 50 metre mark. She accepted “he didn't jiggle or whoop or scream or carry on, or hit.” She questioned what is meant by “urging” a horse and said “he certainly puts his whip … under his [arm], and you can see clearly that what he's doing, he's sitting.”
[22]-Ms Thomas emphasised that the Committee had to view the whole race, especially the final 400 metres. She believed that the perception of the punter, to which the RIU had made reference, was not “Joe Bloggs on the street” but rather “a punter with a working knowledge of racing”. She said the public perception would be that the respondent has done the best job he could.
[23]-Ms Thomas stated it was relevant that BUNTER’S DREAM was a 3-year-old filly and that Mr Hunter had driven her in every start.
[24]-Ms Thomas said most fillies react differently to geldings. “You get the old geldings and you can hit the living hell out of them and that tends to make a difference. A lot of fillies drop their head.”
[25]-Ms Thomas said the filly had “run out of puff… at about the 500 and was actually doing the best she could.” Mr Hunter poking the horse with the end of the whip would be “ridiculous” as the horse had given her best. An objective observer would not question Mr Hunter’s drive.
[26]-Ms Thomas believed if the incident was 200 metres out, she could understand why the charge was laid but we were dealing with the last 30 or 40 or 50 metres of the race.
[27]-Mr Hunter gave evidence. He described the last 600 metres of the race. He said the blinds were pulled down just inside the 400 metres and he had been niggling at his filly on the home turn. She had had a tough run and she was giving her best. He said, "Coming to the straight, she's trying her guts out. She's all done about the 200, all done, but I'm still trying my best to get more out of her... and once the 3rd horse [EXCELLENT] passes me, when she doesn't compete, that's it, she's had enough, and by that stage, if you see the head-on, I got cut off at the same time, and that was enough. Actually the 3rd horse ran in and actually bumped her so her race was over by interference anyway - if she was full of running, but she wasn't full of running so it didn't matter because she was all gassed out."
[28]-Mr Hunter believed BUNTER’S DREAM was wanting to shift away from the third horse. When questioned by the Committee as to whether there had been contact Mr Hunter replied, “The horse is clever enough to miss the contact”.
[29]-The Committee further questioned Mr Hunter about his comment that the horse “was all gassed out”. He had also said this to the Stewards on the day and was asked to what part of the race was he referring. He said, “The last 200 metres, probably... I'm on a loose rein since the 600 metres to be honest. She's on a loose rein, so she's given her best. But definitely the last 200 when I hit her a couple of times with no response and shortly before the line once that 3rd horse has gone past me when she hasn't competed with it, that just told me 'girl, you've done your best today. I can't do anymore.' I've got to look after the horse for the owner, for the trainer and her future racing.”
[30]-Mr Hunter stated that BUNTER’S DREAM was a very tired horse. He believed about 35 metres out or perhaps a stride earlier, he had put the whip away.
[31]-When questioned by the Committee as to what he was doing over the final 50 metres, Mr Hunter replied, “Fillies, sometimes you get more out of them if you just leave them alone... and I've tried everything the last 570 metres. Nothing that I did made her run faster, right. And sometimes if you back off them they can give you more. As the video will show, side-on, she never lost anything on the 5th horse BETTER GALLEON, so she never went backwards. She just went the same speed and all the way up the straight she went the same speed. She never lost and never gained. Regarding the 4th horse, he had momentum so you can't stop a horse from momentum…. If I gave her more, it would have made things worse."
[32]-Mr Hunter later added, "I think I made the call the last bit by not driving her, to keep maintaining her, letting her find the line on her own free will because she'd done enough.”
[33]-The Committee asked Mr Hunter were there not alternative actions he could have used over the last 50 metres. He replied, "The last 600… 570 metres, I done all those things. I've hit the horse, I've slapped it, I've put the stick through the tail, I've done it all." When the Committee questioned whether this was only until the 50 metres, stating, “Is that accepted?” Mr Hunter replied, "Yeah accepted."
[34]- Mr Hunter said BUNTER’S DREAM had run her race. She “went huge, massive”. He said, “A filly's different, and her case is different because the more I did, the worse it was going to be. And I thought, she's tired. The filly's tired. To do more with them can be a negative result. I could chuck firecrackers at her, it wouldn't make her go any quicker."
[35]-Mr Hunter said the mile rate of 1.56.26, which was confirmed by Mr Munro, was a personal best by some 3 or 4 seconds.
[36]-Mr Hunter emphasised in conclusion that the other horse, ELEGANT JEWEL, had momentum. That was why BUNTER’S DREAM was beaten for fourth. He believed BUNTER’S DREAM did not lose ground over the last 50 metres, she was “grinding away and gave her best”.
[37]-Ms Thomas continued with her submissions. She said the starting point was that punters would not want to see the driver use a whip in the last 50 metres on a filly who had run the race of her life. BUNTER’S DREAM had been bumped by the third horse which had been lugging in. That horse had impeded BUNTER’S DREAM. Knowledgeable punters would refer to the race time and know the filly had done her best. It was a “smoking hot time”. If Mr Hunter had used his whip punters might have reacted adversely to this.
[38]-Ms Thomas said Mr Hunter could have jiggled around over the last 50 metres but persons watching, she believed, would have known it would not have made a difference. There was nothing to be gained by prodding the horse over the final 50 metres.
[39]-Ms Thomas said this was not an integrity issue. The filly had never run this fast. Mr Hunter in trying to kid her along was getting the best out of her and he had done “pretty well” in this regard.
Summing up
[40]-Mr Munro was brief. He said there were two parts to the rule. Did Mr Hunter stop driving? The answer was “Yes”. Did Mr Hunter have a reasonable chance of finishing fourth? Again, the answer was “Yes”.
[41]-Ms Thomas questioned how could it be said that Mr Hunter had a reasonable prospect of finishing fourth. The answer was “No”.
[42]-Ms Thomas then questioned what is “driving”. She said it included use of the hands, and that someone sitting quietly in the in the cart is still driving a horse out. To suggest that “jiggling and yahooing and carrying on” is necessary is ridiculous. She added, “ I think it's ludicrous to suggest that in that [the last 50 metres] he should have poked her in the butt with the back of his whip." An objective observer would not question Mr Hunter’s drive.
[43]-Ms Thomas concluded by stating that Mr Hunter knows the horse. He wanted to get the best out of a 3-year-old filly. There was no error of judgement. He had done as well as he could.
Decision
[44]-The Judicial Committee in HRNZ v Tomlinson (2008) said, citing Greer (1998): “Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.”
[45]-Mr Munro submitted that it was Mr Hunter’s obligation under r 868(3) to ensure that he drove his horse out to the end of the race. He had to display actions that were both demonstrable and discernible. Mr Hunter had alternative actions that he could have employed to drive the horse out other than solely by using the whip.
[46]-Mr Hunter by his own admission has stopped driving BUNTER’S DREAM over the last 50 metres of race 9. He refers to the filly having given her best and that nothing further he could have done would have assisted her to finish the race off any better.
[47]-Mr Hunter has referred to receiving interference from the third horse, EXCELLENT. The alleged interference is some 30 to 35 metres from the line. Mr Hunter acknowledged he had put his whip away a stride earlier. There was never contact. As Mr Hunter said, BUNTER’S DREAM was clever enough to avoid this. We do not believe this had any material impact on the manner in which Mr Hunter drove the filly over the final 50 metres of the race.
[48]-Prior to the last 50 metres Mr Hunter had employed measures from approximately the 550 metre mark that can be seen to have been successful in terms of keeping BUNTER’S DREAM in contention for a minor placing. These measures included light slapping with the reins, more urgent slapping with the reins, activating the pull-down blinds (at about the 300 metres mark), two whip strikes and running the whip through the tail.
[49]-Significantly, the measures employed by Mr Hunter appear to have helped his filly remain in contention for a minor placing despite BUNTER’S DREAM experiencing the onset of fatigue after racing outside the leader. BUNTER’S DREAM appeared to maintain her finishing speed during the last action Mr Hunter took in driving her out, namely running the whip through her tail.
[50]-We are satisfied that Mr Hunter has turned the whip around at the 50 metres and has sat still in the cart until the winning post. To use his words, he was “letting her find the line on her own free will because she'd done enough.” With reference to the cases, there are no discernible or demonstrable measures adopted by Mr Hunter at this time. In so doing, we believe he has breached r 868(3) by not driving his horse out to the finish line with the consequence that he was beaten into 4th place when he had a reasonable chance of finishing 4th as is demonstrated by the fact that the margin between 4th and 5th was only half a neck.
[51]-This consequence is unfortunate in that prior to the last 50 metres Mr Hunter’s drive was such that we accept until that time he was getting his best out of the 3-year-old filly. It would not be an exaggeration to state he had done an exemplary job. BUNTER’S DREAM had responded to his urgings by maintaining her speed and these urgings need only to have been continued for a further 50 metres. They were not and, in failing to do so, Mr Hunter is in breach of the rule.
[52]-We require submissions as to penalty. There is a race meeting at Winton on 16 December at which we believe the parties will be present. We will hear oral submissions at that time. Should either party wish to make a written submission we require them to contact the Executive Officer of the JCA and we will arrange scheduling.
Dated at Dunedin this 12th day of December 2018.
Geoff Hall, Chairman
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hearing_type: Old Hearing
Rules: 868(3)
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