NZ Metro TC 10 May 2019 – R 6 (heard 17 May 2019 at Addington) – Chair, Mr R G McKenzie

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startdate: 10/05/2019

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hearing_title: NZ Metro TC 10 May 2019 - R 6 (heard 17 May 2019 at Addington) - Chair, Mr R G McKenzie

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RACEDAY JUDICIAL COMMITTEE DECISION

Informant: N M Ydgren, Chief Stipendiary Steward

Respondent: M J Anderson, Licensed Open Driver

Information No: A11214

Meeting: New Zealand Metropolitan Trotting Club

Date: 10 May 2019

Venue: Addington Raceway, Christchurch

Race: 6

Rule No: 869 (2) & Use of the Whip Regulations

Judicial Committee: R G McKenzie, Chairman / D J Anderson, Panellist

Plea: Denied

FACTS:

Following the running of Race 6, Haras des Trotteurs Stakes Aged Trotters Classic (Listed), an information was filed by Chief Stipendiary Steward, Mr N M Ydgren, against Licensed Open Driver, Mr M J Anderson, alleging that Mr Anderson, as the driver of RUTHLESS KAYLA in the race, used his whip outside of Clause (b) of the Use of the Whip Regulations.

Mr Anderson had signed the Statement by the Respondent on the information form indicating that he denied the breach. Mr Anderson appeared before the Judicial Committee on racenight, confirmed that the charge was denied and requested that the hearing of the charge be adjourned. An adjournment was granted, and the charge was heard at the meeting of NZ Metropolitan TC on 17 May 2019.

Rule 869 provides: -

(2) No horseman shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.

The Use of the Whip Regulations provides as follows:

(b)- No horseman is permitted to use their whip in a striking motion on more than ten occasions inside the final 400 metres. This is inclusive of “backhanders” and the use applies to the horse, harness and/or sulky.

SUBMISSIONS:

Mr Ydgren showed a video replay of the final 400 metres of the race. He pointed out RUTHLESS KAYLA, driven by Mr Anderson, racing in the trail behind the leader, DESTINY JONES (G D Smith), as the field turned into the home straight. He pointed out Mr Anderson turn his whip and strike the horse. After the initial strike, Mr Ydgren alleged, that there were several uses of the whip, which he described as “flicks”, which Stewards were not alleging as being included in the count, but he alleged that there were eleven strikes in total, not including several near the finishing line which did not make any contact.

Mr Anderson, at this point, requested that Clause (b) of the Use of the Whip Regulations (above) be read to the hearing. He then asked the margin between RUTHLESS KAYLA, which finished 2nd, and the winner (a ½ head) and the horses’ order of favouritism (5/6).

Mr Anderson then requested that a video replay be shown of a race on 15 February 2019 in which he drove the winner, LETSPENDANITETOGETHA. He submitted that this was not his usual style of using the whip and, for that reason, he was using this race as an attempt to illustrate that he had used the same style on RUTHLESS KAYLA, in that he was not hitting the horse. Mr Ydgren pointed out that Mr Anderson had received a warning for his use of the whip on LETSPENDANOTETOGETHA.

In relation to the drive on RUTHLESS KAYLA, Mr Anderson submitted that he had only used the whip “about six times”. The other alleged strikes were using his whip through the horse’s tail in a “reverse motion” (going through the tail and coming back instantly, he said.). He referred to the video replay and submitted that, every time he brought the whip back, the horse’s tail could be seen to move, and therefore they were not strikes on the horse. He agreed that his whip use would look “untidy” to observers but he did not agree that he had breached the rule. The horse would not have felt the whip, he said.

The Committee put it to Mr Anderson that a “striking motion” involved bringing the arm back and then bringing it down or forward. Mr Anderson disagreed. He agreed that it was a “grey area”, but did not believe that he had used more than ten strikes.

Mr Ydgren referred to the provisions of clause (c) of the Regulations. He said that using the whip in a pushing motion through the horse’s tail was an acceptable “alternative action” but Mr Anderson’s actions with his whip amounted to more than pushing. Mr Anderson accepted that his actions had been “exaggerated”.

REASONS FOR DECISION:

Mr Anderson has been charged with using his whip excessively on RUTHLESS KAYLA IN Race 6 at the meeting of NZ Metropolitan TC on 10 May last. RUTHLESS KAYLA finished 2nd in the race, beaten by a ½ head. Mr Anderson has denied the breach.

Mr Ydgren showed us a video replay of the final 400 metres of the race. Mr Anderson was racing in the trail behind the leader as the field turned into the final straight. Shortly thereafter, he commenced using his whip. Mr Ydgren’s allegation was that Mr Anderson had used his whip on not less than ten occasions – above the threshold of ten permitted by the Regulations. Mr Ydgren alleged that Mr Anderson had, therefore, used his whip in a manner that was excessive.

Mr Anderson’s defence was, essentially, that a number of the alleged strikes were not strikes but, rather, running the whip through the horse’s tail in what he described as a “reverse motion”. He accepted that there were six genuine strikes initially but submitted that, from that point, he had not been using his whip in a “striking motion”, with the result that he had not used his whip more than ten times as alleged by the Stewards. He claimed that he was using his whip in a pushing motion through the tail which, he submitted, was an acceptable alternative action.

Having viewed the video replay numerous times, including in slow motion, and having carefully considered the submissions of the parties, the Committee cannot accept Mr Anderson’s argument that those alleged uses of the whip which he disputed were not use of the whip in a striking motion.

“In a striking motion” we take to mean drawing the whip arm back and then bringing it forward, down or across in a discernible movement. The Committee is satisfied that this is the case here.

Mr Anderson further submitted that the alleged strikes were not used by applying the whip to the horse (the Regulation provides that “use [of the whip] applies to the horse, harness and/or sulky). He did accept that the whip was used on the horse’s tail.

The Committee is satisfied that using the whip in a “striking motion” (which we have already found) on the horse’s tail is a use of the whip on the horse.

For the avoidance of doubt, the Committee is satisfied that the final 2-3 uses of the whip were more in the nature of side-to-side flourishes, which did not make any contact with the horse, harness and/or sulky and, therefore, are not included in the count of 11 which the Committee finds proved.

Accordingly, we are satisfied that Mr Anderson has used his whip in a striking motion on more that ten occasions and we, therefore, find the charge proved.

DECISION:

The charge is found proved.

PENALTY SUBMISSIONS:

Mr Ydgren referred to the Penalty Guide starting point for a breach of the Rule involving 11-13 strikes - a fine of $200. However, he pointed out, the race was a “major race” (a race with stakes of $40,000 or more).

Mr Ydgren told the Committee that Mr Anderson has had 151 drives in the current season to date. Last season he had 371 drives so he is a busy driver. He has a clear record under the rule in the last 12 months. Because it was a major race, Stewards were seeking a suspension, Mr Ydgren said. Mr Anderson said that the breach was low-end and he suggested that the Committee consider a combined penalty of, perhaps, a 2-days suspension together with a fine. If the Committee was not inclined to impose such a combined penalty, he said, his submission would be for a fine alone.

The hearing then proceeded to look at the matter of a possible deferment, and upcoming meetings at which Mr Anderson would be likely to drive. He said that he had a runner accepted for the meeting of Manawatu HRC on 21 May next. He did not seek a deferment to include the meeting of NZ Metropolitan TC on 24 May next.

PENALTY REASONS:

In arriving at penalty, the Committee had regard to the Penalty Guide prescribed penalty of a $200 fine, and that the race was a major race as defined in the Penalty Guide. The fact that it was a major race is an aggravating factor.

We accept that a significant uplift from the Penalty Guide fine of $200 is required for the “major race” factor. It is becoming necessary to significantly uplift starting points in such races as there is a trend developing for drivers to flout the Regulations in such races. Penalties need to contain a deterrent element, and recent penalties for breaches of the Rule in major races have attempted to impose deterrent penalties, many such penalties involving suspensions or suspension and fines.

On balance, the Committee does not consider that a suspension is required in this case. The race was for a stake of $40,000 and Mr Anderson did not win the race. It would have been an aggravating factor had he done so. Furthermore, his record is a good one and the breach was low-end. The Committee has taken those factors into account in arriving at a penalty in this case of a fine of $500.

PENALTY:

Mr Anderson is fined the sum of $500.

R G McKenzie       D J Anderson

CHAIRMAN           PANELLIST

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hearing_type: Old Hearing

Rules: 869(2)& Use of the Whip Regulations

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