Appeal SP Clarke/C Rendle v NZGRA heard 30 November 2010 – Decision 7 December 2010

 

[1]               This was an appeal by Mr Stephen Clark against the decision of the stipendiary stewards at Palmerston North on 8 November last to stand down ZERO RANGER for 28 days pursuant to R 80.1.b(i).

[2]               Rule 80.1.b(i) states:

 

[3]               Rule 97.4 of the New Zealand Greyhound Racing Association (hereinafter GRNZ) Rules of Racing provides that:

[4]               There was no recording or transcript of the hearing by the stewards whose decision is being appealed. That being the case, this Tribunal decided that the appropriate manner in which to proceed was to rehear the matter. We invited GRNZ to present its case first.

[5]               The respondent was represented by Mr Gavin Whiterod, stipendiary steward. He stated that he was officiating at the Palmerston North greyhound meeting on 8 November last. He was concerned that ZERO RANGER, which had finished 5^th in race 4, had eased going into the first bend and, in so doing, that the dog had failed to pursue the lure. He asked for the dog to be vetted by the raceday veterinarian, Mr Boyce, to find out if there was any reason for the dog easing. Mr Whiterod stated that Mr Boyce was a fully qualified veterinarian and had been a registered raceday veterinarian for eight years. The appellant did not dispute this.

[6]               The result of the veterinary examination was that ZERO RANGER was found to have a gracilis muscle injury and a pectoral muscle injury. The veterinary certificate (exhibit A) provided for a 14-day stand down.

[7]               Mr Whiterod stated that he then commenced a hearing into the performance of ZERO RANGER and Mr M Austin, the assistant stipendiary steward on the day, became the adjudicating steward in terms of the procedure under the Rules.

[8]               Mr Whiterod then alleged that ZERO RANGER was in breach of R 80.1.b in that that dog was observed to ease for approximately five strides as the field raced into the first turn when clear of other runners. Rule 80.1.b(i) applied to ZERO RANGER as this was the dog’s first failure to pursue the lure. This rule provides for a 28-day stand down from racing.

[9]               The trainer of ZERO RANGER at the time was Mr Freeman. Mr Whiterod called Mr Freeman as a witness before this Tribunal.He stated he had been approached on the day by Mr Whiterod and was told that the dog was alleged to have failed to pursue the lure. He said, after being assured by Mr Whiterod that the owner’s right to appeal the stand down would not be affected by his admitting the dog was in breach of the rule, he signed the charge sheet (exhibit B) indicating that he admitted the breach.

[10]           Mr Whiterod referred this Tribunal to RR 80.2 and 80.3, which deal with the veterinary inspection if a greyhound fails to pursue the lure. Under the Rules, had the veterinarian found an injury that would result in incapacitation of 21 days or more then ZERO RANGER would not have been charged with failing to pursue the lure.

[11]           Mr Whiterod further drew this Tribunal’s attention to R 80.4, which gives the owner or trainer of a greyhound the right for a further veterinary examination within 72 hours after the completion of the meeting at which the greyhound had failed to pursue the lure. He said that the purpose of this rule was to allow for the greyhound to be re-examined once it had cooled down after raceday. Mr Whiterod said that if the greyhound had suffered a serious injury then it would be picked up once the greyhound underwent the further veterinary examination as provided for in the Rules. Mr Freeman spoke to Mr Clark and they decided that they wished to have ZERO RANGER re-examined within the 72-hour period pursuant to this rule.

[12]           ZERO RANGER was re-examined at Wanganui on 10 November. The veterinarian was Mr Barton, who has been a raceday veterinarian for some four years. He stated that ZERO RANGER had pain over the trapezius muscles and recommended a 14-day stand down (exhibit C). As Mr Barton had not found the first two injuries and as he was relatively inexperienced, and with another raceday veterinarian, Mr Jansen, being close by, Mr Whiterod decided to obtain a second opinion. Mr Jansen examined ZERO RANGER that same day and reported that ZERO RANGER had pain in the right trapezius muscle and inconsistent pain in the left trapezius and both abductor digiti quinti muscles. He concluded that in his opinion ZERO RANGER did not have any injury worthy of a 21-day stand down (exhibit D).

[13]           Mr Whiterod then showed the trackside video and the head-on video of the race in question. This demonstrated that ZERO RANGER, which was the 3^rd favourite, was slow away and, when racing into the first bend, was at the rear of the field inside dog number 8, KAPITAL. ZERO RANGER, he said, then eased for what he estimated to be five strides before running past that dog and another dog before finishing in 5^th placing. After ZERO RANGER had eased, he said, the dog had clearly run on and could be then said to be chasing the lure. It was noticeable that ZERO RANGER came into contact with another dog in the run home.

[14]           Mr Whiterod emphasised that the only aspect of ZERO RANGER’s performance in the race that caused him concern was the dog easing at the first bend. He said he could see no reason for the dog to ease back as there was clear racing room. He said ZERO RANGER should have at least maintained its position, but it did not, it went back to the rear. He said after KAPITAL moved in, ZERO RANGER eased from being level pegging with that dog to being three lengths behind. ZERO RANGER then ran on out wide on the track. He stated that the easing by ZERO RANGER had prejudiced its chances of a closer placing. He said there was no evidence of injury to ZERO RANGER at this time as it had tracked the lure “hard out”. He added ZERO RANGER was never under pressure from other runners. There was always a clear gap between ZERO RANGER and KAPITAL and between ZERO RANGER and the rail. There was no reason why ZERO RANGER should ease back or fail at least to maintain its position. There was always clear racing room, he said.

[15]           Mr Whiterod did not believe there was any issue over the dog being unable to see the lure. He said the lure was a very noisy wire-rope and that dogs frequently followed the sound.

[16]           The appellant, Mr Clark, is the trainer of ZERO RANGER. He was assisted by Mr Rendle, a part-owner of the dog.

[17]           The appellant’s case was two fold: that ZERO RANGER had not failed to pursue the lure; and even were the dog found to have failed to pursue, it should have been found to be “seriously injured” for the purpose of R 80.3.

[18]           We respect to the issue of serious injury, Mr Rendle stated that when they received ZERO RANGER from Mr Freeman on 18 November they were concerned as to the dog’s well-being. They arranged for the dog to be examined by the veterinarian at the Auckland meeting on 21 November. The veterinarian, Ms Hessell, reported that ZERO RANGER was suffering from a deep right pectoral tear, right deltoid distal pain, and left gracilis pain. She stated that 28 days time was required for healing (exhibit E).

[19]           Mr Rendle stated that Palmerston North was a transitional track, and that because of the particular camber peculiar to such tracks, dogs change feet when racing into the bend and have to rebalance. He said the video demonstrates that ZERO RANGER faltered at this point in the race and he pointed to the dog’s tail going up in the air. He said he believed this was when ZERO RANGER had suffered injury.

[20]           Mr Rendle stated that ZERO RANGER recovered and pursued the lure strongly to the finish, despite it being evident the dog was in pain. At no point, he stated, did the dog take its eyes off the lure. As to this latter point, we have found the video evidence to be inconclusive.

[21]           Mr Rendle, in his written submissions, referred to the definition of “failing to pursue” that Mr Whiterod had proffered in the case of C v GRNZ 21 September 2010. This was to the effect that a dog would fail to pursue where it “eased at a critical point in the race and did not pursue throughout the race.” Mr Whiterod indicated, in response to questioning by this Tribunal, he still adhered to that definition.

[22]           Rule 80.1.b refers to the opinion of the stewards. As we are hearing this matter de novo, we believe that we have to be satisfied that a steward could reasonably form the opinion that ZERO RANGER is in breach of that rule. There is no reference to the necessary standard of proof in the Rules. We adopt a standard of proof of on the balance of probabilities but, in so doing, we have regard to the fact that the impact of a finding adverse to a greyhound is that it is suspended temporarily and possibly ultimately prevented from racing for 12 months.

[23]           We make the following findings of fact:

• ZERO RANGER was slow out of its box and settled last;

• ZERO RANGER shifted across to the rail and improved its position to be level with, but inside, the number 8 dog, KAPITAL;

• entering the first bend, when still racing towards the rear and inside KAPITAL, which had moved across towards the rail and was racing outside ZERO RANGER, ZERO RANGER eased for five strides;

• in so doing, ZERO RANGER drifted to the back of the field before racing wide on the track, coming into contact with a dog, and then running past two dogs;

• ZERO RANGER finished 5^th (3^rd last) in the race;

• there is no evidence that ZERO RANGER did or did not take its eye off the lure.

[24]           The first issue is whether ZERO RANGER failed to pursue the lure. We have regard to the manner in which Mr Whiterod’s definition of “failing to pursue the lure” was applied to the racing manners of SNOWBLIND in the C case. The dog was found not to have taken its eye off the lure at any stage in the race. SNOWBLIND had faltered for two or possibly three strides and then finished the race strongly. The Tribunal concluded that it did “not believe therefore that Mr Whiterod’s test of ‘failing to pursue’ has been satisfied.”

[25]           We did not take Mr Whiterod to be stating in C that any pursuing of the lure by the dog throughout the race would be sufficient, but rather that a dog must pursue the lure at all times during a race. And, when this was expressly put to Mr Whiterod by us, he confirmed that this was the case, and that it was ZERO RANGER’s actions for five strides that concerned him and which he believed were contrary to R 80.1.b.

[26]           We are alert to the subjective nature of the determining of whether a dog has failed to pursue. We were concerned at times that Mr Whiterod was saying that because he was a very experienced stipendiary steward (some 12 years he tells us), he could tell when a dog was in breach of the rule and when it was not. We questioned Mr Whiterod as to this, and he said that when a dog failed to pursue because of contact with the rail or because of pressure from another dog, he would not lay a charge. Such an approach is clearly understandable, but, nonetheless, there appears to be a very broad discretion vested in the stipendiary stewards by R 80.

[27]           Mr Whiterod indicated that guidelines were in the process of being formulated by the Greyhound Board. He was uncertain as to the status of these guidelines and the extent to which licence holders in the industry had been consulted. He requested that this Tribunal consider a document that set out these guidelines. He stated he believed this was a final draft that had been approved by the Board. He could not state when this approval was given, nor could he provide any evidence of this approval. We indicated we were not prepared to accept these as official GRNZ guidelines as their status had not been established before us. We indicated to Mr Whiterod that he could base submissions on any matters contained in the document that he believed would assist us in the interpretation of R 80.1.b, without us accepting these as being GRNZ guidelines, but, in the event, Mr Whiterod made no further reference to this document.

[28]           We accept Mr Whiterod’s evidence that ZERO RANGER does “ease” going into the first bend. Mr Clark states that ZERO RANGER faltered at the transition bend and that this was due to injury. Whichever description is adopted, we find that ZERO RANGER, when in clear racing room, did not pursue the lure for five strides. The issue is whether these actions of ZERO RANGER bring the dog within R 80.1.b. It is our view that they do.

[29]           We deal next with the issue of whether ZERO RANGER can be said to have suffered a “serious injury” for the purpose of R 80. This is defined as an injury diagnosed within 72 hours of racing that will result in incapacitation for a period of 21-days or more. ZERO RANGER was vetted three times in this period, no such injury was found. We place no weight on the fact there was a third opinion, as the third opinion merely confirms the second. We understand that Mr Whiterod sought a third opinion in order to further protect the appellant’s interests, in that had the third examination revealed a “serious injury”, ZERO RANGER would not have been suspended from racing pursuant to R 80.1 but would merely have been required to undergo a satisfactory trial.

[30]           The certificate provided by Ms Hessell complies with only one of the two requirements in R 80 before a suspension will not be imposed for failing to pursue the lure; this is that a veterinarian concludes that the injury will result in a period of incapacitation of 21 days or more. The second requirement, in R 80.5, is that the serious injury must be found as a consequence of an examination pursuant to either R 80.2 or a re-examination pursuant to R 80.4. The re-examination provision is understandable. Examinations on raceday will be subject to obvious time restraints and the three-day period allows for an injury to become evident after the dog has cooled down.

[31]           Ms Hessell’s examination was within neither R 80.2 nor R 80.4. Therefore R 80.5 does not apply and ZERO RANGER cannot be said to be suffering from a “serious injury” for the purpose of the Rules.

[32]           We acknowledge that an examination by a raceday veterinarian on 28 November did identify an injury that, had the examination been within the 72 hour period, would have come within the definition of “serious injury”, but unfortunately the examination was not within that period. We accept also that the appellant may view this interpretation as unfair in that Mr Clark is adamant that ZERO RANGER suffered a serious injury either before or (more probably) during the running of the race, and the dog, therefore, should not be suspended. However, there is no evidence before us as to how ZERO RANGER came by this injury that was identified on 28 November. Mr Clark says the dog was never exercised after 8 November and therefore it must have had this injury when it raced. We are not prepared to draw this inference, and even were we to do so, we emphasise it would still not qualify as a “serious injury” for the purpose of the rule.

[33]           We note that the Tribunal in C, in upholding the appeal,stated that they were reluctant to find that the injury sustained by SNOWBLIND did not contribute in anyway to the racing manners of that greyhound. The facts of the two cases, we acknowledge, do not differ markedly (although we note SNOWBLIND, unlike ZERO RANGER, had maintained its line throughout the race). Moreover, it might be thought that there is more detailed evidence in the case at hand as to the severity of the injury ultimately suffered by ZERO RANGER than that suffered by SNOWBLIND.

[34]           For us to hold that ZERO RANGER was injured, and therefore was not in breach of R 80.1.b would not give effect to the rule as it is written. The rule does not state — fails to pursue “without reasonable excuse” — but rather, in our view, the reasonable excuse is to be found in these provisions relating to “serious injury”.

[35]           We are prepared to accept the injury suffered by ZERO RANGER may have led him to ease at the bend, particularly at the point the transitional bend commences but, put simply, this does not provide a defence under R 80, as it is currently written. Whether this may be seen to be unduly harsh is a matter for the legislators (and we believe this particular rule is deserving of attention by GRNZ), but it is not a matter for this Tribunal.

[36]           Taking these matters into account, we are satisfied to the necessary standard that the stewards did reasonably form the opinion that ZERO RANGER failed to pursue the lure in breach of R 80.1.b(i). The consequence is that the steward’s decision on 8 November last to impose a 28-day suspension on ZERO RANGER is upheld.

[37]           Neither party sought an order for costs. No order is made.

 

Geoff Hall, Chairman

Tom Castles, Member