Appeal – C De Filippi

hearingid: 046052770e1faaa1c0d291c5972d3a9f

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Appeal - C De Filippi

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On 3 December 2006 at the Banks Peninsula Trotting Club meeting, the appellant was charged under Rule 868(3) which is as follows:

"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."

BEFORE THE APPEALS TRIBUNAL

HELD AT CHRISTCHURCH

IN THE MATTER              of the New Zealand Rules of Harness Racing

BETWEEN                        CJ DE FILIPPI, Licensed Trainer and Driver

                                                                                               Appellant

AND                                   HARNESS RACING NEW ZEALAND

                                                                                              Respondent

Hearing:                           18 December 2006

Appeal Tribunal:              Judge JS Bisphan (Chairman)

                                            Mr R Neal

Appearances:                  Mr CJ De Filippi, Appellant

                                           Mr N Escott & N McIntyre for Respondent

Decision:                         21 December 2006

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                                       DECISION OF APPEALS TRIBUNAL

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On 3 December 2006 at the Banks Peninsula Trotting Club meeting, the appellant was charged under Rule 868(3) which is as follows:

"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."

The Judicial Committee found the charge proved in respect of his drive behind Kaiata King and the appellant's horseman's licence was suspended up to and including 23 December 2006. The appellant appeals both against the finding and the penalty.

The appeal before us proceeded pursuant to Rule 1205(2) and we gave leave for the appellant to call further witnesses. Those witnesses were questioned by Mr Escott on behalf of the respondent. We have read the transcript of the hearing before the Judicial Committee. We have also read documents and letters produced by the appellant and we have heard submissions from both the appellant and Mr Escott with brief comments from Mr MacIntyre. We have also viewed video tapes of the race being those produced before the Judicial Committee and also tapes produced by the appellant at the hearing before us.

The onus is on the respondent to prove the breach and the standard of proof is on the balance of probabilities.

As this is a rehearing based in part on the witnesses's evidence given before the Judicial Committee, we acknowledge that where questions of credibility and issues assisted by seeing and hearing witnesses not before us that we should be slow to differ from conclusions reached by the Judicial Committee. But it is clear that we must still reach our own conclusion, albeit assisted by any relevant findings below. We also note that in such an appeal there is no presumption in favour of the decision given by the Judicial Committee and that we have to make up our own minds as to what is right.

In summary, the evidence of Mrs K Williams and Mr N MacIntyre, the stipendary stewards was to the effect (and this comes largely from Mrs Williams) that the appellant was sitting upright in the sulky relevantly from about 200 metres out from the winning post and did not appear to be urging the horse on, hit it twice with the whip before shaking the inside rein. In Mrs Williams' opinion the appellant had made an error of judgment in not observing the horse Echovale Ave which finished very strongly down the outside. Mr MacIntyre was of the view that the appellant showed lack of vigour inside the final 200 metres but accepted the appellant's evidence that the appellant had struck the horse once with the whip and then gone for the whip again very close to the post. Mr Escott's summary was that the replay video showed the appellant hit the horse once 150 metres out and twice close to the winning post.

The appellant in his evidence before the Judicial Committee believed that his drive got the best out of the horse and did not believe that further hitting the horse with the whip would have improved his response. Despite the appellant, at page 3 of the transcript, saying that it (relevantly his drive) "didn?t look good" and that he had hit the horse twice, he believed that he would never have beaten the horse that won the race. Further, on page 4 of the transcript when it was put to the appellant by Mr Escott that the appellant may have been "caught napping", the appellant commented that he did not dispute "that is what it may look like". And again on page 6 of the transcript the appellant appears to agree with the allegation made by the Informant about showing lack of vigour.

The additional evidence called by the appellant mainly related to the horse's characteristics in that it was a horse which did not greatly respond to the use of the whip and vigorous driving. That evidence came from Mr Mike De Filippi and Mr Blair Orange who have driven the horse before. Much the same evidence came from Mr Hale, the trainer of the horse. He indicated that he had not given instructions to the appellant as to how to drive the horse. The appellant had driven the horse on a number of occasions prior to the relevant race, particularly at the Ashburton Trotting Club meeting not long before 3 December 2006. That run was shown on a video provided by the appellant to illustrate his contentions over the horse. We are satisfied that the appellant was aware of the characteristics of the horse and that excessive use of the whip would not in normal events work to improve the horse's speed and we accept the appellant's evidence that he did not wish the horse to drop the bit.

The evidence from Mrs Campbell related to the public's perception of the use of the whip on horses. Additional evidence called came from Mr Jack Smolenski who is a driver of considerable experience. He is a driving master who helps new drivers and he rightly could be regarded as an expert witness. His evidence was to the effect that he thought that the appellant's drive was appropriate in the circumstances particularly as the horse had "jammed" its tail up the straight which indicated that further whipping of the horse would have had little effect.

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 rule is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing. We agree with the Judicial Committee's interpretation of the rule which is an interpretation taken from the 1998 appeal case of Greer. In that case, the Appeals Tribunal stated that:

"We find that the obligation that arises under Rule 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."

A driver, in execution of a driver, may take into account the known characteristics of a horse, just as a driver may act on instructions from an owner or trainer, but may only do so to the extent that the provisions of Rule 868 (3) are not breached.

From the video tape evidence, particularly the trackside video close-up which was filmed from lower down than the other videos, we are satisfied that the stipendary stewards, in their evidence, have understated the actions which the appellant took in the last 150 to 200 metres of the race. We find that the appellant's stance in the sulky which is a more upright one can be slightly misleading. From the relevant video we observed and so find that the appellant hit the horse with the whip shortly after the field had passed the 200 metre mark from the winning post. From that point, the appellant's horse appeared to have those immediately on his outside covered. The appellant then showed the whip to the horse with a definite movement, then gave the horse two modest backhanders on the side of the horse nearest the running rail, then proceeded to rub the whip on the horse's rump or up its tail then used the reins in a brief shaking motion and then approximately 40 to 50 metres from the winning post struck the horse once or twice with the whip and then used the reins to the winning post. We find that none of this was done with great vigour and we also find that the appellant was not continuously active in the sulky from the 200 metre mark.

From the evidence we have seen and heard we think it is more probable than not that the appellant chose to drive the horse in the way he did and was not "caught napping" as alleged by the Informant although the speed of the winner probably surprised the appellant. Certainly the winner came down the straight considerably faster than the appellant's horse and certainly the appellant struck his horse with the whip just short of the winning post but that is the view we have reached. We do not reject the evidence of the stipendary stewards but find that the appellant did more in the latter stages of the race than they allege. To that extent we prefer the appellant's evidence illustrated as it was by the video evidence. Although it is only speculative, we do not believe that greater use of the whip or more vigorous driving in other respects would have resulted in the appellant's horse winning the race. We acknowledge that the appellant could have shown more vigour but we have come to the view that what he has done is just sufficient to comply with the rule under which he has been charged. We are mindful that the Judicial Committee came to a different view.

We note that Mr Smolenski did not regard the appellant's drive as in breach of the rule and there were letters of support from other drivers. Neither the owner nor the trainer was critical of the appellant's drive. We note again that because a horse has certain characteristics can be no excuse for a breach of the rules. The rules apply to everyone. We understand there is a provision that drivers can be exempted from carrying a whip if an application is made to a stipendary steward. Whatever the position, the driver of a horse which is likely to finish in the first six must show at least some demonstrable action to urge his or her horse on. We find in assessing all the evidence now before us that that is what the appellant did.

The appeal is accordingly allowed. The stay at present in force is uplifted but the suspension order of the Judicial Committee is quashed. In the circumstances, we do not propose to make any order as to costs.

J Bisphan, Chairman

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Rules: 868.3, 1205.2

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