Appeal – HRNZ v AW Kyle

hearingid: ccd131dc6d2bb0f1dc4ca15671ed373d

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - HRNZ v AW Kyle

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This is an appeal by Harness Racing New Zealand against a penalty which Harness Racing New Zealand says was inadequate. Mr Kyle was charged with improper driving which is contained in Rule 869 (3)(f). The charge was found proven.

BEFORE THE APPEALS TRIBUNAL

HELD AT INVERCARGILL

                         IN THE MATTER of the New Zealand Rules of Harness Racing

                        BETWEEN             HARNESS RACING NEW ZEALAND

                                                        Appellant

                       AND                        AW Kyle

                                                       Respondent

Appeal Tribunal:                       Judge JS Bisphan (Chairman)

                                                    Mr JM Phelan

Date Of Hearing:                      16 January 2007

Date of Decision:                     16 January 2007

Appearances:                           Mr P Knowles, for Appellant

                                                    Mr AW Kyle, Respondent

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ORAL DECISION OF APPEALS TRIBUNAL

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This is an appeal by Harness Racing New Zealand against a penalty which Harness Racing New Zealand says was inadequate. Mr Kyle was charged with improper

driving which is contained in Rule 869 (3)(f). The charge was found proven. As I say we have to be satisfied now that the penalty imposed was inadequate.

We note that Mr Kyle has not appealed against the finding, so it has to be taken that he accepts that he did drive improperly. It is clear from the video Mr Kyle was driving his horse that he actually owns and trains called SMART OPERATOR, and was out in front, being trailed by SECONDSTOSPARE, which he also trains. About 150 metres before the start of the passing lane, and in fact round the back on the home turn, Mr Kyle allowed his horse which was in the lead to move out prior to the passing lane, and the result of that was, of course, that SECONDSTOSPARE gained an advantage by not having to wait until the passing lane arrived. As a result of that the horse in the trail got an advantage, and of course it follows that the horse driven by Mr Kyle was in effect disadvantaged because the horse behind was not required to change course. On the other hand the horse behind but outside SMART OPERATOR was not impeded as it was also running a wider line.

It may have been raining at the time and the track was slushy. The horses then proceeded down the straight and there was a very close finish, with SECONDSTOSPARE ending up in third position. In the circumstances we are satisfied that by allowing his horse to drift out and not guiding the horse back towards the running rail, and allowing the trailing horse to get through before the passing lane certainly constitutes improper driving by Mr Kyle.

The issue of course before us is whether the penalty of three weeks suspension was inadequate or inappropriate. At the hearing Mr Knowles recommended a 4 ? 6 week suspension, although he now tells us that his Chief Stipendiary Steward obviously feels that that request was not adequate. We have been able to look at a decision involving a Mr Garvey. The same situation applied, where Garvey allowed his horse to move out and a horse moved through on the inside. In Garvey's case the penalty was 5 months suspension. Despite that we are satisfied that length of disqualification is not appropriate here because Garvey's offence took place in the back straight.

We take into account Mr Kyle's good record. We take into account how this event unfolded ? a wet track, and the fact the horse probably drifted out initially. The error or improper driving by Mr Kyle is basically that he did not keep his horse near to, or take it back down to, the running rail. Taking all those things into account we are satisfied that the penalty is inadequate and that it will have to be increased, but not by a great deal.

The appeal is allowed. We have come to the conclusion that a five weeks suspension here is appropriate in all the circumstances, so that the existing penalty is amended to a five week suspension, and that would be up to and including 2 February 2007.

Harness Racing New Zealand did not ask for costs, and there will be no order as to costs.

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hearing_type: Old Hearing

Rules: 869.3.f

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