Appeal – HRNZ v RT May

hearingid: 69848b393e9c931993113545b3a1cf3d

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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 RT May

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DECISION OF APPEALS TRIBUNAL

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This appeal is in respect of a drive by Mr May on Victory Ball in Race 7, the Paul Renwick Laminated Sink Benches Pace, on 6 December 2007 at the New Zealand Metropolitan Trotting Club’s meeting at Addington Raceway.  Mr May was charged with breaching Rule 868 (3) which reads 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 dismissed the charge and the Informant has appealed.  The appeal proceeded pursuant to Rule 1205(2).  We have read the transcript.  We granted leave for Mr May to call further evidence from Mr Hill and also the evidence of Mr Hanrahan.  Mr Escott questioned these witnesses.  We viewed a number of videotapes and DVDs.  We have read other documentary evidence produced by Mr May.

The onus is on the appellant to prove the breach to our satisfaction on the balance of probabilities.  The appeal, although by way of rehearing, is based on the evidence given before the Judicial Committee and any other evidence adduced by leave.  Issues of credibility were not significant as the real evidence revealed by the DVDs and videotapes gave us a full picture of what had relevantly happened in the race.  We are obliged on this appeal to reach our own conclusions, albeit assisted by findings by the Judicial Committee.  There is no presumption in favour of the Judicial Committee’s decision. 

The Judicial Committee, in its decision and reasons, has dealt with the elements of the charge arising from a breach of Rule 868 (3).  Whilst stating the elements correctly on page 4 of its decision, the Judicial Committee has also introduced into its decision elements of why Mr May drove Victory Ball as he did and also the concept that a more energetic drive would not have changed the result.  Whilst these matters are not irrelevant they are not decisive in establishing whether or not a charge under this rule has been established. 

In our view the test is an objective one and we refer to the Appeal Tribunal’s decision in C J De Fillipi v Harness Racing New Zealand 21/12/06.  There the Appeal Tribunal 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 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 drive, 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.”

We would add that a driver in the execution of a drive may also take into account the way the race was run but again may only do so to the extent that the provisions of the Rule are not breached.  To establish whether or not the Rule has been breached an analysis of what in fact the driver did over the concluding stages of the race is required to assess whether that was sufficient to comply with the Rule. 

From all the evidence we find that Victory Ball was slightly slow away from the second line and was near the rear of the field.  Mr May then made a mid-race move with the horse to go around to lead.  He led into the straight at which point he removed the hood off the horse.  The passing lane ultimately became available not only for the winner but also for the third horse.  Up the straight Mr May who was holding his whip in his right hand flicked the horse with the whip not long after straightening up in the home straight then used the reins.  There was a second flick with the whip and then the reins were used, first the left hand then the right hand and then both reins.  About 50 metres or so from the winning post the winner of the race had gained a slight advantage of approximately half a neck to a neck.  Mr May again used the reins but over the last 40 metres or so did not take any overt action that is discernible with either the reins or the whip.  Mr May said in evidence that he was yelling at the horse from time to time.  Mr May said he never hit the horse with the whip over those concluding stages as he considered the horse was doing its best but he conceded in his evidence before the Judicial Committee that just short of the post he simply sat in the sulky.  His evidence was:

Well I just hit him with the reins but like I know I could see the punters’ point of view.  The last wee bit I sat there but I thought I was well beaten and I don’t think I got no more out of my horse.”

We accept that evidence and it indeed it conforms with that shown on the DVDs and tapes.  We should comment that the most revealing tape (or DVD) was a trackside view or a small portion of it which showed a closer picture of the horses and drivers as they came down the home straight but unfortunately the camera panned over to the horses rather than the drivers as the field approached and passed the winning post and it was not possible to see Mr May’s actions right up to the winning post from that source.  The tape showed that Mr May had been urging the horse with the use of reins up till that point, leaning forward from time to time and, of course, had flicked the horse with the whip twice prior to that.  We noted also that Mr Holmes who drove the third horse under a vigorous drive with the whip down the straight also stopped and simply sat still over the last 40 or so metres of the race. 

Mr Escott’s submissions were to the effect that Mr May did not show great vigour down the straight and that over the last stages of the race showed little vigour at all.  Mr Escott pointed out that if a horse could not take the whip, prior approval could be obtained from a stipendary steward.  He in any event said there are numerous other ways in which a horse could be driven out without it being hit by a whip.  He submitted that Mr May’s actions and inactions constituted a breach of the Rule. 

Mr May in essence said that this was a fast run race, that the horse had been slow, went around the field and led and was doing its best.  He further submitted that the horse had unusual characteristics in that in the past it had simply stopped trying in races and it was likely that it was a horse that would not respond to the whip.  This is confirmed by other witnesses.  Mr May’s view was that Victory Ball was never going to beat the winner once that horse had headed his. 

We reiterate that the reasons why a driver drove a horse in the way he did are not decisive in respect of an allegation that this Rule has been breached.  A driver at all times is obliged to comply with the Rule. 

The question which this Tribunal must answer is this – has the Informant satisfied us, on the balance of probabilities, that Mr May’s drive over the concluding stages of the race, (his actions or more significantly inactions) breached the Rule? 

We are satisfied that up to the point when Mr May ceased to show any great vigour in urging the horse on, at a point some 40 metres approximately from the winning post, that what he had done with the whip and the reins was sufficient to comply with the Rule.  The Rule requires the horseman to drive the horse out to the end of the race where there is a reasonable chance of a first to sixth placing.  The purpose of the Rule appears to be to ensure that the horse finishes in the best possible position from first to sixth.  The issue is whether in the final 40 metres Mr May did enough to comply with the Rule.  There is no doubt that Victory Ball had been headed by this stage by the eventual winner, which had come through under a vigorous drive with the whip in the passing lane.  Significantly, there was no noticeable change in the momentum of Victory Ball in the last 40 metres compared to that when that horse was shaken with the reins or flicked with the whip over the previous 150 metres or so.  The horse continued to the winning post at the same speed with the margin between it and the winner not changing appreciably over this distance.  There is no evidence to suggest that Victory Ball slowed once Mr May stopped shaking the reins or flicking the whip.  In these circumstances, has Mr May driven the horse out?  We can say that this is a marginal case.  Whilst a driver who stops driving just short of the winning post may risk a finding against him under the Rule, in this case we are not satisfied there was a breach of the Rule.  Mr May’s drive up to the point 40 metres short of the winning post was not one of great vigour, but as we have found, it was not in breach of the Rule.  Had his sitting leaning forward in the cart and yelling at Victory Ball, without further urging with the reins or whip extended over a greater distance than the 40 or so metres that it did, the result of this appeal could well have been different.

In essence, the Informant has not, by a narrow margin, discharged the onus upon it in respect of this charge.  The appeal was certainly not a frivolous one, but it follows that it is dismissed.

In the circumstances, we do not propose to award any costs and they should simply lie where they fall. 

J S Bisphan                                                                                                      G G Hall

Chairman

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hearing_type: Old Hearing

Rules: 868.3, 1205.2

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