Appeal – Mr S Jones

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Appeal - Mr S Jones

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DECISION OF APPEALS TRIBUNAL

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This is a hearing before a Judicial Tribunal under the Rules of Harness Racing New Zealand

This appeal arises from events at the Morrinsville Trotting Club meeting at Te Aroha on 20 January this year following the running of Race 8 Mr Jones, who is a registered junior driver, was charged with careless horsemanship. He pleaded guilty to that charge. He was represented on that occasion by Mr Shaw. Both Mr Jones and Mr Shaw are present today. Mr Muirhead for NZ Harness Racing was present on race day and is present today.

We are grateful to all the parties for their assistance and there has been a very detailed analysis of the race and of the tapes which record the events. These are both head on and side on and give a very clear record of what occurred.

The appeal is on the grounds that the period of suspension imposed was excessive. That period of suspension was from race day on 20 January until 14 February. That amounted to eight race days. Mr Shaw, on behalf of Mr Jones, submitted that there should have been consideration of a monetary penalty. The record of the hearing shows that this was not mentioned by any of the parties and it therefore goes without saying that Mr Shaw and/or Mr Jones could have raised that with the Judicial Committee on the day. For his part Mr Muirhead reiterates the submissions which he made before the Judicial Committee. He submits that this was careless driving at the highest end of the scale and a significant period of suspension was appropriate. He points to the JCA guidelines which will be known to all parties and which indicate (these not being obligatory) that where there is careless driving at the higher level, and where relegation has resulted – as was the case here – a fine of around $600 and/or a suspension of around three weeks is appropriate.

There were three relevant incidents in the race. Soon after the horses had turned into the straight Mr Jones’ drive moved out. The horse was in a race winning position and Mr Jones was holding the whip in the right hand. The horse was being driven vigorously. Under that vigorous drive it moved out and the tapes show that this caused the horse on its immediate outside, the drive of Mr Kirk, to shift outward and so too the horse on the outside of that, the drive of Ms Chilcott. Then some distance further down the straight, with Mr Jones continuing to use the whip in the right hand, the horse moved out more sharply and so too the horses outside it. Some distance further on the third incident occurred where, in circumstances not dissimilar from the second, the horse again moved out and on this occasion the drive of Mr Kirk moved out and the horse driven by Ms Chilcott broke up. It is Mr Muirhead’s position that the first incident of itself was not sufficient to sustain a charge of careless driving. He says, however, that once that incident had occurred Mr Jones was in effect on alert, or on notice, about what might happen and the second incident should not therefore have occurred and the position with the third incident makes the position significantly worse. There was one single charge of careless driving which covers the second and third incidents just explained.

Mr Muirhead points out further that between the first incident and the conclusion of the third incident the horse had moved several sulky widths further away from the rail, perhaps as many as from three sulky widths to seven sulky widths from the rail.

Mr Shaw, on behalf of Mr Jones, contends that the first incident was of no real significance and essentially that is common ground. With reference to the second incident he submits that Mr Jones was making some effort to straighten the horse and, further, that the gap between Mr Jones’ drive and Mr Kirk’s drive was significant and that the outward movement of Mr Kirk’s horse was not essentially in consequence of the movement of the horse Clonmell driven by Mr Jones.

The charge of careless driving was admitted on the day and while Mr Shaw seeks to explain what occurred there is no suggestion on his part, or on the part of Mr Jones, that this was other than significant careless driving.

The issue which we have to consider today is whether the extended period of suspension that was imposed was appropriate in all the circumstances. This is a rehearing and the Tribunal is required to have regard to the decision that was taken on the day. It is clear from the transcript, and also from the decision, that the events were analysed in some detail and there is a careful and reasoned judgment or decision explaining the basis upon which the penalty was set.

This Tribunal is concerned about the driving of the horse of Mr Kirk. The tapes clearly demonstrate that on both the second and third occasions Mr Kirk lent sharply to his left in the direction of the horse being driven by Ms Chilcott. On the first of these two occasions (that is to say on the second of the three incidents) this was particularly pronounced. This conduct by Mr Kirk was not the subject of any evidence or analysis at the hearing on 20 January. In this Tribunal’s opinion the breaking of Ms Chilcott’s horse may well have arisen in part at least from these very sharp and, it would seem, exaggerated movements on the part of Mr Kirk. It is difficult to know why his conduct, which is very obvious from the tapes, was not remarked upon at the hearing on 20 January.

The Tribunal is satisfied that the matters just spoken of in the previous paragraph are of real relevance in considering the degree of culpability on the part of Mr Jones. Nonetheless it is clear that Mr Jones continued to drive this horse vigorously in circumstances when he must or should have known that it was very likely that the horse would continue to run out and hamper the chances of those outside it. As Mr Muirhead has rightly observed, the first of the incidents should have put the driver on alert. Mr Jones in fact continued to drive the horse in exactly the same manner, made no attempt to shift the whip from the right hand to the left hand and as has been related the second and third incidents then occurred.

In all the circumstances that have just been outlined the Tribunal is satisfied that there was a significant degree of carelessness on Mr Jones’ part. The Tribunal is further satisfied that the degree of carelessness was not as serious as was determined by the Judicial Committee on the day. That Committee did not take regard of the driving of Mr Kirk who was immediately outside the horse Clonmell.  This Tribunal is satisfied that had that matter been the subject of proper analysis on the day in question the approach taken may well have been different. It is for these reasons that this Tribunal is satisfied that it can legitimately differ from the view taken by the Judicial Committee on 20 January.

The carelessness on Mr Jones’ part was, as already observed, nonetheless significant. A period of suspension is appropriate. This is not a case which can simply be dealt with by way of a fine. Mr Shaw drew our attention to other recent cases where drivers have been dealt with by way of monetary penalty on charges of careless driving. It would seem that those cases involved single incidents and are readily distinguishable from the circumstances here where there were three incidents, the second and third of which, on their own, would amount to carelessness and where the second of those, that is to say the third incident, followed upon the others and, thus, made the position significantly more serious.

For these reasons the period of suspension will be reduced. The Tribunal is minded that rather than a period of eight days it would be appropriate that the suspension be for a period of five days.

In answer to questions Mr Jones and Mr Shaw have advised that a drive is booked for tomorrow, 6 February. The suspension will therefore be from the conclusion of racing on 6 February until the conclusion of racing on 17 February this year; that is effectively five days at which Mr Jones would or might have had drives available to him.

This is not an appropriate case for an award of costs either way and, therefore, each party will meet their own costs.

These events came about in part at least from Mr Jones continuing a vigorous drive on this horse and continuing to use the whip in the right hand when the horse had shown that it was clearly inclined to run away towards the centre of the track. While it is understood that this was a grass track meeting drivers must take account of the circumstances in which they find themselves. Mr Jones you have a previous finding of excessive use of the whip; you are going to have to be careful in the future about this sort of thing because this was a serious case of careless driving and if you come back on another one of these anytime soon the trouble is going to be a good deal deeper than it was today.

Thank you again gentlemen for your assistance.

That concludes the hearing.

Dated this 4^th day of February 2007

…………………………………………

Murray McKechnie

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