Appeal – MS Cations v HRNZ 4 September 2009 decision

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Appeal - MS Cations v HRNZ 4 September 2009 decision

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BEFORE THE APPEALS TRIBUNAL

HELD AT CHRISTCHURCH

IN THE MATTER OF the New Zealand Rules of Harness Racing

BETWEEN MICHAEL CATIONS

Appellant

AND HARNESS RACING NEW ZEALAND

Respondent

Hearing:                                 4 September 2009

Appeals Tribunal:                  Prof G Hall, Chairman

                                                  Ms N Moffatt, Member

Appearances:                        Mr N Cations, licensed graduation horseman, in person

                                                  Mr P Davis, senior horseman, assisting the Appellant

                                                  Ms K Williams & Mr S Renault for the Respondent

DECISION OF APPEALS TRIBUNAL

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[1]               This is an appeal against a decision of a Raceday Judicial Committee dated 28 August 2009. The Committee found that Mr Cations was guilty of incompetent driving following his drive on ALMAZA in Race 7, the Storer Motors Limited Mobile Pace, at the NZTC meeting at Addington on 28 August. Mr Cations was suspended until 15 November 2009. He appeals against the Committee’s finding and the penalty imposed.

BEFORE THE APPEALS TRIBUNAL

HELD AT CHRISTCHURCH

IN THE MATTER OF the New Zealand Rules of Harness Racing

BETWEEN MICHAEL CATIONS

Appellant

AND HARNESS RACING NEW ZEALAND

Respondent

Hearing:                                 4 September 2009

Appeals Tribunal:                  Prof G Hall, Chairman  

                                                  Ms N Moffatt, Member

Appearances:                        Mr N Cations, licensed graduation horseman, in person

                                                  Mr P Davis, senior horseman, assisting the Appellant

                                                  Ms K Williams & Mr S Renault for the Respondent

DECISION OF APPEALS TRIBUNAL

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[1]               This is an appeal against a decision of a Raceday Judicial Committee dated 28 August 2009. The Committee found that Mr Cations was guilty of incompetent driving following his drive on ALMAZA in Race 7, the Storer Motors Limited Mobile Pace, at the NZTC meeting at Addington on 28 August. Mr Cations was suspended until 15 November 2009. He appeals against the Committee’s finding and the penalty imposed.

[2]               The appeal is by way of review and we come to our own conclusion, with no assumption in favour of the Judicial Committee’s raceday decision. We have to be satisfied on the balance of probabilities that Mr Cations drove incompetently.

[3]               Rule 869 provides as follows:

(3)    No horseman in any race shall drive:-

(a)    incompetently.

[4]               Ms Williams presented her submissions and requested Mr Renault to demonstrate the incident on the head-on and side-on videos. Unfortunately there were technical difficulties and the hearing had to be adjourned for some time until the videos were able to be displayed on a large screen.

[5]               The distance of the race was 1950 metres. Ms Williams demonstrated that ALMAZA raced 3 wide during the event and then commenced to tire with approximately 600 metres to run. The horse finished a long last (excluding the horse that had been pulled up), 13 lengths behind the 2^nd last horse and 38 lengths from the winner. Ms Williams said that due to the lack of action taken by Mr Cations he was charged with incompetent driving. He did not drive to the required standard expected of a horseman in a totalisator event: he did not drive in a competent manner. Significantly, in light of our subsequent finding, Ms Williams stated that ALMAZA was not driven to give the horse the best opportunity to finish in a dividend or stake bearing placing. 

[6]               Ms Williams placed the record of ALMAZA before this Tribunal. The horse, a 5 year-old gelding, had started 16 times for 1 win.  This was ALMAZA’s first start for the current season. Its form was 080000 and it was the outsider in the field. Ms Williams stated Mr Cations would have been aware of ALMAZA’s poor performance in its last 7 starts and that it had not been to the races for nearly 2 months. In that case, Ms Williams submitted, Mr Cations should have been looking to give the horse an economical run, as that would give it the best chance of running a placing.

[7]               Ms Williams believed Mr Cations had 3 options open to him once he found ALMAZA was caught 3 wide after drawing 3 from behind the mobile gate.

[8]               First, to attempt to progress forward around LAUGHING LORD driven by B Orange. In the first 400 metres of the race ALMAZA was sitting outside LAUGHING LORD, and Mr Cations could have improved around that horse without much of an effort, Ms Williams said. ALMAZA only needed to improve 1 1/2 lengths, something she believed most horses could achieve at that stage of a race. From this point she believed ALMAZA would have been able to dictate the pace depending on how far up on the lead horse ALMAZA elected to sit. She also said ALMAZA would then have been able to take a trail if another horse had improved 3 wide.

[9]               Second, to restrain ALMAZA to the rear of the field. From there Mr Cations could hope for a drag into the race 3 wide without having to do the work himself, or get a run through on the inside of the field in the run home. Two options would thus have been available to Mr Cations had he adopted this action, each of which would have led to ALMAZA having an easier run. This was significant, Ms Williams said, given the gelding’s very poor form leading into the race.

[10]           The 3^rd option, and the option Ms Williams saw as the one most likely to be adopted by a competent driver, was to shift another runner down. Mr Cations in his evidence before the raceday Committee had stated that he endeavoured to shift LIVE DANGEROUSLY (Mr Walkinshaw) down and they had locked wheels briefly. Ms Williams said she was in no position to dispute this, but she believed Mr Cations was never in a position to shift LIVE DANGEROUSLY down because DUSTIN BROMAC (Mr D Dunn) was always racing inside LIVE DANGEROUSLY. She added the attempt did not appear to be genuine anyway, and she questioned whether ALMAZA was simply hanging in rather than being steered down with the intent of moving LIVE DANGEROUSLY down into the running line.

[11]           There were 3 opportunities, Ms Williams believed, to shift horses down. First FOREVER LOYAL, driven by Mr M Jones, although this would have been shortly after the start and would have been difficult, she accepted; or secondly, TORBRAE, driven by Mr P Davis; or failing that, to shift the last horse down, VALHALLA, driven by Ms Herbert, although she did not press this possibility strongly. Of the 3, Ms Williams emphasised in her oral submissions the opportunity for Mr Cations to shift TORBRAE down. She said Mr Cations always had an advantage over Mr Davis as Mr Davis’s horse was not trailing up on the back of FOREVER LOYAL.

[12]           Mr Cations stated ALMAZA was very keen on the night in question and more so in his preliminary. He said he had had to pull the horse up in the back straight on the second lap of the preliminaries. When he moved into line behind the mobile ALMAZA was pulling and would not settle. He said the horse had locked on to the bit once it was on the gate. He said leaning back out the cart was not his style and he had moved up in the grips on the reins. He said that his intentions were to pull back after the start and he acknowledged, when questioned by this Tribunal, that he had not given thought to changing these plans despite the horse’s behaviour prior to the start. Ms Williams said there was no video evidence of the preliminaries so she could not dispute Mr Cations’ statements but she added that a lot of horsemen turn and drive their horses in the opposite direction, as Mr Cations had on the night, to get the horses to settle. As Mr Cations said he had “jogged” around to the assembly area, she believed this implied ALMAZA had settled.

[13]           Mr Cations detailed how none of the 3 options that Ms Williams had suggested were available to him. He stated, as he had before the Committee, that ALMAZA was pulling and that he had endeavoured to relax the horse to keep it competitive for as long as he could. He said this was why he had not pulled back as much as he had wanted to. He explained he had been unable to pull the ear-plugs on ALMAZA as the plugs had malfunctioned and this had accentuated ALMAZA’s poor performance. He produced the plugs to this Tribunal. Ms Williams accepted Mr Cations’ statement in this regard, although she emphasised he had not raised the matter with the stipendiary stewards on the night.

[14]           Mr Davis reiterated that none of Ms Williams’ 3 options were available to Mr Cations and he then took this Tribunal through the videos demonstrating why he believed Mr Cations was the victim of circumstances. Both Mr Cations and Mr Davis referred to the sectional times. These demonstrate that it was a fast run race. Mr Cations said that had ALMAZA been able to progress outside the leading horse, and he doubted ALMAZA had the ability to do so given the speed of the first sectional, he believed the horse was likely to gallop had he done so. He emphasised that he did not believe the leader would have handed up to him, especially as his horse had no form and was the outsider in the field. He said a driver handing up would have been concerned he might have got caught behind a tiring runner. Mr Davis expressly agreed with this comment saying had he been driving the leading horse, he would not have handed up to Mr Cations in these circumstances. He emphasised rank outsiders do not command respect. Mr Cations also said he did not attempt to move forward because his race plan had been to drop back.

[15]           Mr Cations further said that he had endeavoured to move Mr Walkinshaw down but they had locked wheels briefly. He did not attempt to move Mr Jones or Mr Davis down as he did not believe he was ever in a position to do so. Mr Cations said he discounted easing to the rear of the field as, with the fast pace and the 1950 metres distance, he did not believe he would have been able to have run on around the field on the outside, nor was he willing to take the chance a run might open up near the rail.

[16]           Mr Davis, an experienced horseman, has said that he believes the options open to Mr Cations were limited. There was only a brief moment, at best, that Mr Cations could have moved Mr Jones down as the gap closed quickly. He said that with ALMAZA racing keenly he did not believe Mr Cations could have got his horse back at that time. Mr Davis further states that he would have moved up very quickly had he thought Mr Cations was going to try and ease him down. He believed his horse would have responded had he urged it, so he discounted somewhat Mr Cations’ ability to have successfully conducted this manoeuvre. He said it was certainly not a foregone conclusion that Mr Cations would have been able to ease him down. He said Mr Cations was not doing nothing; he was easing back, looking to see if he could move a horse down.

[17]           Mr Cations has only had 24 raceday drives. Of relevance in this Tribunal’s view is whether the 3 options that have been drawn to our attention were reasonably open to Mr Cations and whether his alleged failure to adopt any constitutes driving incompetently. Ms Williams has said it was Mr Cations’ inaction that led her to form the belief that his drive was incompetent. We note from our observation of the videos that Mr Cations can be seen to look inside twice at times when easing other runners down might have been possible. We accept, therefore, that this possibility had been considered by Mr Cations but discounted by him on each occasion. We are satisfied that he was concerned as to where he had become positioned in the field and was looking to see if he could ease another runner down. Of course, he can only perform this manoeuvre if he has an advantage over the other runner and it can be performed with safety. He says he did not believe he could do so. We do not accept Ms Williams’ submission that Mr Cations simply sat there doing nothing. 

[18]           We believe because of Mr Cations’ limited experience it was understandable that he did not try to move Mr Jones down, despite the limited opportunity he had to do so. That leaves Mr Davis. Despite Mr Davis stating that he believed he could have improved quickly to follow the horse he was trailing more closely had the need arisen, we find the option of easing Mr Davis down was open to Mr Cations. He never attempted to do so. He should have.

[19]           As the raceday Committee had similarly observed, we can see little evidence of ALMAZA pulling fiercely or giving Mr Cations a particularly difficult drive. However, we accept Mr Cations’ evidence that the horse was keen. Of concern to this Tribunal is his failure to attempt to move forward on leaving the gate when he was clearly aware of this as a consequence of his horse’s behaviour in the preliminary and in the score up. Mr Cations stuck blindly to his race plan to drop back despite the evident signs that this was not appropriate in the circumstances as they had unfolded.

[20]           In this Tribunal’s view, neither of the omissions to ease runners down, nor the failure to factor in ALMAZA’s behaviour on the night into his driving plan, are sufficient to constitute a breach of Rule 869(3)(c), incompetent driving. We are satisfied, nonetheless, that the driving of Mr Cations is such that it could fairly be considered to be in breach of Rule 869(3)(g) and as a consequence we exercise our power under Rule 1205(3) to amend the charge to the lesser one under Rule 869(3)(g). This Rule states:

(3)   

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hearing_type: Old Hearing

Rules: 869.3.c, 869.3.g, 1205.3

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