Appeal NP Williamson v RIU – Reserved Decision of Appeals Tribunal dated 20 July 2016 – Chair, Mr R McKenzie

hearingid: 4ae2e21caf0358da96105813da6de721

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 21/07/2016

hearing_title: Appeal NP Williamson v RIU - Reserved Decision of Appeals Tribunal dated 20 July 2016 - Chair, Mr R McKenzie

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT DUNEDIN

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN NATHAN PHILLIP WILLIAMSON of Invercargill, Licensed Open Horseman

Appellant

AND RACING INTEGRITY UNIT

Respondent

Tribunal: R G McKenzie, Chairman - S C Ching, Tribunal Member

Venue: Forbury Park Raceway, Dunedin

Present: Mr N P Williamson, the Appellant

Mr L Tidmarsh, Stipendiary Steward, for the Respondent

Mr N G McIntyre, Chief Stipendiary Steward

Date of Hearing: 14th July 2016

Date of Decision: 20th July 2016

RESERVED DECISION OF APPEALS TRIBUNAL

Background

[1] This is an appeal by Licensed Open Horseman, Mr N P Williamson, against the finding of the Judicial Committee at the meeting of Forbury Park TC on 1st July 2016 that in Race 6, Stunin Cullen Forbury Sprint Series Final Mobile Pace, as the driver of CULLER CODED, Mr Williamson drove carelessly when shifting inwards when not clear of RAPHOE which broke near the 1000 metres.

[2] The Judicial Committee fined Mr Williamson the sum of $350.

[3] Mr Williamson has appealed both the finding of the Judicial Committee that he drove carelessly and the penalty imposed.

[4] The ground upon which Mr Williamson appeals, as stated in his Notice of Appeal dated 6th July 2016, is “Not guilty of the charge and have further evidence to prove that I was not guilty of careless driving in this instance”.

Procedure

[5] It was agreed that the procedure to be adopted for hearing of the appeal would be that Mr Tidmarsh would show the available video replays of the incident and present his submissions, after which Mr Williamson would present the various points of his appeal with reference to those video replays and submissions. It was further agreed that the Tribunal would reach its decision based on the evidence adduced at the hearing before the Judicial Committee as provided in the Fifth Schedule to the Rules, paragraph 42.1, with Mr Williamson granted leave to produce further evidence if he so wished, and the video evidence shown at the hearing and the submissions of the parties.

Submissions of the Informant

[6] Mr Tidmarsh, had Chief Stipendiary Steward, Mr N G McIntyre, show video replays of the incident which took place approximately 200 metres after the start of the race, a 1200 metres mobile start event. He pointed out CULLER CODED, driven by Mr Williamson, which had drawn barrier position 8 and the other runner involved, RAPHOE, driven by Mr S P Walkinshaw, which had drawn barrier position 6.

[7] Mr McIntyre said that the field was travelling at “high speed” as they approached the turn out of the home straight. Mr Walkinshaw’s horse was racing directly inside Mr Williamson and went into a break. Inside of RAPHOE was HUDSON SULLY, driven by Mr R D Close, on Mr Close’s inside was HIGHVIEW ILLUSION driven by Mr D J Dunn and on the inside of that runner was BETTORDEAN, driven by Mr M J Williamson – there were five horses across the track racing into the bend, Mr McIntyre said.

[8] Mr Williamson had shifted ground inwards, Mr McIntyre said, and he showed head-on and side-on video replays which showed that the near-side sulky wheel of Mr Williamson’s sulky made contact with the off-foreleg of RAPHOE. Mr Williamson had failed to clear RAPHOE by about half a wheel. After contact was made, RAPHOE galloped and lost its chance, Mr McIntyre said.

[9] Mr Williamson said that he accepted all that Mr McIntyre had said.

[10] Mr Tidmarsh submitted that Mr Williamson had tried to cross before the bend as he would not want to be 5-wide racing into the bend. It was the view of the Stewards that he had simply misjudged the situation. Had he waited another two strides, he would have been clear of Mr Walkinshaw, Mr Tidmarsh said.

[11] Mr Tidmarsh referred to the transcript of the hearing before the Judicial Committee where Mr Walkinshaw was asked why his horse had galloped. Mr Walkinshaw said that Mr Williamson was coming across but did not quite get across. Mr Walkinshaw had been unsure at the time whether contact had been made but, after viewing the video replays, said that it was quite obvious that contact had, in fact, been made. Mr Williamson had made reference to being able to ease Mr Walkinshaw down. Stewards believed that Mr Williamson was not entitled to do so because Mr Walkinshaw had three runners to his inside.

[12] In response to a question from the Tribunal, Mr Tidmarsh said that he did not believe that the Easing Down Regulation had any application in this case. Mr McIntyre was asked for his interpretation of the Regulations. He said that the driver to the inside of the horse being eased down, if not in a position to hold his ground and where the horse attempting to ease down has a clear advantage and there are no runners to the inside of the horse being eased down, that driver has to give way. However, in this case, Mr McIntyre submitted, it was quite clear that there were three horses on the inside of RAPHOE.

Submissions of the Appellant

[13] Mr Williamson used the video replays when presenting the following submissions.

[14] Mr Williamson said that he had not been aware initially that there had been contact. He suggested that RAPHOE may have struck the stay of his sulky rather than the wheel.

[15] Mr Williamson said that his interpretation of the Easing Down Regulation was the same as Mr McIntyre’s – that is to say, if he had a clear advantage over the horse inside him, the driver of that horse must move, if there is room for him to do so. He was entitled to move Mr Walkinshaw down provided his movement was slow and gradual and there were no horses on Mr Walkinshaw’s inside. The Respondent had argued that, because there were three runners on Mr Walkinshaw’s inside, he could not be moved down the track.

[16] Mr Williamson argued that his movement was from 5½-wide to 5-wide. Mr Walkinshaw had sufficient room to move down and should have done so. Mr Walkinshaw had stated at the hearing that Mr Williamson had already crossed. Mr Walkinshaw had breached the Regulation, Mr Williamson submitted. Mr Walkinshaw had conceded at the racenight hearing that RAPHOE was a difficult horse and he was reluctant to place too much pressure on the horse’s mouth.

[17] Mr Williamson submitted that his movement had been done with safety and in a slow and gradual manner. Mr Walkinshaw had room to move down- approximately one-third of a cart width, he submitted. Mr Williamson submitted that his own inwards movement had been less than that. Mr Walkinshaw was responsible for his own horse breaking, he submitted. He did not move down at all, Mr Williamson said. Mr Williamson conceded that he had not raised the Easing Down Regulations when cross-examining Mr Walkinshaw at the original hearing.

[18] Mr Williamson submitted that Mr Walkinshaw only realised later, and not at the time, that Mr Williamson had not been clear of him when he crossed.

[19] Mr McIntyre questioned Mr Williamson as to how he was aware of how much room was between the sulkies of Mr Walkinshaw and Mr Close driving HUDSON SULLY on Mr Walkinshaw’s inside, when he was racing so wide and into a bend. Mr Williamson responded that he was aware of the space between those two horses rather than between their sulkies. He was aware of the horses to his inside and that RAPHOE was racing wider outside HUDSON SULLY. He said that the video evidence later supported that.

Closing Submissions

[20] Mr Tidmarsh submitted that, racing into the first bend, Mr Williamson had allowed his horse to shift inwards when not the required distance clear of RAPHOE, driven by Mr Walkinshaw, as a result of which that runner had contacted the wheel of CULLER CODED, driven by Mr Williamson. The Stewards refuted the submission that Mr Williamson was entitled to ease Mr Walkinshaw down, particularly racing into the bend. Mr Walkinshaw had been entitled to his line of running but Mr Williamson had shifted inwards and taken that line.

[21] Mr Williamson, in turn, submitted that Mr Walkinshaw was not entitled to that running line and that he, Mr Williamson, was entitled to shift him down, closer to Mr Close.

Reasons for Decision

[22] This appeal was conducted on the basis of the evidence adduced at the hearing before the racenight Judicial Committee whose decision is appealed against (New Zealand Rules of Harness Racing, Fifth Schedule, paragraph 42.1). Mr Williamson bears the burden of satisfying this Tribunal that it should differ from the decision of the Judicial Committee. It is only if we consider that the appealed decision is wrong that we are justified in interfering with it. However, this Tribunal must arrive at its own assessment of the merits of the case - Austin, Nicholls & Co Inc v Stichting Lodestar (Supreme Court, 2007).

[23] We believe that the test for careless driving is whether the driver, in this case Mr Williamson, exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. This Tribunal is required to be satisfied, on the balance of probabilities, that Mr Williamson in this case did exercise the required degree of care and attention if his appeal is to succeed.

[24] Certain facts were not in dispute. Firstly, that there was contact between Mr Williamson’s sulky wheel and the leg of Mr Walkinshaw’s horse, RAPHOE. Secondly, that Mr Williamson had failed to clear Mr Walkinshaw’s horse by “half a wheel”. Thirdly, that this contact caused Mr Walkinshaw’s horse to break and lose its chance in the race. Fourthly, there were three other runners to Mr Walkinshaw’s inside when Mr Williamson crossed. Finally, Mr Williamson’s movement had been a gradual, and not an abrupt one.

[25] Having accepted all of those facts, Mr Williamson based his appeal entirely on the application of the Easing Down Regulations which provide as follows:

Subject to Rule 869 (3) Careless Driving and 869 (4) Causing Interference, horsemen shall be permitted to make moves with safety, provided they are in a position to do so by having a “clear advantage” over the horse they are about to move inwards, and the horse is clear of other horses on its inside so it can be moved in and that the manoeuvre is conducted in a gradual and acceptable manner.

Easing down applies during the final 1,000 metres, regardless of margin so long as it does not cause interference.

Any horseman who fails to concede when not in a position to maintain his/her place, may be charged under Rule 869 (3) Careless Driving.

[26] It was not put to Mr Walkinshaw at the racenight hearing that the Easing Down Regulations applied, or may have applied. It was raised by Mr Williamson in his defence, but the Judicial Committee indicated its view that the Regulations did not apply in the circumstances. In its subsequent written decision, the Judicial Committee makes no reference to the Regulations in its reasons for finding the charge of careless driving against Mr Williamson proved. However, Mr Williamson’s appeal is based almost entirely on the application of the Easing Down Regulations to the fact situation.

[27] Mr Williamson’s argument in this appeal was, essentially, that his inward movement was quite slight and that, because he held a “clear advantage” over Mr Walkinshaw and only moved inwards by a margin similar to, or less than, that between Mr Walkinshaw and the horse on his immediate inside – HUDSON SULLY, driven by Mr Close – then he was entitled to ease down Mr Walkinshaw, and Mr Walkinshaw was required to concede.

[28] Although Mr Williamson argued his case very strongly, the Tribunal was not persuaded that the Easing Down Regulations applied. Even if we accepted that the Regulations were relevant, the primary requirement of any easing down manoeuvre is that the move be done “with safety” and, looking at Mr Williamson’s movement in this case in the light of that requirement, there was a high element of risk involved. In fact, the Tribunal is not satisfied that Mr Williamson had the Regulation in the forefront of his mind when he crossed Mr Walkinshaw. He could not have between aware of any space between Mr Walkinshaw and Mr Close into which he could move Mr Walkinshaw. The Regulation requires that the horse being moved down be “clear of other horses on its inside so it can be moved in”. There were three other runners on Mr Walkinshaw’s inside, meaning that Mr Williamson’s inwards movement was always going to be high risk and certainly could not be done “with safety” in the Tribunal’s view.

[29] The Tribunal is further of the view that there is a strict obligation on any horseman changing ground to ensure that he is clear of other runners before doing so. We find that, in this case, Mr Williamson was attempting to improve from a 5-wide position to a 4-wide or better position approaching the turn out of the home straight, some 200 metres after the start and that, in doing so, he crossed in front of Mr Walkinshaw, who was racing 4-wide, when not sufficiently clear of Mr Walkinshaw. Mr Walkinshaw was entitled to maintain his line and, although it appeared from the video replays that he attempted to ease to give Mr Williamson room, he was unable to avoid Mr Williamson.

[30] The Tribunal did not believe that the racing manners of RAPHOE contributed in any way to the incident in which it broke after 200 metres. Mr Williamson had submitted that the horse had proved a difficult horse to drive in the past but the Tribunal could see no evidence, on the video replays, that it was proving difficult on this occasion.

[31] It was an error of judgement on the part of Mr Williamson. That error of judgement involved an action that fell below the standard of the reasonable and prudent driver and, therefore, we find that Mr Williamson drove carelessly.

Decision

[32] The decision of the Judicial Committee is upheld and the appeal is dismissed.

Appeal Against Penalty

[33] Mr Williamson has also appealed against the penalty, a fine of $350, imposed by the racenight Judicial Committee. However, he did not address the Tribunal in relation to penalty.

[34] The Tribunal has noted the Reasons for Penalty in the written decision of the Judicial Committee and can find no reason to interfere with the penalty that it imposed.

Costs

[35] The Appellant is ordered to pay the sum of $275.00 being approximately 60% of the hearing costs of the Judicial Control Authority.

[36] The filing fee of $250.00 is forfeited to the Judicial Control Authority.

R G McKenzie         S C Ching

CHAIRMAN            TRIBUNAL MEMBER

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: