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Appeal SD & JP Gommans v NZGRA – 23 December 2010 – Decision dated 17 January 2011

ID: JCA15866

Respondent(s):
NZGRA

Hearing Type:
Non-race day

Rules:
801.1.b(ii)

Decision:

BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY AT PALMERSTON NORTH
UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN MRS SUE AND Mr JOHN GOMMANS of Palmerston North, Licensed public trainers
Appellants

AND NEW ZEALAND GREYHOUND RACING ASSOCIATION (INC)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mrs N Moffatt, Member
Appearing: Mr J Gommans and Mrs S Gommans in person, with the assistance of Mr J McInerney, Mr G Whiterod for GRNZ
Date of hearing: 23 December 2010
Date of decision: 17 January 2011

DECISION OF APPEALS TRIBUNAL

[1] This is an appeal by Mrs Sue and Mr John Gommans against the decision of the stipendiary stewards at Wanganui on 15 December last to stand down MAN OH MAN for three months pursuant to R 80.1.b(ii).
[2] Rule 80.1.b(ii) of the New Zealand Greyhound Racing Association (hereinafter GRNZ) Rules of Racing states:
Where a Greyhound, in the opinion of the Stewards;
b. Fails to pursue the Lure in a Race, the Stewards may impose the following periods of suspension.
(ii) in the case of a second similar offence, three (3) months and until the completion of a Satisfactory Trial.

[3] Rule 97.4 provides that:
“All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.”
[4] The hearing by the stewards whose decision is being appealed was recorded. Unfortunately that equipment malfunctioned. That being the case, this Tribunal decided that the appropriate manner in which to proceed was to rehear the matter. We invited GRNZ to present its case first.
 

The respondent’s case
[5] The respondent was represented by Mr Gavin Whiterod, stipendiary steward. He stated that he was officiating at the Wanganui greyhound meeting on 15 December last. He was concerned that MAN OH MAN, which had finished 3rd in race 7, had eased going into the first bend and, in so doing, the dog had failed to pursue the lure throughout the race. He asked for the dog to be vetted by the raceday veterinarian, Mr Barton, to find out if there was any reason for the dog easing.
[6] The result of the veterinary examination was that MAN OH MAN was found to have no apparent abnormality. The veterinary certificate (exhibit A) provided for no stand down.
[7] Mr Whiterod stated that he then commenced a hearing into the performance of MAN OH MAN and Mr M Austin, the assistant stipendiary steward on the day, became the adjudicating steward in terms of the procedure under the Rules.
[8] We explained to Mr Whiterod that, as this was a rehearing, he would need to establish the breach to the satisfaction of this Tribunal. Mr Whiterod then alleged that MAN OH MAN was in breach of R 80.1.b in that that dog was observed to ease for approximately ten strides as the field raced into the first turn when clear of other runners. Rule 80.1.b(ii) applied to MAN OH MAN as this was the dog’s second failure (for the purpose of the Rules) to pursue the lure. Rule 80.1.b(ii) provides for a three-month stand down from racing.
[9] Mr Whiterod then showed the trackside video and the head-on video of the race in question. This demonstrated that MAN OH MAN had jumped well and, when racing into the first bend, was clear of the field. MAN OH MAN, he said, eased for what he estimated to be eight to ten strides and, in so doing, changed strides. MAN OH MAN was passed by two dogs before running on strongly, after being checked briefly by the number 7 dog. MAN OH MAN finished in 3rd placing. Mr Whiterod stated that had MAN OH MAN not eased it could have won or at least finished closer. He believed MAN OH MAN had only “switched on” again when he saw the other dogs come around, and it had then chased hard to the finish.
[10] Mr Whiterod emphasised the only aspect of MAN OH MAN’s performance in the race that caused him concern was the dog easing at the first bend. He said there was a change in the dog’s action before the corner and he could see no reason for the dog to ease back when it was in the lead. In particular, there was no veterinary reason. He added that after difficulties at earlier meetings, the track was in “superb order” on the day.
[11] In response to questioning by this Committee, Mr Whiterod stated that greyhounds did not typically reduce speed in order to negotiate a bend. He noted that two dogs, one racing on the outside and the other on the inner of MAN OH MAN, had run past him on the bend and had obviously not had any difficulty with it. When questioned by the appellants, he acknowledged the dog on MAN OH MAN’s inner was a much smaller dog and was railing well. He also agreed that the dog on the outside was “a good dog”.
[12] Mr Whiterod called Mr Austin who said his decision on the day was that MAN OH MAN, which was 2 lengths clear, had changed stride before the bend, was easing up and was letting the other dogs come back to him. Once two dogs had their heads in front of MAN OH MAN, he had then raced truly again to the line. Had MAN OH MAN not had to check off heels, Mr Austin believed he may have finished closer. He said he was still of this view today, and added the dog was on its right leg, was in no trouble and had not run wide on the bend.
[13] Mr Austin said the bends at Wanganui were not identical, and this bend was not particularly tight. Although the bend was not cambered, he said dogs did not deviate too much. He thought the length of the straight at Wanganui was a little bit shorter than that at Auckland and much shorter than that at Manawatu. When questioned by Mr McInerney, he said he did not believe that this bend caused the most faltering by dogs on the Wanganui track. He said MAN OH MAN had eased up before going into the bend and that faltering was not part of the case against MAN OH MAN.
 

The appellants’ case
[14] The appellants, Mr and Mrs Gommans, are the owners of MAN OH MAN. Their case was that MAN OH MAN was chasing hard all the way and had not failed to pursue the lure.
[15] At the time of the alleged breach, MAN OH MAN was trained by Mr McInerney. He had had the dog for some weeks in order to requalify it. We permitted Mr McInerney to assist the appellants and to speak to the actions of the dog. He emphasised that MAN OH MAN was a big dog and was using up the track going into the bend. He said it was all a question of size. He said dogs had to balance to get round bends and would use their inside legs for this purpose, and their tails as a rudder. MAN OH MAN’s stride had to alter as it was going into the bend in question at speed, he said, otherwise the dog would have ended up on the outside fence.
[16] Mr McInerney took us through the video. MAN OH MAN had anticipated or compensated for the bend by changing or altering its stride, he said. The dog was using up the track on the bend and could not get going. Once the dog had balanced up (by changing stride) and straightened, it ran home strongly.
[17] Mr McInerney stated MAN OH MAN was pursuing the lure intently. He emphasised the dog did not alter the angle of its head. He said it did not look sideways; it did not turn its head; it never looked at the other dogs.
[18] Mr McInerney reiterated that MAN OH MAN was a big dog that had found it impossible to take a tight line on the bend. By way of contrast, the dog on the rail was a 26 kg bitch, and thus a little dog, and was able to rail effectively as it used less of the track.
[19] Mr McInerney stated that the track at Wanganui was a turning track. There was not a huge camber on the track and it was not a sweeping bend. The only other similar track, he believed, was the one at Auckland. Mr Whiterod accepted that this was the case.
[20] Mrs Gommans said MAN OH MAN was not getting “a fair go” in the central districts. She and her husband had given the dog to Mr McInerney to requalify in a trial in the South Island. It had done so with no problems. It had been there 6 to 7 weeks and raced once, finishing fifth after having difficulties with its muzzle, before coming back to Wanganui and racing at the meeting that had resulted in the matter before us. She said because there had been no difficulties down south they thought there would be no problems at Wanganui, even though it was a tight track. While there were three previous incidents with MAN OH MAN at that track, they did not all relate to this bend. She said Mr Whiterod had prosecuted each of these breaches.
[21] She reiterated Mr McInerney’s statement that MAN OH MAN appeared to change stride and that it needed to do so because of the dog’s size and the speed it was travelling at the time of going into a tight bend. She said MAN OH MAN did not pull up, it had simply “got lost” on the bend.
[22] Mr Gommans said they had placed MAN OH MAN with Mr McInerney to get an assessment of the dog. He said Mr McInerney was a leading trainer and they wished to utilise his knowledge. He said Mr McInerney had said that MAN OH MAN had tremendous ability and should be racing.
[23] Mr Gommans said MAN OH MAN stayed off the rail because he was a big dog and this was his racing style. He said the dog on MAN OH MAN’s inner had balanced up better when taking the bend because it was a smaller dog and, that while the dog on the outside was of similar weight to MAN OH MAN, it had cornered better because it was a superior dog.
[24] Mr Gommans placed before this Tribunal a signed and witnessed statement from Mr Bill Hodgson of Palmerston North. Mr Whiterod stated he had no objection to this. It was accepted that Mr Hodgson had some 30 years experience as a trainer. He stated that a greyhound when negotiating a bend can become unbalanced very easily and will have to slow to rebalance itself. A greyhound in this situation, in his opinion, was still chasing the lure. He said a large percentage of greyhounds would habitually have trouble “railing like a greyhound” and that these dogs would use more of the track negotiating a bend, with some running out wider than others. This, he said, was a natural trait, and the greyhound was still chasing the lure.
[25] Mr Whiterod, in summing up, stated that MAN OH MAN had not pursued the lure throughout. The dog had given away his advantage by easing for 10 strides. He said greyhounds were bred to race. MAN OH MAN had a history of breaching the rules. The dog had done exactly the same thing in the past. He said the Rules did not make an allowance for dogs to ease; and he emphasised that MAN OH MAN was the only dog to ease in the race. No other dog had had difficulty in balancing on the bend. He did not agree that the speed at which dogs raced varied or that their momentum altered according to the tightness of the track.
[26] Mr Gommans, in reply, said that greyhounds were not robots and a dog was allowed to balance itself up. He said MAN OH MAN was always pursuing and the two dogs that finished ahead of it were better dogs on the day. He added the number 7 dog was a very good dog and was more athletic than MAN OH MAN.
 

Reasons for decision
[27] Rule 80.1.b refers to the opinion of the stewards. As we are hearing this matter de novo, we believe that we have to be satisfied that a steward could reasonably form the opinion that MAN OH MAN is in breach of that rule. There is no reference to the necessary standard of proof in the Rules. We adopt a standard of proof of on the balance of probabilities but, in so doing, we have regard to the fact that the impact of a finding adverse to a greyhound is that it is suspended temporarily and possibly ultimately prevented from racing for 12 months.
[28] We make the following findings of fact:
• race 7 was a race over a sprint distance of 305 metres;
• MAN OH MAN was quick out of its box and settled at the front of the field;
• Prior to racing into the 1st bend MAN OH MAN was some 2 lengths ahead of the trailing dogs;
• entering the first bend, when still racing in front, MAN OH MAN eased for about 10 strides;
• in so doing, MAN OH MAN drifted back to 3rd, perhaps as much as 1/2 a length behind the number 2 and 7 dogs;
• on exiting the bend MAN OH MAN was 2 wide, whereas it had entered the bend in a 3 wide position;
• after exiting the bend MAN OH MAN was checked by the 7 dog before racing wide on the track, and making up ground on the number 2 and 7 dogs;
• MAN OH MAN finished 3rd in the race;
• there is no evidence that MAN OH MAN turned its head and eyed the number 2 or 7 dog at any time.
[29] We did not take Mr Whiterod to be stating that any pursuing of the lure by the dog throughout the race would be sufficient, but rather that a dog must pursue the lure at all times during a race. And, when this was expressly put to Mr Whiterod by us, he confirmed that this was the case, and that it was MAN OH MAN’s actions for 10 strides that concerned him and which he believed were contrary to R 80.1.b.
[30] The issue is whether in slowing to take the 1st bend MAN OH MAN failed to pursue the lure. The nub of the respondent’s case is that if a dog eases during a race and then runs on, unless that dog eased because of interference, it has failed to chase the lure and is thus in breach of r 80. The appellants and their witnesses disagree strongly with this interpretation of r 80 and state there will be times, such as is the case with MAN OH MAN, that a dog will ease, but should be seen still to be chasing the lure. We accept, as they forcefully submitted, that r 80 does not state that no dog shall ease during the running of the race. We believe it would assist the hearing of any future appeal were GRNZ to place expert evidence before an Appeals Tribunal as to the issue of when a dog is failing to pursue the lure.
[31] We are alert to the subjective nature of the determination of whether a dog has failed to pursue. While we are not required by the Rules to determine why MAN OH MAN slowed when going into the 1st bend, it is our view that this is relevant to the determination of the issue of whether that dog is still pursuing the lure. We believe it may often be of assistance in determining whether a dog has failed to chase, to examine the reason(s) why a dog may have eased during a race.
[32] As the Tribunal observed in the ZERO RANGER case (6 December 2010), r 80 does not refer to a dog failing without reasonable excuse to pursue the lure. For the purpose of establishing a breach of r 80, the dog either has chased the lure or it has not. The one exception to this is where the dog is injured. Moreover, this excuse, itself, is limited to an injury that warrants a 21-day stand-down. There is no suggestion of injury in this case.
[33] But that is not to say that every dog that eases in a race has failed to chase the lure. While injury is covered by r 80 itself, interference by another dog, tightening, or contact with the rail, for example, are, the respondent states, factored into a decision by the stipendiary steward as to whether or not to lay a charge. Issues such as track configuration (cambered/uncambered, transitional, tight or sweeping bends, short or long straight), or track conditions, to our mind, are some examples of further matters that may need to be factored into a determination of whether a dog has failed to pursue and is thus in breach of r 80. The need for this rule to be urgently addressed is affirmed by this Tribunal, which is differently constituted to that in the ZERO RANGER case.
[34] Mr Whiterod in his submissions made much of the point that in his view MAN OH MAN had only begun to chase the lure once the dog was aware that the other two dogs had headed him. There are two matters that we would raise with respect to this. There is no video evidence that MAN OH MAN turns its head to eye the other dogs; and, perhaps more significantly, the dog runs on, not when the two dogs first get ahead of him (and thus when MAN OH MAN would first see them), but rather after that dog has straightened upon rounding the bend and when the two dogs are well in front. In other words, it appears that MAN OH MAN’s running on was due to his being able to run in a straight line rather than his desire not to be beaten by the two dogs.
[35] We are concerned that neither party has placed before us a full history of the greyhound or provided evidence to us of the dog’s proclivities. Mr Whiterod at one point stated that MAN OH MAN “had done exactly the same thing in the past”. We had to obtain details of the dog’s history by repeatedly questioning both parties. We do not believe that this is satisfactory. An Appeals Tribunal should not be placed in this position.
[36] However, we understand that MAN OH MAN has on three previous occasions been found to have failed to chase the lure. One of these findings was reversed on appeal. Significantly, in our view, if we have regard in addition to the matter before us, all four of these incidents were when MAN OH MAN was racing on the Wanganui track. Unfortunately we have not had MAN OH MAN’s race record put before us. We are told the dog has had approximately 24 starts and has yet to win. We do not know how many of these 24 starts were at Wanganui but nonetheless, the two (established) breaches at this track suggest that the dog might have issues with this track. We were told, without being provided with any detail, that at least one of these previous incidents related to the same bend as that in respect of which MAN OH MAN is alleged to have failed to pursue in this case.
[37] There is a clear conflict of evidence before us as to the racing manners of a greyhound. Mr Whiterod states that they run at a consistent speed chasing the lure and do not typically slow appreciably when rounding a bend. Mr McInerney states that this might be true of a roomy track such as that at Palmerston North or Christchurch but is not true of tight tracks, such as Wanganui. We are told that the bend at the Wanganui track is not cambered; there are no transitional bends on this track, as there are at Palmerston North, for example.
[38] We do not accept that a greyhound has to be racing hard out at all times to be said to be chasing the lure. It is evident that if a bend is tight and a dog enters the bend in a wide position, unless it slows, it will be very likely to race wider on the bend and, in so doing, prejudice its chances of running in a better placing. It is perhaps a question of degree, but we do not accept that by adopting such actions, ie slowing in order to traverse a bend, that a dog should always be found to be failing to pursue the lure.
[39] We are aware MAN OH MAN is a large dog. This is not disputed. MAN OH MAN was racing at high speed when running into the first bend. In simple terms, the dog was travelling more quickly, at that time, than any other dog in the race. It is evident MAN OH MAN then slows noticeably, and traverses the bend by racing from three wide, when entering the bend, to two wide on exiting it.
[40] We find this case to be very finely balanced. We are concerned at the extent to which MAN OH MAN has lost momentum prior to the bend and this would point us to finding in favour of the respondent. However, we believe the onus is on GRNZ to satisfy us, at least to the standard of on the balance of probabilities, that MAN OH MAN eased before the bend because the dog was failing to pursue the lure.
[41] We find we are unable to dismiss the possibility that MAN OH MAN may have eased at this bend, on a track which has caused the dog “issues” in the past, simply because as a large dog racing 3 wide on the track, MAN OH MAN did so in order to balance and to be able to race around the bend without running wide on the track. The matters that we discuss at [34] (the failure by MAN OH MAN to eye the other dogs and his running on after the two dogs were some distance in front of him) further lead us to this view. In other words, it may be that MAN OH MAN’s running on strongly after exiting the bend was due to his being able again to run in a straight line rather than his desire not to be beaten by the two dogs.
 

Penalty:

[42] Taking these matters into account, we are not satisfied to the necessary standard that the stewards did reasonably form the opinion that MAN OH MAN failed to pursue the lure in breach of R 80.1.b(ii). The consequence is that the steward’s decision on 15 December last to impose a 3 months’ suspension on MAN OH MAN is quashed.
[43] The parties are given leave to file submissions for costs within seven days of the receipt of this decision.

 


G Hall, Chairman
N Moffatt, Member 
 

Appeal Decision: NO LINKED APPEAL DECISION

Decision Date: 31/12/2010

Publish Date: 31/12/2010

JCA Decision Fields (raw)

Dmitry: This section contains all JCA fields migrated from the raw data.

Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.

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startdate: no date provided

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penaltyrequired:

decisiondate: 31/12/2010

hearing_title: Appeal SD & JP Gommans v NZGRA - 23 December 2010 - Decision dated 17 January 2011

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY AT PALMERSTON NORTH
UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN MRS SUE AND Mr JOHN GOMMANS of Palmerston North, Licensed public trainers
Appellants

AND NEW ZEALAND GREYHOUND RACING ASSOCIATION (INC)
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mrs N Moffatt, Member
Appearing: Mr J Gommans and Mrs S Gommans in person, with the assistance of Mr J McInerney, Mr G Whiterod for GRNZ
Date of hearing: 23 December 2010
Date of decision: 17 January 2011

DECISION OF APPEALS TRIBUNAL

[1] This is an appeal by Mrs Sue and Mr John Gommans against the decision of the stipendiary stewards at Wanganui on 15 December last to stand down MAN OH MAN for three months pursuant to R 80.1.b(ii).
[2] Rule 80.1.b(ii) of the New Zealand Greyhound Racing Association (hereinafter GRNZ) Rules of Racing states:
Where a Greyhound, in the opinion of the Stewards;
b. Fails to pursue the Lure in a Race, the Stewards may impose the following periods of suspension.
(ii) in the case of a second similar offence, three (3) months and until the completion of a Satisfactory Trial.

[3] Rule 97.4 provides that:
“All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.”
[4] The hearing by the stewards whose decision is being appealed was recorded. Unfortunately that equipment malfunctioned. That being the case, this Tribunal decided that the appropriate manner in which to proceed was to rehear the matter. We invited GRNZ to present its case first.
 

The respondent’s case
[5] The respondent was represented by Mr Gavin Whiterod, stipendiary steward. He stated that he was officiating at the Wanganui greyhound meeting on 15 December last. He was concerned that MAN OH MAN, which had finished 3rd in race 7, had eased going into the first bend and, in so doing, the dog had failed to pursue the lure throughout the race. He asked for the dog to be vetted by the raceday veterinarian, Mr Barton, to find out if there was any reason for the dog easing.
[6] The result of the veterinary examination was that MAN OH MAN was found to have no apparent abnormality. The veterinary certificate (exhibit A) provided for no stand down.
[7] Mr Whiterod stated that he then commenced a hearing into the performance of MAN OH MAN and Mr M Austin, the assistant stipendiary steward on the day, became the adjudicating steward in terms of the procedure under the Rules.
[8] We explained to Mr Whiterod that, as this was a rehearing, he would need to establish the breach to the satisfaction of this Tribunal. Mr Whiterod then alleged that MAN OH MAN was in breach of R 80.1.b in that that dog was observed to ease for approximately ten strides as the field raced into the first turn when clear of other runners. Rule 80.1.b(ii) applied to MAN OH MAN as this was the dog’s second failure (for the purpose of the Rules) to pursue the lure. Rule 80.1.b(ii) provides for a three-month stand down from racing.
[9] Mr Whiterod then showed the trackside video and the head-on video of the race in question. This demonstrated that MAN OH MAN had jumped well and, when racing into the first bend, was clear of the field. MAN OH MAN, he said, eased for what he estimated to be eight to ten strides and, in so doing, changed strides. MAN OH MAN was passed by two dogs before running on strongly, after being checked briefly by the number 7 dog. MAN OH MAN finished in 3rd placing. Mr Whiterod stated that had MAN OH MAN not eased it could have won or at least finished closer. He believed MAN OH MAN had only “switched on” again when he saw the other dogs come around, and it had then chased hard to the finish.
[10] Mr Whiterod emphasised the only aspect of MAN OH MAN’s performance in the race that caused him concern was the dog easing at the first bend. He said there was a change in the dog’s action before the corner and he could see no reason for the dog to ease back when it was in the lead. In particular, there was no veterinary reason. He added that after difficulties at earlier meetings, the track was in “superb order” on the day.
[11] In response to questioning by this Committee, Mr Whiterod stated that greyhounds did not typically reduce speed in order to negotiate a bend. He noted that two dogs, one racing on the outside and the other on the inner of MAN OH MAN, had run past him on the bend and had obviously not had any difficulty with it. When questioned by the appellants, he acknowledged the dog on MAN OH MAN’s inner was a much smaller dog and was railing well. He also agreed that the dog on the outside was “a good dog”.
[12] Mr Whiterod called Mr Austin who said his decision on the day was that MAN OH MAN, which was 2 lengths clear, had changed stride before the bend, was easing up and was letting the other dogs come back to him. Once two dogs had their heads in front of MAN OH MAN, he had then raced truly again to the line. Had MAN OH MAN not had to check off heels, Mr Austin believed he may have finished closer. He said he was still of this view today, and added the dog was on its right leg, was in no trouble and had not run wide on the bend.
[13] Mr Austin said the bends at Wanganui were not identical, and this bend was not particularly tight. Although the bend was not cambered, he said dogs did not deviate too much. He thought the length of the straight at Wanganui was a little bit shorter than that at Auckland and much shorter than that at Manawatu. When questioned by Mr McInerney, he said he did not believe that this bend caused the most faltering by dogs on the Wanganui track. He said MAN OH MAN had eased up before going into the bend and that faltering was not part of the case against MAN OH MAN.
 

The appellants’ case
[14] The appellants, Mr and Mrs Gommans, are the owners of MAN OH MAN. Their case was that MAN OH MAN was chasing hard all the way and had not failed to pursue the lure.
[15] At the time of the alleged breach, MAN OH MAN was trained by Mr McInerney. He had had the dog for some weeks in order to requalify it. We permitted Mr McInerney to assist the appellants and to speak to the actions of the dog. He emphasised that MAN OH MAN was a big dog and was using up the track going into the bend. He said it was all a question of size. He said dogs had to balance to get round bends and would use their inside legs for this purpose, and their tails as a rudder. MAN OH MAN’s stride had to alter as it was going into the bend in question at speed, he said, otherwise the dog would have ended up on the outside fence.
[16] Mr McInerney took us through the video. MAN OH MAN had anticipated or compensated for the bend by changing or altering its stride, he said. The dog was using up the track on the bend and could not get going. Once the dog had balanced up (by changing stride) and straightened, it ran home strongly.
[17] Mr McInerney stated MAN OH MAN was pursuing the lure intently. He emphasised the dog did not alter the angle of its head. He said it did not look sideways; it did not turn its head; it never looked at the other dogs.
[18] Mr McInerney reiterated that MAN OH MAN was a big dog that had found it impossible to take a tight line on the bend. By way of contrast, the dog on the rail was a 26 kg bitch, and thus a little dog, and was able to rail effectively as it used less of the track.
[19] Mr McInerney stated that the track at Wanganui was a turning track. There was not a huge camber on the track and it was not a sweeping bend. The only other similar track, he believed, was the one at Auckland. Mr Whiterod accepted that this was the case.
[20] Mrs Gommans said MAN OH MAN was not getting “a fair go” in the central districts. She and her husband had given the dog to Mr McInerney to requalify in a trial in the South Island. It had done so with no problems. It had been there 6 to 7 weeks and raced once, finishing fifth after having difficulties with its muzzle, before coming back to Wanganui and racing at the meeting that had resulted in the matter before us. She said because there had been no difficulties down south they thought there would be no problems at Wanganui, even though it was a tight track. While there were three previous incidents with MAN OH MAN at that track, they did not all relate to this bend. She said Mr Whiterod had prosecuted each of these breaches.
[21] She reiterated Mr McInerney’s statement that MAN OH MAN appeared to change stride and that it needed to do so because of the dog’s size and the speed it was travelling at the time of going into a tight bend. She said MAN OH MAN did not pull up, it had simply “got lost” on the bend.
[22] Mr Gommans said they had placed MAN OH MAN with Mr McInerney to get an assessment of the dog. He said Mr McInerney was a leading trainer and they wished to utilise his knowledge. He said Mr McInerney had said that MAN OH MAN had tremendous ability and should be racing.
[23] Mr Gommans said MAN OH MAN stayed off the rail because he was a big dog and this was his racing style. He said the dog on MAN OH MAN’s inner had balanced up better when taking the bend because it was a smaller dog and, that while the dog on the outside was of similar weight to MAN OH MAN, it had cornered better because it was a superior dog.
[24] Mr Gommans placed before this Tribunal a signed and witnessed statement from Mr Bill Hodgson of Palmerston North. Mr Whiterod stated he had no objection to this. It was accepted that Mr Hodgson had some 30 years experience as a trainer. He stated that a greyhound when negotiating a bend can become unbalanced very easily and will have to slow to rebalance itself. A greyhound in this situation, in his opinion, was still chasing the lure. He said a large percentage of greyhounds would habitually have trouble “railing like a greyhound” and that these dogs would use more of the track negotiating a bend, with some running out wider than others. This, he said, was a natural trait, and the greyhound was still chasing the lure.
[25] Mr Whiterod, in summing up, stated that MAN OH MAN had not pursued the lure throughout. The dog had given away his advantage by easing for 10 strides. He said greyhounds were bred to race. MAN OH MAN had a history of breaching the rules. The dog had done exactly the same thing in the past. He said the Rules did not make an allowance for dogs to ease; and he emphasised that MAN OH MAN was the only dog to ease in the race. No other dog had had difficulty in balancing on the bend. He did not agree that the speed at which dogs raced varied or that their momentum altered according to the tightness of the track.
[26] Mr Gommans, in reply, said that greyhounds were not robots and a dog was allowed to balance itself up. He said MAN OH MAN was always pursuing and the two dogs that finished ahead of it were better dogs on the day. He added the number 7 dog was a very good dog and was more athletic than MAN OH MAN.
 

Reasons for decision
[27] Rule 80.1.b refers to the opinion of the stewards. As we are hearing this matter de novo, we believe that we have to be satisfied that a steward could reasonably form the opinion that MAN OH MAN is in breach of that rule. There is no reference to the necessary standard of proof in the Rules. We adopt a standard of proof of on the balance of probabilities but, in so doing, we have regard to the fact that the impact of a finding adverse to a greyhound is that it is suspended temporarily and possibly ultimately prevented from racing for 12 months.
[28] We make the following findings of fact:
• race 7 was a race over a sprint distance of 305 metres;
• MAN OH MAN was quick out of its box and settled at the front of the field;
• Prior to racing into the 1st bend MAN OH MAN was some 2 lengths ahead of the trailing dogs;
• entering the first bend, when still racing in front, MAN OH MAN eased for about 10 strides;
• in so doing, MAN OH MAN drifted back to 3rd, perhaps as much as 1/2 a length behind the number 2 and 7 dogs;
• on exiting the bend MAN OH MAN was 2 wide, whereas it had entered the bend in a 3 wide position;
• after exiting the bend MAN OH MAN was checked by the 7 dog before racing wide on the track, and making up ground on the number 2 and 7 dogs;
• MAN OH MAN finished 3rd in the race;
• there is no evidence that MAN OH MAN turned its head and eyed the number 2 or 7 dog at any time.
[29] We did not take Mr Whiterod to be stating that any pursuing of the lure by the dog throughout the race would be sufficient, but rather that a dog must pursue the lure at all times during a race. And, when this was expressly put to Mr Whiterod by us, he confirmed that this was the case, and that it was MAN OH MAN’s actions for 10 strides that concerned him and which he believed were contrary to R 80.1.b.
[30] The issue is whether in slowing to take the 1st bend MAN OH MAN failed to pursue the lure. The nub of the respondent’s case is that if a dog eases during a race and then runs on, unless that dog eased because of interference, it has failed to chase the lure and is thus in breach of r 80. The appellants and their witnesses disagree strongly with this interpretation of r 80 and state there will be times, such as is the case with MAN OH MAN, that a dog will ease, but should be seen still to be chasing the lure. We accept, as they forcefully submitted, that r 80 does not state that no dog shall ease during the running of the race. We believe it would assist the hearing of any future appeal were GRNZ to place expert evidence before an Appeals Tribunal as to the issue of when a dog is failing to pursue the lure.
[31] We are alert to the subjective nature of the determination of whether a dog has failed to pursue. While we are not required by the Rules to determine why MAN OH MAN slowed when going into the 1st bend, it is our view that this is relevant to the determination of the issue of whether that dog is still pursuing the lure. We believe it may often be of assistance in determining whether a dog has failed to chase, to examine the reason(s) why a dog may have eased during a race.
[32] As the Tribunal observed in the ZERO RANGER case (6 December 2010), r 80 does not refer to a dog failing without reasonable excuse to pursue the lure. For the purpose of establishing a breach of r 80, the dog either has chased the lure or it has not. The one exception to this is where the dog is injured. Moreover, this excuse, itself, is limited to an injury that warrants a 21-day stand-down. There is no suggestion of injury in this case.
[33] But that is not to say that every dog that eases in a race has failed to chase the lure. While injury is covered by r 80 itself, interference by another dog, tightening, or contact with the rail, for example, are, the respondent states, factored into a decision by the stipendiary steward as to whether or not to lay a charge. Issues such as track configuration (cambered/uncambered, transitional, tight or sweeping bends, short or long straight), or track conditions, to our mind, are some examples of further matters that may need to be factored into a determination of whether a dog has failed to pursue and is thus in breach of r 80. The need for this rule to be urgently addressed is affirmed by this Tribunal, which is differently constituted to that in the ZERO RANGER case.
[34] Mr Whiterod in his submissions made much of the point that in his view MAN OH MAN had only begun to chase the lure once the dog was aware that the other two dogs had headed him. There are two matters that we would raise with respect to this. There is no video evidence that MAN OH MAN turns its head to eye the other dogs; and, perhaps more significantly, the dog runs on, not when the two dogs first get ahead of him (and thus when MAN OH MAN would first see them), but rather after that dog has straightened upon rounding the bend and when the two dogs are well in front. In other words, it appears that MAN OH MAN’s running on was due to his being able to run in a straight line rather than his desire not to be beaten by the two dogs.
[35] We are concerned that neither party has placed before us a full history of the greyhound or provided evidence to us of the dog’s proclivities. Mr Whiterod at one point stated that MAN OH MAN “had done exactly the same thing in the past”. We had to obtain details of the dog’s history by repeatedly questioning both parties. We do not believe that this is satisfactory. An Appeals Tribunal should not be placed in this position.
[36] However, we understand that MAN OH MAN has on three previous occasions been found to have failed to chase the lure. One of these findings was reversed on appeal. Significantly, in our view, if we have regard in addition to the matter before us, all four of these incidents were when MAN OH MAN was racing on the Wanganui track. Unfortunately we have not had MAN OH MAN’s race record put before us. We are told the dog has had approximately 24 starts and has yet to win. We do not know how many of these 24 starts were at Wanganui but nonetheless, the two (established) breaches at this track suggest that the dog might have issues with this track. We were told, without being provided with any detail, that at least one of these previous incidents related to the same bend as that in respect of which MAN OH MAN is alleged to have failed to pursue in this case.
[37] There is a clear conflict of evidence before us as to the racing manners of a greyhound. Mr Whiterod states that they run at a consistent speed chasing the lure and do not typically slow appreciably when rounding a bend. Mr McInerney states that this might be true of a roomy track such as that at Palmerston North or Christchurch but is not true of tight tracks, such as Wanganui. We are told that the bend at the Wanganui track is not cambered; there are no transitional bends on this track, as there are at Palmerston North, for example.
[38] We do not accept that a greyhound has to be racing hard out at all times to be said to be chasing the lure. It is evident that if a bend is tight and a dog enters the bend in a wide position, unless it slows, it will be very likely to race wider on the bend and, in so doing, prejudice its chances of running in a better placing. It is perhaps a question of degree, but we do not accept that by adopting such actions, ie slowing in order to traverse a bend, that a dog should always be found to be failing to pursue the lure.
[39] We are aware MAN OH MAN is a large dog. This is not disputed. MAN OH MAN was racing at high speed when running into the first bend. In simple terms, the dog was travelling more quickly, at that time, than any other dog in the race. It is evident MAN OH MAN then slows noticeably, and traverses the bend by racing from three wide, when entering the bend, to two wide on exiting it.
[40] We find this case to be very finely balanced. We are concerned at the extent to which MAN OH MAN has lost momentum prior to the bend and this would point us to finding in favour of the respondent. However, we believe the onus is on GRNZ to satisfy us, at least to the standard of on the balance of probabilities, that MAN OH MAN eased before the bend because the dog was failing to pursue the lure.
[41] We find we are unable to dismiss the possibility that MAN OH MAN may have eased at this bend, on a track which has caused the dog “issues” in the past, simply because as a large dog racing 3 wide on the track, MAN OH MAN did so in order to balance and to be able to race around the bend without running wide on the track. The matters that we discuss at [34] (the failure by MAN OH MAN to eye the other dogs and his running on after the two dogs were some distance in front of him) further lead us to this view. In other words, it may be that MAN OH MAN’s running on strongly after exiting the bend was due to his being able again to run in a straight line rather than his desire not to be beaten by the two dogs.
 

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[42] Taking these matters into account, we are not satisfied to the necessary standard that the stewards did reasonably form the opinion that MAN OH MAN failed to pursue the lure in breach of R 80.1.b(ii). The consequence is that the steward’s decision on 15 December last to impose a 3 months’ suspension on MAN OH MAN is quashed.
[43] The parties are given leave to file submissions for costs within seven days of the receipt of this decision.

 


G Hall, Chairman
N Moffatt, Member 
 

hearing_type: Non-race day

Rules: 801.1.b(ii)

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Respondent: NZGRA

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