Appeal – WE Higgs

hearingid: 1feb24d48a78b6e4df6de3409e7b7a0e

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Appeal - WE Higgs

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This is an appeal against the finding of the Judicial Committee of 8 November 2005 wherein the appellant was found to have driven carelessly and drove in a manner affecting the chances of Presido driven by Mr de Fillippi in the New Zealand Trotting Cup 2005.

This is an appeal against the finding of the Judicial Committee of 8 November 2005 wherein the appellant was found to have driven carelessly and drove in a manner affecting the chances of Presido driven by Mr de Fillippi in the New Zealand Trotting Cup 2005. The appellant also appeals against the sentence imposed of suspension of his horseman's licence up until 4 December 2005 and a fine of $1500.00.

The procedure for this appeal is governed by Rule 1025. The appeal was conducted by way of rehearing based on the evidence adduced before the Judicial Committee. At the appeal hearing we received written submissions from the appellant running to five pages. The respondent presented a folder of information. We also viewed the video evidence of the relevant race from three angles and we allowed both the appellant and Mr Escott to comment from time to time as the videos were played. We also observed the video of the complete race and at the end of the hearing in the absence of the parties we again viewed the videos. We have read the transcript of evidence, the Judicial Committee's decision and all the documents produced during the hearing.

We note that there is no presumption in favour of the decision of the Judicial Committee and that we must reach our own decision. We must bear in mind the findings of credibility of the Judicial Committee below, be slow to differ from them but we are not bound to follow them. The respondent has the onus of establishing the charge.

A number of narrative facts are not in dispute. At the start of the New Zealand Trotting Cup 2005 the appellant's horse White Arrow was slow away. Mr de Fillippi's horse Presido settled at the rear of the main bunch. After the field had travelled approximately 1000 metres Mr de Fillippi's horse Presido was on the fence at the back of the bunch and White Arrow driven by the appellant was catching up. With about 2400 metres to run Howard Bromac, which had been behind but outside Presido, made a forward move and was followed by Just an Excuse which had been immediately outside Presido. It seemed to be generally accepted that there may have been a slight easing of the pace by those horses positioned on the rail although this was not discernible from the videos. It is after 1000 metres from the start that there is conflict in the evidence between Mr de Fillippi and the appellant and also Mr Williams, the Stipendary Steward who showed the videos at the Judicial Committee hearing.

In essence the appellant alleges that Mr de Fillippi eased back (and this is apparent from the video) and moved out to position Presido behind Mainland Banner into the position which had just been vacated by Just an Excuse. The appellant alleges that it was at a point when Mr de Fillippi's horse was down on the fence or just moving out and that the appellant's horse White Arrow was arriving at the back of the field at greater speed that caused White Arrow to strike the outside sulky wheel of Mr de Fillippi's horse and that Mr de Fillippi continued to ease back and move out into the two outline causing White Arrow to go into a break. The appellant contested the Judicial Committee's finding that Presido was already in the two-out line when the striking of the sulky wheel occurred. Mr de Fillippi on the other hand, in his evidence, said that there was room for him to move out and that his sulky was struck from behind by White Arrow.

We do not find, as the Judicial Committee did, that the striking of the sulky wheel occurred when Mr de Fillippi had got completely into the two-out line. We however do not accept the appellant's contention that the striking of the sulky wheel occurred when Mr de Fillippi's horse was virtually still on the fence. We are satisfied from the evidence which we accept that it was the inside of the outside sulky wheel that was struck by the appellant's horse White Arrow. We are unable to make a finding as to which of the horse's forelegs actually struck the sulky wheel.

On the probabilities we find that Mr de Fillippi's sulky wheel was struck when he has eased back and was moving into the two-out line. From the video which shows a rear view of this (and gives the best picture) we find that the striking of the sulky wheel occurred just before White Arrow shows a head movement and goes into a break. We also find that this happened at a point when the appellant and White Arrow were still catching the field and travelling at a faster rate than Mr de Fillippi with Presido and the rest of the field. We find that Mr de Fillippi was entitled to move out to get into the position behind Mainland Banner which had been vacated by Just an Excuse which had moved out and forward. We also find that to do this Mr de Fillippi had to ease his horse slightly and that is obvious from the video when his horse's head appreciably comes back from the driver ahead and at that point Mainland Banner is not exactly opposite the horse in front of Mr de Fillippi's horse. But we find nevertheless that Mr de Fillippi was entitled to execute that manoeuvre and we further find that the appellant ought to have restrained his horse to avoid hitting Mr de Fillippi's sulky.

We find that the appellant's horse White Arrow was catching the field and although travelling faster than all the other horses ahead of him, the appellant's horse was at no time, except at the point of contact, in a position other than being behind Mr de Fillippi's sulky. We find that Mr Higgs was catching up in those circumstances and attempted to move into the second line into the space that had been vacated but this was at the same time that Mr de Fillippi who was a horse and sulky length ahead of the appellant also chose to move into that space. We do not accept the appellant's evidence and contentions that it was Mr de Fillippi that ran into White Arrow's legs and caused the damage to the sulky wheel which resulted in the tyre coming off the rim. We find it was the appellant's duty to pull back and/or avoid the contact that occurred. We find, as did the Judicial Committee, that the charges have been made out.

As to penalty, we have considered the appellant's submissions. Although it is correct that Presido did not, at the finish of the race, trail the field by an appreciable distance, it appeared from the video of the whole race that that horse finished last of the fifteen runners and this is confirmed by the official result of the race. We accept Mr de Fillippi's evidence that the loss of a tyre in the circumstances would have affected his chances. We have examined the appellant's driving record. He has had a number of warnings and has been fined on four previous occasions for various offences. As to the penalty imposed the Judicial Committee was obliged to consider Rule 1114(2). For a race of this standing it was inevitable that the penalty, once a finding was made, would not be inconsiderable. Our view is that the penalty imposed was well within the range of the penalties available to the Judicial Committee. This was the New Zealand Trotting Cup. We are satisfied that the chances of Presido were affected. We would categorise the carelessness involved as being moderate but we are in no way convinced that the penalty imposed was manifestly excessive or inappropriate.

It follows that the appeals against finding and penalty imposed are dismissed.

As to costs we do not consider we should award these to Harness Racing New Zealand but that the appellant should pay an amount towards the costs of the JCA. We fix these at $500.00.

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hearing_type: Old Hearing

Rules: 1114.2

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