Ashburton TC 3 June 2018 – R 11 (heard 26 June 2018 at Addington) – Chair, Mr R G McKenzie

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decisiondate: 02/07/2018

hearing_title: Ashburton TC 3 June 2018 - R 11 (heard 26 June 2018 at Addington) - Chair, Mr R G McKenzie

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appealdecision: NO LINKED APPEAL DECISION

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BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

IN THE MATTER of Information No. A09648

BETWEEN S P RENAULT, Stipendiary Steward for the Racing Integrity Unit

Informant

AND JOHN CHARLES MORRISON of West Melton, Licensed Junior Driver

Respondent

Date of Hearing: Tuesday, 26 June 2018

Venue: Addington Raceway, Christchurch

Judicial Committee: Mr RG McKenzie (Chairman)

Mr DJ Anderson (Committee Member)

Present: Mr SP Renault (the Informant)

The Respondent, in person

Mr MP Jones, assisting Mr Morrison

Date of Decision: 2nd July 2018

RESERVED REASONS FOR DECISION OF JUDICIAL COMMITTEE

THE CHARGE

[1] Information No. A09648 alleges that Mr Morrison, as the driver of MR MIDNIGHT in Race 11, Chertsey Trotting Club Mobile Pace, at the meeting of Ashburton Trotting Club held at Ashburton Raceway, Ashburton, on 3rd June 2018, “failed to take all reasonable and permissible measures to ensure MR MIDNIGHT was given full opportunity to win or obtain the best possible finishing position when not improving outwards near the 600 metres resulting in his horse being held up for racing room”.

[2] Mr Morrison signed the Statement by the Respondent form indicating that he did not admit the breach. The information was filed with the Judicial Committee on the raceday and adjourned sine die.

[3] Mr Morrison was present at the hearing of the information. The charge was read to him, together with the relevant Rule, and he confirmed that he denied the charge.

[4] Mr Morrison, Junior Driver, was represented at the hearing by Licensed Open Horseman / Public Trainer, Mr MP Jones.

THE RULE

[5] The relevant Rule is as follows:

868(2) Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.

EVIDENCE AND SUBMISSIONS OF THE INFORMANT

[6] Background

1. On Sunday 3rd June 2018 the Respondent, Mr John Morrison, was the driver of the horse MR MIDNIGHT in Race 11, the Chertsey Trotting Club Mobile Pace, at the Ashburton TC meeting held at Ashburton Raceway.

2. MR MIDNIGHT is trained by D Mitchell and in this race finished in 8th place, 8.4 lengths from the winner.

3. Stewards questioned Mr Morrison on the day in the presence of senior horseman, Mr R T May, regarding the manner he drove MR MIDNIGHT in this race, in particular the reason he did not shift ground outwards prior to the 600 metres resulting in him being badly held up behind the tiring MAJOR HIPPIE. After hearing from Mr Morrison, Stewards issued him with a charge under Rule 868(2) alleging that “he failed to take all reasonable and permissible measures to ensure MR MIDNIGHT was given full opportunity to win or obtain the best possible finishing position when not improving outwards near the 600 metres resulting in his horse being held up.” After a brief hearing with the JCA on the day, the matter was adjourned sine die at the request of Mr Morrison.

4. Rule 868(2) reads:

Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.

[7] Informant’s Submissions

5. Rule 868(2) is aimed at ensuring the integrity of Harness Racing is protected. A driver has two main obligations. They are to drive his horse in a manner that is both reasonable and permissible in order to gain the best possible finishing place, as an investor is entitled to have a driver do his best to gain a return from that investment. He referred to HRNZ v H (2005) where it was said:

“The Rule requires both a demonstration of tactics which can, by objective standards, be said to be both reasonable and permissible. Those have to be tactics which can be seen by not only the Stipendiary Stewards, but also those present at the racetrack, and in particular the betting public, to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The Informant does not have to prove any deliberate intent not to win the race. There may be circumstances in which a driver’s manner of driving may amount merely to a permissible error of tactics, but where that error of tactics amounts to bad judgement that results in disadvantage to his horse, then such manner of driving falls within the terms of the rule.”

6. Mr Renault then showed to the hearing a video replay of the entire race, a 2400 metres mobile start event. MR MIDNIGHT drew 2 in this race. From the start the horse showed gate speed to race alongside the inside horse, GOING TO CALIFORNIA. After approximately 100 metres, Mr Morrison took a hold of his horse and obtained cover racing into the first bend. MR MIDNIGHT then raced from that point until near the 1400 metres with cover. Passing the 1400 metres MR MIDNIGHT was left to race parked after the horse that he was following, BLUE BLAZER, improved to the lead. MR MIDNIGHT raced parked from the 1400 metres until near the 800 metres when covered by MAJOR HIPPIE which had improved three-wide. MR MIDNIGHT was held up rounding the final bend by the tiring MAJOR HIPPIE and was pushed back to last approaching the 400 metres. From this point on MR MIDNIGHT finished the race off well between runners into 8th place, 8.4 lengths from the winner.

7. The overall time of the race was 3.00.1; the mile rate was 2.00.8, last 800 metres in 57.5 and the final 400 metres in 27.5.

8. Stewards’ concerns with Mr Morrison’s drive is from the 700 metres where MAJOR HIPPIE, the horse which MR MIDNIGHT was following, commences to be driven up with the whip by its driver. From that point on, the video shows MAJOR HIPPIE, having been “wheel to wheel” with the leader, commenced to lose ground on the leader, BLUE BLAZER. As the field rounded the final bend, MISS YOU driven by G O’Reilly improved three-wide. Mr Morrison attempted to shift wider on the track forcing MISS YOU outwards but, by the time Mr Morrison made his move, he was unable to force MISS YOU wider because that horse had improved forward of him leaving him to remain in the two-wide line following the tiring MAJOR HIPPIE.

9. Mr Renault pointed out Mr Morrison attempting to improve out to the three-wide position with the horse’s head being pointed outwards. At that point, MAJOR HIPPIE was commencing to tire, he submitted. The opportunity existed for Mr Morrison to improve his horse three-wide off the back of the weakening MAJOR HIPPIE prior to MISS YOU covering his horse. Looking at the replays MR MIDNIGHT was travelling well when you consider the manner Mr Morrison is positioned in the sulky. The horse appeared to be under a hold. This move outwards was an obtainable and reasonable option for Mr Morrison until passing the 600 metres when he was covered by MISS YOU.

10. When questioned on the day, Mr Morrison stated that he was aware that MAJOR HIPPIE was under pressure and being driven with the whip, however he wanted to hold his horse up for as long as possible. He also said that when he did improve outwards his sulky wheel had started squealing with Mr O’Reilly’s sulky wheel after coming together and he was then shunted inwards. At no stage did the wheels lock.

11. The replay shows Mr Morrison attempt to improve off the back of MAJOR HIPPIE after the field pass the 600 metres. At that stage MISS YOU was able to resist the attempted shift from MR MIDNIGHT and hold its line before continuing past.

12. To improve at this point may not have been Mr Morrison’s preferred option but it was certainly the option that was in the best interests to ensure MR MIDNIGHT was given full opportunity to obtain the best possible finishing position.

13. Mr Morrison’s decision to wait until that point of the race before shifting ground was unreasonable. He has continued to remain in the 1x1 position behind a horse that was under pressure with the whip and had commenced to weaken. Mr Morrison should have improved outwards when the three wide line had commenced to progress forwards. It was a manoeuvre that he should have executed. Instead Mr Morrison waited until it was too late and lost the opportunity.

14. As a result of Mr Morrison not moving outwards he is badly held up behind MAJOR HIPPIE and is blocked for racing room. MR MIDNIGHT has gone from 4th place at the 600 metres to last approaching the 400 metres.

15. Once MR MIDNIGHT obtained clear racing room inside the final 400 metres, the horse ran on well to finish in 8th place.

16. Stewards ask the Committee to bear in mind a quote from Haylen J where he said in a ruling in S dated 20 May 2009:

“Perhaps to throw my own interpretation into the mix I might view it this way – that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect “what on earth is he doing” or “my goodness look at that” or some such exclamation.”

17. Stewards feel that this quote is appropriate in this case. When you look at the replay, every other driver has improved around the weakening MAJOR HIPPIE except Mr Morrison. It could be expected of a reasonable and knowledgeable harness racing spectator to say, “what on earth is he doing”.

18. Drivers are expected to make decisions in races that are reasonable in the circumstances, particularly coming into a crucial stage of the race. Stewards do not believe Mr Morrison has displayed those expectations and the tactics he adopted were unreasonable.

19. Mr Morrison has displayed bad judgement, he was aware of what was happening around him but he wanted to hold the horse up as long as possible. As a result of doing this he has waited too long which has seen him be badly held up.

20. Mr Renault, referring to the video replays, said that the Stewards’ concern was that MAJOR HIPPIE was being driven with the whip. MISS YOU had just come alongside Mr Morrison and Mr Morrison should have been coming out to force that runner wider and obtain clear running, but he has been too late and Mr O’Reilly on MISS YOU has been able to hold his position. He showed Mr Morrison attempting to come out. He held a slender advantage over MISS YOU but that runner had improved quickly and Mr O’Reilly was able to withstand the push from Mr Morrison, Mr Renault said. Mr Morrison did not need to come out and push forward – he could have come out and sat three-wide and improved to the parked position with MAJOR HIPPIE stopping. Stewards believed that, had he done so, MR MIDNIGHT would have finished in a higher position.

21. Mr Morrison, in cross-examining Mr Renault, referred to the video replays and suggested that MAJOR HIPPIE appeared to be holding his ground. As the head of MISS YOU got to him, he said, he had attempted to shift out but Mr O’Reilly had been travelling at such speed that the sulky wheels had touched and “squealed”. He said to Mr Renault that he disagreed that he had not attempted to come out at a point where he still held an advantage but MISS YOU had been travelling at such speed. He was concerned that he may have locked wheels and disrupted following runners if he had persisted in his outwards movement.

22. Mr Jones asked Mr Renault why the driver of the horse which had been following MR MIDNIGHT had not been questioned as to why he did not come out at the 700 metres when he had an opportunity to do so if it was apparent that MAJOR HIPPIE was stopping. Mr Renault said that he did not have a problem with that drive. That driver had made the same decision as Mr Morrison, Mr Jones submitted.

SUBMISSIONS OF THE RESPONDENT

[8] Mr Morrison said that, approaching the 700 metres, MAJOR HIPPIE had levelled up with the leader. The driver was “chasing up” the horse but it was responding, he said, and was holding its ground. Also, the leader had increased the pace which made it look worse. He pointed out that he had an advantage over Mr O’Reilly but, as he came to shift out, the wheels of the two runners came into contact. Mr O’Reilly was travelling at that much greater speed that Mr O’Reilly could contest when he tried to come out. Mr Morrison said that when the wheels started “squealing”, he felt that if he contested with Mr O’Reilly there would likely have been an incident which disrupted the field.

[9] His horse was travelling “just OK” but he still tried to move out. Mr Renault replied that Mr O’Reilly appeared to go straight past and agreed that Mr Morrison had lost the opportunity to come out.

[10] Mr Morrison showed, on one of the video replays, that it could be seen that he had tried to come out. His horse’s head could be seen to be turned out and was on the wheel of MAJOR HIPPIE and about to commence his run. He was still ahead of Mr O’Reilly, he submitted, but that was when the wheels contacted and he felt, at that stage, that he needed to desist in his shift outwards. He had noted that MAJOR HIPPIE was now under a drive and hence he had attempted to come out. He did not believe that that runner really began to stop until a number of other runners improved outside him, Mr Morrison said. He did not anticipate MAJOR HIPPIE stopping as he did. That horse had been favoured in better class races in starts leading up to this race. He had rated it as one of the better horses in the field, he said.

[11] In response to a question from the Committee, Mr Morrison said that the horse had not received an ideal run in the race for a horse of his ability. It had very average form leading up to the race (the Committee noted a formline of -6607 in its previous four starts). The horse had been parked for some distance and that is why he took cover at the 800 metres. The horse was not travelling well enough for him to have maintained the parked position and keep the improving MAJOR HIPPIE wide from that point, Mr Morrison said.

Submissions of Mr Jones

[12] Mr Jones said that he could not see any unreasonable actions on Mr Morrison’s part. He said that a driver had to sum the whole race up based on his own horse’s ability. MR MIDNIGHT was the 11th favourite in the 12-horse field. He summed up the run that the horse had received in the race. He believed that at the 800 metres Mr Morrison had two options, both of which were reasonable - either stay parked out which his horse seemed incapable of doing or to hand up to MAJOR HIPPIE. The second option was reasonable as there was no other horse coming to hold Mr Morrison in.

[13] When Mr Morrison shortly after tried to move off, MISS YOU was improving “pretty quick”. Further, he did not believe that MAJOR HIPPIE was stopping that quickly at that point. Mr Morrison had got “half off’ and it was at that point that MAJOR HIPPIE really started to stop. Mr Morrison could not have reasonably anticipated that MAJOR HIPPIE would stop as quickly as he did. Mr Morrison had no option but to go back in. Had he not done so, Mr O’Reilly would have pushed him back down in any event.

[14] Mr Jones submitted that in the run home the other runners were stopping and MR MIDNIGHT had not made up a lot of ground. Mr Morrison was probably the only driver driving his horse out while the others were “pulling up”.

[15] At this point of the hearing, the Committee asked Mr Morrison for his assessment of how well the horse had finished once he obtained a clear run. He said that it had run on “OK" but was only making ground in the home straight on horses that were tiring. In his opinion, the 2nd and 3rd placed horses had increased the margin on MR MIDNIGHT in the straight.

The Informant’s Summing Up

[16] Mr Renault said that Mr Morrison had quite clearly attempted to shift outwards but Stewards were saying that, when he did so, it was too late. Mr Morrison was aware that MAJOR HIPPIE was beginning to tire, it was under a drive. He alleged that Mr Morrison had left his attempt to shift out too late. This was his only option as MAJOR HIPPIE was stopping. Mr Morrison was held up badly and at the end, at the very least, had held its position or made slight ground. It would have finished closer had Mr Morrison shifted out when he should have.

Decision

[17] At the conclusion of the hearing, the Committee retired to deliberate. When the hearing resumed, the Committee announced its decision that the charge was dismissed and told the parties that its reasons for that decision would be delivered in a reserved written decision. Those reasons are now set out hereunder.

Reserved Reasons for Decision

[18] The Committee listened to the evidence and submissions of Mr Renault, Mr Morrison and Mr Jones, assisting Mr Morrison.

[19] We heard a lot of evidence and repeatedly viewed the various video replays, but the crucial issue that the Committee had to determine was whether Mr Morrison, in “not improving outwards near the 600 metres”, failed to take all reasonable and permissible measures to ensure his drive, MR MIDNIGHT, was given full opportunity to win or obtain the best possible finishing position when MR MIDNIGHT was “held up for racing room”.

[20] The hearing began with Mr Renault showing the race, a 2400 metres mobile start event, in its entirety. We observed that MR MIDNIGHT drew barrier position 2, outside of GOING TO CALIFORNIA. After the start, MR MIDNIGHT began well and disputed the lead with GOING TO CALIFORNIA for the first 200 metres. It was then eased to sit outside the leader, then got cover in the one-out line until approximately 1500 metres from home when it was left in the parked position outside the leader, BLUE BLAZER. At the 800 metres, the horse got cover when MAJOR HIPPIE improved around it to take up the parked position. Near the 600 metres, the 3-wide line, led by MISS YOU, improved quickly. Some 200 metres later, MAJOR HIPPIE stopped quickly and MR MIDNIGHT was held up and forced back to the rear of the field. Thereafter, it ran on in the straight to finish in 8th placing, officially 8.4 lengths from the winner. The race was run on a rain-affected track in a time of 3.00.1, the last 800 metres in 57.4 and the last 400 metres in 27.5.

[21] The crucial part of the race as far as the charge is concerned was, as stated, at the 600 metres. The crux of the Informant’s evidence was that between the 700 metres and the 600 metres, MR MIDNIGHT was in the one-one behind MAJOR HIPPIE. It was alleged that the latter then commenced to be driven with the whip and commenced to lose ground on the leader, still BLUE BLAZER, at that stage. MISS YOU improved quickly three-wide and, Mr Morrison attempted to shift out to force MISS YOU wider on the track. However, Mr Renault alleged, by the time he made his move, Mr Morrison was unable to shift MISS YOU wider as that runner had improved forward of him. Mr Morrison was forced to remain in the one-out line only to be held up and carried back by the tiring MAJOR HIPPIE.

[22] It is very significant, in the view of the Committee, that Mr Morrison did make an effort to come out at that stage of the race. This was apparent from one of the video replays, in particular, and was conceded by Mr Renault. The head of MR MIDNIGHT could be seen turned outwards and on the wheel of MAJOR HIPPIE. It was not a case of Mr Morrison taking no action whatsoever to clear MAJOR HIPPIE and that is a very important point.

[23] Mr Morrison submitted that, when it became apparent that MAJOR HIPPIE was under pressure, he briefly held an advantage over MISS YOU to enable him to ease that runner out. However, he said, MISS YOU had improved at such speed that, on his outward movement, his sulky wheel had made contact with the sulky wheel of MISS YOU, so much so that the wheels “squealed”. At that point, quite prudently, Mr Morrison elected not to continue his outwards movement as, to have done so, may well have caused an incident upsetting following runners.

[24] Mr Jones, in support of Mr Morrison, submitted that it was reasonable on Mr Morrison’s part to take a trail behind MAJOR HIPPIE at the 800 metres, as that horse had shown some ability in the past. He agreed with Mr Morrison that MISS YOU was improving quickly and he submitted that MAJOR HIPPIE was not stopping that quickly at that stage and not until Mr Morrison got “half off”. Mr Morrison was quite entitled to believe that MAJOR HIPPIE would not tire as rapidly as it did, Mr Jones said. Further, Mr Morrison was correct to cease his outward movement at that point and, in any event, it was unlikely that he would have been able to resist the driver of MISS YOU, Mr O’Reilly, from keeping him in, Mr Jones said.

[25] The Committee found, and in this respect, it agrees with Mr Jones, that it was reasonable on the part of Mr Morrison to take cover at the 800 metres. We realise, however, that this does not form part of the charge. MR MIDNIGHT had not had the most economical of runs in the race, was the outsider but one in the field and with only average form in its recent races.

[26] The Committee further found that it was reasonable for Mr Morrison to hold his horse up for a run until he did, based on the factors just referred to. His window of opportunity to shift out was small, only a stride or two, once he realised that MAJOR HIPPIE had commenced to tire. He then clearly made a reasonable attempt to shift out but that window of opportunity had closed, largely we believe, because of the speed at which MISS YOU was improving. It was again reasonable for Mr Morrison to shift back down when the wheels contacted and from that point, MR MIDNIGHT was simply the victim of bad luck when MAJOR HIPPIE compounded.

[27] The Committee found that not a lot of weight can be placed on the manner in which MR MIDNIGHT finished on in the home straight. It passed only four other runners in the straight and the runners that it was making ground on at the finishing line had run their races and were not being driven out. The Committee was satisfied, although obviously difficult to determine, that in all the circumstances and, particularly, the margins it was unlikely that the horse would have finished in a dividend or stakes-bearing placing.

[28] Accordingly, the Committee was not satisfied that Mr Morrison had failed to take all reasonable and permissible measures to ensure MR MIDNIGHT was given full opportunity to win the race or obtain the best possible finishing position as alleged. The measures taken by him, we find, were a reasonable and reasoned response to the situation as it was unfolding before him and were professionally competent. Although he may have been guilty of a minor error of judgement or tactics, there was nothing culpable or blameworthy about his drive. It is a well-established principle that such an error of judgement does not amount to a breach of the Rule.

[29] The charge was dismissed.

R G McKenzie

CHAIR

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