Auckland TC 13 May 2021 – R 9 (heard 4 June 2021 at Alexandra Park) – Chair, Mr M McKechnie

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hearing_title: Auckland TC 13 May 2021 - R 9 (heard 4 June 2021 at Alexandra Park) - Chair, Mr M McKechnie

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

----IN THE MATTER--of New Zealand Rules of Harness Racing

RACING INTEGRITY UNIT (RIU)

INFORMANT

DYLAN FERGUSON, Licenced Driver

DEFENDANT

Judicial Committee:--Mr Murray McKechnie, Chairman and Professor Geoff Hall

Present:---Mr Steve Mulcay, Senior Stipendiary Steward

Mr Adrian Dooley, Stipendiary Steward

Mr Dylan Ferguson

Mr Peter Ferguson, Father of Dylan Ferguson

Mr Graeme Rogerson, Licenced Trainer

RESERVED DECISION OF NON-RACEDAY JUDICIAL COMMITTEE

DATED THIS 15th DAY OF JUNE 2021

1.-INTRODUCTION

1.1-Mr Dylan Ferguson faces charges that he breached Rule 869(3)(f) or alternatively Rule 869(3)(b) with reference to his drive of the horse Classy Operator in Race 9 at Alexandra Park on 13 May 2021.

1.2-Race 9 was the Quiz Night Every Wednesday in the Alex Mobile pace. This was an event for horses two years and older R50-R54. The Race was from the mobile gate over 2200 metres.

1.3-Rule 869(3)(f) provides that no driver in any race shall drive improperly. Rule 869(3)(b) provides that no driver in any race shall drive carelessly. The charges were laid in the alternative. There will be further reference to that circumstance later in this decision.

2.-THE CHARGES

2.1-It is said in the Information filed for the RIU as follows:

In that he drove improperly rounding the final turn by allowing his colt to shift outwards which presented an inside run to the trailing Meetmeinsorrento (Zac Butcher) or in the alternative in that he drove carelessly rounding the final turn by allowing his colt to shift outwards which presented an inside run to the trailing Meetmeinsorrento (Zac Butcher).

2.2-Mr Ferguson (all references to Mr Ferguson shall be to Dylan Ferguson unless stated otherwise) was interviewed by the Stewards following the race. He was then charged with the alternative breaches as set out above. Mr Ferguson pleaded not guilty to both charges and the proceedings were adjourned.

2.3-A hearing took place at Alexandra Park on the afternoon of Friday 4 June. This was before the race meeting that took place late that afternoon and evening. The evidence extended over a significant time period and there were detailed submissions from Mr Mulcay. There were supplementary submissions from Mr Dooley. There was evidence from Mr Ferguson and Mr Rogerson. There were submissions from Mr Peter Ferguson. Mr Rogerson is the owner of both Classy Operator and Meetmeinsorrento. He is the registered trainer of both horses. Mr Rogerson has a very extensive background in Thoroughbred Racing and in more recent years a significant involvement in Harness Racing. He is Mr Ferguson’s employer.

2.4-Given the length of time taken to hear the evidence and submissions and the somewhat unusual circumstances of charges being laid in the alternative, it was not possible for the Committee to give a decision on 4 June. The laying of alternative charges is permissible but is most uncommon.

3.-FACTUAL BACKGROUND

3.1-The Committee was shown extensive film coverage of the race. Mr Mulcay made extended submissions and helpfully filed written submissions, with particular reference to the issue of whether it be necessary with reference to the charge under Rule 869(3)(f) to prove some deliberate action or intent on behalf of the driver.

3.2-The film demonstrated that Classy Operator drew barrier eight on the front line. Early in the race the horse was eased to the rear of the field and was then taken forward three-wide and took up the lead near the 1300 metres. Classy Operator remained in the lead. He was driven along nearing the 500 metre mark and it is the case for the RIU that he then shifted outwards away from the marker line inside the 300 metre mark. It was said that this then presented a clear run to the trailing horse, Meetmeinsorrento driven by Mr Zac Butcher on straightening for the run home and that this was approximately 20 metres before the commencement of the passing lane. It was said further that the outward movement of Classy Operator resulted in the horse Mr Perfect being briefly inconvenienced. The films demonstrated that Classy Operator weakened in the run home. He finished seventh in the race. He was beaten 6.1 lengths. The horse Meetmeinsorrento went on to win the race.

3.3-The detailed written submissions filed for the RIU made reference to Rule 1008 which is as follows:

In the absence of any express provision to the contrary in any proceedings for a breach of these Rules: -

(a)-It shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule; and

(b)-Any breach of a Rule shall be considered as an offence of strict liability.

3.4-The RIU submissions also made reference to Rule 1008A, that is as follows:

Where in any proceeding where any matter is required to be proved by an informant or a defendant, the standard of proof shall be the balance of probabilities.

4.-THE CASE FOR THE RIU

4.1-It was submitted that Mr Ferguson must have been aware that Meetmeinsorrento was on his back rounding the final turn. In those circumstances it is said that he should have been more vigilant in maintaining his true running line. Reference is made below to Classy Operator having a tendency to run away from the rail.

4.2-The RIU acknowledged that Classy Operator has in the past shown a tendency to run away from the rail when racing right-handed. It is said that Mr Ferguson, who had driven the horse on four previous occasions, must have been aware of its tendency to leave the markers and in those circumstances should have taken particular care to prevent that happening. Further, it was pointed out that Mr Ferguson drives Classy Operator in training and was very well acquainted with the horse’s manners.

4.3-The RIU submits that in a situation where a stable mate, in this case Meetmeinsorrento, is provided with an unfair inside running line, that circumstance is unacceptable and can impeach the integrity of Harness Racing.

4.4-While the submissions for the RIU acknowledge that there is no clear proof of Mr Ferguson’s intent to move the horse away from the markers, Mr Mulcay nonetheless points to the left arm of Mr Ferguson being drawn down at around the time that the horse moved away from the markers. The films demonstrate that this occurred about three pegs before the field reached the inside passing lane.

4.5-The RIU submissions acknowledged that whether intent be necessary to prove a charge under Rule 869(3)(f) is a matter for the Committee to determine and the RIU submissions recognise that there is a difference in the approach that has been taken to that issue in earlier Judicial Committee decisions. That circumstance will be addressed in detail later in this decision: see paragraph 7.

4.6-It is said for the RIU that should the charge of improper driving not be proved then the lesser charge of careless driving has been made out in that Mr Ferguson failed to take all due care and attention in relation to where Classy Operator was positioned in relation to the marker line during the early stages of the run home and in consequence of his failing to do so, Meetmeinsorrento was presented with a clear inside run.

4.7-Mr Dooley, in his supplementary oral submissions emphasised that Mr Ferguson must have been aware of the positioning of Meetmeinsorrento. Further, that Mr Ferguson knew of the tendency of Classy Operator to run away from the markers and ought to have made a greater effort to avoid that circumstance.

4.8-Mr Mulcay advised that betting upon the race had been the subject of enquiry and that nothing had been found which raised any concerns or suspicion.

5.-MR FERGUSON’S POSITION

5.1-Mr Rogerson, who as noted above owns both Classy Operator and Meetmeinsorrento and is the registered Trainer of both horses, explained to the Committee in some detail that Classy Operator who is a two year old and still an entire is not an easy horse to manage. The tendency to run out from the markers has been a problem in the past. Information was put before the Committee which showed that this propensity on the part of Classy Operator was noted by the Stewards following Race 8 at Alexandra Park on 19 February this year. Mr Rogerson advised that gelding Classy Operator was under consideration. While Mr Rogerson acknowledged that Mr Ferguson was well acquainted with Classy Operator’s racing manners, he strongly maintained that nothing more could have been done to keep the horse holding its line. He did not accept that the movement of Mr Ferguson’s left hand was relevant. The Committee observes that the film which shows some movement of the left hand is less than complete in as much as the hand disappears from the cameras view. Mr Rogerson emphasised Mr Ferguson’s significant experience for a youthful driver. Mr Ferguson is 24 years old. The Committee was told that he had before 13 May this year some 1854 drives and had driven 144 winners.

5.2-Mr Ferguson addressed the Committee. He acknowledged that he knew of the tendency of Classy Operator to run out from the rail. He strongly maintained that he did all that he could to have the horse maintain its line. He denied any deliberate action intended to enhance the chances of the stablemate Meetmeinsorrento. Mr Ferguson impressed the Committee as a straightforward person.

5.3-Mr Peter Ferguson addressed the Committee. He is an experienced and respected harness reinsman. He too, in common with Mr Rogerson and his son Mr Dylan Ferguson, maintained that there was nothing more that could have been done to have Classy Operator hold his line.

6.-STANDARD OF PROOF

6.1-Proof shall be upon the balance of probabilities as provided by Rule 1008A set out above.

6.2-Disciplinary proceedings, whether involving employment circumstances or sport can cover a very wide range of circumstances. The Supreme Court made clear in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1, that the more serious the disciplinary allegation the more compelling should be the evidence if the breach is to be proved.

7.-DISCUSSION

7.1-The submissions for the RIU recognise that there has been some difference in the manner in which Judicial Committees have applied Rule 1008. The Rule in its present form came into effect in 1998.

7.2-Mr Mulcay drew attention to the decision in NRI RIU v S McNally, a decision dated 24 July 2018. The Non-Raceday Judicial Committee in that case set out its view at paragraph 39. That is as follows:

Mr Ydgren, in his closing submissions, submitted that Rule 1008A does not require the Informant to prove intent. That Rule provides that the standard of proof in charges such as this is the balance of probabilities. Something is proved on the balance of probabilities, simply, if it is more probable than not. We do not agree, however that intent is not a necessary element in improper driving. In the Committee’s view, it is a requirement in a charge of improper driving that the Informant needs to prove a mental element of a deliberate and intentional act.

7.3-Mr Mulcay then drew attention to the earlier decision in NRI RIU v B Shirley. The submissions set out paragraph 112 of the Committee decision. That is as follows:

A further issue raised by Counsel was whether Rule 869(3)(f) requires proof of mens rea (intention) or was a breach of strict liability. As this was an issue of some importance we requested that Counsel provide written submissions, and the delivery of this decision was delayed whilst these submissions were received. We thank Counsel for their comprehensive submissions. Because of our findings on the evidence, it is not necessary for us to determine this matter. However, having had the benefit of considering Counsel’s submissions we would have held, had it been necessary, that neither the wording or, the context nor the purpose of the provision would lead us to conclude that the presumption in Rule 1008 was displaced in this instance, and consequently that Rule 869(3)(f) should be construed as a breach of strict liability.

The passage from the Shirley decision is obiter (not essential for the determination of the charge faced by Mr Shirley).

It can readily be seen that the reasoning in NRI RIU v S McNally and what was said in the Shirley decision appear to be significantly different. It is to be emphasised that the passage from the Shirley decision was not determinative of the charge that had been laid.

7.4-The most recent relevant decision is that in RIU v NR McGrath 20 February 2020. That Non-Raceday Judicial Committee was chaired by the Hon Warwick Gendall QC, formerly a Judge of the High Court. Two relevant passages are as follows at paragraphs 19 and 21:

[19]-We have to ask ourselves why would Mr McGrath drive his horse in an improper manner in breach of the Rules? He is an experienced Trainer and Driver (although has less drive (sic) now than in the past) and cannot be regarded as a learner, or incompetent, or careless. Mr Hall QC in his submissions on penalty said he changed his plea to guilty because the offence of improper driving was one of “Strict Liability” so as not to require any intention on the Driver’s part. We do not accept that as correct. There does not have to be corrupt intent but if the improper driving is not deliberate or intentional and not in accordance with accepted norms of behaviour and established recognised expectations of how a person should act in like circumstances. An act of driving becomes improper (rather can (sic) negligent, incompetent, careless) when the act of driving is intentional, and all the evidence and his plea satisfies us that the cumulative and total circumstances of all his actions comprised improper driving.

Paragraph 21 is as follows:

[21]-We can attribute the actions of improper driving on this occasion to complete stupidity and very unwise actions as the admitted charges does not involve deliberate dishonesty. But, generally speaking, if there is driving in races, where a stable or trainer has more than one horse, and the true competition required of each horse is SEEN to be compromised by the manner of driving to secure or result (in) an advantage to another, then the integrity of the sport is harmed and it is detrimental to its image and confidence the community ought to have in the Code.

7.5-The definition of the word improper provides some assistance. In the Collins Dictionary it is said to be any of the following:

a.-Lacking propriety, not seemly

b.-Unsuitable for a certain use or occasion: inappropriate

c.-Irregular or abnormal

The Oxford Dictionary defines improper as follows:

a.-Inaccurate

b.-Wrong

c.-Unseemly, indecent

Careless behaviour or conduct can happen without any deliberate thought or intent on the part of the person who has exhibited such behaviour. In the Committee’s view to act improperly would require some degree of conscious decision making and a reinsman alleged to have driven improperly must have given some thought albeit at a comparatively low level to the action he or she was taking. The wording of Rule 1008 upon a first reading appears to make no distinction between the various kinds of driving which are described in Rule 869(3). There must be some distinction between what is careless and what is improper. It follows from what has just been said that the Committee accepts the approach adopted by the Non-Raceday Judicial Committee in RIU v NR McGrath as set out in the passages from that decision quoted above in paragraph 7.4.

8.-MR FERGUSON’S DRIVING

8.1-Mr Ferguson was well acquainted with Classy Operator’s racing manners and that the horse had a propensity to leave the markers. In those circumstances he was required to exercise particular care to ensure that the horse held its line. It is plain from the films that this did not happen. There had been little or no change in the position of the horses in the race following Classy Operator taking up the lead at the 1300 metre mark. When turning in to the straight Mr Ferguson was strongly urging Classy Operator to hold its position. He was as the saying goes “throwing everything at it”. If Classy Operator had held his line then when the passing lane was reached an inside run would have been presented for Meetmeinsorrento. By allowing Classy Operator to move away from the markers before the inside passing lane was reached, Meetmeinsorrento received an inside run earlier than would have been the case had Classy Operator held his line and not moved out from the markers. We are satisfied that Mr Ferguson knew that the horse behind him was Meetmeinsorrento driven by Mr Butcher and from the same stable as Classy Operator.

8.2-After hearing all of the evidence and submissions and paying particular attention to the films – these were from many angles – the Committee does not believe that Mr Ferguson made a sufficient effort to ensure that Classy Operator held his line. In the result the horse moved away from the marker pegs inconveniencing Mr Perfect which was taken wider on the track and the inside run was then presented to Meetmeinsorrento. The Committee does not believe that Mr Ferguson acted with any deliberation or intent: rather that he plainly failed to exercise sufficient effort to ensure that the horse held its line. Mr Ferguson as has already been observed, was well acquainted with this horse and while he is a youthful driver he has had very considerable experience. The Committee considers that his driving fell significantly below the standard required in the circumstances. These findings lead the Committee to the view that the charge of careless driving has been clearly proved. Mr Ferguson’s driving did not amount to improper driving.

8.3-The charge of careless driving is found to be proved. The charge of improper driving is dismissed.

8.4-The Committee requires that both parties file penalty submissions. Those submissions should also address the issue of costs. Submissions from the RIU on penalty and costs are to be filed with the Executive Officer of the JCA by 3pm on Wednesday 23 June 2021. Submissions in response on behalf of Mr Ferguson are to be filed with the Executive Officer of the JCA by 3pm on Wednesday 30 June 2021. The Committee will promptly thereafter issue its penalty decision.

DATED this 15th day of June 2021

Murray McKechnie

Chairman

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