Auckland TC 20 July 2012 – R 4 (heard 31 August 2012 at Auckland)
ID: JCA18353
Hearing Type (Code):
harness-racing
Meet Title:
Auckland TC - 20 July 2012
Meet Chair:
BScott
Meet Committee Member 1:
GJones
Race Date:
2012/07/20
Race Number:
R 4
Decision:
RACEDAY JUDICIAL COMMITTEE DECISION
Meeting: Auckland Trotting Club – 20th July 2012
Race: 4
Rule No: 869(3)(g)
Judicial Committee: BJ Scott Chairman, GR Jones (Committee Member)
Informant: Mr JM Muirhead - Stipendiary Steward
Information No: A2304
Defendant: Mr S Abernethy – Junior Driver assisted by Senior Horseman Mr DJ Butcher
Plea: Not Admitted
Charge: Breach of 869(3)(g) – Driving in a manner capable of diminishing the chances of his horse winning
Evidence:
An Information was lodged by Stipendiary Steward Mr JM Muirhead against Junior Horseman Mr S Abernethy alleging that Mr Abernethy drove BURNABY KHAN in a manner capable of diminishing his own horse’s chances of winning by duelling for the lead between the 1800 metres and 1200 metres mark.
Mr Abernethy was present and advised this Committee that he did not admit the breach. Mr Abernethy is a Junior Horseman and accordingly is assisted by Senior Horseman Mr DJ Butcher.
Rule 869(3)(g) provides:
“No horseman in any race shall drive in any manner capable of diminishing the chances of his horse winning”.
At the outset of the Hearing Messrs Abernethy and Butcher raised the possibility of applying for an adjournment. After considering the position further Mr Butcher advised this Committee that Mr Abernethy would like to proceed with the Hearing today.
Mr Muirhead gave evidence and stated that he viewed the race from the Stipendiary Steward’s position five storeys up in the main stand. He said that Mr Abernethy drew three with BURNABY KHAN and Ms Chilcott drew two with RIPPED POCKET and that Greg Brydon drew one. He stated that going into the first turn Greg Brydon was on the inside of RIPPED POCKET and then Ms Chilcott took RIPPED POCKET to the lead. He said that then Mr Abernethy moved up to challenge for the lead at the 1800 metre mark and he continued with that challenge to the 1200 metre mark. He said that Mr Abernethy continued strongly in his attempts to get to the lead over that distance but although he reached the lead he could not cross over because the front legs of Ms Chilcott’s horse were inside his sulky.
Mr Muirhead then spoke of the sectional times and spoke of the initial section being in 41 and he said that when Mr Abernethy was challenging for the lead the horses were travelling at a 55.6 mile rate and that during the period of the duel the horses’ next section was in 41.1 with a quarter in 29.6. He said that the times for that section at that part of the race was of concern to the Stewards and that it took its toll on both horses.
Mr Muirhead said that both Mr Abernethy and Ms Chilcott showed poor judgment and he said that Mr Abernethy’s horse started to stop with 700 metres to run and he ran last some 40.8 lengths from the winner.
In answer to a question, Mr Muirhead said that the horse was a last start winner on the 6th of July and although racing in Claiming races it was battle hardened. He said that by showing bad judgment in duelling Mr Abernethy has diminished his horse’s chances of winning.
Mr Muirhead also said that at about the 1400 metre mark Mr Abernethy used his whip on his horse and it ran wide and looked to be about three wide but he still hit it a number of times with the whip. He was still unable to cross over into the lead.
Mr Muirhead then demonstrated the incident by use of the video films and it showed Greg Brydon leading out and then RIPPED POCKET taking the lead around the first turn and then Mr Abernethy on BURNABY KHAN challenging for the lead. It showed Mr Abernethy continuing with his challenge from the 1800 metre mark to approximately the 1200 metre mark and his challenge also involved him using the whip on his horse at about the 1400 metre mark.
Mr Muirhead said the charge was all about horsemen showing good judgment out on the track and keeping their horses competitive.
In answer to a further question, Mr Muirhead said that Ms Chilcott should probably have given up when faced with the continued challenge
by Mr Abernethy.
In answer to a further question, Mr Muirhead said that the Stewards were not so concerned about the first 200 metres of the duel but rather that part from the 1600 metre mark up to the 1200 metre mark.
Mr Muirhead then called Ms Chilcott to give evidence. She said that she drove RIPPED POCKET and went to the lead and she was in front and tried to stay in front and that the horse on the outside took her on for the lead. She said she called out several times (she suggested six times) to Mr Abernethy and said she was staying in front. She was asked if his horse had got in front of hers and she said yes but that his horse was pacing roughly particularly at the 1400 metre mark and it veered out and then continued to press for the front. She said that he was whipping his horse at the 1400 metre mark in an attempt to get to the front. When asked how this affected her horse, she said that the sectionals were not great because these were 6 to 7 win horses and they should be able to run that time.
Ms Chilcott said that she was told to stay in front and that if she had restrained her horse it may have choked down.
Mr Abernethy then gave evidence and firstly Mr Butcher on his behalf spoke of his experience in driving BURNABY KHAN and said that he is a rough gaited horse. He said that Mr Abernethy had gone up and had a look at the leader. He said that he has won his last two races in front and that’s the way he races.
Mr Abernethy said that when he challenged for the lead he was at one stage in a position to cross over but Ms Chilcott would not give way. Mr Abernethy said that the horse had only been in the stable for two weeks and that he was the one that worked it at home and he also had viewed videos of its previous races and was familiar with its racing style and he tried to maintain that. He said that he thought he was driving the horse according to its normal racing style and that he was giving it the best possible opportunity. He also said that when the horse is driven in behind that it hits a knee and it will pace even rougher.
By way of cross examination Mr Muirhead used the film again and he said that Ms Chilcott’s evidence was that Mr Abernethy was simply hell bent on getting to the lead. Mr Abernethy acknowledged that he wanted to be in front. Mr Muirhead also pointed out that between the 1500 metre mark and the 1400 metre mark his horse was pacing roughly and in answer to a question as to why the horse ran out, Mr Abernethy said that he was not the best horse to steer and drive.
Mr Abernethy was asked why he did not stay in the parked position and he said that his horse was not that good sitting parked.
Mr Abernethy was also asked if he heard Ms Chilcott calling to him. He acknowledged hearing her on one occasion at about the 1700 metre mark. He then said that sometimes that can be a ploy from the driver in front to scare the other driver into restraining his horse.
Mr Abernethy said that he did not have any prior driving instructions and that he decided how to drive his horse.
Submissions:
1. Mr Muirhead submitted that Mr Abernethy has overused his horse and used all its reserves so that as a result it cannot be competitive.
2. He stated further that times in the order of 41 or 42 are normally a hard run.
3. He further stated that Mr Abernethy has persisted when he shouldn’t have and he said that it was apparent that the horse was struggling a long way from home and this was a result of Mr Abernethy’s driving.
4. He further said that Mr Abernethy had made a bad decision to continue on when he knew that he could not reach the lead and he should have made a decision to restrain his horse.
5. Mr Muirhead further said that if Mr Abernethy’s horse can only run in front then if it strikes bad barrier draws then that would prevent it from doing so in the future.
6. In Mr Muirhead’s submission he said that based on the balance of probabilities Mr Abernethy has over driven and over competed with his horse in the early stages of the race and therefore he has diminished his horses chances of winning the race and he submitted that the charge should be upheld.
7. Mr Abernethy repeated some parts of his evidence in his submissions and said that he had watched videos of BURNABY KAN in its previous races and saw that it raced better in front. He said that he had drawn well and that his intention was to go to the front. He has driven the horse in training and he believed that in front was the best possible place for his horse to be and he submitted that he was giving it the best opportunity to win the race.
8. He thought that his horse should have been able to run the time that it did and still finish on and he submitted that the Stewards were mainly concerned about his driving between the 1400 metre and 1200 metre mark. He also submitted that his horse is not good in behind and he was driving it in the manner that he knew it raced best.
9. Mr Abernethy also submitted that when a Driver moves up outside the leader and is told by the leader that he or she is going to stay in front that sometimes that is a scare tactic and he took that view with Miss Chilcott. He thought that he could press on and reach the lead because that was where his horse needed to be.
Reasons for Decision:
10. The Committee has reviewed the films of the race on numerous occasions and has also listened to the evidence of all of the parties.
11. The films clearly show the actions of Mr Abernethy moving up outside Miss Chilcott’s horse and show the actions of both of the Drivers.
12. The films clearly show Miss Chilcott turning and looking at Mr Abernethy earlier on when he moved up and this supports her statement that she called out to Mr Abernethy that she was staying in front. He has acknowledged hearing that on at least one occasion although Miss Chilcott says that she called to him about six times.
13. In the Committee’s view, if Mr Abernethy thought that Miss Chilcott was trying to scare him so that she could retain the lead then her subsequent actions would show that that was not the case. It is clear that Mr Abernethy should have quickly realised that Miss Chilcott aimed to stay in front.
14. Mr Abernethy has not had any driving instructions as such and has formed his own opinion on how he should drive the horse. He acknowledged that the horse had recently been claimed and had only been in the Abernethy stable since shortly after the 6th of July 2012.
15. The Rule states that:
“No horseman in any race shall drive in any manner capable of diminishing the chances of horse winning.”
16. Mr Abernethy is suggesting to us that by driving his horse in the manner he did, firstly by persisting to try and reach the lead for so long, secondly that as a result his horse raced roughly and he ran three and four wide at around the 1200 metre mark and finally that by using his whip to try and reach the lead towards the end of this period that he did not drive in a manner capable of diminishing the chances of this horse winning. We simply do not accept that.
17. Mr Abernethy had also (with Mr Butcher’s assistance) pointed to the various sectional times and said that his horse should be able to run those times. The fact of the matter is that it did not. In our view also, the sectional times are only one part of the evidence relating to any charge under this Rule.
18. These horses were competing over a considerable distance at the wrong part of the race. Mr Abernethy’s actions in the manner in which he drove his horse had a disastrous effect on the horse and one would assume the expectations of its connections and certainly the expectations of the punters who had wagered on the horse.
19. Mr Abernethy’s actions have resulted in his horse being a spent force with approximately 700 metres to run and dropping out and finishing about 40 lengths from the winner.
20. To suggest to us that this was not as a result of Mr Abernethy’s driving actions is in our view somewhat farcical.
21. We are required to assess any charge on the balance of probabilities and clearly on that standard of proof, Mr Abernethy has driven in a manner capable of diminishing the chances of his own horse in the race.
Submissions as to Penalty:
The Hearing was adjourned on race night and the parties were then requested to present Submissions as to Penalty. Mr Muirhead presented submissions and he said that the Committee should have regard to the following:
(a) The gravity of the offence, including the charge, the importance and outcome of the race and whether race goers were affected by the offence.
(b) Whether the Defendant admitted the charge.
(c) The personal circumstances of the Defendant, including experience and/or previous offences.
(d) The need to maintain the Integrity and Public confidence in Harness Racing.
(e) Penalties imposed for comparable offences.
Mr Muirhead referred the Committee to Rule 1114(2) which Rule provides:
“In imposing a penalty or affecting any remedy provided in these Rules the Judicial Committee may have regard to such matters as they consider appropriate including:
(i) the status of the race;
(ii) the stake payable in respect to the race;
(iii) any consequential effects upon any person or horse as a result of a breach of the Rule;
(iv) the need to maintain Integrity and Public confidence in Harness Racing.
Mr Muirhead gave statistics about Mr Abernethy’s drives and experience.
He also focused on the need to maintain Integrity and Public confidence in Harness Racing and said that any horseman by race duelling diminishes his or her horse’s chances of winning and that this is detrimental to the image of Harness Racing. He further said that the requirement to drive competently and competitively by displaying good tactical judgment throughout the race is required of all licensed horsemen and the observance of the Rules is vital to maintain the Public confidence and Integrity of the sport.
Mr Muirhead provided statistics as to previous penalties under Rule 869(3)(g) since 2001.
Mr Muirhead referred the Committee to Rule 1003 which provides for a maximum penalty of 12 months suspension or disqualification and a fine of $10,000.00. He further referred to the JCA Penalty Guide and said that the starting point penalty in the Guide is for a suspension of license for the equivalent of 40 drives or a $2,000.00 fine.
Mr Muirhead’s final submission was that taking into account Mr Abernethy’s infrequency of driving, that a period of suspension must be balanced with a monetary penalty. He said that his submission was that a starting point of two months suspension of his Horseman’s License and a fine of $1,000.00 is the appropriate penalty.
Mr Butcher and Mr Abernethy submitted that Mr Abernethy had driven his horse in the appropriate manner. He said that it was better in front and Mr Butcher submitted that Mr Abernethy had not driven it any differently to any previous drivers. He also said that it was not a good horse and that Mr Abernethy was trying his best. He suggested that because BURNABY KHAN was not a good horse that the end result would still be the same.
Mr Butcher pointed out to the Committee that Mr Abernethy is a Junior Driver and that he has not had a lot of experience. He said that Junior Drivers need to be driving and that Mr Abernethy was trying to make his way as a driver and if his license was suspended for a period of time then he was likely to lose a number of the drives that he already has.
Reasons for Penalty:
The Committee has listened to the evidence and has viewed the films on many occasions. In the Committee’s view this is a clear incident of duelling and as we have said in our decision we believe that Mr Abernethy was the more responsible of the two. Mr Abernethy has told us that even though Ms Chilcott called out to him that sometimes drivers in the lead do that to scare off the challenging driver. We can give very little weight to that because Ms Chilcott’s actions thereafter showed that she was intent on staying in the lead and that she was backing up her words by her actions. Mr Abernethy should have taken notice of this.
We are also told that BURNABY KHAN is not a good horse. Logic would suggest that if a driver is driving a horse that is not a good horse then he or she should drive it in the best possible way. In our view Mr Abernethy did not do that.
We are also told that the sectional times presented to us are not exceptional and that a horse that has won 6 or 7 races as BURNABY KHAN has done should be able to maintain those times during a race.
The submissions presented to us on behalf of Mr Abernethy clearly ignore the fact that Mr Abernethy engaged in a speed duel, the fact that he drove very aggressively and even though he could not reach the lead he still used his whip on his horse at about the 1400 metre mark and most importantly ignores the fact that Mr Abernethy’s horse finished 40.6 lengths from the winner. Mr Abernethy’s horse was a last start winner and as such would have had some support from the betting public and those who bet on this horse were entitled to a better performance from the driver than that provided by Mr Abernethy.
We are told that these horses should be able to run the sectional times that occurred in this race. In our view the sectional times are not the only evidence that we should look at. The key here is horses competing head to head in a wrong part of the race.
It is a concern to us that despite the evidence Mr Abernethy still believes that he drove his horse correctly.
At the end of the day the driving tactics, times, standard of horse and so on can all be presented to us but it is an inescapable fact that BURNABY KHAN finished 40.6 lengths from the winner and this had to be largely contributed to by the driving tactics of Mr Abernethy.
It is appropriate therefore that a period of suspension of Horseman’s License and a fine are imposed on Mr Abernethy.
Penalty:
The Committee orders that Mr Abernethy’s Horseman’s License is suspended from the 28th of September 2012 up to and including the 9th November 2012 which in our view equates to 18 drives.
In addition the Committee imposes a fine of $450.00 on Mr Abernethy.
BJ Scott GR Jones
Chairman Committee Member
A2304
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.
hearingid: 04c1e5ac82360a1884631295ecf9370e
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hearing_racingtype: harness-racing
startdate: 20/07/2012
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Auckland TC 20 July 2012 - R 4 (heard 31 August 2012 at Auckland)
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
RACEDAY JUDICIAL COMMITTEE DECISION
Meeting: Auckland Trotting Club – 20th July 2012
Race: 4
Rule No: 869(3)(g)
Judicial Committee: BJ Scott Chairman, GR Jones (Committee Member)
Informant: Mr JM Muirhead - Stipendiary Steward
Information No: A2304
Defendant: Mr S Abernethy – Junior Driver assisted by Senior Horseman Mr DJ Butcher
Plea: Not Admitted
Charge: Breach of 869(3)(g) – Driving in a manner capable of diminishing the chances of his horse winning
Evidence:
An Information was lodged by Stipendiary Steward Mr JM Muirhead against Junior Horseman Mr S Abernethy alleging that Mr Abernethy drove BURNABY KHAN in a manner capable of diminishing his own horse’s chances of winning by duelling for the lead between the 1800 metres and 1200 metres mark.
Mr Abernethy was present and advised this Committee that he did not admit the breach. Mr Abernethy is a Junior Horseman and accordingly is assisted by Senior Horseman Mr DJ Butcher.
Rule 869(3)(g) provides:
“No horseman in any race shall drive in any manner capable of diminishing the chances of his horse winning”.
At the outset of the Hearing Messrs Abernethy and Butcher raised the possibility of applying for an adjournment. After considering the position further Mr Butcher advised this Committee that Mr Abernethy would like to proceed with the Hearing today.
Mr Muirhead gave evidence and stated that he viewed the race from the Stipendiary Steward’s position five storeys up in the main stand. He said that Mr Abernethy drew three with BURNABY KHAN and Ms Chilcott drew two with RIPPED POCKET and that Greg Brydon drew one. He stated that going into the first turn Greg Brydon was on the inside of RIPPED POCKET and then Ms Chilcott took RIPPED POCKET to the lead. He said that then Mr Abernethy moved up to challenge for the lead at the 1800 metre mark and he continued with that challenge to the 1200 metre mark. He said that Mr Abernethy continued strongly in his attempts to get to the lead over that distance but although he reached the lead he could not cross over because the front legs of Ms Chilcott’s horse were inside his sulky.
Mr Muirhead then spoke of the sectional times and spoke of the initial section being in 41 and he said that when Mr Abernethy was challenging for the lead the horses were travelling at a 55.6 mile rate and that during the period of the duel the horses’ next section was in 41.1 with a quarter in 29.6. He said that the times for that section at that part of the race was of concern to the Stewards and that it took its toll on both horses.
Mr Muirhead said that both Mr Abernethy and Ms Chilcott showed poor judgment and he said that Mr Abernethy’s horse started to stop with 700 metres to run and he ran last some 40.8 lengths from the winner.
In answer to a question, Mr Muirhead said that the horse was a last start winner on the 6th of July and although racing in Claiming races it was battle hardened. He said that by showing bad judgment in duelling Mr Abernethy has diminished his horse’s chances of winning.
Mr Muirhead also said that at about the 1400 metre mark Mr Abernethy used his whip on his horse and it ran wide and looked to be about three wide but he still hit it a number of times with the whip. He was still unable to cross over into the lead.
Mr Muirhead then demonstrated the incident by use of the video films and it showed Greg Brydon leading out and then RIPPED POCKET taking the lead around the first turn and then Mr Abernethy on BURNABY KHAN challenging for the lead. It showed Mr Abernethy continuing with his challenge from the 1800 metre mark to approximately the 1200 metre mark and his challenge also involved him using the whip on his horse at about the 1400 metre mark.
Mr Muirhead said the charge was all about horsemen showing good judgment out on the track and keeping their horses competitive.
In answer to a further question, Mr Muirhead said that Ms Chilcott should probably have given up when faced with the continued challenge
by Mr Abernethy.
In answer to a further question, Mr Muirhead said that the Stewards were not so concerned about the first 200 metres of the duel but rather that part from the 1600 metre mark up to the 1200 metre mark.
Mr Muirhead then called Ms Chilcott to give evidence. She said that she drove RIPPED POCKET and went to the lead and she was in front and tried to stay in front and that the horse on the outside took her on for the lead. She said she called out several times (she suggested six times) to Mr Abernethy and said she was staying in front. She was asked if his horse had got in front of hers and she said yes but that his horse was pacing roughly particularly at the 1400 metre mark and it veered out and then continued to press for the front. She said that he was whipping his horse at the 1400 metre mark in an attempt to get to the front. When asked how this affected her horse, she said that the sectionals were not great because these were 6 to 7 win horses and they should be able to run that time.
Ms Chilcott said that she was told to stay in front and that if she had restrained her horse it may have choked down.
Mr Abernethy then gave evidence and firstly Mr Butcher on his behalf spoke of his experience in driving BURNABY KHAN and said that he is a rough gaited horse. He said that Mr Abernethy had gone up and had a look at the leader. He said that he has won his last two races in front and that’s the way he races.
Mr Abernethy said that when he challenged for the lead he was at one stage in a position to cross over but Ms Chilcott would not give way. Mr Abernethy said that the horse had only been in the stable for two weeks and that he was the one that worked it at home and he also had viewed videos of its previous races and was familiar with its racing style and he tried to maintain that. He said that he thought he was driving the horse according to its normal racing style and that he was giving it the best possible opportunity. He also said that when the horse is driven in behind that it hits a knee and it will pace even rougher.
By way of cross examination Mr Muirhead used the film again and he said that Ms Chilcott’s evidence was that Mr Abernethy was simply hell bent on getting to the lead. Mr Abernethy acknowledged that he wanted to be in front. Mr Muirhead also pointed out that between the 1500 metre mark and the 1400 metre mark his horse was pacing roughly and in answer to a question as to why the horse ran out, Mr Abernethy said that he was not the best horse to steer and drive.
Mr Abernethy was asked why he did not stay in the parked position and he said that his horse was not that good sitting parked.
Mr Abernethy was also asked if he heard Ms Chilcott calling to him. He acknowledged hearing her on one occasion at about the 1700 metre mark. He then said that sometimes that can be a ploy from the driver in front to scare the other driver into restraining his horse.
Mr Abernethy said that he did not have any prior driving instructions and that he decided how to drive his horse.
Submissions:
1. Mr Muirhead submitted that Mr Abernethy has overused his horse and used all its reserves so that as a result it cannot be competitive.
2. He stated further that times in the order of 41 or 42 are normally a hard run.
3. He further stated that Mr Abernethy has persisted when he shouldn’t have and he said that it was apparent that the horse was struggling a long way from home and this was a result of Mr Abernethy’s driving.
4. He further said that Mr Abernethy had made a bad decision to continue on when he knew that he could not reach the lead and he should have made a decision to restrain his horse.
5. Mr Muirhead further said that if Mr Abernethy’s horse can only run in front then if it strikes bad barrier draws then that would prevent it from doing so in the future.
6. In Mr Muirhead’s submission he said that based on the balance of probabilities Mr Abernethy has over driven and over competed with his horse in the early stages of the race and therefore he has diminished his horses chances of winning the race and he submitted that the charge should be upheld.
7. Mr Abernethy repeated some parts of his evidence in his submissions and said that he had watched videos of BURNABY KAN in its previous races and saw that it raced better in front. He said that he had drawn well and that his intention was to go to the front. He has driven the horse in training and he believed that in front was the best possible place for his horse to be and he submitted that he was giving it the best opportunity to win the race.
8. He thought that his horse should have been able to run the time that it did and still finish on and he submitted that the Stewards were mainly concerned about his driving between the 1400 metre and 1200 metre mark. He also submitted that his horse is not good in behind and he was driving it in the manner that he knew it raced best.
9. Mr Abernethy also submitted that when a Driver moves up outside the leader and is told by the leader that he or she is going to stay in front that sometimes that is a scare tactic and he took that view with Miss Chilcott. He thought that he could press on and reach the lead because that was where his horse needed to be.
Reasons for Decision:
10. The Committee has reviewed the films of the race on numerous occasions and has also listened to the evidence of all of the parties.
11. The films clearly show the actions of Mr Abernethy moving up outside Miss Chilcott’s horse and show the actions of both of the Drivers.
12. The films clearly show Miss Chilcott turning and looking at Mr Abernethy earlier on when he moved up and this supports her statement that she called out to Mr Abernethy that she was staying in front. He has acknowledged hearing that on at least one occasion although Miss Chilcott says that she called to him about six times.
13. In the Committee’s view, if Mr Abernethy thought that Miss Chilcott was trying to scare him so that she could retain the lead then her subsequent actions would show that that was not the case. It is clear that Mr Abernethy should have quickly realised that Miss Chilcott aimed to stay in front.
14. Mr Abernethy has not had any driving instructions as such and has formed his own opinion on how he should drive the horse. He acknowledged that the horse had recently been claimed and had only been in the Abernethy stable since shortly after the 6th of July 2012.
15. The Rule states that:
“No horseman in any race shall drive in any manner capable of diminishing the chances of horse winning.”
16. Mr Abernethy is suggesting to us that by driving his horse in the manner he did, firstly by persisting to try and reach the lead for so long, secondly that as a result his horse raced roughly and he ran three and four wide at around the 1200 metre mark and finally that by using his whip to try and reach the lead towards the end of this period that he did not drive in a manner capable of diminishing the chances of this horse winning. We simply do not accept that.
17. Mr Abernethy had also (with Mr Butcher’s assistance) pointed to the various sectional times and said that his horse should be able to run those times. The fact of the matter is that it did not. In our view also, the sectional times are only one part of the evidence relating to any charge under this Rule.
18. These horses were competing over a considerable distance at the wrong part of the race. Mr Abernethy’s actions in the manner in which he drove his horse had a disastrous effect on the horse and one would assume the expectations of its connections and certainly the expectations of the punters who had wagered on the horse.
19. Mr Abernethy’s actions have resulted in his horse being a spent force with approximately 700 metres to run and dropping out and finishing about 40 lengths from the winner.
20. To suggest to us that this was not as a result of Mr Abernethy’s driving actions is in our view somewhat farcical.
21. We are required to assess any charge on the balance of probabilities and clearly on that standard of proof, Mr Abernethy has driven in a manner capable of diminishing the chances of his own horse in the race.
Submissions as to Penalty:
The Hearing was adjourned on race night and the parties were then requested to present Submissions as to Penalty. Mr Muirhead presented submissions and he said that the Committee should have regard to the following:
(a) The gravity of the offence, including the charge, the importance and outcome of the race and whether race goers were affected by the offence.
(b) Whether the Defendant admitted the charge.
(c) The personal circumstances of the Defendant, including experience and/or previous offences.
(d) The need to maintain the Integrity and Public confidence in Harness Racing.
(e) Penalties imposed for comparable offences.
Mr Muirhead referred the Committee to Rule 1114(2) which Rule provides:
“In imposing a penalty or affecting any remedy provided in these Rules the Judicial Committee may have regard to such matters as they consider appropriate including:
(i) the status of the race;
(ii) the stake payable in respect to the race;
(iii) any consequential effects upon any person or horse as a result of a breach of the Rule;
(iv) the need to maintain Integrity and Public confidence in Harness Racing.
Mr Muirhead gave statistics about Mr Abernethy’s drives and experience.
He also focused on the need to maintain Integrity and Public confidence in Harness Racing and said that any horseman by race duelling diminishes his or her horse’s chances of winning and that this is detrimental to the image of Harness Racing. He further said that the requirement to drive competently and competitively by displaying good tactical judgment throughout the race is required of all licensed horsemen and the observance of the Rules is vital to maintain the Public confidence and Integrity of the sport.
Mr Muirhead provided statistics as to previous penalties under Rule 869(3)(g) since 2001.
Mr Muirhead referred the Committee to Rule 1003 which provides for a maximum penalty of 12 months suspension or disqualification and a fine of $10,000.00. He further referred to the JCA Penalty Guide and said that the starting point penalty in the Guide is for a suspension of license for the equivalent of 40 drives or a $2,000.00 fine.
Mr Muirhead’s final submission was that taking into account Mr Abernethy’s infrequency of driving, that a period of suspension must be balanced with a monetary penalty. He said that his submission was that a starting point of two months suspension of his Horseman’s License and a fine of $1,000.00 is the appropriate penalty.
Mr Butcher and Mr Abernethy submitted that Mr Abernethy had driven his horse in the appropriate manner. He said that it was better in front and Mr Butcher submitted that Mr Abernethy had not driven it any differently to any previous drivers. He also said that it was not a good horse and that Mr Abernethy was trying his best. He suggested that because BURNABY KHAN was not a good horse that the end result would still be the same.
Mr Butcher pointed out to the Committee that Mr Abernethy is a Junior Driver and that he has not had a lot of experience. He said that Junior Drivers need to be driving and that Mr Abernethy was trying to make his way as a driver and if his license was suspended for a period of time then he was likely to lose a number of the drives that he already has.
Reasons for Penalty:
The Committee has listened to the evidence and has viewed the films on many occasions. In the Committee’s view this is a clear incident of duelling and as we have said in our decision we believe that Mr Abernethy was the more responsible of the two. Mr Abernethy has told us that even though Ms Chilcott called out to him that sometimes drivers in the lead do that to scare off the challenging driver. We can give very little weight to that because Ms Chilcott’s actions thereafter showed that she was intent on staying in the lead and that she was backing up her words by her actions. Mr Abernethy should have taken notice of this.
We are also told that BURNABY KHAN is not a good horse. Logic would suggest that if a driver is driving a horse that is not a good horse then he or she should drive it in the best possible way. In our view Mr Abernethy did not do that.
We are also told that the sectional times presented to us are not exceptional and that a horse that has won 6 or 7 races as BURNABY KHAN has done should be able to maintain those times during a race.
The submissions presented to us on behalf of Mr Abernethy clearly ignore the fact that Mr Abernethy engaged in a speed duel, the fact that he drove very aggressively and even though he could not reach the lead he still used his whip on his horse at about the 1400 metre mark and most importantly ignores the fact that Mr Abernethy’s horse finished 40.6 lengths from the winner. Mr Abernethy’s horse was a last start winner and as such would have had some support from the betting public and those who bet on this horse were entitled to a better performance from the driver than that provided by Mr Abernethy.
We are told that these horses should be able to run the sectional times that occurred in this race. In our view the sectional times are not the only evidence that we should look at. The key here is horses competing head to head in a wrong part of the race.
It is a concern to us that despite the evidence Mr Abernethy still believes that he drove his horse correctly.
At the end of the day the driving tactics, times, standard of horse and so on can all be presented to us but it is an inescapable fact that BURNABY KHAN finished 40.6 lengths from the winner and this had to be largely contributed to by the driving tactics of Mr Abernethy.
It is appropriate therefore that a period of suspension of Horseman’s License and a fine are imposed on Mr Abernethy.
Penalty:
The Committee orders that Mr Abernethy’s Horseman’s License is suspended from the 28th of September 2012 up to and including the 9th November 2012 which in our view equates to 18 drives.
In addition the Committee imposes a fine of $450.00 on Mr Abernethy.
BJ Scott GR Jones
Chairman Committee Member
A2304
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