Auckland TC 20 July 2012 – R 4 (heard on 31 August 2012 at Auckland)

hearingid: 422235d371afea67b672c9a8dc5a11da

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hearing_racingtype: harness-racing

startdate: 20/07/2012

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decisiondate: no date provided

hearing_title: Auckland TC 20 July 2012 - R 4 (heard on 31 August 2012 at Auckland)

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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:  A2468

Defendant:  Ms N Chilcott – Licensed Open Horsewoman

Plea:  Not Admitted

Charge:  Breach of 869(3)(g) – Driving in a manner capable of diminishing the chances of her horse winning

Evidence:

An Information was lodged by Stipendiary Steward Mr JM Muirhead against Licensed Open Horsewoman Ms N Chilcott alleging that Ms Chilcott drove RIPPED POCKET in a manner capable of diminishing her own horse’s chances of winning by duelling for the lead between the 1800 metres and 1200 metres mark.

Ms Chilcott was present and advised this Committee that she did not admit the breach.

Rule 869(3)(g) provides:

“No horseman in any race shall drive in any manner capable of diminishing the chances of his horse winning”.

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 Ms Chilcott drew two with RIPPED POCKET and Mr Abernethy drew three with BURNABY KHAN 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 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 time 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 Mr Abernethy persisted on challenging Ms Chilcott but Ms Chilcott kept her horse up to speed and on the inside of Mr Abernethy’s horse.

He further said that Ms Chilcott could have restrained her horse but did not do so and both Ms Chilcott and Mr Abernethy raced further in front of the field. They ran the lead time in 41 seconds which in Mr Muirhead’s view was fast.

With about 700 metres to run Mr Abernethy’s horse gave ground and finished 40.8 lengths from the winner. Ms Chilcott’s horse finished second to last in the race and was approximately 30.4 lengths from the winner.

Mr Muirhead said that in the Stewards opinion both drivers had made bad decisions and had made excessive use of their horses.
 

Mr Muirhead again said that Ms Chilcott could have restrained her horse and taken the trail. He said it was having its first start since April and was 7/7 in the betting. Mr Abernethy’s horse on the other hand had won at its last start.

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 pointed to the fact that at the 1400 metre mark Ms Chilcott was still encouraging her horse to stay in the lead. He said that the effort took its toll on both of the horses and both of their races were finished at the 1200 metre mark.

Ms Chilcott asked Mr Muirhead if she had given him a reason for her wanting to stay in front, he said that he told her that her driving instructions were to keep the lead at all costs. Ms Chilcott reminded him that her driving instructions were not to take a trail under any circumstances because her horse would choke down.

Ms Chilcott then asked Mr Muirhead if he thought that the sectional times were over the top. He said that he thought they were fast and he did say to Ms Chilcott that she could have pulled back.

Mr Muirhead was asked that if the sectionals were the same in another race and the horse dropped out would that driver be questioned.

He confirmed that the driver would be questioned.

Ms Chilcott then stated that these horses were hardened old warriors and asked Mr Muirhead if they should be able to do the time. Mr Muirhead drew the Committee’s attention to the fact of the middle 800 metres being in a 55.6 mile rate.

Mr Muirhead then called Mr Abernethy to give evidence. He was asked to describe the tactics adopted by Ms Chilcott. He said he was attempting to lead and she kept hunting her horse up. He was asked if he had heard her call and he acknowledged that she did yell out to him. Mr Abernethy was asked if he thought he would have gone better in front and he said yes.

Mr Abernethy then said he was surprised when Ms Chilcott did not give up the lead and he thought that she should have. He was further asked if he heard Ms Chilcott call to him on more than one occasion and he said that he had only heard the first one and he then chased for the lead.

In answer to a question from Ms Chilcott, he said that she should have changed her tactics. He also acknowledged that she did call out and that his horse went rough at the 1400 metre mark.

He was further asked if he did not think that he should take hold and he said no he thought he would still be able to get past and into the lead.

Ms Chilcott then called owner Mr T Vince who was in charge of the horse at the Meeting, as the Trainer Mr Branch was participating in a Junior Drivers Championship at Addington that night. Mr Vince was asked what his driving instructions were and he said “I told Nicky to lead and not to hand up under any circumstances. I told her if she did then the horse would choke down.”

Mr Vince also said that Ms Chilcott also asked him should she hand up if she was under pressure and he said no. He said that Ms Chilcott said to him that we do not want to look silly with our tactics and he said “I am sorry Nicky but if you hand up this horse will choke down”.

Mr Vince also said that the sectional times were quick but not unusual.

Mr Muirhead asked Mr Vince if he had said that this was the horse’s last start. He said that they wanted to try him in front because it probably was.

In answer to a further question he said that he believed that a driver should comply with instructions where it is specified that a driver should stay in front at all costs. Mr Vince said that the horse dropped out because it was no good, it did not have a good attitude.

In answer to re-examination Mr Vince spoke of sectional times in similar races and he also said that in his opinion the only way that RIPPED POCKET would go any good was if it was in front.

Ms Chilcott then gave evidence and said she had never driven the horse before and only driving it tonight because the usual driver Mr Branch was at the Junior Drivers Championship. She also said that another driver was meant to drive it and she got called up at the last minute.

She said that she followed Mr Vince’s instructions and that he was adamant that the horse would choke down if she took a trail.

Ms Chilcott said that Mr Abernethy just kept attacking her despite the fact that she told him she was staying in front and she said that she tried to go as slow as she could but still maintaining a lead. She said that Mr Abernethy kept at her.

In answer to questions from Mr Muirhead, Ms Chilcott said that she called out to Mr Abernethy and told him that she was staying in front and she said that she yelled out to him “what part of staying in front do you not understand?”

Ms Chilcott was also asked if she thought that she should follow instructions at all costs. She answered by saying that if she doesn’t know the horse and if it was a safety issue then she should. It was pointed out to her by Mr Muirhead that she did have obligations as a driver to her horse and she responded by saying that they both (Mr Abernethy and herself) do.

Ms Chilcott said that she was doing the best she could for her horse but that it is no good. She said that as soon as it got crossed it spat the dummy.

Ms Chilcott reiterated that she had never driven the horse before and all she was going on was what Mr Vince was telling her.

In answer to a question from the Committee, she said that under normal circumstances she would not drive like that because of the horse and the situation but she had her instructions. She also said that BURNABY KHAN can jump out of its gear and was not a good horse to trail.

Submissions:

1. Mr Muirhead submitted that Ms Chilcott has overused her 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. Mr Muirhead further submitted that Ms Chilcott should have realised sooner that Mr Abernethy was continuing to attack in trying to reach the lead and that as an experienced driver she should have realised what might happen and should have restrained her horse.

4. In his further submission he said that a professional driver as experienced as Ms Chilcott is should have taken steps that were necessary to keep her horse competitive. He submitted that although Ms Chilcott had been given instructions to stay in front it is no excuse to rely on those instructions alone if she makes an error of judgment during the race.

5. He submitted that Ms Chilcott made an error by not restraining her horse when she realised that Mr Abernethy was not going to give up his pursuit of the lead and in not restraining her horse it has run its race at the incorrect part of the race and has not been competitive from approximately 500 metres from home.

6. He further submitted that as an experienced driver Ms Chilcott should have made a decision out on the track to restrain her horse and to keep it competitive but she did not do so and he submitted further that based on the balance of probabilities Ms Chilcott has overdriven and over competed with her horse in the wrong part of the race and therefore she has diminished her horse’s chances of winning the race.

7. Mr Muirhead submitted that with Ms Chilcott’s horse finishing approximately 30 metres from the winner that clearly her driving actions had not helped her horse and it started to stop with 500 metres to run and in his view Ms Chilcott’s actions in failing to restrain her horse resulted in the horse’s chances of winning the race being diminished.

8. He submitted that based on the balance of probabilities the charge should be upheld.

9. Ms Chilcott repeated some of the evidence that she had presented and in particular referred to the fact that this was her first drive on this horse and also referred to the driving instructions that she had been given. She believed that she had to stay in front at all costs and that she had been told that that was the best way that the horse raced and she believed that she was driving her horse in the correct manner.

10. She thought that her horse should have been able to run the sectional times that had been posted and she thought that it should still finish on. The fact that her horse did not finish on and finished a long way from the winner was in her view because it was not a good horse and not because of her driving tactics.

11. Ms Chilcott pointed to the fact that she had told Mr Abernethy on several occasions that she was going to stay in front and she believed that she was entitled to remain in front. She was relying on the instructions given to her by Mr Vince and understood that the horse had problems when racing in behind and accordingly it was not in the best interests of her horse to restrain it. She was in front and Mr Abernethy should have realised that she was going to stay in front.

Reasons for Decision:

12. The Committee carefully assessed the evidence of all witnesses and viewed the video footage several times. This Committee sought to determine whether on the balance of probabilities Ms Chilcott drove Ripped Pocket in a manner which was capable of diminishing that horses chances of winning the race. Mr Muirhead’s case is essentially that Ms Chilcott engaged in a duel with Mr Abernethy, she did not relent and as a consequence this impacted on her horse’s chances of winning. Ms Chilcott’s defence relies on the fact that in her view she was entitled to hold the lead, she was driving to instructions to lead at all cost and had she eased her horse may have choked.

13. The Committee has carefully examined the actions of both drivers, particularly from the 1800 to the 1200 metre mark. In doing so we have paid particular attention to the manner in which Ms Chilcott drove Ripped Pocket between the 1800 and 1600, the 1600 to 1400 and 1400 to 1200 sections of the race.

14. Our independent assessment is that Ripped Pocket was pushed along to gain an early lead and was able to hold that lead relatively comfortably until challenged by Mr Abernethy.

15. For at least 200 metres both drivers were reluctant to concede. During the next 200-300 metres Mr Abernethy never got more than a half length in front of Ripped Pocket and sat three wide under a hard drive.

16. Ripped Pocket was tapped up, but not under a similar hard drive. Mr Abernethy continued to race parked and was under considerable pressure.

17. At the 700 metre Mr Abernethy commenced drifting to the rear of the field. Ripped Pocket started to fade at the 500 to 400 metre mark. Both drivers did not allow their horses every opportunity to finish in a better place but Mr Abernethy’s actions rendered him more culpable than Ms Chilcott.

18. We have upheld a similar charge against Mr Abernethy during a previous hearing but we are able to make a clear distinction between the actions of both drivers. The relevant points of difference are:

(a) Not equally culpable because:

(i) Mr Abernethy the aggressor, he had his horse under a hard drive and set three wide then parked;
(ii) Ms Chilcott tapped Ripped Pocket up, was not under a hard drive however she did not restrain her horse when she should have done so;
(iii) Mr Abernethy’s horse was gone at the 700 metre mark and continued to drift and finish a long last;
(iv) Ripped Pocket started to drift from the 500 to 400 metre mark.

19. The decision of the Appeals Tribunal in J & C (19 October 2000) and referred to by the Appeal Tribunal decision NC v HRNZ (22 March 2010) is useful to the extent that it provides guidance to this Committee as to factors that are relevant to a charge of this nature. Those factors include:

(a) The distance of the race – 2000 metre race;
(b) The stage of the race where duelling occurred – duel occurred early in the race;
(c) The distance over which the duelling occurred – it continued for more than 300 metres;
(d) The extent to which the horses in question were ahead of the rest of the field – 6-8 lengths;
(e) The speed at which the horses were travelling in order to maintain or take the lead, in this regard of relevance are the sectional times for the race – sectionals were 41.1 opening;
(f) The energy expended in having to maintain or reach the lead, in this regard the relevance is did the driver have to urge the horse merely by shaking the reins or did the driver have to resort to use of whip, pulling ear plugs etc – Mr Abernethy urged, Ripped Pocket was moderate;
(g) The availability to the drivers of options other than those that were adopted.

20. Other factors considered included:

(a) Options available to Ms Chilcott – ie ease back or hold head.
(b) The actions of Mr Abernethy whom we have assessed as being more aggressive than Ms Chilcott.
(c) The fact that both drivers were competing or racing against each other at the wrong part of the race.

21. We have noted the evidence of Mr Vince in relation to his driving instructions. We do not place any weight on this as Ms Chilcott has an obligation to read a race as it unfolds and she is accordingly obliged to exercise her own judgment based on the circumstances of the race.

22. Ms Chilcott in her evidence has placed considerable evidence on the sectional times. We do not do so but rather take the attitude that times are only part of the evidence.

23. Both drivers displayed poor judgement and as the more senior and experienced driver Ms Chilcott should have weighed up the situation and taken the option to ease.

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 provided statistics as to previous driving experience of Ms Chilcott and said that in respect to the need to maintain Integrity and Public confidence in Harness Racing he submitted as follows:

The defendant has driven 454 times in the 2011/12 season and drove 417 times in 20010-11 season.

The defendant is not only a holder of an Open Horseman’s licence but also receives income from her Public Training operation.

Her ‘lifetime’ total of drives, commencing from 1993, is 5,769. The records of HRNZ show 499 wins, 537 2nds, 508 3rds. The defendant’s record contains a previous offence under this Rule. On the 5th February 2010 the defendant had a charge upheld under the same Rule and after an Appeal dated 10/3/10 a $600 fine and a suspension of 3 race meetings was imposed, enclosed is the decision.

The Racing Integrity Unit considers that any horseman involved in race duelling diminishes his or her horse’s chance of winning and that is detrimental to the image of Harness Racing. 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 Rule is vital to maintaining public confidence in the integrity of the sport.

It follows that the Judicial Committee should clearly signal its disapproval of horsemen/horsewomen race duelling diminishing the chances of his/her own horse winning in the penalty imposed.

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.

Ms Chilcott submitted that the race had a total stake of $5,000.00 with $2,800.00 to the winner. The driving fee was very small. She said that the penalty Mr Muirhead was seeking equated to approximately $3,800.00 which is one and a half times what the owner of the winning horse in the race got.

Mr Muirhead had presented to the Committee a copy of the Appeal Decision in March 2010 wherein Ms Chilcott was suspended for three driving days and fined $600.00. Ms Chilcott said that since that appeal she has had 800 or 900 drives so she did not believe that that prior offence should be taken into account.

Ms Chilcott told the Committee that most of her income comes from driving. She is only training approximately 10 horses at present and she ownership interests in half of them. She submitted that the appropriate penalty should be a substantial fine but that she needed to keep her drivers license to maintain her income.

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.

We are also told that RIPPED POCKET 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. Ms Chilcott 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 RIPPED POCKET has done should be able to maintain those times during a race.

The submissions presented to us by Ms Chilcott clearly ignore the fact that she engaged in a speed duel and despite her experience she continued on with it.

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 the wrong part of the race.

At the end of the day the driving tactics, times, standard of horse and so on can all be presented to us but an inescapable fact is that RIPPED POCKET finished 30.4 lengths from the winner and this had to be largely contributed to by the driving tactics of Ms Chilcott.

Ms Chilcott is a very experienced horsewoman and this increases her culpability. She was pressurised by Mr Abernethy and the Committee has taken the view that although she is less culpable than him, at no stage did she suggest to him that she would let him go to the lead so long as he allowed her to retain the lead. This was at the stage when the horses were a number of lengths a head of the field.

Ms Chilcott has been guilty of race duelling in the past and the offence in 2010 can not be discounted as Ms Chilcott would have wished.

We do not however think that the penalty submitted by Mr Muirhead is appropriate although we do submit that a short suspension of Ms Chilcott’s license together with a fine is the appropriate penalty.

Penalty:

It is ordered that Ms Chilcott’s license is suspended from the 28th of September 2012 up to and including the 11th October 2012 which in our view equates to 10 drives.

In addition the Committee imposes a fine of $650.00 on Ms Chilcott.

BJ Scott               GR Jones
Chairman            Committee Member 

A2468
 

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hearing_type: Old Hearing

Rules: 869(3)(g)

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