Auckland TC – 31 December 2007 – Race 12

hearingid: f38af57e610076b895358166829344d4

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hearing_racingtype: harness-racing

startdate: 31/12/2007

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decisiondate: no date provided

hearing_title: Auckland TC - 31 December 2007 - Race 12

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An information was lodged on 31^st December 2007 by Stipendiary Steward Mr J Muirhead against Mr A Herlihy driver of GOTTA GO CULLEN alleging a breach of Rule 869 (4).  At the commencement of this hearing Mr Muirhead sought leave to amend the charge to one of Careless Driving, namely that Mr Herlihy when improving outwards with GOTTA GO CULLEN which had drawn one on the second line, struck the wheel of the sulky of THE ADMAN driven by Mr B Mangos causing his own horse to break and lose its chance shortly after the start.  Mr Herlihy had no objection to the amendment and I accordingly exercised the powers under Rules 1111 (3) and 1111 (5) and substituted the charge of Careless Driving as requested.  I put the new charge to Mr Herlihy and he denied the breach.

Mr Muirhead gave evidence of his observations of the incident.  He said GOTTA GO CULLEN was alone on the second line and shortly after the start METEKHI, which had drawn two on the front line, failed to hold its position and GOTTA GO CULLEN was about a neck in front of that horse.  Mr D Butcher, driver of METEKHI, flicked his horse with the whip two or three times – Mr Herlihy began to move GOTTA GO CULLEN outwards – the horse was full of himself – the horse loves going out of the gate – Mr Herlihy was looking to get one off before the first bend – GOTTA GO CULLEN stood on the sulky wheel of THE ADMAN, broke, galloped and lost its chance.  Mr Herlihy was careless because he moved ground and his horse struck the sulky wheel.  Mr Muirhead showed the video film of the incident to demonstrate his evidence.  Mr Herlihy chose not to cross-examine Mr Muirhead and instead gave his evidence.

Mr Herlihy said GOTTA GO CULLEN had not raced for five months – was fierce early – over-racing before Mr Butcher hit his horse – tried to get itself out – he was not entitled to move Mr Butcher out because there was another horse outside of Mr Butcher – if GOTTA GO CULLEN had not struck the sulky wheel, it would have hit Mr Mangos – he had suggested to the Stewards on the night that they warn GOTTA GO CULLEN – the horse was fresh and strong – it was the worst draw for the horse on the day.  When cross-examined by Mr Muirhead, Mr Herlihy repeated that he was not looking to get off the fence.

Mr Butcher gave evidence of his interpretation of the video film.  He said GOTTA GO CULLEN ‘took off’, he said you could tell from the position of Mr Herlihy’s hands that he had tried to take hold of the horse and did so before it hit the sulky wheel. 

Mr Muirhead in summing up said Mr Herlihy had a duty of care when changing ground – he had changed ground to give himself options – there was no evidence of correction – he had taken hold of the horse after it struck the sulky wheel – and he acknowledged GOTTA GO CULLEN was racing boldly.  Mr Herlihy in summing up said he drove as best he could – the horse was over-racing and when Mr Butcher hit his horse, GOTTA GO CULLEN lunged forward.

After Mr Muirhead and Mr Herlihy had summed up, I viewed the film again on a number of occasions and I was satisfied that GOTTA GO CULLEN was racing very boldly, that Mr Herlihy took a hold of the horse just before it struck the sulky wheel and that it was one or two strides after Mr Butcher’s last use of the whip that GOTTA GO CULLEN struck the sulky wheel.

The question to be answered is whether or not Mr Herlihy exercised the degree of care in all the circumstances that a prudent drive would have.  There is a conflict of evidence between Mr Muirhead and Mr Herlihy.  Mr Muirhead says Mr Herlihy deliberately moved his horse outwards whereas Mr Herlihy said the horse moved outwards it was racing fiercely, over-racing and was affected  by Mr Butcher’s use of his whip.  Mr Butcher’s evidence is supportive of Mr Herlihy.  Mr Muirhead very fairly during the hearing acknowledged that GOTTA GO CULLEN was ‘full of himself’, ‘loves going out of the gate’, and ‘was racing boldly’.  Those matters are supportive of the basis of Mr Herlihy’s defence.  The matters that I have referred to after further viewing the video film are also supportive of Mr Herlihy’s defence.  The evidence leaves me in a state of considerable doubt and the charge is therefore dismissed.  Having said that the charge was properly brought.

B Rowe

Chairman

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hearing_type: Old Hearing

Rules: 869.4

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raceid: be576740d0936fb3c6bc048a5e074d78

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racecancelled: 0

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race_title: Race 12

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meetid: 56a38109bd7ea1ef2c3812b16860b9d4

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meetdate: 31/12/2007

meet_title: Auckland TC - 31 December 2007

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tracklocation: auckland-tc

meet_racingtype: harness-racing

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name: Auckland TC