Auckland TC 7 October 2016 – R 6 (heard at Alexandra Park on 14 October 2016) – Chair, Mr A Godsalve

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hearing_title: Auckland TC 7 October 2016 - R 6 (heard at Alexandra Park on 14 October 2016) - Chair, Mr A Godsalve

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Decision:

RACEDAY JUDICIAL COMMITTEE DECISION

Informant: Mr J Muirhead, Stipendiary Steward

Respondent: Mr D Ferguson, Licensed Junior Horseman

Other Parties: Mr P Ferguson, Open Horseman assisting Mr D Ferguson

Mr T Mitchell, Open Horseman

Mr D Butcher, Open Horseman assisted Mr D Ferguson at Preliminary hearing

Mr N Ydgren, Chief Stipendiary Steward

Information: A7970

Meeting: Auckland Trotting Club, 7 October 2016 (heard 14 October 2016)

Venue: Alexandra Park

Rule: 869(3)(b)

Race: 6

Judicial Committee: Mr A Godsalve, Chairman - Mr G Jones, Committee Member

Plea: Denied

Charge: Careless Driving

Evidence

Following the running of Race 6, the GARRARDS NEW ZEALAND MOBILE TROT 1700m, an Information was laid by Mr Muirhead alleging that Junior Horseman, Mr D Ferguson ‘drove HOT CHOCOLATE TART carelessly, causing interference to COMMANDER PARIS, driven by Mr T Mitchell-with 1700 metres to run’.

This hearing was commenced after the final race of that evenings meeting, and in accordance with JCA Policy, was opened and adjourned after Mr D Ferguson indicated that he did not admit the breach.

The hearing was set to begin 1 ½ hours prior to the first race at Alexandra Park on 14 October 2016.

Rule 869(3)(b) provides that ‘No horseman in any race shall drive carelessly’.

At the commencement of this adjourned hearing, the Informant, Mr Muirhead advised the Committee that his witness, Mr T Mitchell, had not arrived on course as scheduled, and was en route to the hearing after experiencing major traffic delay on the Auckland Southern Motorway.

Mr P Ferguson objected to the hearing being started without Mr Mitchell being present, however the Committee stated that in the interests of timeliness it had decided to begin to hear this matter. The Committee further advised that it wished the Informant to present his case, and after that time if Mr Mitchell was not on course, the hearing would adjourn until he had arrived.

Mr N Ydgren, Chief Stipendiary Steward, was requested by the Committee to operate the video films as Mr Muirhead, the Informant, was also intending to give evidence.

Mr Muirhead stated that he was on duty on the evening in question. He said that an incident took place in Race 6, when COMMANDER PARIS, driven by Mr Mitchell, had gone off stride at about the 700m mark and had lost its chance in the race. He said that the Stewards’ commenced an investigation into this matter, and that he had questioned Mr Mitchell about it. He said Mr Mitchell had told him that HOT CHOCOLATE TART, driven by Mr D Ferguson, had ‘come out onto me too quickly’, and that he had not been able to get out of its way. Mr Muirhead said that Mr Mitchell told him Mr Ferguson had driven his horse as if he was driving a bus. He said Mr Mitchell also said that there had been contact between his sulky and HOT CHOCOLATE TART’s hind leg, and added that he had not tried to hold Mr Ferguson in the position he was in.

Mr Muirhead stated that in the Stewards’ opinion HOT CHOCOLATE TART was entitled to move out as he had the advantage over COMMANDER PARIS, however he added that the Rules stated that a manoeuvre like that had to be done with safety. He added that the Stewards’ alleged that Mr Ferguson moved his horse outwards from his position on the markers towards a three-wide position too quickly, and did not give Mr Mitchell time to react. At the time Mr Mitchell was commencing to improve his position by following KYVALLEY BLUR (Mr D Butcher) who was also going forward ahead of him. Using the available video films, Mr Muirhead pointed out that he believed HOT CHOCOLATE TART’s sulky wheel had been underneath COMMANDER PARIS’ legs when contact was made, causing that horse to gallop after contacting it. As a result, its chance was extinguished.

Mr P Ferguson cross examined Mr Muirhead on his evidence. He asked Mr Muirhead if he considered HOT CHOCOLATE TART had a clear advantage over COMMANDER PARIS when he began to shift out towards it. Mr Muirhead confirmed that to be the case. He also asked Mr Muirhead if he agreed that a driver in Mr Mitchell’s position was obligated not to contest the position when another driver moved out towards them under these circumstances. Mr Muirhead said that a driver would be foolish to contest that position. Mr Ferguson told Mr Muirhead that he disputed his allegation that there had been contact between the horses as the video films did not, in his opinion, show that to be the case.

The hearing was then adjourned until after Race 6, as Mr Mitchell had still not arrived on course, and all 3 drivers involved had upcoming drives that evening and would not be free to commence involvement in the hearing until later that night.

When the hearing re-commenced, the Committee asked Mr Muirhead to relay the initial interview he had with Mr Ferguson after the race concerned in this matter. Mr Muirhead said he asked Mr Ferguson to go and get a Senior horseman to assist him, and he returned with Mr S Phelan. Mr Muirhead said that both Mr Phelan and Mr Ferguson viewed the films and told him that they did not believe there should be any charges. As there was a timing issue nothing took place until later that evening when Mr Ferguson returned to the Stewards room with Mr D Butcher. Mr Muirhead said Mr Ferguson told him then that he had the advantage over Mr Mitchell and was allowed to come out in the manner he did.

Mr T Mitchell then gave his evidence. He said that he drove COMMANDER PARIS in the race in question. He stated that his horse went off stride into a gallop when Mr D Ferguson made a move from inside him. Mr Mitchell said he was following Mr Butcher in a 3-wide position near the 700m mark when Mr Ferguson made an abrupt move towards his horse. Mr Mitchell acknowledged that Mr Ferguson had every right to make the move but his sulky had connected with his horse's hind leg when he moved towards him too quickly. Mr Mitchell said that he did not hold an advantage over Mr Ferguson when this took place. He said he did not attempt to hold Mr Ferguson in.

Cross examined by Mr P Ferguson, Mr Mitchell said that Mr D Ferguson had come out towards him abruptly and his horse had broken. Questioned several times by Mr Ferguson, Mr Mitchell stated that he was not sure if HOT CHOCOLATE TART’s sulky had made contact with his horse’s legs. Mr Mitchell stated that COMMANDER PARIS was normally a well-behaved horse. At that time Mr Ferguson asked Mr Mitchell to look at a film of the start of the race, which showed COMMANDER PARIS leaving the start in a gallop. In reply to further questions from Mr Ferguson said he did not hear any noise of any contact between horses prior to his horse galloping, and then said that he was not sure if there actually was any contact between them.

When asked by the Committee if any other horse had caused his horse to ‘break’, Mr Mitchell stated that that was not the case.

In reply to further questions from Mr Ferguson Mr Mitchell stated that while he could not say there was contact between the horses, his horse would not have galloped otherwise. When asked to view the films again by Mr Ferguson, Mr Mitchell conceded that the view of the incident was obscured and that the film did not show where any contact had been made.

In re-examination, Mr Muirhead stated that the probability was high that there was contact between Mr Ferguson's sulky and Mr Mitchell's horse’s legs.

Mr D Ferguson then gave evidence. He demonstrated the incident using the video films. He pointed out that he had the advantage over Mr Mitchell and that he had moved out towards his horse in accordance with the Rules and as he was entitled to do. He said his horse’s head was in line with Mr Butcher's head. Mr Butcher was driving the horse ahead of Mr Mitchell.

Mr P Ferguson told the Committee that he did not believe the films showed anything. He said there was no disputing that HOT CHOCOLATE TART’s sulky wheel was in line with COMMANDER PARIS’ legs. Mr Ferguson alleged that after 3 strides Mr Mitchell ‘grabbed’ COMMANDER PARIS’ head when it appeared the horses may lock wheels, which caused it to go off stride.

Mr Muirhead interjected at this time, saying that the Stewards took issue with Mr Ferguson giving his opinion as to what action Mr Mitchell may have been going to take.

In summary, Mr Muirhead stated that this was a simple case of Mr D Ferguson pulling his horse out towards Mr Mitchell’s horse too abruptly and causing that horse to break. He said that the onus was on the horseman shifting out to make that manoeuvre with safety, and that the Stewards’ believed that on the balance of probabilities the charge had been proved.

In reply to a question from the Chair, Mr Muirhead stated that the onus is always on the horseman moving out to drive safely. He said that the other driver will generally concede, and that Mr Mitchell clearly knew that Mr Ferguson had the advantage over him.

Mr P Ferguson stated that it appeared that Mr Mitchell was not quite sure that Mr D Ferguson's horse and his had made contact. He added that there was no evidence of that on the films. He asked the Committee to rely on Mr D Ferguson’s evidence that he didn’t make contact with Mr Mitchell. Mr P Ferguson added that he believed the respondent had provided a reasonable scenario, and that the films did not show that they had hit. He added that it was some strides after Mr D Ferguson had come out that COMMANDER PARIS had galloped, and that he could not see that there was any evidence to prove the charge against Mr D Ferguson.

Reasons for Decision

The Committee makes the point that we were not influenced either way by a conversation Mr Muirhead had with Mr Mitchell during the preliminary investigation; nor were we influenced by comments Mr Ferguson made concerning the manner in which Mr Mitchell drove his horse.

Mr Ferguson was entitled to shift out; it is not disputed that he had the advantage over Mr Mitchell. Mr Mitchell’s horse went off stride-however whether or not there was any contact between the horses has not been clearly demonstrated on the films. Further, Mr Mitchell was not able to clearly state that there was contact. In fact, on that particular point he was vague. Given that scenario the Committee gave consideration as to whether Mr Ferguson’s outward movement was safe. Whereas Mr Mitchell described the outward movement as abrupt, the video evidence tends to suggest otherwise. Mr Ferguson was entitled to come out, but in doing so he was not entitled to make contact. We cannot establish that there was any contact.

Decision

In terms of a standard of proof we find on balance that the charge is not upheld. The charge had merit but the evidence does not meet the required balance of proof.

A Godsalve

Chairman

14 October 2016

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Rules: 869(3)(b)

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