Cambridge – Te Awamutu HRC 9 May 2013 – R 6 (heard on 16 May 2013 at Cambridge)

hearingid: df9ebd90e757663466b36b1c583fa41d

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hearing_racingtype: harness-racing

startdate: 09/05/2013

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hearing_title: Cambridge - Te Awamutu HRC 9 May 2013 - R 6 (heard on 16 May 2013 at Cambridge)

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RACEDAY JUDICIAL COMMITTEE DECISION

Charge heard on 16th May which resulted from an incident on the 9th May.

Informant: Mr J Muirhead - Stipendiary Steward
Respondent: Mr S Phelan – Open Horseman
Information No: A2498
Meeting: Cambridge – Te Awamutu HRC
Date: 9 May 2013
Venue: Cambridge
Rule No: 867 and 869 (3) (f)
Race: 6
Judicial Committee: A Dooley, Chairman - A Godsalve, Committee Member
Plea: Denied

Charge:
Improper driving

Evidence:

Following the running of race 6, Disprose Miller Chartered Accountants Mobile Pace, an information was filed pursuant to Rule 867 and Rule 869 (3) (f) .The Informant, Mr Muirhead, alleged that Mr Phelan failed to drive with both feet in the sulky footrest and /or he drove improperly by allowing firstly his left foot to drop from the footrest and make contact with Freespin's near side hind leg, then secondly, by allowing his right foot to drop from the footrest and contact the offside leg of Freespin.

Mr Phelan acknowledged that he understood the nature of the charge and the Rules.

Mr Phelan acknowledged he had no objection to the hearing being held during the race meeting.

Rule 869(3) (f) states:

“No horseman in any race shall drive improperly”.

Rule 867 states:

“Every horseman shall drive throughout the race with both feet in the rests of the sulky provided for that purpose”.

Mr Muirhead produced a letter from Mr Godber, General Manager of RIU, authorising the charge pursuant to Rule 1103 (4)(c).

Mr Muirhead produced the official finish result sheet for race 6 from the 9th of May race meeting held at Cambridge. We verified that Freespin was placed 2nd and was beaten a long neck.

Submissions For Decision:

Mr Muirhead demonstrated on the video films that Mr Phelan dropped both feet out of the sulky footrests on separate occasions in the final straight. At just inside the 200 metre mark Mr Muirhead alleged that Mr Phelan dropped his left foot which made contact with Freespin's hind legs. At the 100 metre mark Mr Muirhead alleged Mr Phelan dropped his right foot which made contact with Freespin’s hind legs twice.

The Committee at this point sought clarification from Mr Muirhead as to whether the charges were in the alternative or substantive. He confirmed they were both substantive. We note Rule 1103 (5) provides that any information may contain one or more, alleged breaches of the Rules against one or more persons or horses.

Mr Muirhead submitted that improper driving occurs when a driver’s foot comes into contact with his horse. He added that a driver using his foot as a “bar” may be deemed to be a form of cheating as it either scares the horse or inflicts pain on it.

Mr Muirhead submitted that Mr Phelan was using a “UFO” sulky which he was familiar with. He added that as a professional driver it was Mr Phelan's responsibility to set up the sulky correctly prior to the race. He said it was difficult to accept that the incident could occur twice and be accidental.

Under cross examination Mr Phelan asked Mr Muirhead if he was calling him a cheat. Mr Muirhead responded by saying “no I'm not calling you a cheat” however, the impression when viewing the video films is your actions were very careless.

Mr Phelan submitted that his feet slipped out of the footrest claiming this occurred because he was wearing gumboots due to the wet night. He stated the footrests were a bit long and had not been set up correctly which didn't help his situation. He admitted his foot slipped out of the footrests which in turn made contact with his horse’s hind legs on 2 occasions in the final straight however, he said it was purely accidental.

The Committee advised Mr Phelan they were on course for the 9th of May race meeting and do not accept that it could be described as a wet night.

The Committee questioned Mr Phelan as to why when his foot did slip out of the footrest at the 100 metre mark it was left in a rigid position for 2 to 3 strides and allowed to make contact with Freespin's hind legs. Mr Phelan responded by saying a foot can be placed rigidly when it slips out of the footrests. He further said it was accidental and conceded that contact occurred.

Mr Muirhead submitted he had known Mr Phelan for a long time and hoped that this breach was done without intent. He said Mr Phelan's carelessness was at the extreme to occur twice in the final straight. He further submitted he had witnessed drivers' feet slipping from the footrests on many occasions. However, not as in this case with Mr Phelan's right leg directed straight out contacting Freespin’s hind legs.

Mr Phelan submitted he was surprised he didn't get charged last week.

Mr Muirhead in summing up said that the video films clearly showed the breach definitely took place and noted Mr Phelan did admit that fact.

Mr Phelan when given the opportunity to sum up had nothing further to add.

Reasons For Decision:

The Committee carefully considered all of the evidence and submissions presented and reviewed the video films several times. We established that both of Mr Phelan's feet dropped out of the footrest and came into contact with Freespin's legs in the final straight. The films showed the first instance occurred at approximately the 180 metres when Mr Phelan's left foot briefly came into contact with Freespin's hind leg. The significant contact occurred at the 100 metre mark when Mr Phelan's right foot contacted Freespin's hind leg for 2 to 3 strides. We note that Mr Phelan's leg was in a rigid position at that point which is abnormal.

Decision:

For the above reasons we find the charges against Mr Phelan proved.

Submissions For Penalty:

Mr Muirhead submitted that the JCA penalty guide recommended a $100 fine as a starting point for a breach of Rule 867. He then referred to Rule 869 (3)(f) which recommended a starting point of 20 drives or a $1,000 fine. He stated breaches of this Rule are rare and in this instance the Stewards considered the breach was in the mid to high range. He submitted an appropriate penalty would be a fine in the $300 to $500 range.

Mr Phelan submitted that in his view his actions were more of a careless nature and believed a fine between $200 and $300 was appropriate.

Reasons For Penalty:

The Committee carefully considered all the evidence and submissions presented. The mitigating fact is Mr Phelan's clear record under these Rules. The aggravating fact is the perception that Mr Phelan may have been attempting to gain an advantage by using his foot as a bar. We note at the 100 metre mark Mr Phelan's foot made contact with Freespin’s hind leg twice when challenging for the lead.

The Committee is concerned that Mr Phelan's foot at the 100 metre mark was placed in a rigid position when making contact with Freespin’s hind legs. We view this as abnormal, not in accordance with the rules and a significant aggravating fact.

We independently assess the breach of Rule 869(3) (f) to be in the mid to high range.

We referred to the JCA penalty guide which confirmed Mr Muirhead's submissions. We then referred to the JCA listing of penalties which showed the breach to be extremely rare with no similar case available to verify.

After taking into account all the above factors we independently assess an appropriate penalty for improper driving is a $350 fine.

Penalty:

For reasons set out above we fine Mr Phelan $100 in relation to Rule 867 and $350 in relation to Rule 869 (3) (f). Total fines amount to $450.

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hearing_type: Old Hearing

Rules: 867 and 869(3)(f)

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