Forbury Park TC – 5 April 2007 – Race 10

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hearing_racingtype: harness-racing

startdate: 05/04/2007

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decisiondate: no date provided

hearing_title: Forbury Park TC - 5 April 2007 - Race 10

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Decision:

Mr Allison alleged that Mr N Burton, driver of BIGTIME BLUE JEAN drove incompetently in that he caused interference with approximately 1900 metres to run.

Mr Allison alleged that Mr N Burton, driver of BIGTIME BLUE JEAN drove incompetently in that he caused interference with approximately 1900 metres to run.

Mr Burton did not admit the breach and he indicated he wished to be present at the hearing of the information. He was informed that this was a serious charge and was given the opportunity for the hearing to be adjourned to a later date so he could take time to prepare his defence and to have legal assistance, should he wish. He declined this opportunity in a forthright manner. The stipendiary stewards indicated they were able to proceed with their evidence.

Mr Allison had Mr Knowles, stipendiary steward, demonstrate the incident on the videos. Mr Burton was 3 wide entering the bend leaving the home straight for the first time. As he continued through the bend he moved down and came into contact with ELUSIVE KATE, Mr Swain. ELUSIVE KATE broke as a consequence and settled at the rear of the field. Mr Burton continued to the front.

Mr Knowles then continued by demonstrating further aspects of Mr Burton's driving which he believed amounted to incompetent driving. As there was no reference to these matters in the information as presented to the Committee, I indicated to Mr Allison that if he intended to rely on further incidents in the race, that Mr Burton should be given notice of these matters. Mr Allison then sought leave to amend the information by adding further particulars. As the hearing had only just commenced, leave was granted. The information was amended to read that "Mr N Burton, driver of BIGTIME BLUE JEAN drove incompetently in that he caused interference with approximately 1900 metres to run and continued to drive incompetently by striking several pylons throughout the running and driving at a level below the required standard of a licensed horseman." When questioned by the Committee, Mr Burton indicated that he understood the nature of the allegations made against him. He again was given the opportunity for the hearing to be adjourned and again this was declined. He stated at this time that the problem was with the horse which he believed was sore. The Committee suggested that it would be appropriate for the horse to be inspected by the racecourse vet and Mr Burton readily agreed to this. As it was late in the evening and likely that the vet would be contemplating leaving the course, an adjournment was immediately granted for this purpose. The hearing reconvened some 15 minutes later after Mr Burton returned from the stabling area.

Mr Knowles continued by demonstrating that Mr Burton struck several pylons and that when Mr Smith, ANOTHERCHRISTIAN, challenged for the lead, he chose to keep this horse out rather than to drop back and take the trail. He stated Mr Burton was niggling at his horse and continued to strike pylons. Mr Allison submitted that Mr Burton had hit pylons at the 750, 500 and 250 metre marks. He said the issue was with Mr Burton's driving and not the condition of the horse.

Mr Swain gave evidence that rounding the northern bend for the first time his horse ELUSIVE KATE broke as a consequence of movement from his outer, which was from BIGTIME BLUE JEAN. He said there was contact when he was squeezed between that horse and LETSGO JACCKA, Mr Beck, on his inner. He confirmed there was no outwards movement from Mr Beck. In response to a question from the Committee, he indicated that no words were exchanged between himself and Mr Burton. He agreed with Mr Burton's statement to him that BIGTIME BLUE JEAN was hanging. He said he could see this from the video.

Mr Keenan, the racecourse vet gave evidence that he could see nothing amiss with BIGTIME BLUE JEAN. While there were some sharp teeth, there were no lacerations to the inside of the cheek or any bleeding. He said he checked the legs and the heart. The horse did not appear lame or sore. It was not distressed; there was nothing unusual. Mr Burton had no questions of Mr Keenan.

Mr Burton accepted Mr Swain's evidence although he commented that he was not aware that he had come into contact with ELUSIVE KATE and that he had caused that horse to break. He said the fault was with BIGTIME BLUE JEAN, not his driving. He said the horse was hanging for the whole race, yet it had trialled satisfactorily only a few days earlier. He said he did not have to hand up the lead to Mr Smith. His horse races better when leading and he did not want to get pocketed in the run home. He said he had not pulled his horse up. The Committee indicated it did not believe that this was part of the stipendiary steward's case and this was confirmed.

The hearing did not commence until some time after the last race and by the time Mr Allison and Mr Burton had finished their summing up it was well over an hour after the last race. In these circumstances the following oral decision was given:

"Mr Burton I will need to take the opportunity to view the films and weigh the evidence carefully. That will take some time and its now past midnight, indeed it is 12.15. I propose to adjourn the hearing and will deliver a written decision in due course.

Mr Burton you are certain there is something amiss with the horse. If you wish to pursue this matter, it is my suggestion that you get a vet to inspect the horse as soon as possible on your return home. If necessary, I will receive evidence from the vet by way of a sworn affidavit. Should such evidence be forthcoming, I will give both parties the opportunity to make submissions with respect to that specific matter."

The hearing resumed after race 2 at Invercargill on 28 April. Mr Burton produced a signed report from Mr Glenn Beeman on the Mountainview Equine Ltd letterhead who stated that when he inspected the horse on 7 April BIGTIME BLUE JEAN was noted to be very tender on sideways flexion of the back and that the horse would almost collapse to the ground on flexion of the hind limbs. Mr Burton also placed in evidence a statement from Mr T Behrns, a horse chiropractor who examined the horse on 12 April. This statement was to the effect he had found BIGTIME BLUE JEAN to be very sore in his off-side hip joint. While neither was an affidavit, as requested, the Committee received this evidence without objection from the informant. Mr Allison also produced a note from the Racecourse vet dated 11 April which stated that his inspection approximately 40 minutes post race had included a hind limb reflexion test and the horse had showed no reaction to this test. He observed that any possible muscle injury was not apparent because muscles would still be warm and flexible and non-painful. Mr Burton said the light was not good when the horse was inspected and that Mr Keenan had failed to notice a patch off the hind leg at the point of the hip. The Committee indicated that it accepted Mr Burton's statement and that of his two expert witnesses to the effect that the horse had a muscle injury and that it was feeling the effects of this when it raced.

In the interests of justice, with new and relevant evidence being now before the Committee, and having regard to the lapse in time since the hearing of submissions on the night, each party was given the opportunity to comment further on the videos. The Committee indicated that in its view incompetent driving consisted of a failure to display the skill and judgement one would expect of a senior horseman. Mr Allison indicated this was an acceptable definition and Mr Burton said he understood the standard that was required of him.

Mr Allison re-iterated that it was the performance of the driver, Mr Burton, which was of concern to the stipendiary stewards, not the performance of the horse. He demonstrated BIGTIME BLUE JEAN moved inwards shortly after the start and then again entering the bend for the first time. On each occasion ELUSIVE KATE was tightened but Mr Burton took the appropriate corrective action and BIGTIME BLUE JEAN responded. As the horses rounded the bend, he alleged contact was made with ELUSIVE KATE and that that horse broke before settling last. He referred to Mr Swain's evidence to this effect. Mr Burton disputed whether contact had in fact been made stating this was not clear from the videos. Mr Allison said as BIGTIME BLUE JEAN had twice moved in, Mr Burton should have been aware his horse was causing trouble.

There are four separate incidents during the running of the race to which reference has been made by the stipendiary steward as supporting the charge of incompetent driving. First, the contact with ELUSIVE KATE as BIGTIME BLUE JEAN rounded the first bend. BIGTIME BLUE JEAN was hanging from the moment it left barrier 3 on the mobile gate, yet Mr Burton pushed on with some determination to obtain the lead while racing 3 wide. It is clear that in so doing his he placed downwards pressure on ELUSIVE KATE racing between him and LETSGO JACCKA, and caused that horse to break and lose considerable ground. Indeed, the chances of ELUSIVE KATE were all but extinguished at this early point in the race. From being near the lead she settled at the rear. While, as Mr Burton says, the videos do not clearly show contact between ELUSIVE KATE and BIGTIME BLUE JEAN, Mr Swain was very clear in his evidence that such contact had occurred and that it was consequence of downwards pressure from BIGTIME BLUE JEAN.

Mr Allison then stated that despite BIGTIME BLUE JEAN expending significant energy racing 3 wide on the first bend before running to the lead, that when Mr Smith attacked for the lead Mr Burton had not handed up and taken the trail. The failure of Mr Burton to hand the lead to Mr Smith, when Mr Smith attacked for the lead, and to drop into the trail does not in my view constitute incompetent driving. When questioned by the Committee, Mr Allison conceded this but said it was part of the wider picture as to the manner in which Mr Burton had driven. I am not prepared to place any weight on this aspect of the drive. It was a question of tactics for the driver concerned to determine. The fact that Mr Burton chose to keep the lead for the reasons which he has stated, and that other drivers might have chosen the option of taking the trail does not in the Committee's view contribute to the proof of the charge of incompetent driving, notwithstanding BIGTIME BLUE JEAN expending significant energy racing 3 wide on the first bend before running to the lead.

Mr Allison then demonstrated that on three occasions (at the 800/750, 500/450 and 250/225 metre marks) BIGTIME BLUE JEAN came into contact with the markers. On the first occasion Mr Smith is alongside pressuring Mr Burton for the lead and BIGTIME BLUE JEAN hits 3 pegs. Later he hits or drives over 5 pegs and then, when straightening for home, he hits 3 more. Mr Allison said on this occasion Mr Burton responded appropriately, but it was too late. He emphasised that when not being urged by Mr Burton BIGTIME BLUE JEAN does not hit any markers and that when the pegs are hit Mr Burton is surging in the sulky, instead of making every endeavour to steer the horse and to remain on the racetrack. He concluded by saying there was no fault attached to Mr Burton when the field was disrupted as BIGTIME BLUE JEAN was tiring. It was just general tightening. The Committee concurs with this assessment.

Mr Burton said he did not want to direct comments specifically to any particular incident as demonstrated on the videos but reiterated he was trying to control his horse at all times. He said the reason why the horse had its head around was because he was trying to hold it off the pegs. He said a slack left rein, as Mr Allison, had alleged, was because he was pulling tightly on the right. He agreed he was moving in the sulky. This was an endeavour to keep BIGTIME BLUE JEAN off the pegs. He accepted he was urging his horse and said he was wanting to get him raceday ready. When questioned as to when he suspected the horse was amiss, he said it tended to move around a bit in its races anyway, but he was aware it was running around at the start.

I accept BIGTIME BLUE JEAN was not an easy drive for Mr Burton. The horse was hanging. The issue is whether in urging BIGTIME BLUE JEAN for the lead 3 wide on the bend and continuing to urge the horse with the reins to hold the lead when hanging for much of the race, with the consequence of contact with another horse on the first bend and intermittent but repeated contact with the markers (at the 800/750, 500/450 and 250/225 metre marks) constitutes incompetent driving. It is apparent that BIGTIME BLUE JEAN was hanging very soon after leaving barrier 3. Mr Burton had to take corrective measures on 2 occasions to keep BIGTIME BLUE JEAN off ELUSIVE KATE. These efforts were successful. Despite this, Mr Burton pushed on 3 wide with the horse hanging as it went around the first bend. The Committee is satisfied contact was made with ELUSIVE KATE by BIGTIME BLUE JEAN coming down and tightening that horse. Corrective action was taken too late. As Mr Burton himself recognised, this clearly constituted careless driving, indeed I would add at the high end. However, I believe that pushing a horse that Mr Burton acknowledges was giving him concern, and which was clearly hanging, constitutes one element of a charge of incompetent driving which I find proved.

Mr Burton knocks over marker pegs on 3 occasions. The first when being pressured by Mr Smith. Despite the fact BIGTIME BLUE JEAN started to give ground (on the latter two occasions) and was fading out of the race, Mr Burton continues to urge the horse as it knocks over pegs. I am satisfied on the first 2 occasions he did not take the action one would expect of a competent horseman, and on the last occasion, the remedial action was too late. There is no evidence the horse was uncontrollable. On at least 3 occasions BIGTIME BLUE JEAN responds to Mr Burton's efforts, although, as noted, one of these times, crucially, it was too late.

Mr Burton at no time attempts to take hold of his horse but continues to urge the horse, moving in the sulky, and shaking the reins. As Mr Allison said, Mr Burton continued to niggle at the horse. I am satisfied that by driving in this manner Mr Burton was not displaying the skill and judgement one would expect from a senior horseman. I am satisfied to the standard of the balance of probabilities that this constitutes incompetent driving. Mr Burton has driven for a number of years and has had 192 drives for 9 wins. He is not inexperienced. It should have been apparent to him and, significantly, to a competent driver, that BIGTIME BLUE JEAN's response to his continued urgings was to race erratically and, in so doing, to risk coming into contact with another horse, which the horse in fact did, and to continue to knock over markers with the risk of disrupting the field and, as Mr Allison said, raising safety concerns with the pegs flicking up as they sometimes do after being knocked over. The Committee believes that Mr Burton's statement that he was trying to get a race into BIGTIME BLUE JEAN may give some explanation for his actions. Mr Burton's drive in race 10 therefore fell below that of a competent driver. The charge is proved. The fact that the horse was sore and was proving a difficult drive through hanging is a matter I will take into account in mitigation of penalty.

Mr Allison produced Mr Burton's record. It was clear since 1995 when he had been found in breach of the careless driving rule. Mr Allison asked for a suspension of 3 months, which he said sounded a long time but as Mr Burton only had 2 drives at a meeting and had had only 31 drives this season, such a lengthy period was appropriate. Mr Allison produced a penalty list since the 2002/03 season for this offence. It demonstrated penalties ranged from 3 weeks to 7 months.

Mr Burton indicated he had 5 horses in work, one ready to qualify. He said he hoped to get BIGTIME BLUE JEAN qualified for the Jewels and wished to be able to drive at that meeting. He said he needed experience. How could he get this if he was suspended. The committee put to Mr Burton the possibility of a combination of a fine and a suspension as a penalty. He said he favoured that, if it was a possibility. Mr Allison did not disagree.

Having regard to the seriousness of the charge, the circumstances of the breach in that there were a number of incidents which constituted proof of the charge, the soreness of the horse which contributed to its hanging, and Mr Burton's excellent record, a combination of a fine and suspension is imposed. No regard is had to the breach in 1995. Mr Burton is entitled to substantial credit for his 10 years plus penalty free. There needs to be a deterrent element to the penalty, however. In the view of the Committee this is met by a suspension from driving from the end of the meeting today up to an including Sunday June 17 and a fine of $500. Unfortunately, Mr Burton, this means you will not be able to drive at the Jewels meeting, although as you have acknowledged, that would have required you to have had one further win before that time in any case.

G Hall

Invercargill

28 April 2007

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