HR Waikato 5 May 2016 – R 1 (heard on 20 May 2016 at Cambridge) – Chair, Mr A Dooley

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startdate: 05/05/2016

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hearing_title: HR Waikato 5 May 2016 - R 1 (heard on 20 May 2016 at Cambridge) - Chair, Mr A Dooley

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Non Raceday Inquiry Adjourned Hearing
BEFORE A JUDICIAL COMMITTEE

HELD AT CAMBRIDGE

IN THE MATTER of New Zealand Rules of Harness Racing

BETWEEN Mr S Mulcay – Stipendiary Steward (RIU)

Informant

AND Mr J Kriechbaumer – Advanced Amateur Horseman

Respondent

Date of Hearing: 20 May 2016

Information No: A3997

Venue: Cambridge Raceway

Judicial Committee: Mr A Dooley, Chair – Mr A Godsalve, Committee Member

Present: Mr J Kriechbaumer – Advanced Amateur Horseman

Mr S Abernethy – Open Horseman assisting Mr Kriechbaumer

Plea: Denied

Date of Decision: 23 May 2016

Charge

The Informant Mr Mulcay, Stipendiary Steward, alleged that in Race 1 at a race meeting conducted by Harness Racing Waikato at Cambridge on 5 May 2016, “Amateur Driver J Kriechbaumer drove incompetently over the final stages by failing to immediately take all reasonable steps to return his gelding OUR SOUTHERN MAN to its proper gait after galloping near the 70 metres” or in the alternative “He failed to immediately take all reasonable steps to return his gelding to its proper gait after galloping near the 70 metres”. An alleged breach of Rule 869(3)(a) or in the alternative Rule 870(1) of the New Zealand Rules of Harness Racing.

The Committee granted Mr Kriechbaumer’s request for an adjournment on 5 May given that Rule 869(3)(a) is a serious charge and this would allow him time to seek advice.

Rule 869(3) (a) states: No horseman in any race shall drive:-

(a) incompetently;

Rule 870(1) states: When any horse breaks from its gait in any race its horseman shall immediately take all reasonable steps to return it to its proper gait and where clearance exists immediately take such horse clear of the field.

Mr Kriechbaumer acknowledged that he understood both Rules and he denied the breaches. Mr S Abernethy, Open Horseman assisted Mr Kriechbaumer at the hearing.

Mr Kriechbaumer and Mr S Abernethy requested to view the video footage of the alleged incident in private prior to the commencement of the hearing. The Committee granted this request.

The proposed procedure for the hearing was explained to Mr Kriechbaumer and he had no concerns or objections.

The following are the salient points of this lengthy hearing which commenced 2.5 hours prior to the first race.

Submissions by the Informant

Mr Muirhead represented Mr Mulcay at the hearing on 20 May 2016.

Mr Muirhead identified on the video footage that OUR SOUTHERN MAN was leading when it broke from its gait near the 70 metres and the horse failed to settle before the finish line. He said he was amazed by Mr Kriechbaumer’s actions when he slapped his horse with the reins when it was in its wrong gait. He recognised that Mr Kriechbaumer took hold of his horse for a moment but he then decided to slap the horse with the reins 3 or 4 times. He advised the Committee that in his 33 years as a Stipendiary Steward he had never witnessed anything like that. He believed the horsemanship displayed fell well below the required standard and in his view it was incompetent.

Mr Muirhead stated there were a number of reasons that concerned the Stewards. He said Mr Kriechbaumer lack of actions were a safety concern which potentially placed other horses and drivers at risk. He said Mr Kriechbaumer’s responsibility was to restrain his horse when it galloped and he specified this clearly did not happen. He said this possibly cost the betting public who had placed a bet on OUR SOUTHERN MAN. He identified that if Mr Kriechbaumer took all reasonable actions it may have resulted in a relegation and not a disqualification from the horse’s 2nd place. The Stewards deemed Mr Kriechbaumer’s reaction to the incident to be “really poor”.

Mr Muirhead provided all parties present with a copy of the British Dictionary definition of the word incompetent.

In response to a question from the Committee, Mr Muirhead referred to the video footage and pointed out that the Stewards expected Mr Kriechbaumer to grab a hold and continue to restrain his horse when it galloped. Mr Muirhead stated that he could not understand why Mr Kriechbaumer slapped his horse with the reins and encouraged it to go forward unless he was angry with his horse.

Mr Muirhead advised the Committee that OUR SOUTHERN MAN had raced without any issues for approximately 2½ years. He described the horse as an old warrior who has had 118 starts for 16 wins.

In summing up Mr Muirhead stated that it was obvious this was a clear breach of Rule 870(1). He submitted in relation to the incompetent charge the Stewards believed Mr Kriechbaumer’s actions to slap his horse with the reins after galloping were incomprehensible. He said Mr Kriechbaumer showed a distinct lack of ability which placed the safety of all horses and drivers at risk by not correcting his horse’s gait. He added if Mr Kriechbaumer had returned his horse to its proper gait the betting public may have got some return.

Submissions by the Respondent

Mr Abernethy told the Committee that OUR SOUTERN MAN raced with no ‘overcheck’ and wore an unusual bit because the horse had a “soft mouth”. He added that Mr Kriechbaumer did not carry a whip when driving the horse.

Mr Abernethy acknowledged that OUR SOUTHERN MAN galloped at the 70 metres. He said that the horse was pacing roughly and dipped near the 50 metres, he noted that Mr Kriechbaumer took a hold of his horse for 2 strides. He stated that if Mr Kriechbaumer had not taken a hold of his horse then he would have been incompetent.

Mr Abernethy advised the Committee that the ear plug cord may have got tangled up in OUR SOUTHERN MAN’S hind leg and this is maybe why the horse jumped out of its gear and galloped. He identified that OUR SOUTHERN MAN’S hind leg was not following through correctly when it was trying to pace.

Mr Abernethy and Mr Kriechbaumer were unable to demonstrate on the available video footage at what point the cord came adrift around the horse’s hind leg. Mr Kriechbaumer confirmed that he pulled the ear plugs at the 200 metres.

In response to a question from the Committee, Mr Kriechbaumer indicated he was not aware the cord had broken and he did not report this information to the Stewards on 5 May.

Mr Muirhead stated that the reason why OUR SOUTHERN MAN galloped was probably irrelevant to the charges because Mr Kriechbaumer’s actions were wrong and lacked judgement.

Mr Kriechbaumer told the Committee that when his horse galloped near the 70 metres he took a real good hold for 3 to 4 strides. He said that he slapped his horse with the reins and it felt like OUR SOUTHERN MAN was going to pace but he conceded that the horse didn’t respond to him.

Mr Abernethy in summing up stated that Mr Kriechbaumer made a reasonable attempt to control his horse. He said Mr Kriechbaumer flicked his horse with the reins and when that failed he took a hold and tried to get his horse into its correct gait. He said that Mr Kriechbaumer didn’t just sit there and let the horse gallop but acknowledged he couldn’t get the horse back to a pace.

Reasons for Decision

The Committee carefully considered all the evidence and submissions as presented. Having reviewed the video films several times frame by frame we established that OUR SOUTHERN MAN was racing in the lead at the 100 metres and 1 length clear of the field. It was clear and not disputed that OUR SOUTHERN MAN went into a gallop and broke at approximately the 70 metres and did not return to its proper gait until just after the winning post. We accept that Mr Kriechbaumer did initially take hold of his horse for 3 strides but he then slapped his horse with the reins twice when it was clearly galloping and gaining ground. It was evident at that point in the race OUR SOUTHERN MAN’s both front legs were well off the ground when in a galloping motion. Mr Kriechbaumer then very briefly pulled on both reins when the horse was still galloping. However, it was obvious that over the final 7 strides Mr Kriechbaumer made no attempt whatsoever to either properly restrain his horse or return it to its proper gait when the horse was running in 2nd place. We do not believe that these were the actions of a reasonably competent horseman. The Committee consider Mr Kriechbaumer displayed incompetence in that he failed to use the necessary skill to either properly restrain his horse or return it to its proper gait.

Decision

We find that Mr Kriechbaumer drove incompetently and, therefore, we find the charge of Rule 869(3)(a) to be proved.

Submissions on Penalty by Informant

Mr Muirhead said that Mr Kriechbaumer earns his income elsewhere and is not reliant on the industry for an income. He said Mr Kriechbaumer had a clear record under this Rule and he had 18 drives to date this season for 4 wins. He said the JCA Penalty Guidelines recommended starting point for this Rule is 80 drives or a $4,000 fine. He added that the Stewards were not suggesting the Committee impose that type of penalty on this occasion. He said Amateur Drivers predominately drove twice a month and it was difficult to assess an appropriate penalty because he had never seen an incident like this previously. He stated Mr Kriechbaumer’s drive fell well below the required standard and described his culpability as above mid-range. Mr Muirhead submitted the Committee may consider imposing a 3 month suspension and in addition a $500 fine.

Mr Muirhead produced Mr Kriechbaumer’s driving record which showed he has had an Amateur Driver license since 2008 and had driven in 117 races in New Zealand.

Submissions on Penalty by Respondent

Mr Abernethy acknowledged that a 3 month suspension would be a fair penalty but he believed a $500 fine would be too harsh for an Amateur Driver. He said Mr Kriechbaumer would prefer a suspension rather than a combination of a suspension and fine.

Mr Kriechbaumer advised that he had intended to drive at Rangiora in the Amateur Drivers series on 29 May until the Committee explained to him the 7 day deferment Rule.

Mr Kriechbaumer said that Amateur Drivers do not gain any money from driving and stated nobody got hurt as a result of his horse breaking. Mr Kriechbaumer confirmed that he had no engagements in the next 7 days and any proposed suspension could start immediately.

Reasons for Penalty

The Committee carefully considered the evidence and submissions presented. The only mitigating fact is Mr Kriechbaumer clear record under the Rule. We assess the gravity of the breach as mid to high range and Mr Kriechbaumer’s culpability as mid to high range. The consequences of his actions resulted in OUR SOUTHERN MAN being disqualified from its 2nd place because it was in breach of the Breaking Horse Regulations. This impacted on the connections and betting public who had invested on that horse. We consider this to be a further significant aggravating fact.

The Committee had regard for Mr Kriechbaumer’s status as an Amateur Driver and the limited opportunities available to him. Even though we are aware that Mr Kriechbaumer is an experienced Advanced Amateur Horseman. We note that JCA records show this type of charge is very rare.

The Committee explained to Mr Kriechbaumer the 7 day deferment Rule:

SUSPENSIONS Rule 1304 (1) Every suspension of a horseman or a horseman’s licence imposed by a Judicial Committee during any day of a race meeting shall take effect as follows:

(a) on the completion of the horseman's driving engagements on the day the suspension is imposed if at that time the horseman has no engagements to drive a horse in a betting race during the next seven days; or

(b) if on the day the suspension is imposed the horseman has engagements to drive a horse in a betting race during the next seven days then from the earlier of:

(i) the completion of such engagements within that seven day period; or (ii) the completion of that seven day period.

The Committee referred to the JCA Penalty Guide however, the rare circumstances regarding this case clearly does not warrant a penalty in the vicinity of 80 drives or a $4,000 fine.

It is always problematic fixing a term of suspension for Amateur Drivers, for the reason that they drive only infrequently- usually no more than 1 drive per fortnight.

The Committee determined that in the interests of denunciation, deterrence and the integrity of harness racing a substantial penalty is warranted.

We are going to deal with this suspension in terms of drives (rather than weeks) as provided by the JCA Penalty Guide. We believe that a suspension of Mr Kriechbaumer’s Licence until the 30th of November will involve approximately 10 drives. These being the scheduled meetings at Cambridge during that period and also the meeting at Rangiora on the 29th of May 2016 which Mr Kriechbaumer had intended to drive at.

Penalty

After taking into account all the above factors the Committee imposes a suspension on Mr Kriechbaumer commencing after racing on 20 May and conclude after racing on 30 November 2016. This equates to approximately 10 drives for an Amateur Driver.

Costs

The RIU did not seek costs and accordingly there are no order as to costs.

Due to this matter being scheduled to be heard on a race day there will be no order for JCA costs.

Adrian Dooley            Alan Godsalve

Chair                         Committee Member

23 May 2016

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