Kaikoura TC – 6 January 2005 – Race 1

Following the running of Race 1, the Tuskers (Beckenham) Pace, an information was laid by Stipendiary Steward Mr S. T. Larkins against Mr J. W Smolenski the driver of Flamingo Rose (14) alleging that he had committed a breach of Rule 869(3)(b). The charge reads as follows.

"I the above named informant allege that the above named Defendant committed a breach of Rule 869(3)(b) in that J. W. Smolenski drove carelessly when attempting to improve between Sam Brocade (P. Borcoskie) and Warning (M. Jones) resulting in horse breaking and falling."

Rule 869(3)(b) reads as follows.

"No horseman in any race shall drive carelessly."

Mr Smolenski indicated on the information that he did not admit the breach

of this rule, and he confirmed this at the hearing.

Mr Larkins called evidence from two drivers.

Mr P. Borcoskie said that after entering the straight he had moved his horse inwards to attempt to pass the leader in the passing lane. The witness said that after making this move his horse had travelled in a straight line. In answer to a question from Mr Larkins the witness said that in his opinion there "probably wasn?t" enough room for Mr Smolenski to improve between his horse and Mr Jones' horse.

Mr M. Jones said that after entering the straight he had maintained a straight course and that he did not believe that there was enough room for Mr Smolenski to improve between his horse and that of Mr Borcoskie's. The witness agreed that he had heard Mr Smolenski call out.

Mr Larkins called evidence from Stipendiary Steward Mrs K. R. Williams who showed video coverage of the incident from various angles. Mrs Williams illustrated that, in her belief, Mr Smolenski never had sufficient room to pass between Mr Borcoski and Mr Jones, and that in attempting to do he had driven carelessly and eventually caused his horse to break and fall.

Mr Smolenski was given an opportunity to question all witnesses.

Mr Smolenski gave evidence that he thought that he had sufficient room to improve between the two horses, and that the gap may have closed slightly when Mr Jones had moved inwards a little. It was at that time that he had called out to Mr Jones.

Mr Smolenski also stated that although his horse broke and fell, there was no contact made with the other horses. Mr Larkins accepted that this was so.

After hearing the evidence I adjourned to consider my decision. The evidence was clear that Mr Smolenski had attempted to improve his horse between the horses driven by Mr Borcoskie and Mr Jones. The Stipendiary Stewards case was that there was insufficient room to do this. Mr Smolenski's case was that there had been room at one stage, but that the gap had closed slightly.

On returning to the Enquiry Room I gave the following oral decision.

"Having heard the evidence from the Stipendiary Stewards and the witnesses, and having heard your evidence as well, I am satisfied that there was never enough room for your horse and sulky between Mr Jones' and Mr Borcoskie's horses. I am also satisfied that your driving was careless in that you got yourself into a situation where your horse fell. I find the charge proved."

Penalty: Mr Larkins advised that Mr Smolenski had one previous relevant conviction for careless driving in June 2004. As a result of this incident Mr Smolenski's horse had lost its chance in the race. A fine of $300-00 was recommended, but Mr Larkins said that a period of suspension could be considered if Mr Smolenski chose.

Mr Smolenski said he preferred a fine but thought that $300-00 was too high.

After considering the question of penalty I was satisfied that a fine of $300-00 was quite appropriate and Mr Smolenski was fined that amount.