Manawatu HRC – 18 February 2005 – Race 7

This was the hearing on 24 February 2005 at the Judicial Room, Addington Raceway, Christchurch, of an information filed at the meeting of Manawatu HRC on Sunday, 20 February 2005. The information related to the running of Race 7 on the first night of the meeting, held on Friday 18 February, Richard Algar Limited (Drainage Contractor) Mobile Pace, and alleged as follows:

Rule 868(2) provides as follows:

Mr Higgs did not admit the breach.

During the course of the hearing, Mr Higgs raised the issue of whether the information had been validly filed on the ground that it was filed during the second day of the meeting on 20 February but related to a race on the first night of the meeting on 18 February. The hearing of the information was adjourned by the raceday Judicial Committee on 20 February. After hearing submissions from the parties and considering the matter, this Committee was satisfied that Rule 106 applied and, accordingly, the information had been filed "during a race meeting" in terms of Rule 1103 (4) (a) and had been filed in accordance with the Rules.

Mr Larkins informed the Committee that MAN WITH THE MONEY, driven by Mr Higgs, had competed in Race 7 at the meeting of Manawatu HRC on 18 February 2005. It was 3/2 in the betting and had finished 2^nd in the race, beaten by a neck. Mr Larkins showed a video replay of the race. MAN WITH THE MONEY drew barrier No.3 in the mobile 2000 event. It was outside the leader early, took the lead after approximately 700 metres and then took a trail with approximately 1100 metres to run and was trailing the leader upon entering the home straight for the final time. Mr Larkins stated that the home straight is approximately 300 metres long and has a passing lane. Mr Larkins showed the leading horse, STEAL THE MOON, maintain a straight line after turning for home, as required, leaving plenty of room in the passing lane for MAN WITH THE MONEY to enter. However, Mr Higgs did not enter the passing lane at the earliest opportunity, Mr Larkins alleged. Mr Higgs then failed to show any vigour other than a slight shake of the reins and then, close to the finish, "vigorously restrained" the horse.

Mr Larkins showed videos of MAN WITH THE MONEY's previous four race starts to illustrate the racing manners of MAN WITH THE MONEY. He submitted that the horse did not show, in any of those races, any traits that might have caused the horse to be beaten on this occasion but alleged that it was beaten as a result of the lack of action by Mr Higgs.

Mr Larkins submitted that there is a requirement for a horseman to fully test his horse either by use of the whip or the reins. Furthermore, it was reasonable and permissible to take the passing lane when it first became available but Mr Higgs failed to do so. It was unreasonable to remain on the back of the leader for as long as he did. Also, it was unreasonable to restrain the horse so close to the finish when it was maintaining a straight line. Mr Higgs' lack of action clearly constituted a breach of the Rule, Mr Larkins submitted.

Mr Higgs showed the video replay of the race and referred to a written statement that he produced. The statement can be summarized as follows:

1. The horse had worked hard in the early stages of the race having sat parked for 600 metres then entering a "speed duel" with the leader before taking the lead.

2. The horse, thereafter, pulled very hard and, with 400 metres to run, Mr Higgs lost all strength in his arms.

3. On entering the home straight, the horse "climbed" onto the wheel of the leader for approximately 50 metres, firing it up even more.

4. He was only able to "extricate? the horse off the wheel of the leader with approximately 150 metres to run when it began to tire. It was necessary to "keep hold of his mouth" and to "balance him up for a few strides". This was the first relief his arms had had for the last mile of the race and he was experiencing cramping of his arms.

--

--

5. He was required to maintain a straight line to the post but, through a combination of having to do so, turn his whip around, activate the removeable hood, with another horse improving on his inside and his horse beginning to tire, his horse attempted to run down onto the horse improving on his inner. As a result, Mr Higgs had to take hold of the reins and straighten MAN WITH THE MONEY.
--

6. In normal circumstances, Mr Higgs would have been able to have turned his whip around and pulled the removeable hood well before the 400 metre mark. However, the horse's racing manners and the late access into the passing lane ruled this out.

Mr Higgs submitted that he had been prejudiced by the charge not having been brought on the night of the race. He submitted that he had been denied the opportunity of seeking medical advice to support his claim of cramping in his arms during the race. In addition, he stated that he had placed "substantial bets" on the horse to win the race and had discarded the tickets on the night.

Finally, Mr Higgs submitted that MAN WITH THE MONEY had been given every opportunity and, had it been good enough on the night, could have won the race.

Rule 868 (2) places two clear obligations on a driver engaged in a race:

1. He must take all "reasonable measures"; and

2. He must take all "permissible measures".

These must be employed at all times during the course of the race for the express purpose of ensuring that all drivers give their horses "full opportunity to win the race or to obtain the best possible position and/or finishing place". The Rule requires of a driver that a horse be driven at all stages in the race to obtain whatever can be the best result for it.

The role of this Committee is to arrive at its own assessment of the quality of the driving employed. It is well established that the test is an objective one and an alleged breach of the Rule falls to be considered by objective standards and not by the subjective reactions of the driver. The Rule requires demonstration of tactics which can, by objective standards, be said to be both reasonable and permissible. Those have to be tactics which can be seen by not only the Stipendiary Stewards but also the those present at the race track, and in particular by the betting public, to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The informant does not have to prove any deliberate intent not to win the race and, in this case, no deliberate intent is alleged. The informant does, however, need to prove more than an error of judgement and, for culpability to attach, there must be some carelessness or incompetence involved and a charge can only be upheld where the driver has failed to take some measure or measures which were reasonably and permissibly open to him. There may be circumstances in which a driver's manner of driving may amount to merely a permissible error of tactics but, when that error of tactics amounts to bad judgement, that

results in disadvantage to his horse, then such manner of driving falls within the terms of the Rule.

Turning to the facts of this case, it was Mr Larkins' allegation and it was clearly supported by the

video evidence, that Mr Higgs failed to take the passing lane at the first available opportunity. To have taken the passing lane at the first available opportunity was both reasonable and permissible. The leading horse, STEAL THE MOON, complied with the requirements imposed by the Passing Lanes, False Rails and Home Straight Regulations by maintaining as straight a course as possible parallel to the running line and, it was clear from the video, allowed MAN WITH THE MONEY full access to the passing lane. Mr Higgs' explanation for not taking the passing lane when the opportunity first presented itself was not satisfactory, when judged objectively. To see the horse held up in a trailing position as long as it was when a run was available is sufficient to cause the public concern and more than sufficient for the Stipendiary Stewards to inquire into it. A rather complicated scenario was painted by Mr Higgs relating to his not taking the reasonable and permissible measure of taking the passing lane run when it first presented itself rather than waiting for some considerable time, in the context of the race, before doing so. However, the Committee is not satisfied that his explanation was supported by the video evidence.

This Committee accepts Mr Larkins' submissions that Mr Higgs is an experienced driver having had in excess of 400 race drives of which 39 had been on the Manawatu track. The videos of the four other races of MAN WITH THE MONEY, which Mr Higgs drove in three of those races, were shown to the Committee and it was clear that Mr Higgs had previously driven the horse with vigour including use of the whip. In the race in question, it was clear from the video evidence that Mr Higgs showed little or no vigour after finally drawing MAN WITH THE MONEY out from behind the leader into the passing lane, which was well into the home straight. All that was apparent was a slight shake of the reins. It was both reasonable and permissible for Mr Higgs to have shown more vigour at that stage of the race having obtained a clear run for the horse albeit late in the race and, moreover, in the Committee's opinion, he had an obligation to do so.

Finally, the video evidence showed MAN WITH THE MONEY being restrained by Mr Higgs close to the finishing line when looking the likely winner. With respect to Mr Higgs, his explanation that he had to restrain the horse to avoid it interfering with the horse on his inside is not supported by the video evidence. I prefer the submission of Mr Larkins that MAN WITH THE MONEY shifted inwards, and only slightly, only after it had been restrained by Mr Higgs.

In summary, there are three aspects of Mr Higgs' drive in the home straight that, in the view of this Committee, bring him within the scope of Rule 868 (2);

1. His not taking the opportunity of a passing lane run when it first presented itself but rather waiting for a significant distance before doing so. Irrespective of whether the horse was pulling, that does not give an explanation of why it was not pulled out when the opportunity first presented itself;

2. His manifest lack of vigour after the horse was pulled out from behind the leader into the passing lane; and

3. His restraining the horse close to the finishing line without a satisfactory explanation.

Mr Higgs was required to take all reasonable and permissible measures and at all times during the race. The Committee is satisfied that he had reasonable and permissible opportunities open to him during the final 300 metres of the race of which he elected not to avail himself. The Committee is satisfied that his failure to avail himself of those reasonable and permissible opportunities was culpable and amounted to a breach of Rule 868 (2). Accordingly, the charge against Mr Higgs is found proved.

DECISION ON PENALTY AND REASONS:

The Committee heard submissions from the parties in relation to penalty on 25 February 2005 following the delivery of the Committee's reserved decision, a charge against Mr Higgs for a breach of Rule 868 (2) having been found to be proved.

Mr Larkins produced a printout of the driving record of Mr Higgs back to August 2000. He referred to a breach in February 2004 for driving in a manner which diminished his horse's chances of winning for which he received a suspension of almost 4 weeks. Mr Larkins submitted that there was no question that the present breach was a serious one and must be treated accordingly. Mr Larkins referred the Committee to Rule 1114 (2) (c) & (d) which provides:

Mr Larkins submitted, in particular, that to maintain integrity and public confidence in harness racing the penalty needed to be one which not only deterred Mr Higgs from reoffending but also deterred other licence-holders from similar offending. In addition, the penalty must instill the confidence, from the point of view of the general and the betting public, that integrity in harness racing is maintained at the highest level at all times.

The Passing Lane Regulations were introduced to allow trailing horses a clear run in the straight. MAN WITH THE MONEY was well fancied in the betting ? 3/2 in the betting ? and was beaten by a narrow margin. The betting public had been denied the opportunity of winning not only in their win bets but also in exotic types of bets such as trifectas, Mr Larkins said.

Mr Larkins submitted that the only appropriate penalty was a suspension of Mr Higgs' horseman's licence. Mr Larkins produced a copy of the decision of the Australian Greyhound and Harness Racing Appeals Tribunal in the recent case of Marais ? a harness racing appeal involving the equivalent Australian rule. Following the appeal, the period of suspension was reduced from six to four months. In three other recent appeals, periods of four months' suspension were also imposed. Mr Larkins recommended a suspension of four months in this case.

Mr Higgs questioned the relevance of the Marais appeal decision to these proceedings. He informed the Committee that he had some forty horses in work. He said that he had a team entered over the upcoming Interdominion carnival and that team was already in Auckland. He was travelling to Auckland next week with more horses. He said the carnival provided an opportunity to recoup some of the money that he had invested in harness racing. He submitted that the Committee had the option of imposing a fine rather than a suspension and that a fine would be appropriate given the amount of racing that was coming up. A suspension at this time would restrict his earning capacity and he urged the Committee to consider a fine rather than a suspension. He submitted that a suspension at this particular time would unduly penalise him.

When asked by the Committee, Mr Higgs indicated that he had 4-5 horses which would be racing at the Interdominion carnival and that it was his intention to drive them himself. The horses would not necessarily run if he were unable to drive them.

Following a deliberation, the Committee delivered the following interim decision on penalty:

"I have carefully considered the submissions of both parties in relation to penalty. As I said previously, it is my intention to announce the penalty today but to reserve my full reasons for arriving at that penalty and give those reasons in a written decision which I will deliver within the next couple of days.

I am of the view that the circumstances of this case constitute a quite serious breach of Rule 868 (2) ? one might say, at the upper end of the scale ? and a breach that, in my view, can only be adequately dealt with by the imposition of a term of suspension. I have come to this conclusion despite the submissions of Mr Higgs that a suspension would be unduly harsh and that I should consider a fine. As far as the term of suspension is concerned, I feel that a period of 3 months is appropriate. I have noted the reference by Mr Larkins to the penalties of four months handed down by the Australian authorities for breaches of the equivalent Rule but I do not regard myself as being bound by those in any way. They are, however, a guide.

Mr Higgs' horseman's licence, therefore, will be suspended from today up to and including 22 May 2005."

The principal concern of the Committee in imposing penalty is, as always, to maintain the integrity of harness racing. This has been stated on many previous occasions and is well-accepted. The present case is a serious one and is quite unusual in that, as the Committee found, the driving of Mr Higgs was culpable in three respects ? in failing to take the passing lane at the first available opportunity, in failing to show any vigour and in restraining his horse close to the line. The combination of these three factors renders the circumstances of this breach quite serious in the view of the Committee.

A breach of this particular Rule is one that invariably jeopardises the integrity of harness racing for reasons which are self-evident. Harness races are based on the requirement that all contestants in a race are given every possible opportunity by their drivers and that, when the race has been run, all contestants have been fully tested and have been asked to do the best that they can. This has to be the case in order that the betting public, so important to the industry, can have confidence that they have had a run for their money when they have invested their money on contestants in a harness race. Any suggestion that a horse has not been given every possible opportunity and has not been asked to do the best that it can, for whatever reason, will result in loss of public confidence in harness racing. As stated, it is the primary function of Judicial Committees, in dealing with penalty, to "maintain integrity and public confidence in harness racing".

Mr Larkins submitted that a suspension was called for. Mr Higgs, on the other hand, submitted that a suspension would unduly penalise him and that the Committee should consider a fine instead of a suspension.

The Committee is firmly of the view, given the serious nature of the breach and the need to maintain integrity and public confidence in harness racing, that a fine is not appropriate in the present case. In considering the term of a suspension to be imposed, the Committee was interested to note the consistent approach to breaches of the equivalent Australian rule by authorities in that country as highlighted in the Marais decision referred to by Mr Larkins ? a period of four months' suspension. In the Committee's view, a similar period of suspension would be not inappropriate in the present case. However, the Committee has taken into account Mr Higgs' submission that he has a number of horses racing for good stakes over four premier nights of the upcoming Interdominion carnival in Auckland. The Interdominions are only held in New Zealand every four years and it is unfortunate for Mr Higgs that his suspension for this breach coincides with the Interdominions being held In Auckland. Having said that, however, such a consequence is part of the penalty that Mr Higgs must accept.

The Appeals Tribunal in Marais stated:

I agree in principle with those comments.

However, the Committee is prepared to acknowledge the effect on Mr Higgs of his being unable to drive his team at the carnival and, in the circumstances, to impose a period of suspension of three months rather than four months. This penalty should adequately serve to maintain integrity and public confidence in harness racing and, at the same time, deter Mr Higgs from reoffending and send a clear message to other licence-holders that breaches of the particular Rule will be met with substantial periods of suspension.