Manawatu HRC 3 November 2016 – R 4 (heard on 1 December 2016 at Cambridge) Chair, Mr A Dooley
ID: JCA22615
Hearing Type (Code):
harness-racing
Decision:
RACEDAY JUDICIAL COMMITTEE DECISION
Informant: Mr S Mulcay - Stipendiary Steward
Defendant: Mr GA Martin – Open Horseman/Trainer
Information No: A7012
Meeting: Manawatu Harness Racing Club
Date: 3 November 2016 (heard on 1 December 2016 at Cambridge Raceway)
Venue: Palmerston North
Race: 4
Rule: 868(1) & 868(2)
Judicial Committee: Mr A Dooley (Chairman), Mr A Godsalve (Committee Member)
Appearing: Mr JM Muirhead – Stipendiary Steward as a witness
Plea: Denied
Date of Hearing: 1 December 2016 - 3 hours prior to race 1
Date of Decision: 6 December 2016
DECISION OF JUDICIAL COMMITTEE
Charge:
Information No A7012
That on 3 November 2016 at a race meeting conducted by the Manawatu Harness Racing Club at Palmerston North in Race 4 Mr G Martin caused or permitted his gelding DANKE to be run other than on its merits as a result of his actions and/or lack of actions over the final 200m. AND/OR in that he failed to take all reasonable and permissible measures over the final 200m to ensure his gelding DANKE was given full opportunity to win the race. An alleged breach of Rule 868(1) AND/OR 868(2) of the New Zealand Rules of Harness Racing.
Rule – 868(1) provides: No person, including a horseman shall run a horse or cause or permit a horse to be run other than on its merits.
Rule – 868(2) provides: “ Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.
Mr Martin said he understood the Rules and told the Committee that he denied both charges.
Mr Martin said that he had obtained some legal advice regarding the charges and added that it would have been too costly for the Lawyers to be present at the hearing.
Submissions for Decision:
Summary of Facts presented by Mr Mulcay
G Martin was the driver of DANKE in Race 4 the “EQIVET HANDICAP TROT“ at the Manawatu HRC’s meeting held at Manawatu Raceway 03/11/16.
The race was run over 2500 metres from a standing start.
DANKE started from barrier 2 on 40 metres and was placed 2nd by the Judge beaten a ½ neck.
Stewards opened an investigation into Mr Martin’s drive and in particular in relation to his apparent lack of vigour over the final stages.
After taking initial evidence from Mr Martin and viewing the available replays, the matter was adjourned until the 2nd night of the meeting to enable additional replay footage to be sought.
Having viewed this footage Stewards issued Mr Martin with 2 charges at the conclusion of the night’s racing.
The particulars of these charges are: Rule 868 (1) “in that he caused or permitted his gelding to be run other than on its merits as a result of his actions and/or lack of actions over the final 200m” and/or Rule 868 (2) “in that he failed to take all reasonable and permissible measures over the final 200m to ensure his gelding was given full opportunity to win the race.”
The Judicial Committee on the 5th of November opened a hearing before adjourning the matter to a date and venue to be fixed.
The Stewards had no objection to an adjournment given the seriousness of the charges. Mr Martin advised the Judicial Committee that he would need some time to seek legal advice on the matter.
Rule 1106 (1)(b) states “An information may allege one or more breach of these rules.” These charges are laid in the alternative.
It is acknowledged that the Burden of Proof lies with the Informant to establish the respective charges to the required Standard of Proof.
This standard is specified in Rule 1008A “Where in any proceeding, any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities.” However the Informant acknowledges the accepted legal principle of a greater standard of proof being required and in particular for the charge under Rule 868 (1) given the serious nature of the likely consequential effects on Mr Martin should this charge be found to be proved.
When questioned regarding his apparent lack of vigour Mr Martin advised that he had been unable to drive DANKE out due to the seat on his sulky slipping which placed him at a considerable disadvantage. (refer Page 2 of transcript).
Mr Martin then claimed to have dropped his feet from the sulky footrests approaching the bell but then goes on to say that it may have been before or after this stage of the race. He was unable to demonstrate on the replays where this occurred.
When asked directly by myself on (Page 3 of transcript) “Well where’s it placed you at a disadvantage here?” Mr Martin states “Well if I’d given him his head, I would have fallen out the back. I’m sort of hanging on and trying to get the best out of the horse himself, without slipping out the back.”
Mr Martin goes on to say that DANKE felt uneven and that it had pulled a shoe before travelling down to Manawatu and may be a little bit foot sore. Further states that the gelding has had a change of shoes since. (page 4 of transcript)
Mr Martin then reiterates when asked how the alleged equipment malfunction has prevented him from driving the horse out to any degree that “if I do that I’m going to slip out the back of the cart. The only thing I could hang onto is the stay of the cart or the reins.”
The issue of Mr Martin’s failure to report the alleged equipment malfunction to Stewards is raised on Page 7 of transcript. This obligation is pursuant to Rule 305(b) which states “Every person who holds a permit or licence under these Rules and every owner, driver, trainer or person in control of a horse shall report to a Stipendiary Steward as soon as practicable anything that might have affected the running of a horse in a race.”
Mr Martin claims to have turned around on pulling up and done the sulky seat up, before going on to say that there was no Steward present in the birdcage to report the matter to. He then states on Page 8 of transcript “Well I came back after the race, I had a horse that was being vetted, I had to ungear that horse. The horse here I had to ungear it, get the gear on the other horse to come out for the last race.”
Mr Mulcay added that he clearly remembers talking to Mr Martin after the race and questioned him whether or not SOLDIER was going to start in the last race. He said his demeanour was nothing to say he was not his normal self after the race.
When then asked by myself “Ok no but I’m talking about why wouldn’t you say something in the birdcage immediately following the race?”
Mr Martin replied “I was just too peed off. Because I think he would have won. Could possibly have won.” Page 8 of transcript.
Mr Martin said he agreed with the summary of facts and he did not wish to cross exam Mr Mulcay.
Mr Mulcay provided a copy of the use of whip guidelines and highlighted the suggested alternative actions available to Horseman.
Mr Mulcay made reference to the word “vigour” and quoted the Oxford Dictionary definition.
In addition Mr Mulcay supplied a letter from the HRNZ Handicapper Mr A Morris which stated that if DANKE had won the race on 3 November he would have incurred a 10 metre penalty – just like any other run – of – the – mill race.
Mr Mulcay produced 7 video films of DANKE’s recent starts and spoke at length about each race. He highlighted that on each occasion Mr Martin had driven DANKE with vigour which included using the reins and the whip.
At this point Mr Mulcay called Mr Muirhead as an expert witness. Mr Martin had no objection to this.
My name is John Maurice Muirhead. I am a Senior Stipendiary Steward employed by the Racing Integrity Unit Ltd. I have specialised as a Steward in Harness Racing in New Zealand since 1983 and have adjudicated in over 50,000+ races.
Senior Stipendiary Steward Stephen Mulcay has requested that I provide an opinion of the video coverage of Mr G Martin’s drive on DANKE, which finished in 2ND placing, in Race 4, at Manawatu HRC’s meeting on the 3rd November 2016.
DANKE finished in second place officially ½ a neck in arrears of the winner RARANGI JEWEL.
SIDE-ON No.1 Camera
• DANKE driven by Mr Martin started from barrier 2 on the 40m handicap mark. Mr Martin has his right foot down out of the sulky foot rest keeping his balance at the start. At no stage during the race other than the very start, is it apparent on the video, that Mr Martin keeps his feet other than in the footrests of his sulky.
• DANKE began safely, inconvenienced entering the front straight for the first occasion by the galloping AUNTY JAN , raced 6 back in single file, then 3 back one out from approximately the 1400 following the eventual winner RARANGI JEWEL.
• Inside the 500m DANKE momentarily loses the back of RARANGI JEWEL to some degree when RARANGI JEWEL improves forward. Mr Martin activates the removable deafeners with his left hand and also improves forward strongly under restraint following RARANGI JEWEL.
• Mr Martin turns his whip in the right hand but does not apply it inside the 300m.
• Mr Martin shifts DANKE to 3 wide, entering the straight for the run home, giving it a clear run.
• Inside the 150m he crosses the reins into his left hand. He lifts his whip on 3 occasions, in an upward motion making no apparent downward contact with the body of the horse or the shaft or dustsheet. Mr Martin waves the whip forward of his body above the gelding’s rump without any apparent contact.
• Mr Martin displays a distinct lack of contact with the horse with the reins and/or whip to encourage DANKE to do its best to win the race.
• Mr Martin’s lack of vigour and competitive urgency is displayed by his lack of actions of his use of the whip and reins. Mr Martin’s posture in sitting upright and the lack of body movement is something I would not expect of a competitive drive in a close finish with drivers giving their charges the full opportunity to win.
• He did not strike the horse with the whip, the horse was trotting well, and therefore it was permissible and reasonable to expect Mr Martin to do so as there was no reason not to.
• In my opinion, he is deliberately trying to give the impression he is using the whip without doing so, that is, I would describe his actions as a “Claytons” use or feigning its use in an attempt to intentionally deceive the betting public that he is driving the horse out when he is not.
• He did not run the reins over the horse’s rump or lift its tail with the reins as an alternative action as I have witnessed in previous drives of Mr Martin on the same horse.
• He does have DANKE under restraint with both reins in his left hand. He added that the reins were taunt when the horse was restrained.
SIDE-ON No. 2 Camera
• The close up view at the finish line shows DANKE’s head carriage with the horse’s chin tucked back and head held high indicating the horse is under restraint.
• Just short of the finish the reins are held in his left hand, with his elbow bent back and his hand held well back close to his torso in a position well behind his knee indicating the horse is under restraint.
• The close up shot shows that whip contact was not made with the rump of the horse.
• If the contention was made that the horse reacts badly to the whip being applied the alternatives of striking the shaft or dust sheet and/or using the reins running them over the horse’s rump or lifting its tail were not demonstrated by Mr Martin.
• It is my experience, that in the circumstances of a close finish I would reasonably expect any driver to leave absolutely no doubt or room for query and take advantage of every means available to him to get the best out of his horse. In this case Mr Martin did not do this and his actions or lack of actions show he deliberately did not drive his horse out on its merits.
• He added the horse’s mouth was open near the finish line and DANKE’S head carriage was high because the horse was not let go.
HEAD-ON Front Straight Camera
• This camera angle demonstrates that DANKE is trotting well throughout the run home to the finishing line.
• In my opinion DANKE is not giving Mr Martin any concerns that would prevent him from demonstrating vigour. I have seen him apply vigour to this horse both prior to this start and again since (excluding its start at Cambridge Raceway on 17 November 2016).
• I am compelled to compare driving styles and the vigour displayed by the competing drivers in contrast to Mr Martin driving DANKE. They demonstrate a marked difference, in that the competing drivers do not give any concerns to Stewards in complying with the Rules as they are all driving their horses out on their merits.
• He added that it was noticeable the 3 drivers all around Mr Martin were using vigour driving their horse out and within the Rules.
Conclusion: Race 4, Manawatu HRC, 3 November 2016
In my opinion Mr Martin did not avail himself of every option and take the full opportunity that was reasonable and permissible to expect him to demonstrate when driving DANKE over the concluding stages of this race. In fact at the same time his feigning of the use of the whip and restraint of the reins with his left hand demonstrate a blatant breach of Rule 868(1) in that he failed to drive DANKE on its merits. In my opinion Mr Martin’s drive can only be described as disgraceful putting himself in jeopardy and placing the Harness Racing Industry in a bad light.
In addition Mr Muirhead stated that there was no evidence of Mr Martin’s sulky seat slipping. He advised the Committee that he had witnessed situations where Drivers had no seat at the end of a race. He stated when that occurred it had not stopped those Horseman from driving their horses out at the finish of a race.
Mr Martin Submissions:
Mr Martin submitted that DANKE has had over 20 races this season and advised his horse was placed 2nd on the 27th of October. He said that DANKE has issues with soundness. Mr Martin described DANKE as an old crock who gallops if struck with the whip. He said being an older horse DANKE resents the whip being applied to him in training and on race day. Mr Martin said he reverts to roaring or growling at the horse now.
Mr Martin asked the Stewards to show the video film from the 5th of November 2016 race. Mr Martin pointed out that near the 800 metres DANKE was travelling reasonable well and his horse galloped near the 500 metres. He told the hearing that DANKE has had soreness issues since the 27th of October and that is why the horse galloped.
The Committee did question Mr Martin as to why he was racing DANKE twice in a night if the horse was suffering from soundness issues. Mr Martin had no explanation.
Mr Martin then requested the race video film from the 3rd of November to be shown. Mr Martin identified that near the 1700 metres his sulky seat briefly shifted and again near the 300 metres when DANKE head dipped for a stride. He said in the home straight his feet were under the footrest and he couldn’t let his horse go because it was unsound. He stated that in hindsight he would have been better to pull up DANKE at the 1700 metres because it was a health and safety issue. He identified over the final 200 metres that DANKE was doing his best and stated “you can’t chuck the reins at him in a finish”.
Mr Martin then produced the sulky seat as an exhibit and this subject was discussed at length. He advised the Committee that he had used the seat for about 12 years. Mr Martin maintained the sulky seat had shifted during the running of the race. Mr Mulcay strongly objected to this and said at no stage during his investigation had Mr Martin advised that his sulky seat had shifted. Mr Martin confirmed to Mr Mulcay that he used the same sulky on SOLDIER later that evening and the sulky was fine. Mr Martin said this was because he had used poly grips to tighten up the nuts under the seat so they did not come loose. Mr Mulcay reminded Mr Martin that had an obligation under the Rules to report to the Stewards any gear malfunction. Mr Mulcay said to Mr Martin that if you were so disadvantaged by the seat surely you would have told the Stewards. Mr Martin said that he became aware of the seat shifting after viewing the race replays on his TV at home. Mr Martin added that he was unable to identify this when viewing the Stewards film on the evening in question.
Mr Martin produced invoices from Sulky Tack NZ dated 7 November and The Sulky Shop dated 9 November 2016 which showed that he had purchased items relating to a sulky seat.
Mr Mulcay produced photos of Mr Martin’s sulky and seat. After much discussion it was obvious there was a difference of opinion as to its condition at the time of the alleged incident.
In response to a question from the Committee, Mr Mulcay stated that Mr Martin’s assertions regarding the sulky seat did not change the Stewards’ position regarding the charges.
In summing up Mr Mulcay submitted that much had been written in judicial decisions over the years in this and other Harness Racing jurisdictions about the need to maintain the public confidence in the integrity of our industry – an industry which is driven by the punting dollar. This is based on the requirement that all contestants in a race are given every possible opportunity by their drivers and that all contestants have been fully tested and asked to do the best they can. This has to be the case in order so the betting public can have full confidence that they have had a run for their money when they invest on a Harness race. Any suggestion that a horse has not been asked to do their best or has not been given every possible opportunity, for whatever reason, will result in a loss of public confidence in Harness Racing.
The Committee have viewed DANKE’s recent racing leading into the Manawatu race on 03/11/16 and subsequent to that meeting. You have heard Mr Muirhead’s expert evidence in relation to the race in question which clearly details the actions and/or lack of action on the part of Mr Martin which Stewards maintain constitute a breach of Rule 868 (1). You have heard Mr Muirhead describe a comparison of Mr Martin’s drive on the 03/11/16 and other drives as “chalk and cheese” in relation to the amount of vigour shown in driving DANKE out over the final stages. This is apparent in viewing the races concerned.
It is the Stewards’ assertion that the vision of the Manawatu race on 03/11/16 is compelling and clearly shows that the actions of Mr Martin over the final 200m and his failure to take the measures that have been identified and were available to him to ensure that DANKE was given full opportunity to win the race, were so unreasonable that when viewed objectively the only logical conclusion that can be arrived at is that they were as a result of deliberate intent not to cause or permit his gelding to be run on its merits. Accordingly the Stewards’ submit that the requisite standard of proof has been met and that the charge under Rule 868(1) should be found proved. Should the Committee not be sufficiently satisfied that the charge under Rule 868 (1) has been proved then Stewards submit that a high range breach of the alternative charge under Rule 868 (2) has clearly been established.
Mr Martin in summing up said the only reason he could not drive his horse out to the finish was because the sulky seat shifted. He reiterated that he would have preferred to pull up his horse at the 1700 metres for health and safety issue with his sulky seat. However, he stated that he doesn’t travel 550 kilometres to pull up a horse. Mr Martin confirmed that he had nothing further to add.
Reasons for Decision:
The Committee carefully listened to, and independently assessed, the evidence of both parties and reviewed the video footage several times.
Mr Martin’s defence to both charges was simple. He argued that he was unable to use any vigour on his horse DANKE because his sulky seat shifted firstly at approximately the 1700 metres and then again near the 300 metres. He said it was a health and safety concern on his part and in hindsight he should have pulled up his horse when the sulky seat first shifted.
The Committee accepts that Mr Martin was able to show on the video films that near the 1700 metres his body moved a tad in the sulky for approximately 1 or 2 strides. However, it was clearly evident that Mr Martin was not unbalanced in his seat and he was not displaying any signs of concerns during the running of the race. In actual fact the Committee was surprised that if in fact the sulky seat was loose, as alleged by Mr Martin that it did not shift over the final 150 meters when DANKE was on a tight rein when being restrained. It was significant to detect on the side – on 2 film that Mr Martin looked particularly comfortable in his sulky seat and was not placed under any apparent difficulty when he was firmly holding both reins in the left hand and restraining DANKE in the home straight. At the same time Mr Martin had the whip in his right hand and he had full control of his horse. He was waving the whip but noticeably it was not making contact with DANKE.
The key points we established from reviewing the video films were as follows:
• At the 200 metres DANKE was racing in 2nd position and approximately 1 and ½ to 2 lengths in arrears of the leader RARANGI JEWEL.
• It was clear to see that DANKE was trotting fluently and there was no sign of the horse breaking over the final 200 metres.
• DANKE had a clear run to the finish line and was not impeded by any other horse in the final 200 metres.
• It was obvious on the films that Mr Martin was not displaying any vigour on his horse when it was taking ground of the leader over the final 200 metres.
• This was supported by the fact that DANKE was full of running at the finish line albeit under a tight rein.
• Mr Martin failed to use any alternative actions as suggested in the use of whip guidelines.
• Consequently and without any doubt Mr Martin failed to permit his horse run on its merits.
• We note the official margin between 1st and 2nd at the finish was only 1/2 a neck.
• It was also relevant to note that after the finish line DANKE was still trotting fluently and Mr Martin was able to turn around in his sulky seat and be jovial to the winning driver when he went past him.
In summary the Committee does not accept Mr Martin’s explanation for the manner in which he drove DANKE over the final 200 metres of the race. After studying the video footage we believe Mr Martin’s actions or lack of actions were conscious and appeared to be deliberate which did not permit DANKE to run on its merits. Mr Martin’s failure to drive his horse out with any vigour was in stark contrast to DANKE’s recent starts. Mr Mulcay had demonstrated to the hearing 7 previous performances which showed DANKE had been driven with vigour, this included Mr Martin using the reins and the whip. Mr Martin’s distinct lack of vigour, the placement of his left hand holding both reins firmly against his body and the obvious tight rein he had on DANKE were not indicative of a driver contesting a close finish, nor was it consistent with his recent drives on DANKE. The close up video footage of DANKE’s head carriage over the final stages of the race was compelling and revealed how the horse was keen to go faster but Mr Martin was not permitting his horse to run on its merits.
In our opinion the time of the race was well within DANKE capabilities with the mile rate being 2-09.4.
Finally, the Committee was satisfied that Mr Muirhead’s and Mr Mulcay’s interpretation of the incident was completely supported by the available video films.
Decision:
After taking into account all of the above the Committee was comfortably satisfied that Mr Martin caused or permitted DANKE to race other than on its merits. This was a clear breach of Rule 868 (1)
Accordingly, we find the charge proved.
In regards to Rule to 868(2) we dismiss that charge based on the more serious charge of Rule 868(1) being proved to the required standard.
Mr Mulcay’s Submissions for Penalty:
Mr Martin has a clear record under this Rule although I do note that he has a penalty of a disqualification of what appears to be of a period of 4.5 months for a breach of Rule 161 (old HRNZ Rules) – If I recall correctly this relates to placing bets in a race in which he drove that included horses other than his own.
The JCA Penalty Guidelines do not provide a recommended starting point for a breach of this Rule.
This offence is undoubtedly high range given that it strikes at the very heart of the Integrity of the Industry and clearly brings it into disrepute. The Integrity of the Industry is paramount and I submit that the penalty must be of sufficient severity that it provides not only a specific deterrent to Mr Martin reoffending but also a general deterrent to all participants in relation to failing to run horses on their merits.
Rule 1003 (1) provides for
A fine not exceeding $10,000. And/or
A suspension from holding or obtaining a licence for a period not exceeding 12 months and/or
A disqualification for a period not exceeding 12 months
There is only one penalty for a breach of this Rule on HRNZ records and that was in relation to the penalty handed down for 3 charges that were found proved resulting in a 14 month disqualification all up.
Given the serious nature of the breach and the resultant damage to the image of the Industry I seek a penalty of disqualification for the maximum period of 12 months.
When asked by the Committee, Mr Mulcay was able to provide Mr Martin’s driving history for the last 4 seasons. He advised that Mr Martin had a career total of 1704 drives for 104 wins. He said to date this season Mr Martin has had 29 drives, in 2015 /2016 season 20 drives, in 2014 /2015 season 17 drives and in 2013 / 2014 season 22 drives.
Mr Martin’s Submissions for Penalty:
Mr Martin submitted that he had been involved in Harness racing all his life and if he was to be disqualified it would put him out of the game. He advised the Committee that he was extending his barn and confirmed that he currently had 2 racehorses in work namely DANKE and SOLDIER. He said that he has a part time job and gained some income from jogging 4 or 5 horses for a local Trainer. He stated that he could wear a suspension but not a disqualification because that would mean that he would probably have to sell his property. He added that he was coming up to 60 years of age and he would find it difficult to find employment outside the industry. In conclusion he said his actions were not intentional.
The submissions for penalty were received just prior to the last race at Cambridge on 1 December 2016. Therefore, the Committee advised Mr Mulcay and Mr Martin that we would need some time to consider the submissions and we reserved our penalty decision until 2 December 2016 at Alexandra Park.
Reasons For Penalty:
The Committee carefully considered all the submissions presented. The current JCA Penalty Guide has no recommended starting point for a breach of this Rule. We also
Decision Date: 03/11/2016
Publish Date: 03/11/2016
JCA Decision Fields (raw)
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startdate: 03/11/2016
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decisiondate: no date provided
hearing_title: Manawatu HRC 3 November 2016 - R 4 (heard on 1 December 2016 at Cambridge) Chair, Mr A Dooley
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appealdecision:
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submissionsfordecision:
reasonsfordecision:
Decision:
RACEDAY JUDICIAL COMMITTEE DECISION
Informant: Mr S Mulcay - Stipendiary Steward
Defendant: Mr GA Martin – Open Horseman/Trainer
Information No: A7012
Meeting: Manawatu Harness Racing Club
Date: 3 November 2016 (heard on 1 December 2016 at Cambridge Raceway)
Venue: Palmerston North
Race: 4
Rule: 868(1) & 868(2)
Judicial Committee: Mr A Dooley (Chairman), Mr A Godsalve (Committee Member)
Appearing: Mr JM Muirhead – Stipendiary Steward as a witness
Plea: Denied
Date of Hearing: 1 December 2016 - 3 hours prior to race 1
Date of Decision: 6 December 2016
DECISION OF JUDICIAL COMMITTEE
Charge:
Information No A7012
That on 3 November 2016 at a race meeting conducted by the Manawatu Harness Racing Club at Palmerston North in Race 4 Mr G Martin caused or permitted his gelding DANKE to be run other than on its merits as a result of his actions and/or lack of actions over the final 200m. AND/OR in that he failed to take all reasonable and permissible measures over the final 200m to ensure his gelding DANKE was given full opportunity to win the race. An alleged breach of Rule 868(1) AND/OR 868(2) of the New Zealand Rules of Harness Racing.
Rule – 868(1) provides: No person, including a horseman shall run a horse or cause or permit a horse to be run other than on its merits.
Rule – 868(2) provides: “ Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.
Mr Martin said he understood the Rules and told the Committee that he denied both charges.
Mr Martin said that he had obtained some legal advice regarding the charges and added that it would have been too costly for the Lawyers to be present at the hearing.
Submissions for Decision:
Summary of Facts presented by Mr Mulcay
G Martin was the driver of DANKE in Race 4 the “EQIVET HANDICAP TROT“ at the Manawatu HRC’s meeting held at Manawatu Raceway 03/11/16.
The race was run over 2500 metres from a standing start.
DANKE started from barrier 2 on 40 metres and was placed 2nd by the Judge beaten a ½ neck.
Stewards opened an investigation into Mr Martin’s drive and in particular in relation to his apparent lack of vigour over the final stages.
After taking initial evidence from Mr Martin and viewing the available replays, the matter was adjourned until the 2nd night of the meeting to enable additional replay footage to be sought.
Having viewed this footage Stewards issued Mr Martin with 2 charges at the conclusion of the night’s racing.
The particulars of these charges are: Rule 868 (1) “in that he caused or permitted his gelding to be run other than on its merits as a result of his actions and/or lack of actions over the final 200m” and/or Rule 868 (2) “in that he failed to take all reasonable and permissible measures over the final 200m to ensure his gelding was given full opportunity to win the race.”
The Judicial Committee on the 5th of November opened a hearing before adjourning the matter to a date and venue to be fixed.
The Stewards had no objection to an adjournment given the seriousness of the charges. Mr Martin advised the Judicial Committee that he would need some time to seek legal advice on the matter.
Rule 1106 (1)(b) states “An information may allege one or more breach of these rules.” These charges are laid in the alternative.
It is acknowledged that the Burden of Proof lies with the Informant to establish the respective charges to the required Standard of Proof.
This standard is specified in Rule 1008A “Where in any proceeding, any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities.” However the Informant acknowledges the accepted legal principle of a greater standard of proof being required and in particular for the charge under Rule 868 (1) given the serious nature of the likely consequential effects on Mr Martin should this charge be found to be proved.
When questioned regarding his apparent lack of vigour Mr Martin advised that he had been unable to drive DANKE out due to the seat on his sulky slipping which placed him at a considerable disadvantage. (refer Page 2 of transcript).
Mr Martin then claimed to have dropped his feet from the sulky footrests approaching the bell but then goes on to say that it may have been before or after this stage of the race. He was unable to demonstrate on the replays where this occurred.
When asked directly by myself on (Page 3 of transcript) “Well where’s it placed you at a disadvantage here?” Mr Martin states “Well if I’d given him his head, I would have fallen out the back. I’m sort of hanging on and trying to get the best out of the horse himself, without slipping out the back.”
Mr Martin goes on to say that DANKE felt uneven and that it had pulled a shoe before travelling down to Manawatu and may be a little bit foot sore. Further states that the gelding has had a change of shoes since. (page 4 of transcript)
Mr Martin then reiterates when asked how the alleged equipment malfunction has prevented him from driving the horse out to any degree that “if I do that I’m going to slip out the back of the cart. The only thing I could hang onto is the stay of the cart or the reins.”
The issue of Mr Martin’s failure to report the alleged equipment malfunction to Stewards is raised on Page 7 of transcript. This obligation is pursuant to Rule 305(b) which states “Every person who holds a permit or licence under these Rules and every owner, driver, trainer or person in control of a horse shall report to a Stipendiary Steward as soon as practicable anything that might have affected the running of a horse in a race.”
Mr Martin claims to have turned around on pulling up and done the sulky seat up, before going on to say that there was no Steward present in the birdcage to report the matter to. He then states on Page 8 of transcript “Well I came back after the race, I had a horse that was being vetted, I had to ungear that horse. The horse here I had to ungear it, get the gear on the other horse to come out for the last race.”
Mr Mulcay added that he clearly remembers talking to Mr Martin after the race and questioned him whether or not SOLDIER was going to start in the last race. He said his demeanour was nothing to say he was not his normal self after the race.
When then asked by myself “Ok no but I’m talking about why wouldn’t you say something in the birdcage immediately following the race?”
Mr Martin replied “I was just too peed off. Because I think he would have won. Could possibly have won.” Page 8 of transcript.
Mr Martin said he agreed with the summary of facts and he did not wish to cross exam Mr Mulcay.
Mr Mulcay provided a copy of the use of whip guidelines and highlighted the suggested alternative actions available to Horseman.
Mr Mulcay made reference to the word “vigour” and quoted the Oxford Dictionary definition.
In addition Mr Mulcay supplied a letter from the HRNZ Handicapper Mr A Morris which stated that if DANKE had won the race on 3 November he would have incurred a 10 metre penalty – just like any other run – of – the – mill race.
Mr Mulcay produced 7 video films of DANKE’s recent starts and spoke at length about each race. He highlighted that on each occasion Mr Martin had driven DANKE with vigour which included using the reins and the whip.
At this point Mr Mulcay called Mr Muirhead as an expert witness. Mr Martin had no objection to this.
My name is John Maurice Muirhead. I am a Senior Stipendiary Steward employed by the Racing Integrity Unit Ltd. I have specialised as a Steward in Harness Racing in New Zealand since 1983 and have adjudicated in over 50,000+ races.
Senior Stipendiary Steward Stephen Mulcay has requested that I provide an opinion of the video coverage of Mr G Martin’s drive on DANKE, which finished in 2ND placing, in Race 4, at Manawatu HRC’s meeting on the 3rd November 2016.
DANKE finished in second place officially ½ a neck in arrears of the winner RARANGI JEWEL.
SIDE-ON No.1 Camera
• DANKE driven by Mr Martin started from barrier 2 on the 40m handicap mark. Mr Martin has his right foot down out of the sulky foot rest keeping his balance at the start. At no stage during the race other than the very start, is it apparent on the video, that Mr Martin keeps his feet other than in the footrests of his sulky.
• DANKE began safely, inconvenienced entering the front straight for the first occasion by the galloping AUNTY JAN , raced 6 back in single file, then 3 back one out from approximately the 1400 following the eventual winner RARANGI JEWEL.
• Inside the 500m DANKE momentarily loses the back of RARANGI JEWEL to some degree when RARANGI JEWEL improves forward. Mr Martin activates the removable deafeners with his left hand and also improves forward strongly under restraint following RARANGI JEWEL.
• Mr Martin turns his whip in the right hand but does not apply it inside the 300m.
• Mr Martin shifts DANKE to 3 wide, entering the straight for the run home, giving it a clear run.
• Inside the 150m he crosses the reins into his left hand. He lifts his whip on 3 occasions, in an upward motion making no apparent downward contact with the body of the horse or the shaft or dustsheet. Mr Martin waves the whip forward of his body above the gelding’s rump without any apparent contact.
• Mr Martin displays a distinct lack of contact with the horse with the reins and/or whip to encourage DANKE to do its best to win the race.
• Mr Martin’s lack of vigour and competitive urgency is displayed by his lack of actions of his use of the whip and reins. Mr Martin’s posture in sitting upright and the lack of body movement is something I would not expect of a competitive drive in a close finish with drivers giving their charges the full opportunity to win.
• He did not strike the horse with the whip, the horse was trotting well, and therefore it was permissible and reasonable to expect Mr Martin to do so as there was no reason not to.
• In my opinion, he is deliberately trying to give the impression he is using the whip without doing so, that is, I would describe his actions as a “Claytons” use or feigning its use in an attempt to intentionally deceive the betting public that he is driving the horse out when he is not.
• He did not run the reins over the horse’s rump or lift its tail with the reins as an alternative action as I have witnessed in previous drives of Mr Martin on the same horse.
• He does have DANKE under restraint with both reins in his left hand. He added that the reins were taunt when the horse was restrained.
SIDE-ON No. 2 Camera
• The close up view at the finish line shows DANKE’s head carriage with the horse’s chin tucked back and head held high indicating the horse is under restraint.
• Just short of the finish the reins are held in his left hand, with his elbow bent back and his hand held well back close to his torso in a position well behind his knee indicating the horse is under restraint.
• The close up shot shows that whip contact was not made with the rump of the horse.
• If the contention was made that the horse reacts badly to the whip being applied the alternatives of striking the shaft or dust sheet and/or using the reins running them over the horse’s rump or lifting its tail were not demonstrated by Mr Martin.
• It is my experience, that in the circumstances of a close finish I would reasonably expect any driver to leave absolutely no doubt or room for query and take advantage of every means available to him to get the best out of his horse. In this case Mr Martin did not do this and his actions or lack of actions show he deliberately did not drive his horse out on its merits.
• He added the horse’s mouth was open near the finish line and DANKE’S head carriage was high because the horse was not let go.
HEAD-ON Front Straight Camera
• This camera angle demonstrates that DANKE is trotting well throughout the run home to the finishing line.
• In my opinion DANKE is not giving Mr Martin any concerns that would prevent him from demonstrating vigour. I have seen him apply vigour to this horse both prior to this start and again since (excluding its start at Cambridge Raceway on 17 November 2016).
• I am compelled to compare driving styles and the vigour displayed by the competing drivers in contrast to Mr Martin driving DANKE. They demonstrate a marked difference, in that the competing drivers do not give any concerns to Stewards in complying with the Rules as they are all driving their horses out on their merits.
• He added that it was noticeable the 3 drivers all around Mr Martin were using vigour driving their horse out and within the Rules.
Conclusion: Race 4, Manawatu HRC, 3 November 2016
In my opinion Mr Martin did not avail himself of every option and take the full opportunity that was reasonable and permissible to expect him to demonstrate when driving DANKE over the concluding stages of this race. In fact at the same time his feigning of the use of the whip and restraint of the reins with his left hand demonstrate a blatant breach of Rule 868(1) in that he failed to drive DANKE on its merits. In my opinion Mr Martin’s drive can only be described as disgraceful putting himself in jeopardy and placing the Harness Racing Industry in a bad light.
In addition Mr Muirhead stated that there was no evidence of Mr Martin’s sulky seat slipping. He advised the Committee that he had witnessed situations where Drivers had no seat at the end of a race. He stated when that occurred it had not stopped those Horseman from driving their horses out at the finish of a race.
Mr Martin Submissions:
Mr Martin submitted that DANKE has had over 20 races this season and advised his horse was placed 2nd on the 27th of October. He said that DANKE has issues with soundness. Mr Martin described DANKE as an old crock who gallops if struck with the whip. He said being an older horse DANKE resents the whip being applied to him in training and on race day. Mr Martin said he reverts to roaring or growling at the horse now.
Mr Martin asked the Stewards to show the video film from the 5th of November 2016 race. Mr Martin pointed out that near the 800 metres DANKE was travelling reasonable well and his horse galloped near the 500 metres. He told the hearing that DANKE has had soreness issues since the 27th of October and that is why the horse galloped.
The Committee did question Mr Martin as to why he was racing DANKE twice in a night if the horse was suffering from soundness issues. Mr Martin had no explanation.
Mr Martin then requested the race video film from the 3rd of November to be shown. Mr Martin identified that near the 1700 metres his sulky seat briefly shifted and again near the 300 metres when DANKE head dipped for a stride. He said in the home straight his feet were under the footrest and he couldn’t let his horse go because it was unsound. He stated that in hindsight he would have been better to pull up DANKE at the 1700 metres because it was a health and safety issue. He identified over the final 200 metres that DANKE was doing his best and stated “you can’t chuck the reins at him in a finish”.
Mr Martin then produced the sulky seat as an exhibit and this subject was discussed at length. He advised the Committee that he had used the seat for about 12 years. Mr Martin maintained the sulky seat had shifted during the running of the race. Mr Mulcay strongly objected to this and said at no stage during his investigation had Mr Martin advised that his sulky seat had shifted. Mr Martin confirmed to Mr Mulcay that he used the same sulky on SOLDIER later that evening and the sulky was fine. Mr Martin said this was because he had used poly grips to tighten up the nuts under the seat so they did not come loose. Mr Mulcay reminded Mr Martin that had an obligation under the Rules to report to the Stewards any gear malfunction. Mr Mulcay said to Mr Martin that if you were so disadvantaged by the seat surely you would have told the Stewards. Mr Martin said that he became aware of the seat shifting after viewing the race replays on his TV at home. Mr Martin added that he was unable to identify this when viewing the Stewards film on the evening in question.
Mr Martin produced invoices from Sulky Tack NZ dated 7 November and The Sulky Shop dated 9 November 2016 which showed that he had purchased items relating to a sulky seat.
Mr Mulcay produced photos of Mr Martin’s sulky and seat. After much discussion it was obvious there was a difference of opinion as to its condition at the time of the alleged incident.
In response to a question from the Committee, Mr Mulcay stated that Mr Martin’s assertions regarding the sulky seat did not change the Stewards’ position regarding the charges.
In summing up Mr Mulcay submitted that much had been written in judicial decisions over the years in this and other Harness Racing jurisdictions about the need to maintain the public confidence in the integrity of our industry – an industry which is driven by the punting dollar. This is based on the requirement that all contestants in a race are given every possible opportunity by their drivers and that all contestants have been fully tested and asked to do the best they can. This has to be the case in order so the betting public can have full confidence that they have had a run for their money when they invest on a Harness race. Any suggestion that a horse has not been asked to do their best or has not been given every possible opportunity, for whatever reason, will result in a loss of public confidence in Harness Racing.
The Committee have viewed DANKE’s recent racing leading into the Manawatu race on 03/11/16 and subsequent to that meeting. You have heard Mr Muirhead’s expert evidence in relation to the race in question which clearly details the actions and/or lack of action on the part of Mr Martin which Stewards maintain constitute a breach of Rule 868 (1). You have heard Mr Muirhead describe a comparison of Mr Martin’s drive on the 03/11/16 and other drives as “chalk and cheese” in relation to the amount of vigour shown in driving DANKE out over the final stages. This is apparent in viewing the races concerned.
It is the Stewards’ assertion that the vision of the Manawatu race on 03/11/16 is compelling and clearly shows that the actions of Mr Martin over the final 200m and his failure to take the measures that have been identified and were available to him to ensure that DANKE was given full opportunity to win the race, were so unreasonable that when viewed objectively the only logical conclusion that can be arrived at is that they were as a result of deliberate intent not to cause or permit his gelding to be run on its merits. Accordingly the Stewards’ submit that the requisite standard of proof has been met and that the charge under Rule 868(1) should be found proved. Should the Committee not be sufficiently satisfied that the charge under Rule 868 (1) has been proved then Stewards submit that a high range breach of the alternative charge under Rule 868 (2) has clearly been established.
Mr Martin in summing up said the only reason he could not drive his horse out to the finish was because the sulky seat shifted. He reiterated that he would have preferred to pull up his horse at the 1700 metres for health and safety issue with his sulky seat. However, he stated that he doesn’t travel 550 kilometres to pull up a horse. Mr Martin confirmed that he had nothing further to add.
Reasons for Decision:
The Committee carefully listened to, and independently assessed, the evidence of both parties and reviewed the video footage several times.
Mr Martin’s defence to both charges was simple. He argued that he was unable to use any vigour on his horse DANKE because his sulky seat shifted firstly at approximately the 1700 metres and then again near the 300 metres. He said it was a health and safety concern on his part and in hindsight he should have pulled up his horse when the sulky seat first shifted.
The Committee accepts that Mr Martin was able to show on the video films that near the 1700 metres his body moved a tad in the sulky for approximately 1 or 2 strides. However, it was clearly evident that Mr Martin was not unbalanced in his seat and he was not displaying any signs of concerns during the running of the race. In actual fact the Committee was surprised that if in fact the sulky seat was loose, as alleged by Mr Martin that it did not shift over the final 150 meters when DANKE was on a tight rein when being restrained. It was significant to detect on the side – on 2 film that Mr Martin looked particularly comfortable in his sulky seat and was not placed under any apparent difficulty when he was firmly holding both reins in the left hand and restraining DANKE in the home straight. At the same time Mr Martin had the whip in his right hand and he had full control of his horse. He was waving the whip but noticeably it was not making contact with DANKE.
The key points we established from reviewing the video films were as follows:
• At the 200 metres DANKE was racing in 2nd position and approximately 1 and ½ to 2 lengths in arrears of the leader RARANGI JEWEL.
• It was clear to see that DANKE was trotting fluently and there was no sign of the horse breaking over the final 200 metres.
• DANKE had a clear run to the finish line and was not impeded by any other horse in the final 200 metres.
• It was obvious on the films that Mr Martin was not displaying any vigour on his horse when it was taking ground of the leader over the final 200 metres.
• This was supported by the fact that DANKE was full of running at the finish line albeit under a tight rein.
• Mr Martin failed to use any alternative actions as suggested in the use of whip guidelines.
• Consequently and without any doubt Mr Martin failed to permit his horse run on its merits.
• We note the official margin between 1st and 2nd at the finish was only 1/2 a neck.
• It was also relevant to note that after the finish line DANKE was still trotting fluently and Mr Martin was able to turn around in his sulky seat and be jovial to the winning driver when he went past him.
In summary the Committee does not accept Mr Martin’s explanation for the manner in which he drove DANKE over the final 200 metres of the race. After studying the video footage we believe Mr Martin’s actions or lack of actions were conscious and appeared to be deliberate which did not permit DANKE to run on its merits. Mr Martin’s failure to drive his horse out with any vigour was in stark contrast to DANKE’s recent starts. Mr Mulcay had demonstrated to the hearing 7 previous performances which showed DANKE had been driven with vigour, this included Mr Martin using the reins and the whip. Mr Martin’s distinct lack of vigour, the placement of his left hand holding both reins firmly against his body and the obvious tight rein he had on DANKE were not indicative of a driver contesting a close finish, nor was it consistent with his recent drives on DANKE. The close up video footage of DANKE’s head carriage over the final stages of the race was compelling and revealed how the horse was keen to go faster but Mr Martin was not permitting his horse to run on its merits.
In our opinion the time of the race was well within DANKE capabilities with the mile rate being 2-09.4.
Finally, the Committee was satisfied that Mr Muirhead’s and Mr Mulcay’s interpretation of the incident was completely supported by the available video films.
Decision:
After taking into account all of the above the Committee was comfortably satisfied that Mr Martin caused or permitted DANKE to race other than on its merits. This was a clear breach of Rule 868 (1)
Accordingly, we find the charge proved.
In regards to Rule to 868(2) we dismiss that charge based on the more serious charge of Rule 868(1) being proved to the required standard.
Mr Mulcay’s Submissions for Penalty:
Mr Martin has a clear record under this Rule although I do note that he has a penalty of a disqualification of what appears to be of a period of 4.5 months for a breach of Rule 161 (old HRNZ Rules) – If I recall correctly this relates to placing bets in a race in which he drove that included horses other than his own.
The JCA Penalty Guidelines do not provide a recommended starting point for a breach of this Rule.
This offence is undoubtedly high range given that it strikes at the very heart of the Integrity of the Industry and clearly brings it into disrepute. The Integrity of the Industry is paramount and I submit that the penalty must be of sufficient severity that it provides not only a specific deterrent to Mr Martin reoffending but also a general deterrent to all participants in relation to failing to run horses on their merits.
Rule 1003 (1) provides for
A fine not exceeding $10,000. And/or
A suspension from holding or obtaining a licence for a period not exceeding 12 months and/or
A disqualification for a period not exceeding 12 months
There is only one penalty for a breach of this Rule on HRNZ records and that was in relation to the penalty handed down for 3 charges that were found proved resulting in a 14 month disqualification all up.
Given the serious nature of the breach and the resultant damage to the image of the Industry I seek a penalty of disqualification for the maximum period of 12 months.
When asked by the Committee, Mr Mulcay was able to provide Mr Martin’s driving history for the last 4 seasons. He advised that Mr Martin had a career total of 1704 drives for 104 wins. He said to date this season Mr Martin has had 29 drives, in 2015 /2016 season 20 drives, in 2014 /2015 season 17 drives and in 2013 / 2014 season 22 drives.
Mr Martin’s Submissions for Penalty:
Mr Martin submitted that he had been involved in Harness racing all his life and if he was to be disqualified it would put him out of the game. He advised the Committee that he was extending his barn and confirmed that he currently had 2 racehorses in work namely DANKE and SOLDIER. He said that he has a part time job and gained some income from jogging 4 or 5 horses for a local Trainer. He stated that he could wear a suspension but not a disqualification because that would mean that he would probably have to sell his property. He added that he was coming up to 60 years of age and he would find it difficult to find employment outside the industry. In conclusion he said his actions were not intentional.
The submissions for penalty were received just prior to the last race at Cambridge on 1 December 2016. Therefore, the Committee advised Mr Mulcay and Mr Martin that we would need some time to consider the submissions and we reserved our penalty decision until 2 December 2016 at Alexandra Park.
Reasons For Penalty:
The Committee carefully considered all the submissions presented. The current JCA Penalty Guide has no recommended starting point for a breach of this Rule. We also
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Rules: 868(1) & 868(2)
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