Marlborough HRC 23 June 2019 – R 8 (heard on 5 July 2019 at Addington) – Chair, Mr R G McKenzie

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startdate: 23/06/2019

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hearing_title: Marlborough HRC 23 June 2019 - R 8 (heard on 5 July 2019 at Addington) - Chair, Mr R G McKenzie

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Decision:

RACEDAY JUDICIAL COMMITTEE DECISION (Heard at Addington on 5 July 2019)

Informant: S P Renault, Stipendiary Steward

Respondent: M J Anderson, Licensed Open Driver

Information No: A11423

Meeting: Marlborough Harness Racing Club

Date: 23 June 2019

Venue: Waterlea Raceway, Blenheim

Race: 8

Rule No: 869 (3) (b)

Judicial Committee: R G McKenzie, Chairman / S C Ching, Panellist

Plea: Denied

FACTS:

Following the running of Race 8, Wairau Covers Marlborough Winter Cup (Handicap Pace), an information was filed by Stipendiary Steward, Mr S P Renault, against Licensed Open Driver, Mr M J Anderson, alleging that Mr Anderson, as the driver of SMOKIN BY in the race “drove carelessly near the 1300 metres causing interference to STORM PRINCE (B N Orange) which paced roughly as a result”.

The information was filed with the Judicial Committee on the raceday and adjourned sine die. The information was served on Mr Anderson and he had completed the Statement by the Respondent on the information form indicating that he denied the breach.

The information was heard at the meeting of New Zealand Metropolitan TC at Addington Raceway on Friday, 5 July 2019. Mr Anderson was present at the hearing and he confirmed that he denied the breach.

Rule 869 provides: -

(3) No horseman shall in any race drive:

(b) carelessly.

SUBMISSIONS:

Mr Renault showed a video replay of part of the race between the 1600 metres and the 1200 metres. The field was being led by STORM PRINCE, driven by Mr Orange, as the field raced up the home straight with 1600 metres to run. SMOKIN BY, driven by Mr Anderson, was improving quickly from the rear and racing 3-wide. Mr Anderson continued to progress forward and urged his horse with the whip to race up alongside STORM PRINCE. Mr Orange, on its inside, took a hold of his horse which “goes rough” and back onto trailing runners. Mr Anderson took over the lead from Mr Orange.

Mr Renault played the incident in slow motion and said that the reason that Mr Orange’s horse went rough was that the off-front leg of his horse made contact with the inside sulky wheel of Mr Anderson, which he pointed out on the replay. Mr Anderson could also be seen to activate the removeable deafeners, Mr Renault said.

Mr Anderson was never clear of Mr Orange when he crossed resulting in the contact, Mr Renault submitted. He showed the exact point at which contact was made and pointed out that the head of Mr Orange’s horse’s head was inside Mr Anderson. Mr Anderson was, therefore, not clear of that runner. Mr Orange’s horse went back onto trailing runners, Mr Renault said.

Mr Renault said, when asked by Stewards post-race what had happened, Mr Orange said that it was “tight” when Mr Anderson crossed him and there was contact. His horse was racing on the bit, Mr Orange had said. Mr Renault submitted that this was evident from the video replay. He did not recall Mr Orange saying that Mr Anderson was “clear”.

Mr Renault played to the hearing an audio recording of the post-race inquiry. However, this was not helpful as Mr Orange’s voice was inaudible. Mr Anderson stated that Mr Orange had said that there was enough room for him when Mr Anderson crossed.

Mr Anderson submitted that Mr Orange’s horse had begun to race keenly and that he, Mr Anderson, could not steer his own horse on the bend when he was trying to cross. The trainer of SMOKIN BY, Mr Kerr, had changed the gear by removing the Murphy Blind, Mr Anderson said. That gear was removed to assist the horse beginning from a standing start, he said. What happened was a racing incident due to his horse being “unruly” and Mr Orange’s horse racing keenly as a result of Mr Anderson encouraging his horse to go forward.

Mr Anderson said that the horse had been beaten in an earlier race, wearing the Murphy Blind, and the driver, Mr Nathan Williamson, said that the horse’s hanging had cost it the race. Mr Renault conceded that, at the time, the horse’s head was out “slightly”.

Mr Renault asked Mr Anderson why he had elected to activate the deafeners at that point if the horse was proving difficult to steer. He had done so to get the horse back on the bit and improve, as it had been shying and looking round. He felt this would enable him to cross Mr Orange safely and get his horse to concentrate. Mr Renault questioned Mr Anderson whether it was wise to activate gear on a horse that was proving difficult to steer. He replied that he believed that activating the gear would get the horse balanced, back on the bit and able to improve safely.

Mr Anderson submitted that Mr Orange’s horse was racing with its mouth open and making “breathing noises”. Mr Orange’s hands were well back and he moved the whip to over his shoulder. His point was, he said, that if Mr Orange’s horse hadn’t been racing keenly and his own horse “playing up”, this incident would never have occurred. Mr Anderson did concede, when asked by the Committee, that Mr Orange’s horse had been on the bit because Mr Orange was restraining it. He felt that he was clear of Mr Orange to enable him to cross.

In conclusion, Mr Anderson submitted that the consequences were slight – Mr Orange’s horse’s chance were not affected, neither was it injured.

REASONS FOR DECISION:

The Committee has listened to the evidence and submissions of both parties, and we have carefully viewed the various video replays of the incident.

The video replays showed Mr Anderson taking the lead from Mr Orange with approximately 1300 metres to run. It appeared to be a normal race move, until the off- front leg of Mr Orange’s horse struck the inside sulky wheel of Mr Anderson’s runner as Mr Anderson was attempting to cross Mr Orange, causing Mr Orange’s horse to skip for a couple of strides and cause some very minor interference to trailing runners.

That there was contact was not disputed by Mr Anderson, and the contact was quite apparent from the video replays.

Mr Anderson’s defence to the charge revolved mainly around three aspects:

1.-That Mr Orange’s horse had been overracing and had “surged” as Mr Anderson went by; and

2.-That Mr Anderson’s horse was giving him a difficult drive, and he suggested that the horse had proved to be a difficult horse to drive in the past. He mentioned that the horse had had the Murphy Blind removed for this race.

3.-That, in any event, he was clear of Mr Orange’s runner.

The Committee could not see from the video replays any evidence to support any of those points of Mr Anderson’s defence and was certainly not persuaded that he was clear of Mr Orange.

Mr Anderson also claimed, in his defence, that Mr Orange had told Stewards, in the post-race interview, that he believed Mr Anderson was clear when he crossed. Unfortunately, the audio recording of the interview, which Mr Renault played to the hearing, was basically inaudible. Mr Renault told the hearing that he could not recall Mr Orange saying that. Mr Orange was not present at the hearing to attest to what he had said. We are therefore unable to attach any weight to that.

In any event, in the Committee’s view, it was quite apparent that Mr Anderson was not clear. It was a case of the facts speaking for themselves – in other words, had Mr Anderson been clear, his sulky wheel would not have contacted the leg of Mr Orange’s horse!

The only reasonable conclusion that the Committee can come to is that Mr Anderson has, on this occasion, misjudged his inwards movement. We would also say at this stage that, if Mr Anderson’s horse been giving him a difficult drive as he claimed, it was surely imprudent of him to activate the deafeners and give his horse a strike with the whip while he was undertaking the manoeuvre. Mr Anderson admitted to crossing the reins in one hand. Mr Anderson would only need to have progressed forward another stride or two to have been clear of Mr Orange and for the incident to have been avoided. Furthermore, if his horse had indeed been giving him a difficult drive, we believe that a prudent driver, taking due care, would have factored this in to ensure that he was safely clear before crossing.

It is a well understood principle that it is the obligation of the driver of the horse shifting ground to ensure that the shift can be made with safety and without interference to any other runner.

The Committee is satisfied that, on this occasion, Mr Anderson has crossed Mr Orange when not sufficiently clear to do so and, in doing so, has contacted the leg of Mr Orange’s runner. We believe it was an error of judgement on Mr Anderson’s part. An error of judgement can amount to careless driving and the Committee is satisfied that the charge of careless driving has been proved.

DECISION:

The charge which found proved.

PENALTY SUBMISSIONS:

Mr Renault told the Committee that Mr Anderson has had 163 drives in the current season to date and, in the 2017/2018 season, he had 371 drives. His record is clear of careless driving breaches in the last 12 months.

Mr Renault said that the starting point for penalty for careless driving is a 10-drives suspension or a $500 fine. It was submitted by Mr Renault, and accepted by Mr Anderson, that Mr Anderson drives, on average three times per meeting. Based on that, Mr Renault said, Stewards were seeking a 3-days suspension.

Mr Anderson asked if the Committee would consider a fine, otherwise he would be out for 6 meetings, he said. Mr Anderson had earlier in the day received a 3-days suspension for a low-end second breach of the whip rule. He asked if the Committee could look at the two breaches together in deciding on penalty for this careless driving breach. Mr Renault’s response was that the two offences were separate and should be treated as such.

The hearing then looked at upcoming meetings for Mr Anderson. Mr Anderson told the Committee that he had been working all year on a “project” and this involved him wishing to be able to drive on 26 July. He urged the Committee to consider a larger fine or a combined penalty to enable a shorter term of suspension. Both breaches were low-end breaches, Mr Anderson submitted. He also referred to his good driving record.

Mr Renault said that his submission was for a suspension but he would leave it to the Committee. He accepted, however, that a 6-day suspension out of the one race was a “decent penalty”. The careless driving was low-end, Mr Renault acknowledged, and no other runner had suffered significant interference.

PENALTY REASONS:

The Penalty Guide provides for a starting point for penalty for careless driving of a 10- drives suspension or a $500 fine. The Committee is aware that the Stewards’ position is that careless driving shifting ground should be dealt with by way of a suspension.

Relevant factors to be taken into account, in this instance, are the low-end carelessness and low-end consequences of it and Mr Anderson’s very good driving record, his last breach being well over 12 months ago. The Committee believes, also relevant, is the harshness of what could be a combined total of almost a month’s suspension for two quite minor breaches in the one race.

Were the Committee to consider a suspension alone, it would, in any event, be giving Mr Anderson a discount of one day from the 10 drives starting point, in consideration of his very good driving record to which we have referred.

Having regard to the relevant factors set out above, and to Mr Anderson’s submissions, it is just to impose a combined penalty in this case to enable Mr Anderson to drive at the meeting on 26 July, which meeting has a special significance for him he tells us. It would be unduly harsh to deny him this. Therefore, the Committee is prepared to impose, in the very special circumstances of this case, a combined penalty. The decision is not, in any way, intended to create a precedent and we stress that the circumstances of this case are unusual.

PENALTY:

Mr Anderson’s Open Driver’s licence is suspended from Saturday, 20 July 2019, up to 21 July 2019 both days inclusive – 1 day. The meeting intended to be included in the period of suspension is Rangiora HRC on 21 July. In addition, Mr Anderson is fined the sum of $300.

R G McKenzie            S C Ching

CHAIRMAN                PANELLIST

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hearing_type: Old Hearing

Rules: 869(3)(b)

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