Mt Hutt TC – R9

hearingid: 103ec93d7023eef645267004c1c95755

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Mt Hutt TC - R9

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Information No. 66928 alleged that Mr Fairbairn committed a breach of Rule 411 (3) in that he "started GLENBOGLE and WHATSUNDERMYKILT with the incorrect numbers on thereby running those horses under the incorrect names".

Information No. 66928 alleged that Mr Fairbairn committed a breach of Rule 411 (3) in that he "started GLENBOGLE and WHATSUNDERMYKILT with the incorrect numbers on thereby running those horses under the incorrect names".

The information was served on Mr Faibairn at the meeting of Oamaru Harness Racing Club on 23 September and was adjourned sine die. The information was heard at the meeting of New Zealand Metropolitan Trotting Club at Addington Raceway on Friday, 5 October 2007.

Mr Fairbairn was present at the hearing and did not admit the breach.

Mrs Williams produced to the Committee a copy of an e-mail from Mr Edward Rennell, General Manager of Harness Racing New Zealand, confirming his permission pursuant to Rule 1103 (4) (c) of the New Zealand Rules of Harness Racing.

Rule 411(3) provides as follows:

No person shall start, or permit to be started in a race, a horse under a name other than its registered name.

Mrs Williams called as witnesses Messrs S P Walkinshaw (driver of WHATSUNDERMYKILT), Mr G M Saunders (who had officiated as judge at the meeting) and Mr R T May (driver of GLENBOGLE), having earlier produced written statements by each witness and by Mr Faibairn.

At the meeting of Mount Hutt Trotting Club at the Mount Harding Raceway at Methven on 15 September 2007, the horses GLENBOGLE and WHATSUNDERMYKILT, trained by Mr Fairbairn, were entered and started in Race 9, a Special Handicap Trot (1 or more wins) over a distance of 2400 metres. According to the official programme for the meeting, GLENBOGLE was given the number 17 and WHATSUNDERMYKILT, number 18.

It was clear from the evidence of the witnesses, and it was not disputed by Mr Fairbairn, that GLENBOGLE wore saddlecloth No. 18 and WHATSUNDERMYKILT saddlecloth No. 17 in the heat – in other words, the numbers were transposed. GLENBOGLE won the heat but was called by the commentator and placed by the judge as WHATSUNDERMYKILT and WHATSUNDERMYKILT as GLENBOGLE. As a consequence, the result that appeared in the Harness Racing Weekly and on the New Zealand Harness Racing website incorrectly showed WHATSUNDERMYKILT as the winner and GLENBOGLE as having finished 4^th.

Mr Fairbairn’s explanation that he had not personally put the numbers on the horses, that the situation was the result of a genuine human error and that there was no intention on his part, or on the part of his staff member who did place the numbers on the horses, to deceive was accepted by the Committee. He stated that he did not accept that he had raced the horses not under their correct names (hence his denial of the charge) but rather that it was a numbering error to which he was prepared to admit. The Committee accepted that Mr Fairbairn was not aware of what had happened until two days after the trial. It was rather strange that Mr Walkingshaw, who is employed by him and who became aware of the switch of numbers shortly after the trial, did not mention the fact to him even though they drove home together from the meeting. Had Mr Walkingshaw done so, the damage could have been mitigated.

The charge under Rule 411(3) is a serious racing offence. The Committee was of the view that the breach by Mr Fairbairn ought not to be categorised as such. In strict terms, he did not start either horse "under a name other than its registered name". The two horses that competed in the heat were, in fact, the two horses that had been entered for the heat – that is to say, GLENBOGLE and WHATSUNDERMYKILT - and the breach was therefore more appropriately a case of incorrect numbering rather than of racing the wrong horses. As Mr Fairbairn pointed out, the horses raced under their correct brands and with the correct drivers. The Rule is designed to cover situations other than what happened on this occasion in the view of this Committee. It would be unjust for Mr Fairbairn to have a conviction for a serious racing offence in the circumstances of this case.

The Committee, having heard the evidence, gave Mrs Williams the opportunity to amend the charge to a breach of Rule 849 (2) of parading a horse in the assembly area not having the proper numbered saddlecloth attached. Mrs Williams sought leave to amend the charge accordingly. This was explained to Mr Fairbairn who thereupon indicated that he admitted a breach of that Rule.

On the basis of Mr Fairbairn’s admission of the breach of Rule 849(2), the charge was found proved.

Mrs Williams, in relation to penalty, submitted that the inadvertant switch of saddlecloth numbers had had far-reaching consequences as far as the betting public was concerned as the result had

been wrongly reported in the media in that WHATSUNDERMYKILT had been shown as the winner instead of the actual winner, GLENBOGLE. The betting public relies on the results of trials, Mrs Williams submitted. She sought a fine of $500.

Mr Fairbairn submitted that a fine of $500 was excessive. He said that he had nothing to gain from what had happened.

In arriving at penalty, the Committee took into account, as mitigating factors, Mr Fairbairn’s previous good record and his prompt admission of the amended charge. He was justified in not admitting the original charge. Against those, were the possible consequences to the betting public and, also, the Committee took into account that Mr Fairbairn had not reported the situation to the Stipendiary Stewards when he became aware of it. These are aggravating factors.

The Committee noted that it was not unusual for fines of up to $200 to be imposed for breaches of Rule 849(2) where the attaching of incorrect saddlecloths had been detected prior to the horse racing but those breaches took place at race meetings as opposed to trial meetings. The case of Edmonds (July 2007), referred to by Mrs Williams, had no direct bearing as, in that case in which Mr Edmonds was fined the sum of $1,200, the wrong horse actually raced at a totalisator meeting. The present case is, clearly, much less serious than the Edmonds case.

Taking all factors into account, the Committee was of the view that a fine of $500, which had been recommended by Mrs Williams, was appropriate in all the circumstances and Mr Fairbairn was fined the sum of $500 accordingly.

Mrs Williams also sought the disqualification of the two horses from the Race pursuant to Rule 1003 (2) (a). The Committee held that disqualification was appropriate in the circumstances and, accordingly, the Committee ordered that GLENBOGLE and WHATSUNDERMYKILT be disqualified from their respective placings in Race 9 at the meeting of Mount Hutt Trotting Club meeting on 15 September 2007.

R G McKenzie                                J M Phelan

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Rules: 411.3, 1103.4.c, 849.2, 1003.2.a

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