Non Raceday Inquiry – G C Small – 18 Dec 08 4

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Non Raceday Inquiry - G C Small - 18 Dec 08 4

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BEFORE A JUDICIAL COMMITTEE

AT AUCKLAND

                                                                                                                  IN THE MATTER of the New Zealand Rules of Harness Racing

                                                                            BETWEEN                  John Maurice MUIRHEAD

                                                                                                                 Informant

                                                                            AND                            Geoffrey Clemment SMALL

                                                                                                                 Defendant

APPEARING                                                   Mr J M Muirhead for Harness Racing New Zealand

                                                                            Mr G C Small

                                                                            Mr R Lawson – Lay Advocate

                                                                            Ms R Bak (Registrar)

DATE OF HEARING                                      18 December 2008

JUDICIAL COMMITTEE                               Mr B J Rowe (Chairman)

                                                                            Mr J M Phelan

DATE OF DECISION                                     12 January 2009

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                                                                            DECISION OF THE JUDICIAL COMMITTEE

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The Defendant Mr SMALL is licensed as a Trainer and an Open Horseman.  The charges he faces arise from the running of the PGG WRIGHTSONS NZ YEARLING SALES SERIES FINAL MOBILE PACE at the Auckland Trotting Club Meeting on 31 December 2006.  This was a listed race for 3 year old pacers over the distance of 1700 metres.  Total stake money was $200,000.00 with $107,250.00 plus a trophy and dress rug going to the winner.  Mr SMALL was the trainer of three horses in the race, Pocket Baileyship which he drove from Barrier 1 on the front row, Changeover driven by Mr D BUTCHER from barrier 1 on the second row, and Victory Spirit driven by Mr P BUTCHER from barrier 2 on the second row.  Changeover won the race, Victory Spirit finished 4^th and Pocket Baileyship 10^th.  Changeover was a hot favourite whilst Pocket Baileyship was 10/10 in the betting. 

The hearing of these charges commenced at Alexandra Park on 20 March 2007.  Mr SMALL was present represented by Mr B HART and Mr A TRENWITH.  Mr MUIRHEAD was present and Mr M VICKERMAN appeared for Harness Racing New Zealand (HRNZ).  Mr Barry LICHTER, Journalist, was also present.  Mr SMALL denied all 3 charges.  Mr VICKERMAN produced the necessary authorisation from HRNZ for the filing of the non race day informations.  Mr HART put forward several grounds as to why the hearing should not proceed.  Mr VICKERMAN put forward counter arguments.  The Committee decided the hearing would proceed.  Mr SMALL and his legal representatives stayed at the hearing “under protest”.  All of the informant’s evidence was heard but no witnesses were cross examined.  At the end of the Informants evidence, the hearing was adjourned so that the defence could consider its position.  The Committee Ruled that if the hearing was to proceed in the normal manner, the Defendant had the right to have the Informant’s witnesses recalled for cross examination.  Subsequently Mr SMALL filed Judicial Review proceedings in the Auckland High Court.  That precluded the hearing of the charges proceeding until the High Court Ruled on the Judicial Review Application.  By email dated 2 December 2008 Mr Robert LAWSON, Lay Advocate representing Mr SMALL, advised the J.C.A. that Mr SMALL would be pleading guilty to the charges under Rules 868(2) and 869(3)(f). 

The hearing of the charges resumed at Alexandra Park on 18 December 2008.  Mr MUIRHEAD sought and was granted leave to withdraw the charge under Rule 1001(v)(i).  Mr LAWSON confirmed that Mr SMALL pleaded guilty to the remaining 2 charges.  Those charges read:

“Horseman G.C. SMALL drove the horse Pocket Baileyship in such a manner that he failed to take all reasonable and permissible measures at all times during the race to ensure that the said horse was given full opportunity to win the race or obtain the best possible position” – Rule 868(2). 

“Horseman G. SMALL drove Pocket Baileyship improperly by his actions when he moved his horse to the parked position with 1300 metres to run enabling stablemate Changeover to take the trail and when he eased back with 1150 metres allowing Changeover to improve outwards from the trailing position and go to the lead” – Rule 869(3)(f).

Rule 1003(1) provides that the penalty for each of the charges referred to is a fine not exceeding $5,000.00 and/or suspension from holding or obtaining a license for a period not exceeding 12 months and/or disqualification for period not exceeding 12 months.

At the direction of the Committee the video film of the race was played so as to refresh the memories of those present.  Mr MUIRHEAD presented a written summary of facts and written submissions on penalty, and other relevant documents.  A copy of this documentation is attached to this decision.  Mr MUIRHEAD’S account of what happened can be summarised as follows:

From the start of the race Mr SMALL attempted to lead with Pocket Baileyship but Another Creation driven by Mr M PURDON had more speed and took the lead with Pocket Baileyship taking the trail.  With about 1300 metres to run Mr SMALL looked back and inside and then moved Pocket Baileyship outwards into the “parked position”.  This allowed Changeover to improve along the markers into the trailing position.  With about 1150 metres to run Mr SMALL restrained Pocket Baileyship back about 1 and ½ lengths causing Kaipara Rocket (driven by Ms N. CHILCOTT) which was following Pocket Baileyship to be restrained.  The actions of Mr SMALL presented Mr D BUTCHER, driver of Changeover, with the option of moving his horse off the markers, going around Another Creation and taking the lead.  Mr BUTCHER took that option and Changeover led for the rest of the race.  The actions of Mr SMALL not only disadvantaged the chances of Pocket Baileyship but also enhanced the chances of Changeover.

Not included in Mr MUIRHEAD’S summary of acts were the explanations given by Mr SMALL when interviewed by the Stipendiary Stewards on race day.  Mr MUIRHEAD had given evidence regarding the explanations at the original hearing on 20 March 2007.  Mr SMALL said Pocket Baileyship raced best in front or out in the open.  It had been flipping its palate when trailing another horse.  This affected its breathing.  Further he did not want to trail Another Creation.  He considered that horse’s 2 previous races at the Carnival were “absolute disasters”.

Mr LAWSON presented written submissions on both what had happened and penalty.  Those submissions are attached to this decision.  Mr LAWSON said Mr SMALL had not done anything wrong when he moved Pocket Baileyship outwards from the trail.  He referred to the soft palate problem and Mr SMALL not wanting to trail Another Creation. 

He presented a Veterinary Certificate to establish that Pocket Baileyship was operated on to correct the soft palate problem on 26 January 2007.  The Certificate also explained the effect of a soft palate, namely a “strangulation of the airways during maximal exercise”.  Mr LAWSON said soft palate was not an uncommon problem in horse racing.  He said that Mr SMALL acknowledged he should not have restrained Pocket Baileyship.  It was a spur of the moment decision he now regretted.  Mr LAWSON said Mr SMALL’S action should not be judged as having affected the outcome of the race.  Mr LAWSON said Mr SMALL had pleaded guilty to both charges as a matter of expediency even though he felt there was an element of “double jeopardy” in that one action on his part had resulted in two charges against him.

In response Mr MUIRHEAD disagreed with Mr SMALL’S assessment of Another Creation (the horse was in fact 2/2 in the betting).  He said pulling back Pocket Baileyship was likely to create the very problem Mr SMALL said he was trying to avoid – that is trailing another horse.  He said it was one of the worst pieces of driving he had ever seen – this was a merits case – the integrity of racing was at stake. 

The Committee questioned Mr MUIRHEAD has to whether or not he was suggesting Mr SMALL’S actions were premeditated.  He said that was not the case and that Mr D BUTCHER had been interviewed and there was no criticism of his driving.  He said he had an enhanced video film which showed that Mr SMALL did look behind him to his right.  The video film was shown.  The film clearly shows that Mr SMALL had commenced moving Pocket Baileyship outwards before he looked behind him to his right.  However that look behind would have alerted Mr SMALL to the fact that Changeover would then improve to the trailing position. 

PENALTY SUBMISSIONS

Mr MUIRHEAD submitted that the breaches were at the very high end of the scale of seriousness, and struck at the heart of the integrity of the industry.  He said there was no tolerance for the Defendant’s actions.  He submitted that for a horseman who is reliant on driving for his income and is a first offender that the appropriate starting point for penalty is a 4 month suspensions of horseman’s license and a fine of $2,500.00.  He said Mr SMALL had averaged 32 drives per season for the last 5 seasons and therefore clearly did not rely on driving fees for his income.  He asked the Committee to take into account the provisions of Rule 1114(2)(a)(b)(c) and (d) which read as follows:

“(2)  On finding a breach proved the Judicial Committee may impose any penalty and/or affect any remedy provided by these Rules.  In imposing a penalty or affecting any remedy provided in the Rules the Judicial Committee may have regard to such matters as they consider appropriate including –

(a)                        the status of the race;

(b)                       the stake payable in respect of the race;

(c)                        any consequential effects upon any person or horse as a result of the breach of the Rule;

(d)                       the need to maintain integrity and public confidence in harness racing”.

Mr MUIRHEAD said this was a ‘listed race” with a $200,000.00 stake, $107,250.00 going to the winner, and Mr SMALL as the trainer being entitled to 10% of the winning stake.  Lastly Mr MUIRHEAD said that Mr SMALL had breached Rule 868(3) in 1996 and had his horseman’s license suspended for 8 weeks.

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hearing_type: Old Hearing

Rules: 1001.v.i, 868.2, 869.3.f, 1003.1, 1114.2.a.b.c, 868.3, 1114.2

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