Non Raceday Inquiry – HRNZ v D E Johnston 3 June 2009 decision

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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hearing_title: Non Raceday Inquiry - HRNZ v D E Johnston 3 June 2009 decision

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Decision:

BEFORE THE APPEALS TRIBUNAL
HELD AT CHRISTCHURCH

IN THE MATTER OF
 New Zealand
 Rules of Harness Racing

BETWEEN DAVID ERNEST JOHNSTON

 Appellant

AND HARNESS RACING NEW ZEALAND

 Respondent

Hearing:  3 June 2009

Appeal Tribunal: Judge J S Bisphan (Chairman)
   Mr B Rowe

Appearances: Mr D E Johnston in person assisted by Mr S Johnston
   Mr N Ydgren and Mr S Renault for Respondent

Date of Decision: 15 June 2009

DECISION OF APPEALS TRIBUNAL
 

This is an appeal against a finding of careless driving against Mr Johnston in respect of his drive in Race 8 at the Oamaru Harness Racing Club’s meeting on 17 May 2009.  The Judicial Committee found the charge proved and a fine of $300 was imposed.

It is from that finding and fine that Mr Johnston appeals. At the conclusion of the hearing we indicated to the parties that the appeal would be allowed but as our decision differs from that of the Judicial Committee we indicated that we would give our reasons in writing which we now do.

BEFORE THE APPEALS TRIBUNAL
HELD AT CHRISTCHURCH

IN THE MATTER OF
 New Zealand
 Rules of Harness Racing

BETWEEN DAVID ERNEST JOHNSTON

 Appellant

AND HARNESS RACING NEW ZEALAND

 Respondent

Hearing:  3 June 2009

Appeal Tribunal: Judge J S Bisphan (Chairman)
   Mr B Rowe

Appearances: Mr D E Johnston in person assisted by Mr S Johnston
   Mr N Ydgren and Mr S Renault for Respondent

Date of Decision: 15 June 2009

DECISION OF APPEALS TRIBUNAL
 

This is an appeal against a finding of careless driving against Mr Johnston in respect of his drive in Race 8 at the Oamaru Harness Racing Club’s meeting on 17 May 2009.  The Judicial Committee found the charge proved and a fine of $300 was imposed.

It is from that finding and fine that Mr Johnston appeals. At the conclusion of the hearing we indicated to the parties that the appeal would be allowed but as our decision differs from that of the Judicial Committee we indicated that we would give our reasons in writing which we now do.

We have read the Judicial Committee’s decision and have also read the transcript of the evidence given before that Committee. At the hearing we heard from both the respondent and the appellant who was assisted by his brother, Mr Steven Johnston.  We have of course seen the videos of the race and have been taken through them at some length by both parties. As this is an appeal by way of re-hearing, we must come to our own decision albeit helped by the evidence given before the Judicial Committee and the findings of credibility made by that Committee.  There is no presumption in favour of the Judicial Committee’s decision and we have to come to our own conclusion.

The issue is whether Mr Johnston drove carelessly and the respondent has to satisfy us of that on the balance of probabilities. We do not propose to go into the background in any great detail because the facts have now been gone into twice and are well known to the parties. In this decision we will use the names of the drivers rather the names of the horses involved.

It is to be noted that the running rail at the Oamaru Trotting Course is delineated by marker pylons.  These were referred to in the evidence not only before the Judicial Committee, but before us. We observed from the videos and indeed it is common knowledge that fields in races habitually follow a line which is probably about one to two feet out from the line of the marker pylons constituting the running rail.  No doubt this distance varies from time to time in a race particularly as the field moves from a straight to a corner and of course different considerations apply in the home straight.

Briefly the Respondent’s contention is that nearing the home turn Mr Chmiel was in the second line but was tiring.  Mr May was directly behind Mr Chmiel and Mr Johnston was back behind the field. As the field reached the home turn Mr Chmiel continued to tire and Mr May elected to go down to the running line and progress forward inside Mr Chmiel.  Mr Johnston was still catching the field and cornering the bend not quite in a half-carting position but outside the line taken by the inside line of the field.

The Respondent’s further contention is that nearing the home turn Mr Johnston was following neither an inside line nor a one-out line and should have taken a line comparable to that taken by Mr May. In taking the line that he did the Respondent says Mr Johnston drove carelessly by allowing his horse to strike the sulky wheel of the tiring Mr Chmiel.  The Judicial Committee by and large agreed with this scenario and found the charge proved.

Mr Johnston’s original contention before the Judicial Committee was that as Mr May had driven inside the marker line that it was not appropriate for him to take Mr May’s line and that as Mr Chmiel had moved in slightly, he could not avoid striking Mr Chmiel’s inside wheel and that he, Mr Johnston, was not driving carelessly. As will be apparent from our findings, Mr Johnston’s appeal is now founded, in part, on a different factual basis.
We find that nearing the home turn Mr Chmiel was in the second line but was tiring.  Mr May was directly behind Mr Chmiel and Mr Johnston was back behind the field but catching up.  Just before the home turn Mr Chmiel continued to tire and Mr May elected to go down to the running line and progress inside Mr Chmiel.  Mr Johnston was still catching the field and cornering the home turn not quite in a half-carting position but outside the line taken by the inside line of the field.  On the home turn Mr May had gone down over the line of the marker pylons striking at least two and was appreciably inside that line as shown on a photograph presented at the hearing before us.  This photograph was taken off the video which was shown both at the Judicial Committee hearing and before us.  At this point Mr Chmiel was still tiring and had probably moved inwards as he says in his evidence, by about a foot.  Mr Johnston had progressed and had moved down closer to the inside running line but not appreciably outside it as is also shown in the photographs presented to us.  Mr Johnston’s horse broke.  We find that this happened marginally before the horse’s off foreleg struck Mr Chmiel’s inside sulky wheel.  Mr Chmiel quickly looked down, we find, when his sulky wheel had been struck.  This is after Mr Johnston’s horse had lifted its head in its first breaking motion.  We draw the inference and are satisfied that when Mr May struck the marker pylons there would have been a noise and movement of the pylons back into an upright position and that it was either of those events, or a combination of them, that caused Mr Johnston’s horse to break.  Although the evidence of Mr May and Mr Chmiel was that their horses ie. the sulky shafts, did not touch, we are satisfied that there was some general downward pressure in the field.  This is evident from the line inside the marker pylons taken by Mr May.  It is possible that Mr Johnston was not precisely in his correct line when his horse broke but the photographs we have referred to shows him more or less in such a position. One of those photographs shows the head of the horse angled towards the inside.

The evidence does not satisfy us, on the balance of probabilities, that the cause of Mr Johnston’s horse breaking was his driving into Mr Chmiel’s sulky wheel.  The probabilities are that the striking of Mr Chmiel’s sulky wheel was as a result of Mr Johnston’s horse breaking as a result of the events with the marker pylons not from Mr Johnston driving on a wrong line.  It follows that the respondent has not satisfied us that Mr Johnston drove carelessly.  We are aware that we are differing from the view taken by the Judicial Committee who had the advantage of hearing the witnesses.  This result has largely come about because the basis of the appellant’s case, as we have pointed out, differs from that presented at the Judicial Committee hearing.

We were briefly addressed on costs. In all the circumstances we do not propose to make any order as to costs as between the parties.  We direct, pursuant to Rule 1215, that the filing fee paid by the appellant be refunded and returned to him.

Result
The appeal is allowed and the decision of the Judicial Committee is set aside.
Appeal fee refunded to the appellant.

J S Bisphan for self and B  Rowe

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