Non Raceday Inquiry – HRNZ v P Butcher 8 August 2011 – Decision date 17 August 2011
ID: JCA14408
Decision:
Rules:
869(3)(f)
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
HELD AT AUCKLAND
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr JM Muirhead – Stipendiary Steward
Informant
AND Mr PA Butcher – Licensed Open Horseman
Defendant
Information No’s: 67308
Venue: Ellerslie Racecourse, Auckland
Judicial Committee: BJ Scott (Chairman), GR Jones (Committee)
Appearing: Mr C George for the Informant, Mr JM Muirhead – Stipendiary Steward, Mr TW Taumanu – Stipendiary Steward, Mr PA Butcher,
Ms MJ Thomas – Counsel for Mr Butcher, Mr M Williamson - Registrar
Plea: Not admitted
Date of Hearing: 8 August 2011
DECISION OF JUDICIAL COMMITTEE
1.1 The Informant Mr Muirhead lodged two Informations at the Cambridge-Te Awamutu Harness Racing Club’s Meeting on Thursday the 19th of May 2011 against Mr Butcher arising from his drive on Misty Magic in Race 2 at that Meeting.
The Informations were lodged pursuant to Rules 868(2) and 869(3)(f) of the NZ Rules of Harness Racing.
1.2 Due to the nature of the charges the Judicial Committee on the night adjourned both Informations to be heard at a later date.
1.3 The RIU subsequently applied to withdraw the Information pursuant to Rule 868(2) and that was withdrawn by consent.
1.4 At a Pre-Hearing Telephone Conference Mr George acknowledged that there was no suggestion of team driving and therefore that is not an issue before the Committee today.
1.5 The Hearing today deals with the charge under Rule 869(3)(f) and that charge is that in Race 2 at the Cambridge-Te Awamutu Harness Racing Club Meeting on Thursday the 19th of May 2011 Mr Butcher drove Misty Magic improperly when he restrained his horse back allowing its stablemate Cowgirls N Indians (Driver DJ Butcher) to improve outward from four deep on the Running Line to a two wide position with approximately 1700 metres to run.
1.6 Mr Butcher did not admit the charge.
1.7 Rule 869(3)(f) states:
“No Horseman in any race shall drive improperly”.
1.8 Ms Thomas had, prior to the Hearing, filed written submissions the main points of which were as follows:
(i) That the Informant had to show that the driving of Mr Butcher was improper.
(ii) That the impropriety was intentional on Mr Butcher’s part.
(iii) That given the serious nature of the alleged breach the standard of proof required is higher than the usual balance of probabilities.
The submissions concluded with a request that the charge be dismissed.
1.9 On the basis that this was a Pre-Hearing Application the Committee ruled that it must first hear the evidence before making any decision in respect to the charge.
1.10 Mr George in his opening submissions firstly advised the Committee that he accepted that the standard of proof, although on the balance of probabilities was higher that the standard that would normally be applied.
1.11 In dealing with interpretation of the Rule, Mr George provided two Decisions from the Racing Appeals Tribunal of NSW. The two Decisions relied upon by Mr George were Decisions of the Honourable Justice WR Haylen the first of which was:
(a) An Appeal by Mr S against a charge of breaching NSW Harness Racing Rule 168(1) which provides:
“A person shall not before, during or after a race drive in a manner which in the opinion of the Stewards is careless, reckless, incompetent, intimidatory, improper, foul or likely to endanger persons or horses.”
In that Decision, Justice Haylen stated:
“In considering this charge, the Tribunal has given some consideration to the way in which the charge was particularised in alleging that Mr S drove in a manner which was improper. There may have been other aspects of this Rule that could have been relied upon but a charge of driving improperly is nevertheless appropriate having regard to the normal meaning of the word “improper”. While the normal meaning of the word includes being used in an incorrect manner, it also embraces that which is abnormal or irregular. In a similar vein, the work “impropriety” encompasses notions of incorrectness, inappropriateness and unseemliness such as an erroneous or unsuitable act. Those meanings are broad enough to encompass an intentional act and it is in this sense that the charge under Rule 168(1) was laid by the Stewards. The Tribunal has found, on appeal, that breach to be established.”
(b) The second Decision relied upon by Mr George was an appeal by Ms S. Ms S was charged with a breach of NSW Rule 149(2) which provided that a person shall not drive in a manner which, in the opinion of the Stewards, is unacceptable. In his decision, Justice Haylen states:
“Perhaps to throw my own interpretation into the mix I might view it this way:
That the sort of culpable action that is required to amount to a breach of this Rule might be such that in normal circumstances a reasonable and knowledgeable Harness Racing spectator might be expected to exclaim with words to the effect “What on earth is he doing?” or “My goodness look at that.” or some such exclamation.
1.12 Mr George concluded his opening by submitting that in determining a breach of this nature the Committee should take into account actions by Drivers that are seen to be intentional and are perceived not only by the Stipendiary Stewards but also by the general public as “not normal”.
Evidence for Informant
2.1 Mr George called Mr Muirhead to give evidence.
2.2 Mr Muirhead gave evidence as to his position and experience as a Stipendiary Steward.
2.3 Mr Muirhead gave evidence as to his observations of the race from the Stipendiary Steward’s position at Cambridge Raceway and he said that Cowgirls N Indians was the hot favourite for the race and it drew 1 on the second line behind the mobile barrier and that horse was driven by Mr David Butcher and he further said that Misty Magic driven by Mr Phillip Butcher drew the barrier position 4 on the front line. Mr Muirhead gave evidence as to the early section of the race and the various lead changes which resulted in Cowgirls N Indians being four deep on the Running Line and Misty Magic being in a one out without cover position. He then said that Mr Phillip Butcher started to restrain his horse and this was over some distance and he said that this manoeuvre allowed Cowgirls N Indians to come off the Running Line and it ultimately sat in the one out without cover position.
2.4 Mr Muirhead said that the opening section of the race was run in an average time and he produced an analysis of opening lead times for 23 races over 2200 metres at Cambridge. He said that the range of times was from 41.1 to 45.6 seconds and that the median was 43.7 seconds and in this race the opening lead time was 44.9 seconds.
2.5 In Mr Muirhead’s view Mr Butcher should have stayed where he was and kept the hot favourite trapped four deep on the Running Line and waited for the three wide line to come round to give him some cover.
2.6 Mr Muirhead said that in his view Horsemen should be competitive throughout the race and he said that he was very surprised at Mr Butcher’s non competitive actions in restraining Misty Magic and giving away the advantage of tactically trapping Cowgirls N Indians in a very unfavourable position.
2.7 Mr Muirhead said that Mr Butcher’s actions disadvantaged his own horse and assisted the chances of Cowgirls N Indians. He also said that what was equally disturbing was that Mr Butcher’s actions showed impropriety in allowing or assisting a stablemate to get an advantage.
2.8 The films of the race were then shown and Mr Muirhead identified both Misty Magic and Cowgirls N Indians and showed their respective positions. The films clearly showed the location of the horses as previously described and showed Mr Butcher restraining his horse and that allowed Cowgirls N Indians to leave the Running Line and then it sat parked. The result of this also was that Misty Magic then ended up in the one one position.
2.9 In demonstrating the incident by use of the films, Mr Muirhead showed that the actions allowed Cowgirls N Indians to receive a more favourable run and he also pointed out the three wide line coming round which in his view would have given cover to Misty Magic.
Mr Muirhead said that the fact that two stablemates were involved meant that it looked bad.
2.10 Mr Muirhead in answer to cross examination from Ms Thomas acknowledged that he was aware that Misty Magic was a two year old filly and that this was only her third start. Mr Muirhead agreed that Misty Magic was at that stage not as good as Cowgirls N Indians but he did point out that it had beaten Lets Elope and that horse had subsequently gone on to win a major two year old race.
Mr Muirhead was asked what he thought the Owners would think about the way a two year old filly was driven and whether they would want that filly to be looked after in the race. Mr Muirhead said that Misty Magic came from a stable that has its horses ready to race and he would expect a horse in any race to be ready to race competitively.
Mr Muirhead was further asked if Misty Magic was hanging as it was going around the bend out of the Front Straight and he said that in his opinion the hanging was as a result of Mr Butcher restraining his horse. He said that the field was not going particularly fast at that stage and any hanging was as a result of the restraint by Mr Butcher and that restraining action was over some distance.
2.11 Ms Thomas then asked the Committee to show Mr Muirhead films of two other races and to give his opinion on similar incidents. The first film was the 2007 Great Northern Derby and showed a Driver after having moved right round the field restraining his horse and letting the second favourite out to sit parked with a round to go.
Mr Muirhead said it was a different class of race, a different class of horse, and different racing pattern and was not relevant to the particular proceedings. Mr Muirhead further said that Misty Magic had not done any work and he expected it to stay where it was.
2.12 Mr Muirhead was asked if he was suggesting that it was not good driving tactics to try to get cover on the back of the favourite. Mr Muirhead said that it depended on the circumstances but that in this situation the actions of Mr Butcher disadvantaged his own horse rather than helped it by letting out the hot favourite.
2.13 Mr Muirhead was asked about Drivers making split second decisions out on the racetrack and he said that in his opinion this was not a split second decision and that Mr Butcher restrained his horse over some distance.
2.14 Mr Muirhead was then shown a film of another race on the same night at the Cambridge Meeting but he believed that it was not relevant because it was a 2700 metre race.
He was of the opinion that the three wide line would have come around quicker in a 2200 metre race rather than a 2700 metre race and he thought that Mr Butcher should have waited where he was.
2.15 In respect to the two films shown by Ms Thomas, Mr Muirhead said that because of the differences in the races and the racing patterns etc that these could not be compared with the race in question.
2.16 Mr Muirhead was asked if his view was that the only disadvantage to Mr Butcher’s horse was that he let the favourite out. Mr Muirhead said that he not only disadvantaged his own horse but he advantaged the favourite.
2.17 Mr Muirhead was asked why the Stewards did not question Mr DJ Butcher and the Trainer Mr Small on race night and he said that they did not have to because Mr Phillip Butcher admitted restraining his horse and letting Cowgirls N Indians out.
2.18 Mr Muirhead was also asked if it often happens that Driver’s making decisions to advantage their own horse might also have the effect of advantaging another horse in the race. He acknowledged that it could possibly happen.
2.19 Mr Muirhead was also asked if he had ever seen a horse four deep on the Running Line get a run at the finish of the race. He said it was possible but it was not a good position to be in and in his view, particularly at Cambridge over 2200 metres.
2.20 Mr Muirhead was asked about the last sentence in his Brief of Evidence and was he saying that Mr Butcher allowed the stablemate out or assisted it wrongly and he said that that was correct. He said that irrespective of any advantage that Mr Butcher got from his action the fact of restraining and letting out his stablemate was improper.
2.21 By way of re-examination, Mr Muirhead was asked if handing up a position to a stablemate gives a disadvantage to Mr Butcher’s own horse and Mr Muirhead thought that was so.
2.22 The booklet produced by Mr George containing Mr Muirhead’s Brief of Evidence, Mr Taumanu’s Brief of Evidence, the transcript of the race night interview of Mr Butcher, the statistical information concerning the race and the two Decisions referred to by Mr George was produced via Mr Muirhead and admitted by consent.
Evidence by Mr Taumanu
3.1 Mr George then called Mr Taumanu to give evidence.
3.2 Mr Taumanu gave evidence as to his position and experience as a Stipendiary Steward.
3.3 Mr Taumanu gave evidence of watching the race in question and he was in the Steward’s box alongside Mr Muirhead.
3.4 Mr Taumanu said that he noted prior to the commencement of the race the two horses trained by Mr IT Small being Cowgirls N Indians (which was the race favourite) and Misty Magic. He confirmed that the race was a mobile start event over 2200 metres.
3.5 Mr Taumanu said from his observation he saw that with about 1700 metres to run Mr PA Butcher driving Misty Magic looked to his right, then took hold of his horse and eased back leaving a gap. He said that he then observed that Cowgirls N Indians which was racing inside Misty Magic was able to move off the Running Line into the parked position and that Misty Magic was then able to take up the one one position.
He did say that those positions changed as a result of the three wide line moving round.
3.6 Mr Taumanu said that he was concerned that Mr P Butcher unnecessarily eased Misty Magic from an advantageous position with the favourite trapped three or four deep on the Running Line. He said that due to this easing, Mr Butcher presented Cowgirls N Indians, the race favourite, a better position in the running and therefore in his opinion he was disadvantaging his own horse.
3.7 Mr Taumanu said that on the basis of his observations which were confirmed by Mr Muirhead, it was decided by the Stewards that Mr Butcher needed to give an explanation for his actions when easing Misty Magic at about the 1700 metre position. He said that Mr Butcher appeared before the Stewards and was questioned and that he was present throughout that preliminary investigation.
3.8 Mr Taumanu said that at the conclusion of the Steward’s investigation it was decided that Mr Butcher would be charged with a breach of Rules 869(3)(f) and 868(2).
3.9 Mr Taumanu was asked by Mr George what he thought Mr Butcher’s alternative was. He said in answer that Mr Butcher should have kept up where he was and not let the favourite out. He said that it was a blatant action as far as he was concerned.
3.10 Mr Taumanu also stated that when the field left the mobile barrier there didn’t appear to be much pace on. He then said that Mr Butcher appeared to look to his left (he corrected his earlier statement) and eased back and allowed Cowgirls N Indians out. He said that from his perspective, Mr Butcher shouldn’t have done it.
3.11 Mr Taumanu was again asked by Mr George if Mr Butcher should have stayed where he was and he said that he definitely should have. He had the favourite on the inside four back and the best thing he could do was to keep the favourite boxed in.
3.12 Ms Thomas then by way of cross examination asked Mr Taumanu if he was saying there is a positive obligation on a Driver to disadvantage the TAB favourite even though there would be an advantage for his own horse if he moved.
Mr Taumanu said that he agrees that a Driver drives a horse that best suits that horse.
3.13 Mr Taumanu was then asked that if you are driving a two year old can you still drive competitively by getting cover. Mr Taumanu said that he disagreed in this instance because Mr Butcher let the most potent horse in the field out.
3.14 Mr Taumanu was asked if he saw Misty Magic hanging and he said, yes he did. He was asked that if you had a horse hanging then would not the best thing be to get a trail behind another horse. Mr Taumanu still said that letting another horse out was improper and that Mr Butcher did not do the right thing by letting the favourite out.
Mr Taumanu also pointed to the fact that both horses were from the same stable.
3.15 Mr Taumanu was also shown the video film of the other race from the same night at Cambridge. He said that he did not see the relevance between the two races. Mr Taumanu was asked if he had any concern on the night about the Driver in that particular race who eased and let another horse out. Mr Taumanu said that he did not and that they were different horses and it was different distances and he also said the main difference between the two was that in Mr Butcher’s case he let out the red hot favourite. He should not have done that.
3.16 Mr Taumanu was asked if he had ever heard it suggested that a Driver shouldn’t let the inside horse out to get a trail. He was further asked what was the difference between Mr Butcher’s case and the other Cambridge race shown to him.
Mr Taumanu said that Mr Butcher disadvantaged himself because he let the hot favourite out.
3.17 Mr Taumanu was asked to confirm his observation that Mr Butcher took immediate action in allowing Cowgirls N Indians out and he said that that was the case.
3.18 Mr Taumanu also said that all cases are taken on their merits and whilst some may essentially look the same they are not the same.
3.19 By way of re-examination Mr Taumanu was asked if Mr Butcher disadvantaged his horse over a longer period. He said that it was a quick restraint on Mr Butcher’s part.
Evidence for the Defendant
4.1 Ms Thomas said that she did not propose to call Mr Butcher to give evidence. She said that Mr Butcher had been questioned on race night by the Stipendiary Stewards and the transcript of the Race Night Hearing was already before the Committee.
Ms Thomas said that that evidence was the best possible evidence as it was given openly and clearly on the night and had not been affected by Lawyers or the passage of time.
4.2 Ms Thomas said that in that transcript Mr Butcher openly admitted easing his horse and his purpose was to obtain cover in the Out Line and he thought that that was a great option. He also said that he wanted to get cover behind the best horse in the race and that would help his horses chances.
4.3 In answer to the Stipendiary Stewards on race night, Mr Butcher gave the following explanations:
(a) We ran the first quarter, we were going reasonably quick so I was sitting up because I knew they would lead and then that’s when I saw David beside me. I couldn’t win it parked and I let him out because he was the best horse to follow and he makes his options afterwards but I thought by letting him out, I had my one chance in running in the money, and that’s exactly what I did. I had no plans on doing that at all I just thought it was my best option to run in the money, it was the best horse and he made his decisions afterwards. I was hoping he would stay there but that was his decision. He stays and I can run second.
(b) I am trying to learn as much about my horse as I can because I am driving him in the Jewels and I wanted to be hitting the line as well as he could have. Parked, I felt was the option and when he, you know, I thought this was is a great option following him and that is what I did.
(c) I figured you would probably say something but like I probably wouldn’t have done it if it was any other horse but I wanted to give myself my best options too.
(d) I didn’t know if I was going to have to sit parked and you know, David he calls his own shots, I didn’t think he would hand up, I thought I would be behind him the whole way.
(e) They went quick round the bend but I backed off a bit more than I intended. I haven’t denied I let him out, it was an option I took, I think I took the right thing at the time.
(f) I told you why I did it, I felt it was my best option, I didn’t think I was good enough to sit parked and then again like you don’t know if they are going to come round, sometimes they do sometimes they don’t, I’m not God and I felt that that was the best option and I have done it and I have never denied it.
4.4 Ms Thomas reiterated that as far as Mr Butcher’s evidence was concerned that she would rely on the transcript of the Race Night Hearing.
Summary / Submissions for Informant
5.1 Mr George submitted again that the standard of proof is the balance of probabilities but he acknowledged that in this matter it needed to be applied to a higher level. Mr George further said that in this particular case he believed that based on the evidence presented by the Stipendiary Stewards there was sufficient evidence for the Committee to find the charge proven.
5.2 He further said that it was not necessary to prove any team driving tactics to constitute improper driving. It simply can be actions of a Driver during the course of event without any pre-race plan.
5.3 Mr George said that if one views the tactics adopted by Mr Butcher at the relevant stage of the race in question through the eyes of the public and/or the Stipendiary Stewards then the Committee would surely be asking itself: “What’s going on here” or “He just let the favourite out”.
5.4 Mr George submitted that when fields are drawn up for competition it is expected from all participants in the Industry including the betting fraternity and general public, that Drivers adopt tactics that would not and do not assist competitors in the race and especially the favourite.
5.5 Mr George said that the intent and deliberateness of Mr Butcher’s actions before all to see on the night in question has seen him negate his obligations under the Rules and as a result there is the charge of improper driving. He further submitted that the Stipendiary Stewards could not accept his actions as proper in this particular circumstance because it gave such a glaring advantage to other runners in the race and in particular Mr Butcher gifted the favourite an opportunity to secure a much better run in the race.
5.6 Mr George said that the concerns of the Stipendiary Stewards and the general public and the betting fraternity would certainly also be heightened due to the favourite being a stablemate.
5.7 Mr George also submitted that the following were relevant:
(i) The race lead time was about the average mark.
(ii) The favourite was in a very awkward position.
(iii) The favourite’s stablemate had the upper hand over it and was in a position to dictate its fate to a point.
(iv) Once in the envious position in comparison to the stablemate and favourite Mr Butcher intentionally gifted him with a better run and a better chance in the race.
(v) The actions of Mr Butcher aided the chances and opportunities of Cowgirls N Indians.
(vi) The proper tactics for Mr Butcher to have adopted would have been to keep Cowgirls N Indians hemmed away on the Running Line and dictated to and then look for other opportunities to obtain cover and a trail.
(vii) Mr Butcher’s actions in restraining his horse would have pleased the connections and punters of Cowgirls N Indians as he increased its chances immensely but in doing so in Mr George’s submission he decreased the chances of not only his own horse but every other runner in the race by letting the favourite out.
5.8 Mr George submitted that the charge was appropriate against Mr Butcher and would send a clear message to the Industry and the public that they can compete and bet with confidence as this type of driving would not be accepted as it is clearly outside the Rules of Harness Racing.
5.9 Mr George further submitted that a Driver of a parked horse has three options and those were, to sit parked, to let another horse come around and give cover or to let the inside horse out. He said that in this instance Mr Butcher only had two options and they were either to sit parked or to let another horse come around. He said that the favourite had no options at that stage of the race but that Mr Butcher gave it options and Mr Butcher’s actions were not appropriate nor were they proper.
5.10 Mr George submitted that the video evidence showed the intent of Mr Butcher’s actions.
5.11 Mr George submitted that the two other video films shown by Ms Thomas were not relevant.
5.12 Mr George finally submitted that two very experienced Harness Stipendiary Stewards were dealing with this matter and they were very concerned about Mr Butcher’s actions and that the charge arose after they interviewed Mr Butcher. Mr George said that Mr Butcher had left too many question marks over his tactics.
Summary / Submissions by Ms Thomas
6.1 Ms Thomas submitted that Mr Butcher intentionally went to look for a trail. Ms Thomas further submitted that this happens in just about every race that is run and that Drivers always try to find a trail unless they are in front and that they all know that the best position in the race is the one one.
This in her submission was all that Mr Butcher was doing.
6.2 Ms Thomas said that the Committee had been asked how Punters would view Mr Butcher’s actions but she submitted to the Committee that it should ask “What would someone with knowledge of driving think?” She submitted that endeavouring to achieve the one one position constituted good driving tactics.
6.3 Ms Thomas further submitted that her Client’s horse was not disadvantaged and that the only suggested disadvantage was letting the favourite out.
6.4 Mr Thomas further submitted that there was no suggestion of team driving here and she pointed to the fact that neither Mr DJ Butcher nor the Trainer Mr IT Small were interviewed by the Stipendiary Stewards on race night.
6.5 Ms Thomas then submitted that if there is no suggestion of team driving nor any suggestion of cheating then what is wrong with getting cover behind the favourite.
6.6 Ms Thomas submitted that the pressure on the Driver is immense in making split decisions during a race and she submitted that it is proper when driving a two year old filly in its third start to drive in the most economical fashion.
6.7 Ms Thomas further submitted that Mr Butcher acknowledged on race night that he had eased his horse to let the favourite out and that he did so because he knew it was the best horse and he wanted to get a trail behind it and had hoped that by doing so he would achieve the best possible placing. She submitted that his reasoning was normal.
6.8 Ms Thomas also submitted that many Drivers’ decisions during a race often do give a benefit to other Drivers but those actions do not constitute improper driving.
6.9 Ms Thomas further took issue with the suggestion that by his actions he intentionally advantaged the favourite. She said that this was quite wrong because the purpose of Mr Butcher’s actions were to benefit his own horse. The films in her view showed that.
6.10 Ms Thomas said that as there was no suggestion of cheating and certainly no evidence of that then it was perfectly normal for Mr Butcher to try to achieve cover.
6.11 Ms Thomas said that the charge had not been made out to the standard of proof required. She said that her Client had been brutally honest on race night and he was up front and acknowledged his actions.
6.12 Ms Thomas also submitted that if Mr Butcher might have achieved a better result if he had driven differently as suggested by the Stipendiary Stewards then because he took the action he did this was insufficient for a charge of improper driving. Ms Thomas submitted that the Informant must not only prove that t
Penalty:
N/A refer above.
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 28/08/2011
Publish Date: 28/08/2011
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 7f0d93a4156c0cbdbd2dcbbe758ed691
informantnumber: 67308
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 28/08/2011
hearing_title: Non Raceday Inquiry - HRNZ v P Butcher 8 August 2011 - Decision date 17 August 2011
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
Rules:
869(3)(f)
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
HELD AT AUCKLAND
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN Mr JM Muirhead – Stipendiary Steward
Informant
AND Mr PA Butcher – Licensed Open Horseman
Defendant
Information No’s: 67308
Venue: Ellerslie Racecourse, Auckland
Judicial Committee: BJ Scott (Chairman), GR Jones (Committee)
Appearing: Mr C George for the Informant, Mr JM Muirhead – Stipendiary Steward, Mr TW Taumanu – Stipendiary Steward, Mr PA Butcher,
Ms MJ Thomas – Counsel for Mr Butcher, Mr M Williamson - Registrar
Plea: Not admitted
Date of Hearing: 8 August 2011
DECISION OF JUDICIAL COMMITTEE
1.1 The Informant Mr Muirhead lodged two Informations at the Cambridge-Te Awamutu Harness Racing Club’s Meeting on Thursday the 19th of May 2011 against Mr Butcher arising from his drive on Misty Magic in Race 2 at that Meeting.
The Informations were lodged pursuant to Rules 868(2) and 869(3)(f) of the NZ Rules of Harness Racing.
1.2 Due to the nature of the charges the Judicial Committee on the night adjourned both Informations to be heard at a later date.
1.3 The RIU subsequently applied to withdraw the Information pursuant to Rule 868(2) and that was withdrawn by consent.
1.4 At a Pre-Hearing Telephone Conference Mr George acknowledged that there was no suggestion of team driving and therefore that is not an issue before the Committee today.
1.5 The Hearing today deals with the charge under Rule 869(3)(f) and that charge is that in Race 2 at the Cambridge-Te Awamutu Harness Racing Club Meeting on Thursday the 19th of May 2011 Mr Butcher drove Misty Magic improperly when he restrained his horse back allowing its stablemate Cowgirls N Indians (Driver DJ Butcher) to improve outward from four deep on the Running Line to a two wide position with approximately 1700 metres to run.
1.6 Mr Butcher did not admit the charge.
1.7 Rule 869(3)(f) states:
“No Horseman in any race shall drive improperly”.
1.8 Ms Thomas had, prior to the Hearing, filed written submissions the main points of which were as follows:
(i) That the Informant had to show that the driving of Mr Butcher was improper.
(ii) That the impropriety was intentional on Mr Butcher’s part.
(iii) That given the serious nature of the alleged breach the standard of proof required is higher than the usual balance of probabilities.
The submissions concluded with a request that the charge be dismissed.
1.9 On the basis that this was a Pre-Hearing Application the Committee ruled that it must first hear the evidence before making any decision in respect to the charge.
1.10 Mr George in his opening submissions firstly advised the Committee that he accepted that the standard of proof, although on the balance of probabilities was higher that the standard that would normally be applied.
1.11 In dealing with interpretation of the Rule, Mr George provided two Decisions from the Racing Appeals Tribunal of NSW. The two Decisions relied upon by Mr George were Decisions of the Honourable Justice WR Haylen the first of which was:
(a) An Appeal by Mr S against a charge of breaching NSW Harness Racing Rule 168(1) which provides:
“A person shall not before, during or after a race drive in a manner which in the opinion of the Stewards is careless, reckless, incompetent, intimidatory, improper, foul or likely to endanger persons or horses.”
In that Decision, Justice Haylen stated:
“In considering this charge, the Tribunal has given some consideration to the way in which the charge was particularised in alleging that Mr S drove in a manner which was improper. There may have been other aspects of this Rule that could have been relied upon but a charge of driving improperly is nevertheless appropriate having regard to the normal meaning of the word “improper”. While the normal meaning of the word includes being used in an incorrect manner, it also embraces that which is abnormal or irregular. In a similar vein, the work “impropriety” encompasses notions of incorrectness, inappropriateness and unseemliness such as an erroneous or unsuitable act. Those meanings are broad enough to encompass an intentional act and it is in this sense that the charge under Rule 168(1) was laid by the Stewards. The Tribunal has found, on appeal, that breach to be established.”
(b) The second Decision relied upon by Mr George was an appeal by Ms S. Ms S was charged with a breach of NSW Rule 149(2) which provided that a person shall not drive in a manner which, in the opinion of the Stewards, is unacceptable. In his decision, Justice Haylen states:
“Perhaps to throw my own interpretation into the mix I might view it this way:
That the sort of culpable action that is required to amount to a breach of this Rule might be such that in normal circumstances a reasonable and knowledgeable Harness Racing spectator might be expected to exclaim with words to the effect “What on earth is he doing?” or “My goodness look at that.” or some such exclamation.
1.12 Mr George concluded his opening by submitting that in determining a breach of this nature the Committee should take into account actions by Drivers that are seen to be intentional and are perceived not only by the Stipendiary Stewards but also by the general public as “not normal”.
Evidence for Informant
2.1 Mr George called Mr Muirhead to give evidence.
2.2 Mr Muirhead gave evidence as to his position and experience as a Stipendiary Steward.
2.3 Mr Muirhead gave evidence as to his observations of the race from the Stipendiary Steward’s position at Cambridge Raceway and he said that Cowgirls N Indians was the hot favourite for the race and it drew 1 on the second line behind the mobile barrier and that horse was driven by Mr David Butcher and he further said that Misty Magic driven by Mr Phillip Butcher drew the barrier position 4 on the front line. Mr Muirhead gave evidence as to the early section of the race and the various lead changes which resulted in Cowgirls N Indians being four deep on the Running Line and Misty Magic being in a one out without cover position. He then said that Mr Phillip Butcher started to restrain his horse and this was over some distance and he said that this manoeuvre allowed Cowgirls N Indians to come off the Running Line and it ultimately sat in the one out without cover position.
2.4 Mr Muirhead said that the opening section of the race was run in an average time and he produced an analysis of opening lead times for 23 races over 2200 metres at Cambridge. He said that the range of times was from 41.1 to 45.6 seconds and that the median was 43.7 seconds and in this race the opening lead time was 44.9 seconds.
2.5 In Mr Muirhead’s view Mr Butcher should have stayed where he was and kept the hot favourite trapped four deep on the Running Line and waited for the three wide line to come round to give him some cover.
2.6 Mr Muirhead said that in his view Horsemen should be competitive throughout the race and he said that he was very surprised at Mr Butcher’s non competitive actions in restraining Misty Magic and giving away the advantage of tactically trapping Cowgirls N Indians in a very unfavourable position.
2.7 Mr Muirhead said that Mr Butcher’s actions disadvantaged his own horse and assisted the chances of Cowgirls N Indians. He also said that what was equally disturbing was that Mr Butcher’s actions showed impropriety in allowing or assisting a stablemate to get an advantage.
2.8 The films of the race were then shown and Mr Muirhead identified both Misty Magic and Cowgirls N Indians and showed their respective positions. The films clearly showed the location of the horses as previously described and showed Mr Butcher restraining his horse and that allowed Cowgirls N Indians to leave the Running Line and then it sat parked. The result of this also was that Misty Magic then ended up in the one one position.
2.9 In demonstrating the incident by use of the films, Mr Muirhead showed that the actions allowed Cowgirls N Indians to receive a more favourable run and he also pointed out the three wide line coming round which in his view would have given cover to Misty Magic.
Mr Muirhead said that the fact that two stablemates were involved meant that it looked bad.
2.10 Mr Muirhead in answer to cross examination from Ms Thomas acknowledged that he was aware that Misty Magic was a two year old filly and that this was only her third start. Mr Muirhead agreed that Misty Magic was at that stage not as good as Cowgirls N Indians but he did point out that it had beaten Lets Elope and that horse had subsequently gone on to win a major two year old race.
Mr Muirhead was asked what he thought the Owners would think about the way a two year old filly was driven and whether they would want that filly to be looked after in the race. Mr Muirhead said that Misty Magic came from a stable that has its horses ready to race and he would expect a horse in any race to be ready to race competitively.
Mr Muirhead was further asked if Misty Magic was hanging as it was going around the bend out of the Front Straight and he said that in his opinion the hanging was as a result of Mr Butcher restraining his horse. He said that the field was not going particularly fast at that stage and any hanging was as a result of the restraint by Mr Butcher and that restraining action was over some distance.
2.11 Ms Thomas then asked the Committee to show Mr Muirhead films of two other races and to give his opinion on similar incidents. The first film was the 2007 Great Northern Derby and showed a Driver after having moved right round the field restraining his horse and letting the second favourite out to sit parked with a round to go.
Mr Muirhead said it was a different class of race, a different class of horse, and different racing pattern and was not relevant to the particular proceedings. Mr Muirhead further said that Misty Magic had not done any work and he expected it to stay where it was.
2.12 Mr Muirhead was asked if he was suggesting that it was not good driving tactics to try to get cover on the back of the favourite. Mr Muirhead said that it depended on the circumstances but that in this situation the actions of Mr Butcher disadvantaged his own horse rather than helped it by letting out the hot favourite.
2.13 Mr Muirhead was asked about Drivers making split second decisions out on the racetrack and he said that in his opinion this was not a split second decision and that Mr Butcher restrained his horse over some distance.
2.14 Mr Muirhead was then shown a film of another race on the same night at the Cambridge Meeting but he believed that it was not relevant because it was a 2700 metre race.
He was of the opinion that the three wide line would have come around quicker in a 2200 metre race rather than a 2700 metre race and he thought that Mr Butcher should have waited where he was.
2.15 In respect to the two films shown by Ms Thomas, Mr Muirhead said that because of the differences in the races and the racing patterns etc that these could not be compared with the race in question.
2.16 Mr Muirhead was asked if his view was that the only disadvantage to Mr Butcher’s horse was that he let the favourite out. Mr Muirhead said that he not only disadvantaged his own horse but he advantaged the favourite.
2.17 Mr Muirhead was asked why the Stewards did not question Mr DJ Butcher and the Trainer Mr Small on race night and he said that they did not have to because Mr Phillip Butcher admitted restraining his horse and letting Cowgirls N Indians out.
2.18 Mr Muirhead was also asked if it often happens that Driver’s making decisions to advantage their own horse might also have the effect of advantaging another horse in the race. He acknowledged that it could possibly happen.
2.19 Mr Muirhead was also asked if he had ever seen a horse four deep on the Running Line get a run at the finish of the race. He said it was possible but it was not a good position to be in and in his view, particularly at Cambridge over 2200 metres.
2.20 Mr Muirhead was asked about the last sentence in his Brief of Evidence and was he saying that Mr Butcher allowed the stablemate out or assisted it wrongly and he said that that was correct. He said that irrespective of any advantage that Mr Butcher got from his action the fact of restraining and letting out his stablemate was improper.
2.21 By way of re-examination, Mr Muirhead was asked if handing up a position to a stablemate gives a disadvantage to Mr Butcher’s own horse and Mr Muirhead thought that was so.
2.22 The booklet produced by Mr George containing Mr Muirhead’s Brief of Evidence, Mr Taumanu’s Brief of Evidence, the transcript of the race night interview of Mr Butcher, the statistical information concerning the race and the two Decisions referred to by Mr George was produced via Mr Muirhead and admitted by consent.
Evidence by Mr Taumanu
3.1 Mr George then called Mr Taumanu to give evidence.
3.2 Mr Taumanu gave evidence as to his position and experience as a Stipendiary Steward.
3.3 Mr Taumanu gave evidence of watching the race in question and he was in the Steward’s box alongside Mr Muirhead.
3.4 Mr Taumanu said that he noted prior to the commencement of the race the two horses trained by Mr IT Small being Cowgirls N Indians (which was the race favourite) and Misty Magic. He confirmed that the race was a mobile start event over 2200 metres.
3.5 Mr Taumanu said from his observation he saw that with about 1700 metres to run Mr PA Butcher driving Misty Magic looked to his right, then took hold of his horse and eased back leaving a gap. He said that he then observed that Cowgirls N Indians which was racing inside Misty Magic was able to move off the Running Line into the parked position and that Misty Magic was then able to take up the one one position.
He did say that those positions changed as a result of the three wide line moving round.
3.6 Mr Taumanu said that he was concerned that Mr P Butcher unnecessarily eased Misty Magic from an advantageous position with the favourite trapped three or four deep on the Running Line. He said that due to this easing, Mr Butcher presented Cowgirls N Indians, the race favourite, a better position in the running and therefore in his opinion he was disadvantaging his own horse.
3.7 Mr Taumanu said that on the basis of his observations which were confirmed by Mr Muirhead, it was decided by the Stewards that Mr Butcher needed to give an explanation for his actions when easing Misty Magic at about the 1700 metre position. He said that Mr Butcher appeared before the Stewards and was questioned and that he was present throughout that preliminary investigation.
3.8 Mr Taumanu said that at the conclusion of the Steward’s investigation it was decided that Mr Butcher would be charged with a breach of Rules 869(3)(f) and 868(2).
3.9 Mr Taumanu was asked by Mr George what he thought Mr Butcher’s alternative was. He said in answer that Mr Butcher should have kept up where he was and not let the favourite out. He said that it was a blatant action as far as he was concerned.
3.10 Mr Taumanu also stated that when the field left the mobile barrier there didn’t appear to be much pace on. He then said that Mr Butcher appeared to look to his left (he corrected his earlier statement) and eased back and allowed Cowgirls N Indians out. He said that from his perspective, Mr Butcher shouldn’t have done it.
3.11 Mr Taumanu was again asked by Mr George if Mr Butcher should have stayed where he was and he said that he definitely should have. He had the favourite on the inside four back and the best thing he could do was to keep the favourite boxed in.
3.12 Ms Thomas then by way of cross examination asked Mr Taumanu if he was saying there is a positive obligation on a Driver to disadvantage the TAB favourite even though there would be an advantage for his own horse if he moved.
Mr Taumanu said that he agrees that a Driver drives a horse that best suits that horse.
3.13 Mr Taumanu was then asked that if you are driving a two year old can you still drive competitively by getting cover. Mr Taumanu said that he disagreed in this instance because Mr Butcher let the most potent horse in the field out.
3.14 Mr Taumanu was asked if he saw Misty Magic hanging and he said, yes he did. He was asked that if you had a horse hanging then would not the best thing be to get a trail behind another horse. Mr Taumanu still said that letting another horse out was improper and that Mr Butcher did not do the right thing by letting the favourite out.
Mr Taumanu also pointed to the fact that both horses were from the same stable.
3.15 Mr Taumanu was also shown the video film of the other race from the same night at Cambridge. He said that he did not see the relevance between the two races. Mr Taumanu was asked if he had any concern on the night about the Driver in that particular race who eased and let another horse out. Mr Taumanu said that he did not and that they were different horses and it was different distances and he also said the main difference between the two was that in Mr Butcher’s case he let out the red hot favourite. He should not have done that.
3.16 Mr Taumanu was asked if he had ever heard it suggested that a Driver shouldn’t let the inside horse out to get a trail. He was further asked what was the difference between Mr Butcher’s case and the other Cambridge race shown to him.
Mr Taumanu said that Mr Butcher disadvantaged himself because he let the hot favourite out.
3.17 Mr Taumanu was asked to confirm his observation that Mr Butcher took immediate action in allowing Cowgirls N Indians out and he said that that was the case.
3.18 Mr Taumanu also said that all cases are taken on their merits and whilst some may essentially look the same they are not the same.
3.19 By way of re-examination Mr Taumanu was asked if Mr Butcher disadvantaged his horse over a longer period. He said that it was a quick restraint on Mr Butcher’s part.
Evidence for the Defendant
4.1 Ms Thomas said that she did not propose to call Mr Butcher to give evidence. She said that Mr Butcher had been questioned on race night by the Stipendiary Stewards and the transcript of the Race Night Hearing was already before the Committee.
Ms Thomas said that that evidence was the best possible evidence as it was given openly and clearly on the night and had not been affected by Lawyers or the passage of time.
4.2 Ms Thomas said that in that transcript Mr Butcher openly admitted easing his horse and his purpose was to obtain cover in the Out Line and he thought that that was a great option. He also said that he wanted to get cover behind the best horse in the race and that would help his horses chances.
4.3 In answer to the Stipendiary Stewards on race night, Mr Butcher gave the following explanations:
(a) We ran the first quarter, we were going reasonably quick so I was sitting up because I knew they would lead and then that’s when I saw David beside me. I couldn’t win it parked and I let him out because he was the best horse to follow and he makes his options afterwards but I thought by letting him out, I had my one chance in running in the money, and that’s exactly what I did. I had no plans on doing that at all I just thought it was my best option to run in the money, it was the best horse and he made his decisions afterwards. I was hoping he would stay there but that was his decision. He stays and I can run second.
(b) I am trying to learn as much about my horse as I can because I am driving him in the Jewels and I wanted to be hitting the line as well as he could have. Parked, I felt was the option and when he, you know, I thought this was is a great option following him and that is what I did.
(c) I figured you would probably say something but like I probably wouldn’t have done it if it was any other horse but I wanted to give myself my best options too.
(d) I didn’t know if I was going to have to sit parked and you know, David he calls his own shots, I didn’t think he would hand up, I thought I would be behind him the whole way.
(e) They went quick round the bend but I backed off a bit more than I intended. I haven’t denied I let him out, it was an option I took, I think I took the right thing at the time.
(f) I told you why I did it, I felt it was my best option, I didn’t think I was good enough to sit parked and then again like you don’t know if they are going to come round, sometimes they do sometimes they don’t, I’m not God and I felt that that was the best option and I have done it and I have never denied it.
4.4 Ms Thomas reiterated that as far as Mr Butcher’s evidence was concerned that she would rely on the transcript of the Race Night Hearing.
Summary / Submissions for Informant
5.1 Mr George submitted again that the standard of proof is the balance of probabilities but he acknowledged that in this matter it needed to be applied to a higher level. Mr George further said that in this particular case he believed that based on the evidence presented by the Stipendiary Stewards there was sufficient evidence for the Committee to find the charge proven.
5.2 He further said that it was not necessary to prove any team driving tactics to constitute improper driving. It simply can be actions of a Driver during the course of event without any pre-race plan.
5.3 Mr George said that if one views the tactics adopted by Mr Butcher at the relevant stage of the race in question through the eyes of the public and/or the Stipendiary Stewards then the Committee would surely be asking itself: “What’s going on here” or “He just let the favourite out”.
5.4 Mr George submitted that when fields are drawn up for competition it is expected from all participants in the Industry including the betting fraternity and general public, that Drivers adopt tactics that would not and do not assist competitors in the race and especially the favourite.
5.5 Mr George said that the intent and deliberateness of Mr Butcher’s actions before all to see on the night in question has seen him negate his obligations under the Rules and as a result there is the charge of improper driving. He further submitted that the Stipendiary Stewards could not accept his actions as proper in this particular circumstance because it gave such a glaring advantage to other runners in the race and in particular Mr Butcher gifted the favourite an opportunity to secure a much better run in the race.
5.6 Mr George said that the concerns of the Stipendiary Stewards and the general public and the betting fraternity would certainly also be heightened due to the favourite being a stablemate.
5.7 Mr George also submitted that the following were relevant:
(i) The race lead time was about the average mark.
(ii) The favourite was in a very awkward position.
(iii) The favourite’s stablemate had the upper hand over it and was in a position to dictate its fate to a point.
(iv) Once in the envious position in comparison to the stablemate and favourite Mr Butcher intentionally gifted him with a better run and a better chance in the race.
(v) The actions of Mr Butcher aided the chances and opportunities of Cowgirls N Indians.
(vi) The proper tactics for Mr Butcher to have adopted would have been to keep Cowgirls N Indians hemmed away on the Running Line and dictated to and then look for other opportunities to obtain cover and a trail.
(vii) Mr Butcher’s actions in restraining his horse would have pleased the connections and punters of Cowgirls N Indians as he increased its chances immensely but in doing so in Mr George’s submission he decreased the chances of not only his own horse but every other runner in the race by letting the favourite out.
5.8 Mr George submitted that the charge was appropriate against Mr Butcher and would send a clear message to the Industry and the public that they can compete and bet with confidence as this type of driving would not be accepted as it is clearly outside the Rules of Harness Racing.
5.9 Mr George further submitted that a Driver of a parked horse has three options and those were, to sit parked, to let another horse come around and give cover or to let the inside horse out. He said that in this instance Mr Butcher only had two options and they were either to sit parked or to let another horse come around. He said that the favourite had no options at that stage of the race but that Mr Butcher gave it options and Mr Butcher’s actions were not appropriate nor were they proper.
5.10 Mr George submitted that the video evidence showed the intent of Mr Butcher’s actions.
5.11 Mr George submitted that the two other video films shown by Ms Thomas were not relevant.
5.12 Mr George finally submitted that two very experienced Harness Stipendiary Stewards were dealing with this matter and they were very concerned about Mr Butcher’s actions and that the charge arose after they interviewed Mr Butcher. Mr George said that Mr Butcher had left too many question marks over his tactics.
Summary / Submissions by Ms Thomas
6.1 Ms Thomas submitted that Mr Butcher intentionally went to look for a trail. Ms Thomas further submitted that this happens in just about every race that is run and that Drivers always try to find a trail unless they are in front and that they all know that the best position in the race is the one one.
This in her submission was all that Mr Butcher was doing.
6.2 Ms Thomas said that the Committee had been asked how Punters would view Mr Butcher’s actions but she submitted to the Committee that it should ask “What would someone with knowledge of driving think?” She submitted that endeavouring to achieve the one one position constituted good driving tactics.
6.3 Ms Thomas further submitted that her Client’s horse was not disadvantaged and that the only suggested disadvantage was letting the favourite out.
6.4 Mr Thomas further submitted that there was no suggestion of team driving here and she pointed to the fact that neither Mr DJ Butcher nor the Trainer Mr IT Small were interviewed by the Stipendiary Stewards on race night.
6.5 Ms Thomas then submitted that if there is no suggestion of team driving nor any suggestion of cheating then what is wrong with getting cover behind the favourite.
6.6 Ms Thomas submitted that the pressure on the Driver is immense in making split decisions during a race and she submitted that it is proper when driving a two year old filly in its third start to drive in the most economical fashion.
6.7 Ms Thomas further submitted that Mr Butcher acknowledged on race night that he had eased his horse to let the favourite out and that he did so because he knew it was the best horse and he wanted to get a trail behind it and had hoped that by doing so he would achieve the best possible placing. She submitted that his reasoning was normal.
6.8 Ms Thomas also submitted that many Drivers’ decisions during a race often do give a benefit to other Drivers but those actions do not constitute improper driving.
6.9 Ms Thomas further took issue with the suggestion that by his actions he intentionally advantaged the favourite. She said that this was quite wrong because the purpose of Mr Butcher’s actions were to benefit his own horse. The films in her view showed that.
6.10 Ms Thomas said that as there was no suggestion of cheating and certainly no evidence of that then it was perfectly normal for Mr Butcher to try to achieve cover.
6.11 Ms Thomas said that the charge had not been made out to the standard of proof required. She said that her Client had been brutally honest on race night and he was up front and acknowledged his actions.
6.12 Ms Thomas also submitted that if Mr Butcher might have achieved a better result if he had driven differently as suggested by the Stipendiary Stewards then because he took the action he did this was insufficient for a charge of improper driving. Ms Thomas submitted that the Informant must not only prove that t
sumissionsforpenalty:
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N/A refer above.
hearing_type: Non-race day
Rules: 869(3)(f)
Informant: Mr JM Muirhead - Stipendiary Steward
JockeysandTrainer:
Otherperson:
PersonPresent: Ms MJ Thomas - Counsel for Mr Butcher, Mr M Williamson - Registrar, Mr C George - For the Informant, Mr TW Taumanu - Stipendiary Steward
Respondent: Mr PA Butcher - Licensed Open Horseman
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