Non Raceday Inquiry HRNZ v WW Thomas 10 March 2011 – Decision
ID: JCA11367
Decision:
Charge:
Horseman W Thomas displayed a lack of vigour driving TITIAN SUN over the concluding stages, finishing in second place and therefore failed to take all reasonable and permissible measures at all times during the race to ensure that TITIAN SUN was given full opportunity to win the race (as amended).
Preliminary Matters:
Mr Thomas sought leave to have Mr K Smith represent him as a Lay Advocate. Mr Muirhead objected. After hearing argument the committee granted leave as sought. Mr Muirhead sought and was granted leave to amend the original information. There was no objection to this application.
Evidence:
Mr Muirhead said all drivers had a responsibility to drive competitively. He produced a copy of the Judge’s official placings for the race. It shows PERIGO won the race by a neck from TITIAN SUN with 4 lengths to the third horse. Mr Muirhead gave evidence of his observations of the race and his interpretation of the video films of the race (which were played several times) in particular the last 300metres. He said the race was for trotters over 2700metres from a standing start. TITIAN SUN started from the 10metre mark, began well and followed PERIGO around the field from the 1200metres. At the 850metre mark PERIGO reached the lead and TITIAN SUN was in the parked position. At about the 300metres PERIGO went clear of TITIAN SUN by about 3 lengths and Mr Thomas then pulled the removable hood on TITIAN SUN which was trotting boldly and fluently about 3 – 4 lengths clear of the next horse. Mr Muirhead said Mr Thomas looked behind prior to the 200metres, again at the 150metres and again at the 100metres. He said Mr Thomas showed no discernable vigour to chase PERIGO from the 300metres to the 50metres. In the last 50metres Mr Thomas slapped TITIAN SUN with the left rein on 6 occasions. He said Mr Thomas appeared content to hold second place. He said PERIGO which was about one and a half lengths clear of TITIAN SUN with 50metres to run began to tire and TITIAN SUN closed to within a neck at the winning post which showed it had not expended its energy reserves. He said Mr Thomas did not turn his whip, by a lack of vigour failed to competitively contest to win the race, did too little too late and his standard of driving was well below the standard required to maintain public confidence in the sport.
In cross examination Mr Muirhead agreed the final sectionals for the race were good. He confirmed to the committee that if a driver carried a whip he was expected to use it to encourage his horse over the concluding stages of the race.
Mr Thomas gave evidence. He produced a document showing details of the racing record of TITIAN SUN in the last 12 months. He said TITIAN SUN broke in its previous start on the 20th January 2011, was stood down for 14 days and was liable to a 28 day stand down if it broke during this race. Mr Thomas confirmed the evidence of Mr Muirhead regarding the race up to the 300metre mark. He said he then pulled the earplugs but did not use the whip because the horse normally gallops at about that stage. He said he “sat and sat, had a decent hold, didn’t want the horse to gallop”. He said he looked around twice and at the 50metres TITIAN SUN was trotting “real good”. He said he then used the reins because if TITIAN SUN had galloped less than 50metres he would have still held second place.
In cross examination Mr Thomas agreed TITIAN SUN had trotted well. He agreed he had said when interviewed after the race that his drive “didn’t look crash hot”. In response to questions regarding actions he could / should have taken, the general response of Mr Thomas was that he was worried that TITIAN SUN would gallop. In particular Mr Thomas said TITIAN SUN always broke if the whip was used on it. He agreed with Mr Muirhead that he had used the whip on the horse in its previous start.
In reexamination Mr Thomas said in hindsight he should not have carried a whip. He said TITIAN SUN had broken in all of its last 10 starts. To the committee Mr Thomas said he did not know what the impact on the result of the race would have been if he had used the reins for the last 100metres of the race. He said he was not aware of the alternatives to whip use set out in the “whip guidelines” issued on the 1st June 2009 namely (a) running the reins over the horse’s rump (b) touching or holding the whip on the top of the horse’s tail or rump (c) running the whip through the horse’s tail. Mr Thomas said he had been driving for 38 – 40 years and was aware that ways of getting the best out of a horse included yelling at them, “clicking them along” and hitting with the reins. He said he could not remember if he had used the reins previously on TITIAN SUN – the horse was nervy – in hindsight he should have used the reins and not the whip.
In summing up Mr Muirhead said Mr Thomas could and should have shown more vigour by driving with the reins from the 300metres onwards could and should have used his whip over the concluding stages and if he had carried out these actions TITIAN SUN would probably have won the race. He said TITIAN SUN had trotted beautifully – it therefore could have been driven vigourously – it responded well to being slapped with one rein in the last 50metres which showed it had not expended its energy reserves. He submitted Mr Thomas had clearly breached rule 868(2).
Mr Smith said TITIAN SUN had trotted well because the whip was not used. He referred to the good final sectional times and said that if Mr Thomas had “given the horse its head” it may have broken. He referred to TITIAN SUN being a multiple breaker having broken in its last 10 starts.
Reasons for Decision:
After adjourning to consider the evidence we gave brief reasons for our decision. What follows is our reasons in full. Rule 868(2) states that a horseman SHALL take all reasonable and permissible measures …to ensure his horse is given full opportunity to win the race. It is well established that the test is an objective one and an alleged breach of the rules is to be considered by objective standards and not by the subjective views of the driver. The rule requires a demonstration of tactics which can by objective standards be said to show that a horse was driven out to the end of the race. The Appeal Tribunal in the case of “G” when dealing with a charge under 868(3) said “we find that the obligation that arises under this rule requires at least some action by the driver to urge his horse on; that is, some demonstrable or discernible movement by the driver so that the driver can be seen to be “driving his horse out”. The film clearly shows that Mr Thomas did nothing in the home straight to urge his horse on until the last 50metres and then there was only six gentle slaps with one rein. There was no evidence of any attempt by Mr Thomas to chase PERIGO. It appears to us that Mr Thomas was content to hold second place. There was a complete lack of vigour. The sectional times were good but the horse achieved those times without any assistance from Mr Thomas. It appears to us that Mr Thomas was solely concerned with ensuring TITIAN SUN trotted properly to the finish of the race. The rule requires that if there is a chance of winning the race the driver must take all reasonable and permissible measures to do so. We accept the evidence of Mr Muirhead that Mr Thomas should have shown more vigour, should have used the reins much earlier than he did and should have used the whip at least over the final stages of the race. Likewise we believe Mr Thomas could have used the alternative actions described in the “whip guidelines”. In our opinion the actions referred to by Mr Muirhead and the actions in the “whip guidelines” are “reasonable and permissible measures”.
Decision:
For the above reasons we find the charge proven. Mr Thomas has made a serious error of judgment.
Submissions on Penalty:
Mr Muirhead said rule 1003(1) set out the penalties for a breach of rule 868(2) – a fine not exceeding $5000 and / or suspension of a horseman’s licence for a period not exceeding 12 months. He said the recommended starting point was a fine of $500 and / or a one month suspension. He said Mr Thomas had not previously breached this rule and had not breached any rule since 2007. He said Mr Thomas has only had three drives this season and only had eleven drives for the whole of last season. He referred us to rule 1114(2)(c) and (d) – namely the consequential effects upon any person or horse (the other part owners and the punters) and the need to maintain integrity and public confidence in Harness Racing. He said the driving of Mr Thomas may have affected the outcome of the race and would have been perceived as doing so. He said the offending was mid range on the scale of seriousness. He said Mr Thomas was obviously not reliant on driving as a source of income. He referred us to penalties imposed in other cases for a breach of this rule and in three of those cases provided the number of drives per season on the defendant. He emphasized the need for drivers to drive competitively so as to maintain public confidence in Harness Racing. He submitted that a period of six months suspension and a fine of $500 should be imposed.
Mr Thomas provided details of his personal circumstances. He much preferred a suspension rather than a fine. Mr Smith urged us to take account of the racing manners of TITIAN SUN and said that in future drivers of the horse would not carry a whip. He submitted that the case of “F” referred to by Mr Muirhead was the closest fit to this case on the basis of drives per season. In that case “F” had sixteen drives per season and was suspended for four months without any fine being imposed. Mr Smith urged us to take particular account of the personal circumstances of Mr Thomas.
Reasons::
In fixing penalty the committee takes into account the submissions of Mr Muirhead, Mr Thomas and Mr Smith. We also take into account the clear driving record of Mr Thomas, the infrequency with which he drives, his personal circumstances, the recommended starting point, penalties imposed in other cases (in particular the case of “F”), the provisions of rule 1114(2)(c) and (d) and our view that this is a relatively serious breach of the rule, certainly above mid range.
Penalty:
Balancing the above matters but with emphasis on the infrequency with which Mr Thomas drives, his personal circumstances and the relative seriousness of the breach, we suspend Mr Thomas’s horsemans licence for six months commencing on 10th March 2011 and concluding on 10th September 2011. We also impose a fine of $250. Mr Muirhead did not seek costs. We have considered an order for costs to the JCA but because of the personal circumstances of Mr Thomas we have decided against making any such order.
B Rowe J Holloway
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 14/04/2011
Publish Date: 14/04/2011
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: 1da3934052e46dba2b1c53bfb3e56341
informantnumber: 68942
horsename:
hearing_racingtype:
startdate: no date provided
newcharge:
plea:
penaltyrequired:
decisiondate: 14/04/2011
hearing_title: Non Raceday Inquiry HRNZ v WW Thomas 10 March 2011 - Decision
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal: Appeal
submissionsfordecision:
reasonsfordecision:
Decision:
Charge:
Horseman W Thomas displayed a lack of vigour driving TITIAN SUN over the concluding stages, finishing in second place and therefore failed to take all reasonable and permissible measures at all times during the race to ensure that TITIAN SUN was given full opportunity to win the race (as amended).
Preliminary Matters:
Mr Thomas sought leave to have Mr K Smith represent him as a Lay Advocate. Mr Muirhead objected. After hearing argument the committee granted leave as sought. Mr Muirhead sought and was granted leave to amend the original information. There was no objection to this application.
Evidence:
Mr Muirhead said all drivers had a responsibility to drive competitively. He produced a copy of the Judge’s official placings for the race. It shows PERIGO won the race by a neck from TITIAN SUN with 4 lengths to the third horse. Mr Muirhead gave evidence of his observations of the race and his interpretation of the video films of the race (which were played several times) in particular the last 300metres. He said the race was for trotters over 2700metres from a standing start. TITIAN SUN started from the 10metre mark, began well and followed PERIGO around the field from the 1200metres. At the 850metre mark PERIGO reached the lead and TITIAN SUN was in the parked position. At about the 300metres PERIGO went clear of TITIAN SUN by about 3 lengths and Mr Thomas then pulled the removable hood on TITIAN SUN which was trotting boldly and fluently about 3 – 4 lengths clear of the next horse. Mr Muirhead said Mr Thomas looked behind prior to the 200metres, again at the 150metres and again at the 100metres. He said Mr Thomas showed no discernable vigour to chase PERIGO from the 300metres to the 50metres. In the last 50metres Mr Thomas slapped TITIAN SUN with the left rein on 6 occasions. He said Mr Thomas appeared content to hold second place. He said PERIGO which was about one and a half lengths clear of TITIAN SUN with 50metres to run began to tire and TITIAN SUN closed to within a neck at the winning post which showed it had not expended its energy reserves. He said Mr Thomas did not turn his whip, by a lack of vigour failed to competitively contest to win the race, did too little too late and his standard of driving was well below the standard required to maintain public confidence in the sport.
In cross examination Mr Muirhead agreed the final sectionals for the race were good. He confirmed to the committee that if a driver carried a whip he was expected to use it to encourage his horse over the concluding stages of the race.
Mr Thomas gave evidence. He produced a document showing details of the racing record of TITIAN SUN in the last 12 months. He said TITIAN SUN broke in its previous start on the 20th January 2011, was stood down for 14 days and was liable to a 28 day stand down if it broke during this race. Mr Thomas confirmed the evidence of Mr Muirhead regarding the race up to the 300metre mark. He said he then pulled the earplugs but did not use the whip because the horse normally gallops at about that stage. He said he “sat and sat, had a decent hold, didn’t want the horse to gallop”. He said he looked around twice and at the 50metres TITIAN SUN was trotting “real good”. He said he then used the reins because if TITIAN SUN had galloped less than 50metres he would have still held second place.
In cross examination Mr Thomas agreed TITIAN SUN had trotted well. He agreed he had said when interviewed after the race that his drive “didn’t look crash hot”. In response to questions regarding actions he could / should have taken, the general response of Mr Thomas was that he was worried that TITIAN SUN would gallop. In particular Mr Thomas said TITIAN SUN always broke if the whip was used on it. He agreed with Mr Muirhead that he had used the whip on the horse in its previous start.
In reexamination Mr Thomas said in hindsight he should not have carried a whip. He said TITIAN SUN had broken in all of its last 10 starts. To the committee Mr Thomas said he did not know what the impact on the result of the race would have been if he had used the reins for the last 100metres of the race. He said he was not aware of the alternatives to whip use set out in the “whip guidelines” issued on the 1st June 2009 namely (a) running the reins over the horse’s rump (b) touching or holding the whip on the top of the horse’s tail or rump (c) running the whip through the horse’s tail. Mr Thomas said he had been driving for 38 – 40 years and was aware that ways of getting the best out of a horse included yelling at them, “clicking them along” and hitting with the reins. He said he could not remember if he had used the reins previously on TITIAN SUN – the horse was nervy – in hindsight he should have used the reins and not the whip.
In summing up Mr Muirhead said Mr Thomas could and should have shown more vigour by driving with the reins from the 300metres onwards could and should have used his whip over the concluding stages and if he had carried out these actions TITIAN SUN would probably have won the race. He said TITIAN SUN had trotted beautifully – it therefore could have been driven vigourously – it responded well to being slapped with one rein in the last 50metres which showed it had not expended its energy reserves. He submitted Mr Thomas had clearly breached rule 868(2).
Mr Smith said TITIAN SUN had trotted well because the whip was not used. He referred to the good final sectional times and said that if Mr Thomas had “given the horse its head” it may have broken. He referred to TITIAN SUN being a multiple breaker having broken in its last 10 starts.
Reasons for Decision:
After adjourning to consider the evidence we gave brief reasons for our decision. What follows is our reasons in full. Rule 868(2) states that a horseman SHALL take all reasonable and permissible measures …to ensure his horse is given full opportunity to win the race. It is well established that the test is an objective one and an alleged breach of the rules is to be considered by objective standards and not by the subjective views of the driver. The rule requires a demonstration of tactics which can by objective standards be said to show that a horse was driven out to the end of the race. The Appeal Tribunal in the case of “G” when dealing with a charge under 868(3) said “we find that the obligation that arises under this rule requires at least some action by the driver to urge his horse on; that is, some demonstrable or discernible movement by the driver so that the driver can be seen to be “driving his horse out”. The film clearly shows that Mr Thomas did nothing in the home straight to urge his horse on until the last 50metres and then there was only six gentle slaps with one rein. There was no evidence of any attempt by Mr Thomas to chase PERIGO. It appears to us that Mr Thomas was content to hold second place. There was a complete lack of vigour. The sectional times were good but the horse achieved those times without any assistance from Mr Thomas. It appears to us that Mr Thomas was solely concerned with ensuring TITIAN SUN trotted properly to the finish of the race. The rule requires that if there is a chance of winning the race the driver must take all reasonable and permissible measures to do so. We accept the evidence of Mr Muirhead that Mr Thomas should have shown more vigour, should have used the reins much earlier than he did and should have used the whip at least over the final stages of the race. Likewise we believe Mr Thomas could have used the alternative actions described in the “whip guidelines”. In our opinion the actions referred to by Mr Muirhead and the actions in the “whip guidelines” are “reasonable and permissible measures”.
Decision:
For the above reasons we find the charge proven. Mr Thomas has made a serious error of judgment.
Submissions on Penalty:
Mr Muirhead said rule 1003(1) set out the penalties for a breach of rule 868(2) – a fine not exceeding $5000 and / or suspension of a horseman’s licence for a period not exceeding 12 months. He said the recommended starting point was a fine of $500 and / or a one month suspension. He said Mr Thomas had not previously breached this rule and had not breached any rule since 2007. He said Mr Thomas has only had three drives this season and only had eleven drives for the whole of last season. He referred us to rule 1114(2)(c) and (d) – namely the consequential effects upon any person or horse (the other part owners and the punters) and the need to maintain integrity and public confidence in Harness Racing. He said the driving of Mr Thomas may have affected the outcome of the race and would have been perceived as doing so. He said the offending was mid range on the scale of seriousness. He said Mr Thomas was obviously not reliant on driving as a source of income. He referred us to penalties imposed in other cases for a breach of this rule and in three of those cases provided the number of drives per season on the defendant. He emphasized the need for drivers to drive competitively so as to maintain public confidence in Harness Racing. He submitted that a period of six months suspension and a fine of $500 should be imposed.
Mr Thomas provided details of his personal circumstances. He much preferred a suspension rather than a fine. Mr Smith urged us to take account of the racing manners of TITIAN SUN and said that in future drivers of the horse would not carry a whip. He submitted that the case of “F” referred to by Mr Muirhead was the closest fit to this case on the basis of drives per season. In that case “F” had sixteen drives per season and was suspended for four months without any fine being imposed. Mr Smith urged us to take particular account of the personal circumstances of Mr Thomas.
Reasons::
In fixing penalty the committee takes into account the submissions of Mr Muirhead, Mr Thomas and Mr Smith. We also take into account the clear driving record of Mr Thomas, the infrequency with which he drives, his personal circumstances, the recommended starting point, penalties imposed in other cases (in particular the case of “F”), the provisions of rule 1114(2)(c) and (d) and our view that this is a relatively serious breach of the rule, certainly above mid range.
sumissionsforpenalty:
reasonsforpenalty:
penalty:
Balancing the above matters but with emphasis on the infrequency with which Mr Thomas drives, his personal circumstances and the relative seriousness of the breach, we suspend Mr Thomas’s horsemans licence for six months commencing on 10th March 2011 and concluding on 10th September 2011. We also impose a fine of $250. Mr Muirhead did not seek costs. We have considered an order for costs to the JCA but because of the personal circumstances of Mr Thomas we have decided against making any such order.
B Rowe J Holloway
Chairman Committee Member
hearing_type: Non-race day
Rules: 868(2)
Informant: Mr J Muirhead - Stipendiary Steward HRNZ
JockeysandTrainer:
Otherperson:
PersonPresent: Mr K Smith - Licensed Trainer - Lay Advocate for Mr Thomas, Mr Branch - Registrar
Respondent: Mr WW Thomas - Trainer and Driver TITIAN SUN
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