Non Raceday Inquiry – L Chin

ID: JCA21615

Hearing Type:
Old Hearing

Rules:
869.3.a, 869.3.g

Hearing Type (Code):
thoroughbred-racing

Decision: --

IN THE MATTER OF the New Zealand Rules of Harness Racing

BETWEEN TW Taumanu - Informant

AND LS Chin - Defendant

Date of Hearing: Thursday 18 May 2006

Venue: Cambridge Raceway, CAMBRIDGE

Judicial Committee: EF Doherty (Chairman) and

BJ Rowe

Present: MW Vickerman, Counsel for Informant

TW Taumanu, Informant

MD Branch, Counsel for Defendant

LS Chin, Defendant

CJ Butler, Witness for Defendant

M Stanbury, Registrar

______________________________________________________________

DECISION OF JUDICIAL COMMITTEE

______________________________________________________________

Information number 64847 originally presented by Stipendiary Steward T W Taumanu at the Cambridge-Te Awamutu Harness Racing Club's meeting on Thursday 6^th April 2006 alleged a breach of Rule 869 (3) (a) in Race 10 in that the Defendant, Dr L S Chin, drove MURANJI incompetently by the manner in which he drove this horse over the first 1,000 metres of the race. Namely, starting from an incorrect barrier position, improving the horse unnecessarily wide around the field to reach the parked position and despite losing approximately 50 metres in the run up the effort told with MURANJI finishing a distant last. The breach was not admitted and, because it was described as a serious offence, an adjournment was granted for the defendant to seek advice before proceeding at a later date.

In the meantime a further Information number 65411 has been filed and served on the Defendant alleging a breach of Rule 869 (3) (g) in Race 10 in that he drove MURANJI in a manner capable of diminishing the chances of his horse winning after MURANJI started from a barrier position wider than the draw, then improved round the field wider on the track than necessary, improved to a challenging position despite losing at least 50 metres prior to the start in the run up. This breach was also not admitted and Counsel for the Informant confirmed that it was presented as an alternative to the first alleged breach and would therefore apply only if the original information was unsuccessful.

In opening Mr Vickerman submitted that in essence the informant's case was that the defendant, who was acknowledged as an experienced driver, and the breeder, owner and trainer, drove MURANJI (which has a history of waywardness and was marked U1 in the programme) incompetently or in a manner capable of diminishing the chances of his horse winning. "Incompetent" (which is not defined in the rules) meant "not sufficiently skilful to do something successfully" according to the Concise Oxford Dictionary (10^th edition), he said, and referred to the Lawson case (Ashburton RC 17/3/2005) where the Tribunal said that it had to be "satisfied that the defendant did not use or demonstrate the skills that would be expected of a senior rider (sic) having regard to the experience that she had." And concluded that "Whilst a jockey must make some subjective assessment about a horse's strengths and abilities, at the same time the jockey also has a duty to do his or her best for the connections and the betting public. Ms Lawson did not discharge that duty." In considering penalty the Committee said, "What we have here is a serious error of judgment amounting to incompetence on the part of a senior jockey."

Mr Vickerman went on to say that the assessment of incompetence was objective having regard to all the circumstances: the status of the race and the experience of the driver being perhaps the most important. Rule 869(3)(a) did not require every horseman to demonstrate the abilities of the very best but it did require every horseman to drive competently. Rule 869(3)(g) did not demand that the driver made the best decision, but it prohibited him from making bad decisions. Once a horse was entered into a race there was an implicit representation to the public that the horse could and would be skilfully driven with all due emphasis.

The charges, he said, were race specific as the Rule made plain. The Informant did not say and did not need to show that the Defendant was an incompetent driver. The Informant says that the Defendant's driving on this occasion was incompetent and if not the tactics employed by the Defendant diminished the horse's chances of winning.

Mr Taumanu described his viewing of the race and demonstrated it on the video. His evidence may be summarised as follows. MURANJI was on the "Unruly" list and was therefore drawn to start from the outer position of the second row in Race 10. It broke early in the run up losing 50-60 metres and had to be used up to get up on the mobile barrier where it started from position 7 on the second row instead of position 5 to which it was entitled. At the start it was pacing fine and Dr Chin elected to keep it exceptionally wide for 500-600 metres around the first bend and into and down the back straight continuing from that wide position to improve to go to the parked out position to be vying for the lead. With a thousand metres to run it was slapped up to keep up until at the 600metre mark it started to drift back to finish a long distant last.

He went on to say that during the running of the race he became concerned at the driving tactics especially noticing at first the very wide position being maintained and improving rapidly so early in the race to reach the parked position after covering extra ground to do so when he would have preferred to see MURANJI tagged on to the back of the field and given a breather there before improving later in the race. To improve early in the race as he had seen was, he believed, a very poor bad drive on the part of the Defendant and prevented his horse from being competitive.

In cross-examination Mr Taumanu confirmed he was familiar with the racing history of the horse from the records and had seen it race on most occasions except when on leave or otherwise absent. He did not accept it was field shy. He accepted it was only the second time it had been driven by Dr Chin and on the first occasion he had been warned for its racing manners. In 15 starts, he agreed, it had been reported 11 times and stood down 3 times for breaking at the start or during the running. He confirmed that he had declined a request for MURANJI to be taken off the unruly list because it needed 3 starts without breaking for this to be allowed.

He confirmed it was not a breach of the rules for MURANJI, as an unruly horse, to start wider at barrier 7 instead of at 5 and that it could be a practice to keep unruly horses away from other horses in the early part of a race. However, in such circumstances he would have brought the driver back to discuss his actions. He did not know if MURANJI pulled or over raced but agreed it was more likely to do that if closer to other horses. He was not aware of what had happened previously when attempts to restrain had been made but there was no need to do so on this occasion; he could have just "mooched up" to get closer and been 3 wide rather than staying out wide on the bend. In all it was over 500-600 metres that was of concern when travelling wide and he accepted that had the horse finished fifth or better Dr Chin would not have been charged. He agreed that Dr Chin had got the horse to pace all the way in this race after the start. He also agreed that MURANJI was up behind the barrier about 70 metres before the start.

Dr Chin confirmed he was a part owner with Colin Butler and they had bred the horse. He was currently the trainer having taken over from Mr Butler. Early in its career the horse was involved in a nasty fall suffering cuts and causing injury to Mr Butler's son who had been driving at the time but had now given up driving. Although MURANJI had qualified for racing it seemed to him to be field shy but at workouts when raced from the front it had been able to win easily. At other times when trailing or under restraint behind other horses it tended to break as the racing records showed.

After discussing this with Colin Butler it was agreed that Dr Chin would commence training MURANJI to see what he could do. He found no problems with the horse at home but it still broke when around other horses although once settled and pacing went keenly and showed speed. He had discussed the problem further with Colin Butler and David Butcher who had secured a second placing when driving it earlier and they decided he would try keeping it wide away from the other horses and see if it would settle and keep pacing and go to the parked out position. They believed this was better for the horse than risking it breaking and losing all chance early in the race even though on this occasion it had subsequently stopped and finished last. At least it had paced throughout and since then had twice been to workouts starting from the front row and won and did not break at its next race although it compounded again. He believed it was improving as a result and his tactics had been in the best interests of the horse and indeed for the betting public.

When cross-examined he agreed it was a planned drive after discussion with Colin Butler and David Butcher. He had not expected the horse to stop as it did but did not think it was caused by the way he had driven. The horse had shown ability and possibly needed a race or two to harden up. The only extra ground covered had been when five wide for one bend just after the start. It had not been used up to catch the field before the start, as there was no pace on. Had it not been kept wide at the start it would have broken and then all chance would have been lost at that point.

Mr Vickerman suggested that the plan had been untested prior to the race and Dr Chin said he had tried it at home but not at the workouts. He did not agree that the horse was exhausted when passed in the straight or spent by the way he had driven. He had not expected it to finish like that but it had not taken much to catch up at the start and was only five wide for one bend. It breaks when not settled at the start and loses all chance then, he said. When asked if he was experimenting and whether race night was the place to sort it out he said there was nothing better than race conditions. MURANJI had been to workouts and was qualified. He added that drivers don?t drive every race the same and he had frequently seen other horses taken wide early, worked hard to get to the parked out position and fade.

Colin Butler gave evidence as follows. He had driven over 600 winners, trained over 350 winners and driven in 10-12,000 races. He and Dr Chin had bred MURANJI and he had trained it since it had been broken in. At the first workout it was brought down and had been a problem ever since. It is field shy but if on the front or in the open it is okay. David Butcher had got the horse to pace properly once in five drives for one second placing. Getting it to the front is the problem and they decided to give it to Dr Chin because he could train it and drive it to get to know its idiosyncrasies, as Mr Butler was no longer driving. He reviewed the video of the race and said on the whole it was a good drive, the horse did everything right and it appeared Dr Chin was making progress with it. Mr Butler said as a part owner he was pleased with the drive. He had suggested to Dr Chin that he keep it clear with a view to getting it off the unruly list.

Before the race the ground made up had no adverse effect; the horse was not going at speed and therefore it took nothing out of it. There were various reasons for the horse tiring apart from the driving tactics and the extra ground covered. It was a mare and could have been in season or might have had a touch of colic and no one would know. He confirmed the ability shown by it winning twice since at the workouts from the front row and blamed the fall for the continuing problems and the fact that it remained on the unruly list.

Mr Branch submitted that the evidence of Dr Chin and Mr Butler established that MURANJI had been fully tested during the race to do the best it could. Because of its tendency to break at the start in previous races the Defendant and Mr Butler had adopted driving tactics to keep it pacing by racing wider and while that objective had been achieved the horse had not obliged with a good performance. Nevertheless in making the trade off it could be argued they had increased its chance of winning by pacing throughout (rather than galloping) even though covering extra ground to do so.

He suggested the onus of proof on the informant was necessarily higher because these were serious offences and in testing for incompetence there should be regard to the standard in a criminal law context. He suggested the Concise Oxford definition was not adequate and it had to be made clear to the Defendant so he could identify the elements of the charge on which the Informant relied.

It seemed that the facts relied on by the Informant here were:

Starting from the incorrect position;

Losing ground in the run up;

Finishing a long last; and

Travelling wider than necessary.

On the other hand the defendant had shown in respect of the charge of incompetent driving that there was a plan employed to overcome MURANJI?S tendency to break, which had achieved its objective, even though the horse did not oblige with a good performance.

In looking at the alternative charge the horse had consistently broken in previous starts and an outcome had been achieved which avoided that and must have increased its chances of winning much more than any extra ground covered reduced those chances. Looking at this matter with hindsight must be avoided.

Summing up for the Informant Mr Vickerman asked the Committee to consider the following:

The elements of each charge upon which the Informant relied were set out in each information as follows:

For driving incompetently over the first 1,000 metres of the race:

starting from an incorrect barrier position;

improving the horse unnecessarily wide around the field to reach the parked position;

losing approximately 50 metres in the run up.

For driving in a manner capable of diminishing its chances of winning:

starting from a barrier position wider than the draw;

improving round the field wider on the track than necessary;

improving to a challenging position despite losing at least 50 metres prior to the start in the run up;

The onus of proof is discussed in the Judicial Control Authority Guide for Judicial Committees (the Green Book) and states that it is not necessary to prove the breach was intentional. The standard is on the balance of probabilities in harness racing.

Incompetent is part of a hierarchy of charges and is not necessarily the most serious because of its position on the list. It also does not mean that the defendant is or might be incompetent it applies just to his actions performed in this race. The word means just what it says and the ordinary dictionary definition should apply.

The Committee must look at the totality of the driving and determine whether the cumulative effect is sufficient to establish the charge. The Defendant seeks to justify his actions by referring to a trade off by covering a little extra ground. He should have announced his intention to do this to the stewards beforehand but did not do so.

While he may say he had an honest motive and the best of intentions now, in fact he could only deal with the matter by departing from orthodox driving tactics. The workouts are the place for this not during a race.

Alternatively any objective assessment of the defendant's driving actions must show that it diminished the chances of his horse winning.

Having considered all of the evidence and submissions and viewed the video film of the race the Committee is satisfied that the following has been established.

MURANJI has an extensive history of waywardness being on the unruly list and most likely attributable to a fall in its first trial outing.

The Defendant is an experienced driver, breeder, owner and trainer having been driving for over twenty years, with 888 lifetime starts, including 64 winning drives, almost 200 placings and Stakes of $451,528 in that time according to Harness Racing records.

MURANJI was drawn to start from 5 on the second row of the mobile barrier in Race 10. It broke early in the run up losing 50-60 metres and, according to Mr Taumanu, had to be used up to get up on the mobile barrier where it started from position 7 on the second row instead of position 5. Dr Chin said it had not been used up to catch the field as there was no pace on and Mr Butler confirmed this. He said it was not going at speed and therefore took nothing out of it. There was no dispute that it started from position 7 but it was argued that it was not a breach of the rules for it to do so.

At the start, Mr Taumanu stated, it was pacing fine but Dr Chin elected to keep it exceptionally wide for 5-600 metres around the first bend and into and down the back straight continuing from that wide position to improve to go to the parked out position to be vying for the lead. Dr Chin agreed he was wider than usual but explained it was part of a tactic to keep it from breaking and argued that it was only wide and hence using further ground for the length of the first bend. Mr Butler who said it had been devised after consultation with David Butcher confirmed the driving strategy.

Mr Taumanu said he was concerned during the race that a run to the parked position had been maintained from so early in the race and he would have preferred to see MURANJI tagged on to the back of the field and given a breather there before improving later in the race. Dr Chin and Mr Butler explained why that course had not been adopted. They believed its record showed it was likely to break and lose all chance if raced this way and expressed satisfaction at having succeeded in getting it to pace throughout even though it subsequently finished a long last.

The issue, which arises from the above, is whether the defendant was either incompetent in employing these driving tactics or by doing so drove in a manner, which diminished the chances of his horse winning. The Committee is satisfied that the ordinary dictionary definition applies as submitted by Mr Vickerman and that the totality of the drive must be looked at to determine the matter.

In deciding the above issue the Informant must satisfy the Committee on the balance of probabilities that any charge has been proved in accordance with Rule 1008A.

The adoption of driving tactics, which are not orthodox, is not of itself evidence of an incompetent act or one, which diminishes the chances, and the Committee rejects Mr Vickerman's submission that these must or should be confined to workouts.

Given the history of MURANJI the Committee is satisfied the driving tactics employed by the Defendant, while unusual, were not unreasonable in the circumstances. They were carried out with an appropriate degree of competence and skill and taking all matters into account did not thereby diminish the chances of winning.

Therefore the Committee finds that the Informant has not discharged the burden of proof on the balance of probabilities as required and both charges are dismissed.

In making this finding the Committee has no criticism of Mr Taumanu for bringing the charges. At face value the drive did at first sight appear to be a poor one and it was appropriate for it to be questioned. Mr Taumanu was not notified beforehand of the tactics to be employed and while it may not be necessary for this to be done it certainly would have avoided the situation, which arose indicating as it did a possible serious offence.

In dismissing the informations the Committee reserves the right for the parties to make submissions on the issue of costs and if they wish to do so a period of three weeks from 26 May 2006 is allowed for these to be lodged with the registrar.

Dated at Auckland the 26^th day of May 2006.

E F Doherty ----------- B J Rowe

Decision Date: 01/01/2001

Publish Date: 01/01/2001

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.

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

newcharge:

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penaltyrequired:

decisiondate: no date provided

hearing_title: Non Raceday Inquiry - L Chin

charge:

facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

IN THE MATTER OF the New Zealand Rules of Harness Racing

BETWEEN TW Taumanu - Informant

AND LS Chin - Defendant

Date of Hearing: Thursday 18 May 2006

Venue: Cambridge Raceway, CAMBRIDGE

Judicial Committee: EF Doherty (Chairman) and

BJ Rowe

Present: MW Vickerman, Counsel for Informant

TW Taumanu, Informant

MD Branch, Counsel for Defendant

LS Chin, Defendant

CJ Butler, Witness for Defendant

M Stanbury, Registrar

______________________________________________________________

DECISION OF JUDICIAL COMMITTEE

______________________________________________________________

It seemed that the facts relied on by the Informant here were:

Starting from the incorrect position;

Losing ground in the run up;

Finishing a long last; and

Travelling wider than necessary.

Summing up for the Informant Mr Vickerman asked the Committee to consider the following:

The elements of each charge upon which the Informant relied were set out in each information as follows:

For driving incompetently over the first 1,000 metres of the race:

starting from an incorrect barrier position;

improving the horse unnecessarily wide around the field to reach the parked position;

losing approximately 50 metres in the run up.

For driving in a manner capable of diminishing its chances of winning:

starting from a barrier position wider than the draw;

improving round the field wider on the track than necessary;

improving to a challenging position despite losing at least 50 metres prior to the start in the run up;

The onus of proof is discussed in the Judicial Control Authority Guide for Judicial Committees (the Green Book) and states that it is not necessary to prove the breach was intentional. The standard is on the balance of probabilities in harness racing.

Incompetent is part of a hierarchy of charges and is not necessarily the most serious because of its position on the list. It also does not mean that the defendant is or might be incompetent it applies just to his actions performed in this race. The word means just what it says and the ordinary dictionary definition should apply.

The Committee must look at the totality of the driving and determine whether the cumulative effect is sufficient to establish the charge. The Defendant seeks to justify his actions by referring to a trade off by covering a little extra ground. He should have announced his intention to do this to the stewards beforehand but did not do so.

While he may say he had an honest motive and the best of intentions now, in fact he could only deal with the matter by departing from orthodox driving tactics. The workouts are the place for this not during a race.

Alternatively any objective assessment of the defendant's driving actions must show that it diminished the chances of his horse winning.

Having considered all of the evidence and submissions and viewed the video film of the race the Committee is satisfied that the following has been established.

MURANJI has an extensive history of waywardness being on the unruly list and most likely attributable to a fall in its first trial outing.

The Defendant is an experienced driver, breeder, owner and trainer having been driving for over twenty years, with 888 lifetime starts, including 64 winning drives, almost 200 placings and Stakes of $451,528 in that time according to Harness Racing records.

MURANJI was drawn to start from 5 on the second row of the mobile barrier in Race 10. It broke early in the run up losing 50-60 metres and, according to Mr Taumanu, had to be used up to get up on the mobile barrier where it started from position 7 on the second row instead of position 5. Dr Chin said it had not been used up to catch the field as there was no pace on and Mr Butler confirmed this. He said it was not going at speed and therefore took nothing out of it. There was no dispute that it started from position 7 but it was argued that it was not a breach of the rules for it to do so.

At the start, Mr Taumanu stated, it was pacing fine but Dr Chin elected to keep it exceptionally wide for 5-600 metres around the first bend and into and down the back straight continuing from that wide position to improve to go to the parked out position to be vying for the lead. Dr Chin agreed he was wider than usual but explained it was part of a tactic to keep it from breaking and argued that it was only wide and hence using further ground for the length of the first bend. Mr Butler who said it had been devised after consultation with David Butcher confirmed the driving strategy.

Mr Taumanu said he was concerned during the race that a run to the parked position had been maintained from so early in the race and he would have preferred to see MURANJI tagged on to the back of the field and given a breather there before improving later in the race. Dr Chin and Mr Butler explained why that course had not been adopted. They believed its record showed it was likely to break and lose all chance if raced this way and expressed satisfaction at having succeeded in getting it to pace throughout even though it subsequently finished a long last.

The issue, which arises from the above, is whether the defendant was either incompetent in employing these driving tactics or by doing so drove in a manner, which diminished the chances of his horse winning. The Committee is satisfied that the ordinary dictionary definition applies as submitted by Mr Vickerman and that the totality of the drive must be looked at to determine the matter.

In deciding the above issue the Informant must satisfy the Committee on the balance of probabilities that any charge has been proved in accordance with Rule 1008A.

The adoption of driving tactics, which are not orthodox, is not of itself evidence of an incompetent act or one, which diminishes the chances, and the Committee rejects Mr Vickerman's submission that these must or should be confined to workouts.

Given the history of MURANJI the Committee is satisfied the driving tactics employed by the Defendant, while unusual, were not unreasonable in the circumstances. They were carried out with an appropriate degree of competence and skill and taking all matters into account did not thereby diminish the chances of winning.

Therefore the Committee finds that the Informant has not discharged the burden of proof on the balance of probabilities as required and both charges are dismissed.

In making this finding the Committee has no criticism of Mr Taumanu for bringing the charges. At face value the drive did at first sight appear to be a poor one and it was appropriate for it to be questioned. Mr Taumanu was not notified beforehand of the tactics to be employed and while it may not be necessary for this to be done it certainly would have avoided the situation, which arose indicating as it did a possible serious offence.

Dated at Auckland the 26^th day of May 2006.

E F Doherty ----------- B J Rowe

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Rules: 869.3.a, 869.3.g

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Non Raceday Inquiry – L Chin

JCA Decision Fields (raw)

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