Non Raceday Inquiry RIU v BD McLellan – Decision dated 10 June 2015
ID: JCA17074
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT DUNEDIN
IN THE MATTER of Information No. A6246
BETWEEN S W WALLIS, Stipendiary Steward for the Racing Integrity Unit
Informant
AND BRENDON DARYL McLELLAN of Wyndham, Licensed Open Horseman
Respondent
Date of Hearing: Thursday, 21 May 2015
Venue: Forbury Park Raceway, Dunedin
Judicial Committee: R G McKenzie, Chairman - P T Knowles, Committee Member
Present: Mr S W Wallis (the Informant)
Mr B D McLellan (the Respondent)
Mr S P Renault (Registrar)
DECISION OF JUDICIAL COMMITTEE
The Charges
[1] Mr McLellan is charged with a breach of Rule 868 (2) of the New Zealand Rules of Harness Racing in that, as the driver of TILLY PATRON in Race 4, Olphert Contracting Mobile Pace, at the meeting of Invercargill Harness Racing Club held at Invercargill on the 12th of April 2015, he “failed to take all reasonable and permissible measures over the concluding stages to ensure TILLY PATRON was given full opportunity to win the race”.
[2] Mr Wallis produced a letter dated 28 April 2015 from Mr M R Godber, Operations Manager for the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 1103 (4) (c).
[3] Mr McLellan was present at the hearing of the information. The charge was read to him, together with the relevant Rule, and he indicated that he denied the charge.
The Rule
[4] The relevant Rule is Rule 868 (2) which provides as follows:
Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.
Background
5] Mr McLellan is a Public Trainer and Open Horseman licensed under the Rules of Harness Racing New Zealand.
[6] He was the trainer and driver of the 3-year-old filly, TILLY PATRON, who was correctly entered and raced in Race 4, Olphert Contracting Mobile Pace, at the meeting of Invercargill Harness Racing Club at Ascot Park Raceway, Invercargill on 12 April 2015.
[7] The race was contested over a distance of 2700 metres from a mobile start with TILLY PATRON drawing barrier 11, which was 3 on the second row.
[8] At the start time of the race, TILLY PATRON had attracted 2.94% of the win pool betting to pay $28.70 and 3.93% of the place pool betting to pay $7.10.
Evidence for the Informant
[9] Mr Wallis said that it was the allegation of the Stewards that the lack of vigour of Mr McLellan over the concluding stages of the race was unacceptable in the circumstances when it was both reasonable and permissible for him to be demonstrating a more concerted effort to encourage his runner when having a reasonable chance of winning the race. He submitted that there is a clear obligation on the part of a driver that, when circumstances permit, he must leave no doubt in the minds of a viewer of the race – whether that be the Stewards, the public or the Judicial Committee.
[10] Mr Wallis then showed a video replay of the race. He submitted that TILLY PATRON had received a good run throughout the race. Upon entering the home straight, TILLY PATRON was within striking distance of the then leader, and eventual winner, FLIGHT DECK.
[11] Mr Wallis then focussed his evidence on the final 200 metres of the run home. He alleged that, from entering the home straight to just inside the 50 metres, the filly was “urged” by Mr McLellan on a couple of occasions with his right rein but more so by running the left rein over her rump. Mr McLellan’s whip was in his right hand and facing forward but had not been used on the filly at this stage, Mr Wallis alleged. The filly had made up 1½ lengths on the leader and the margin continued to close, he said.
[12] Mr Wallis then alleged that, at the 50 metres, TILLY PATRON was only a ½ length from the leader and was closing the gap. Mr McLellan ceased his use of the left rein, kept the reins in the filly’s mouth tight and, on two occasions, just prior to the finishing line he “tapped” the filly’s rump with his whip. TILLY PATRON finished in 2nd placing, beaten by the official margin of a head.
[13] It was Mr Wallis’s allegation that TILLY PATRON had made up a significant amount of ground on the winner under “absolute minimal urgings”. He submitted that it was reasonable to suggest that the filly would have made up the losing margin with an acceptable amount of urging from Mr McLellan.
[14] Mr Wallis conceded that TILLY PATRON had “paced roughly and faltered” on the bend approaching the 1800 metres and again paced roughly near the 800 metres. However, it was his evidence that the filly did not display any “anomaly” in her gait in the run home that would prevent Mr McLellan from employing greater urging. The filly was fluent in her gait and was racing straight throughout the entire run home.
[15] TILLY PATRON was examined post-race by Veterinary Surgeon, Heather Cottle BVSc, who reported that “no abnormalities were identified on clinical examination” and that “no lameness was identified when the filly was examined at a walk and a trot in a straight line”.
[16] Mr Wallis pointed out on the video the actions of the other drivers involved in the finish and submitted that Mr McLellan’s lack of action was in “stark contrast’ to the vigorous actions of those other drivers.
[17] Mr Wallis said that Mr McLellan’s explanation on the day was that he was being careful, as he felt that the filly was not pacing well enough for him to really drive her out. Mr Wallis said that it was apparent from the video replays that TILLY PATRON had not paced roughly at any stage of the run home or changed her gait inside the 50 metres that would suggest that she was about to falter or pace roughly.
[18] In conclusion, Mr Wallis submitted that the perception of the incident was “poor at best” and that the integrity and image of the harness racing product demanded that that they not be placed in jeopardy or be compromised as they have been on this occasion. He further submitted that the Stewards were not required to prove that TILLY PATRON would have won the race if placed under “sufficient pressure”. It was incumbent on Mr McLellan to leave no doubt in the minds of viewers that the filly had had every question asked of it. He submitted that there was doubt on this occasion.
Evidence of Respondent
[19] Mr McLellan repeated the explanation that he had given to the Stewards on the race day that the reason he had not driven the filly out with the whip was that he did not feel that it was safe to do so. He said that TILLY PATRON was having her first raceday start and did not pace “very flash” during the whole race. After she had stumbled on a couple of occasions during the earlier stages of the race, he was not going to risk using the whip on the filly in the straight, he said.
[20] At Mr McLellan’s request, a video replay of the whole race was shown to the hearing. He said that the filly was not happy in her gait and was “floaty”. She had paced roughly on a couple of occasions when clear of other horses and free of interference. He had “erred on the safety side” as the filly did not give him the feeling that he could drive her out.
[21] Mr McLellan said that TILLY PATRON had had very little experience. She had been to the trials once when she had qualified. He was not surprised, therefore, that she had raced greenly.
[22] Mr McLellan showed a video replay of the filly’s second start (at Gore on 27 April). He said that, as in the race in question, she had not paced evenly in this race and had “battled”. He had reported to the Stewards on the day that the filly had paced roughly and greenly throughout and had failed to handle the shifty nature of the track. The filly has now been turned out, he said.
[23] The Committee enquired as to the pace of the race in question. The mile rate was 2-06.9, the last 800 metres in 62.4 and the last 400 metres in 29.3. Mr McLellan said that conditions on the day were not ideal as there had been a very strong head wind down the back straight. It was agreed by the parties that it was not a fast race.
Submissions of the Informant
[24] Mr Wallis said that Mr McLellan’s integrity was not in question but Stewards questioned his failure to fulfil an obligation placed on every driver in a race. He submitted that the evidence in this case overwhelmingly supported the charge. Viewed objectively, questions would be asked regarding the lack of vigour of Mr McLellan. The onus was on Mr McLellan to ensure that those questions did not arise.
[25] Mr Wallis referred to three statements of principle from three previous cases involving a breach of the particular Rule.
[26] Mr Wallis said that it was accepted that the Rule does not seek to punish a mere error of judgement during a race but, rather, it requires that the driver’s conduct must be culpable in the sense that it must be found to be blameworthy.
[27] Mr Wallis submitted that it is imperative that, when circumstances permit, a driver meets the requirements of the Rule.
[28] The drive of Mr McLellan had fallen well short of what a reasonable-minded person would expect. Had he showed a reasonable amount of vigour in the run home and given TILLY PATRON every opportunity, it is totally fair to think that she would have won the race, Mr Wallis submitted.
Submissions of the Respondent
[29] Mr McLellan submitted that the Committee should take into account that TILLY PATRON was a 3-year-old filly having her first start.
[30] He submitted that it had been shown on the video replays that the filly had “a bit of a glitch” in her gait.
[31] He had erred on the side of caution and safety to ensure that she “got around”.
Reasons for Decision
[32] A number of principles emerge from the various cases decided under Rule 868 (2). Those principals are as follows:
(1) It is the quality of the drive in the circumstances of the particular case which has to be judged;
(2) That judgement must be based on an objective assessment of the drive in the particular race;
(3) A mere error of judgement by a driver is not a sufficient basis for an adverse finding that the Rule has been breached; and
(4) The driver’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.
[33] The core focus of the Rule is the quality or otherwise of the drive. That is to say, if the driver fails, given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field, then he is in breach of the Rule and liable to penalty.
[34] The Rule imposes an objective standard of care. The standard of care takes into account, among other things, the views and explanation of the driver and the opinion of the Stewards.
[35] The onus is on the Stewards to prove that a driver has been in breach of the Rule. A driver is required to give an explanation for his actions, but the onus always remains with the Stewards.
[36] The standard of proof is on the balance of probabilities. Because of the seriousness of the charge and the gravity of the consequences that flow from a finding that a charge is proved, the Committee must have a reasonable degree of satisfaction that the charge has been proved. Essentially, we must be comfortably satisfied that, in the circumstances of the case and viewed objectively, the manner in which Mr McLellan drove his horse in the stage of the race specified in the charge fell well short of what would reasonably be expected of a driver in his position.
[37] Turning to the facts of the present case, the Stewards are alleging that Mr McLellan failed to take all reasonable and permissible measures over the concluding stages to ensure that TILLY PATRON was given full opportunity to win the race.
[38] We have carefully viewed the video replays of the relevant part of the race and we have carefully listened to the evidence and submissions of both parties.
[39] The Stewards’ case is that the lack of vigour by Mr McLellan over the concluding stages of the race was unacceptable in the circumstances when it was both reasonable and permissible for him to make a more determined effort to urge the filly when having a reasonable chance of winning the race.
[40] Using the video replays, Mr Wallis alleged that, entering the home straight, TILLY PATRON was approximately 2 lengths from the then leader and eventual winner, FLIGHT DECK. The Committee accepts this as a fact. From that point to just past the 50 metres, TILLY PATRON was urged on by Mr McLellan on a couple of occasions with the reins – the whip had not been used and the filly had made up 1 to 1½ lengths with the margin continuing to reduce.
[41] From just inside the 50 metres, Mr Wallis alleged, Mr McLellan ceased all urgings other than to “tap” the filly twice on the rump with his whip. TILLY PATRON finished in 2nd placing, a head from the winner.
[42] Mr Wallis submitted that TILLY PATRON had made up significant ground in the run home under minimal urgings. He submitted that it was reasonable to suggest that she may have won the race with an acceptable amount of urging from Mr McLellan.
[43] Mr McLellan, in his evidence, pointed out that TILLY PATRON was a 3-year-old filly having her first raceday start. He told us that he felt that the filly did not pace smoothly throughout the race and he described her as being “floaty” in her action. For this reason, he said, he did not feel comfortable using the whip on her. He pointed out, and it was confirmed by the video evidence and accepted by Mr Wallis, that she had stumbled on a couple of occasions during the running – the last occasion some 800 metres from the finish.
[44] Mr Wallis submitted that he filly had displayed no apparent anomaly in her gait in the run home which would have justified Mr McLellan in not employing greater urgings. From the video evidence, the Committee would have to say that it agrees with Mr Wallis in this regard.
[45] Having considered all of the evidence and submissions and viewed the video replays, and having assessed Mr McLellan’s drive objectively, we find that his actions amounted to more than a mere error of judgement but that his drive was culpable in the sense that it was blameworthy.
[46] We have taken into account Mr McLellan’s explanation but we do not accept that the reasons given by him justified his lack of action in not driving TILLY PATRON to the finish of the race when it was both reasonable and permissible for him to have done so.
[47] The Committee is comfortably satisfied that Mr McLellan failed, on this occasion, to take all measures that were reasonable and permissible to give TILLY PATRON full opportunity to win the race but, rather, the manner in which he drove the filly over the final stages of the race of a driver in the circumstances fell well short of what would be reasonably expected.
{48] The Committee, therefore, finds the charge to be proved.
Penalty Submissions of the Informant
[49] Mr Wallis told the Committee that, up until 20 May 2015, Mr McLellan has had 190 drives in the current season. He has had 5,322 since Harness Racing New Zealand began keeping records in 1986. He has a clear record under the Rule.
[50] Mr McLellan has failed to show sufficient vigour over the concluding stages of the race to satisfy those bettors that had invested money on the horse. This is detrimental to the image and interests of the industry. His conduct may have also deterred other potential bettors who may have been turned away by his actions. Every driver carries the weight of the public’s money and needs to protect the integrity of harness racing.
[51] It was the duty and responsibility of the Stewards and this Committee, Mr Wallis submitted, to protect the integrity of harness racing.
[52] Stewards were of the view that this breach needed to be dealt with by way of a suspension of Mr McLellan’s licence. A breach of the Rule is serious and requires a significant penalty. This is also necessary as a deterrent to others.
[53] Mr Wallis referred the Committee to several other cases involving breaches of the particular Rule. He likened the circumstances of the case and the drives to the case of RIU v C J DeFilippi in which case the driver received a 5 days’ or 3 weeks suspension.
[54] Mr Wallis submitted that the level of seriousness of the present breach was in the mid-to-high range. He referred to the starting point suggested in the Penalty Guide of a 15 drives’ suspension or a $750 fine. He submitted that Mr McLellan has, on average, 5 to 6 drives per meeting and, on that basis the term of suspension in this case should be 5 racing days – up to and including 26th June 2015. He submitted that, if the Committee saw fit to deal with the breach by way of a fine, that fine should be in the sum of $1,500.
Discussion on Penalty
[55] The Committee then discussed with the parties upcoming meetings at which Mr McLellan would, but for any suspension, be driving. Mr McLellan told the Committee that he drives principally in the Otago/Southland area. He added that he has a horse running in the Harness Jewels at Ashburton on 30 May. He may have also taken “a couple of maidens” to race at Ashburton on 31 May, he said.
[56] Leaving out the two Ashburton meetings, it was established and agreed that relevant meetings were Forbury Park on 29 May, Invercargill on 1 June, and Forbury Park on 4, 11, 18 and 26 June.
[57] Mr McLellan said that he has a racing team of 14 horses. He had 5 racing tonight and has 6 others racing at Winton on 24 May. He asked the Committed to take this into account. He also asked the Committee to consider a fine or a combination of a term of suspension and a fine.
Reasons for Penalty
[58] In determining penalty, the Committee began by taking the suggested Penalty Guide starting point for penalty for a breach of the Rule – that is to say, 15 drives or a $750 fine.
[59] The Committee then had to place the circumstances of this particular breach on a scale of seriousness. The Rule itself simply refers to a horse being given “full opportunity to win the race or to obtain the best possible position and/or finishing place”. The starting point referred to does not differentiate between “opportunity to win the race” or obtain a position from, say, 2nd to 5th. In the present case, there was clear opportunity to win the race, given that TILLY PATRON finished in 2nd placing and given that the official margin at the finish was a head.
[60] It is the view of the Committee that a lost opportunity to win the race, rather than finish in a lower placing, is a clear aggravating factor. In other words, it places the breach at the upper end of a scale of seriousness.
[61] It follows from that, not only that a significant uplift in the penalty starting point is called for but also that a fine alone will not adequately punish the offending. We have assessed the appropriate uplift at 10 drives.
[62] The sole mitigating factor that we can determine in this case is Mr McLellan’s clear record under the Rule. That factor warrants, in the Committee’s view, a discount of 5 drives – bringing us back to 20 drives.
[63] We were informed that Mr McLellan drives only in the Otago/Southland area and averages 5-6 drives per meeting. On that basis, 20 drives equates to, say, four meetings. In this calculation, we have included a single drive at the Harness Jewels meeting at Ashburton on 30 May 2015.
[64] In looking at the appropriate term of suspension, the Committee was conscious that there are diminishing driving opportunities in the Otago/Southland area from this point in the season. A suspension for 20 drives would require a suspension for five meetings (including Ashburton). A suspension of that length would, effectively, mean that Mr McLellan’s season was almost finished. The Committee notes that there are no meetings in the Otago/Southland area this season after 26 June 2015.
[65] In the event, we have decided, rather than imposing a suspension for five meetings, to impose a four meetings’ suspension including one drive at Ashburton on 30 May and, in addition, to impose a fine of $300, which we equate to 6 drives or, in Mr McLellan’s case, one meeting. This is intended to allow Mr McLellan to drive at Forbury Park on 11 June rather than imposing a suspension encompassing that meeting and thereby limiting his opportunities for the remainder of the season in Otago/Southland.
Penalty Decision
[66] Mr McLellan’s Open Horseman’s Licence is suspended from the close of racing on 24 May 2015 up to and including 4 June 2015. This is intended to encompass the meetings at Forbury Park on 29 May, Ashburton on 30 May, Invercargill on 1 June and Forbury Park on 4 June 2015 – 4 days. In addition Mr McLellan is fined the sum of $300.00.
Costs
[67] The Informant did not seek an order for costs.
R G McKenzie P T Knowles
Chair Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 10/06/2015
Publish Date: 10/06/2015
JCA Decision Fields (raw)
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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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decisiondate: 10/06/2015
hearing_title: Non Raceday Inquiry RIU v BD McLellan - Decision dated 10 June 2015
charge:
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appealdecision: NO LINKED APPEAL DECISION
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reasonsfordecision:
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT DUNEDIN
IN THE MATTER of Information No. A6246
BETWEEN S W WALLIS, Stipendiary Steward for the Racing Integrity Unit
Informant
AND BRENDON DARYL McLELLAN of Wyndham, Licensed Open Horseman
Respondent
Date of Hearing: Thursday, 21 May 2015
Venue: Forbury Park Raceway, Dunedin
Judicial Committee: R G McKenzie, Chairman - P T Knowles, Committee Member
Present: Mr S W Wallis (the Informant)
Mr B D McLellan (the Respondent)
Mr S P Renault (Registrar)
DECISION OF JUDICIAL COMMITTEE
The Charges
[1] Mr McLellan is charged with a breach of Rule 868 (2) of the New Zealand Rules of Harness Racing in that, as the driver of TILLY PATRON in Race 4, Olphert Contracting Mobile Pace, at the meeting of Invercargill Harness Racing Club held at Invercargill on the 12th of April 2015, he “failed to take all reasonable and permissible measures over the concluding stages to ensure TILLY PATRON was given full opportunity to win the race”.
[2] Mr Wallis produced a letter dated 28 April 2015 from Mr M R Godber, Operations Manager for the Racing Integrity Unit, authorising the filing of the information pursuant to Rule 1103 (4) (c).
[3] Mr McLellan was present at the hearing of the information. The charge was read to him, together with the relevant Rule, and he indicated that he denied the charge.
The Rule
[4] The relevant Rule is Rule 868 (2) which provides as follows:
Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.
Background
5] Mr McLellan is a Public Trainer and Open Horseman licensed under the Rules of Harness Racing New Zealand.
[6] He was the trainer and driver of the 3-year-old filly, TILLY PATRON, who was correctly entered and raced in Race 4, Olphert Contracting Mobile Pace, at the meeting of Invercargill Harness Racing Club at Ascot Park Raceway, Invercargill on 12 April 2015.
[7] The race was contested over a distance of 2700 metres from a mobile start with TILLY PATRON drawing barrier 11, which was 3 on the second row.
[8] At the start time of the race, TILLY PATRON had attracted 2.94% of the win pool betting to pay $28.70 and 3.93% of the place pool betting to pay $7.10.
Evidence for the Informant
[9] Mr Wallis said that it was the allegation of the Stewards that the lack of vigour of Mr McLellan over the concluding stages of the race was unacceptable in the circumstances when it was both reasonable and permissible for him to be demonstrating a more concerted effort to encourage his runner when having a reasonable chance of winning the race. He submitted that there is a clear obligation on the part of a driver that, when circumstances permit, he must leave no doubt in the minds of a viewer of the race – whether that be the Stewards, the public or the Judicial Committee.
[10] Mr Wallis then showed a video replay of the race. He submitted that TILLY PATRON had received a good run throughout the race. Upon entering the home straight, TILLY PATRON was within striking distance of the then leader, and eventual winner, FLIGHT DECK.
[11] Mr Wallis then focussed his evidence on the final 200 metres of the run home. He alleged that, from entering the home straight to just inside the 50 metres, the filly was “urged” by Mr McLellan on a couple of occasions with his right rein but more so by running the left rein over her rump. Mr McLellan’s whip was in his right hand and facing forward but had not been used on the filly at this stage, Mr Wallis alleged. The filly had made up 1½ lengths on the leader and the margin continued to close, he said.
[12] Mr Wallis then alleged that, at the 50 metres, TILLY PATRON was only a ½ length from the leader and was closing the gap. Mr McLellan ceased his use of the left rein, kept the reins in the filly’s mouth tight and, on two occasions, just prior to the finishing line he “tapped” the filly’s rump with his whip. TILLY PATRON finished in 2nd placing, beaten by the official margin of a head.
[13] It was Mr Wallis’s allegation that TILLY PATRON had made up a significant amount of ground on the winner under “absolute minimal urgings”. He submitted that it was reasonable to suggest that the filly would have made up the losing margin with an acceptable amount of urging from Mr McLellan.
[14] Mr Wallis conceded that TILLY PATRON had “paced roughly and faltered” on the bend approaching the 1800 metres and again paced roughly near the 800 metres. However, it was his evidence that the filly did not display any “anomaly” in her gait in the run home that would prevent Mr McLellan from employing greater urging. The filly was fluent in her gait and was racing straight throughout the entire run home.
[15] TILLY PATRON was examined post-race by Veterinary Surgeon, Heather Cottle BVSc, who reported that “no abnormalities were identified on clinical examination” and that “no lameness was identified when the filly was examined at a walk and a trot in a straight line”.
[16] Mr Wallis pointed out on the video the actions of the other drivers involved in the finish and submitted that Mr McLellan’s lack of action was in “stark contrast’ to the vigorous actions of those other drivers.
[17] Mr Wallis said that Mr McLellan’s explanation on the day was that he was being careful, as he felt that the filly was not pacing well enough for him to really drive her out. Mr Wallis said that it was apparent from the video replays that TILLY PATRON had not paced roughly at any stage of the run home or changed her gait inside the 50 metres that would suggest that she was about to falter or pace roughly.
[18] In conclusion, Mr Wallis submitted that the perception of the incident was “poor at best” and that the integrity and image of the harness racing product demanded that that they not be placed in jeopardy or be compromised as they have been on this occasion. He further submitted that the Stewards were not required to prove that TILLY PATRON would have won the race if placed under “sufficient pressure”. It was incumbent on Mr McLellan to leave no doubt in the minds of viewers that the filly had had every question asked of it. He submitted that there was doubt on this occasion.
Evidence of Respondent
[19] Mr McLellan repeated the explanation that he had given to the Stewards on the race day that the reason he had not driven the filly out with the whip was that he did not feel that it was safe to do so. He said that TILLY PATRON was having her first raceday start and did not pace “very flash” during the whole race. After she had stumbled on a couple of occasions during the earlier stages of the race, he was not going to risk using the whip on the filly in the straight, he said.
[20] At Mr McLellan’s request, a video replay of the whole race was shown to the hearing. He said that the filly was not happy in her gait and was “floaty”. She had paced roughly on a couple of occasions when clear of other horses and free of interference. He had “erred on the safety side” as the filly did not give him the feeling that he could drive her out.
[21] Mr McLellan said that TILLY PATRON had had very little experience. She had been to the trials once when she had qualified. He was not surprised, therefore, that she had raced greenly.
[22] Mr McLellan showed a video replay of the filly’s second start (at Gore on 27 April). He said that, as in the race in question, she had not paced evenly in this race and had “battled”. He had reported to the Stewards on the day that the filly had paced roughly and greenly throughout and had failed to handle the shifty nature of the track. The filly has now been turned out, he said.
[23] The Committee enquired as to the pace of the race in question. The mile rate was 2-06.9, the last 800 metres in 62.4 and the last 400 metres in 29.3. Mr McLellan said that conditions on the day were not ideal as there had been a very strong head wind down the back straight. It was agreed by the parties that it was not a fast race.
Submissions of the Informant
[24] Mr Wallis said that Mr McLellan’s integrity was not in question but Stewards questioned his failure to fulfil an obligation placed on every driver in a race. He submitted that the evidence in this case overwhelmingly supported the charge. Viewed objectively, questions would be asked regarding the lack of vigour of Mr McLellan. The onus was on Mr McLellan to ensure that those questions did not arise.
[25] Mr Wallis referred to three statements of principle from three previous cases involving a breach of the particular Rule.
[26] Mr Wallis said that it was accepted that the Rule does not seek to punish a mere error of judgement during a race but, rather, it requires that the driver’s conduct must be culpable in the sense that it must be found to be blameworthy.
[27] Mr Wallis submitted that it is imperative that, when circumstances permit, a driver meets the requirements of the Rule.
[28] The drive of Mr McLellan had fallen well short of what a reasonable-minded person would expect. Had he showed a reasonable amount of vigour in the run home and given TILLY PATRON every opportunity, it is totally fair to think that she would have won the race, Mr Wallis submitted.
Submissions of the Respondent
[29] Mr McLellan submitted that the Committee should take into account that TILLY PATRON was a 3-year-old filly having her first start.
[30] He submitted that it had been shown on the video replays that the filly had “a bit of a glitch” in her gait.
[31] He had erred on the side of caution and safety to ensure that she “got around”.
Reasons for Decision
[32] A number of principles emerge from the various cases decided under Rule 868 (2). Those principals are as follows:
(1) It is the quality of the drive in the circumstances of the particular case which has to be judged;
(2) That judgement must be based on an objective assessment of the drive in the particular race;
(3) A mere error of judgement by a driver is not a sufficient basis for an adverse finding that the Rule has been breached; and
(4) The driver’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.
[33] The core focus of the Rule is the quality or otherwise of the drive. That is to say, if the driver fails, given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field, then he is in breach of the Rule and liable to penalty.
[34] The Rule imposes an objective standard of care. The standard of care takes into account, among other things, the views and explanation of the driver and the opinion of the Stewards.
[35] The onus is on the Stewards to prove that a driver has been in breach of the Rule. A driver is required to give an explanation for his actions, but the onus always remains with the Stewards.
[36] The standard of proof is on the balance of probabilities. Because of the seriousness of the charge and the gravity of the consequences that flow from a finding that a charge is proved, the Committee must have a reasonable degree of satisfaction that the charge has been proved. Essentially, we must be comfortably satisfied that, in the circumstances of the case and viewed objectively, the manner in which Mr McLellan drove his horse in the stage of the race specified in the charge fell well short of what would reasonably be expected of a driver in his position.
[37] Turning to the facts of the present case, the Stewards are alleging that Mr McLellan failed to take all reasonable and permissible measures over the concluding stages to ensure that TILLY PATRON was given full opportunity to win the race.
[38] We have carefully viewed the video replays of the relevant part of the race and we have carefully listened to the evidence and submissions of both parties.
[39] The Stewards’ case is that the lack of vigour by Mr McLellan over the concluding stages of the race was unacceptable in the circumstances when it was both reasonable and permissible for him to make a more determined effort to urge the filly when having a reasonable chance of winning the race.
[40] Using the video replays, Mr Wallis alleged that, entering the home straight, TILLY PATRON was approximately 2 lengths from the then leader and eventual winner, FLIGHT DECK. The Committee accepts this as a fact. From that point to just past the 50 metres, TILLY PATRON was urged on by Mr McLellan on a couple of occasions with the reins – the whip had not been used and the filly had made up 1 to 1½ lengths with the margin continuing to reduce.
[41] From just inside the 50 metres, Mr Wallis alleged, Mr McLellan ceased all urgings other than to “tap” the filly twice on the rump with his whip. TILLY PATRON finished in 2nd placing, a head from the winner.
[42] Mr Wallis submitted that TILLY PATRON had made up significant ground in the run home under minimal urgings. He submitted that it was reasonable to suggest that she may have won the race with an acceptable amount of urging from Mr McLellan.
[43] Mr McLellan, in his evidence, pointed out that TILLY PATRON was a 3-year-old filly having her first raceday start. He told us that he felt that the filly did not pace smoothly throughout the race and he described her as being “floaty” in her action. For this reason, he said, he did not feel comfortable using the whip on her. He pointed out, and it was confirmed by the video evidence and accepted by Mr Wallis, that she had stumbled on a couple of occasions during the running – the last occasion some 800 metres from the finish.
[44] Mr Wallis submitted that he filly had displayed no apparent anomaly in her gait in the run home which would have justified Mr McLellan in not employing greater urgings. From the video evidence, the Committee would have to say that it agrees with Mr Wallis in this regard.
[45] Having considered all of the evidence and submissions and viewed the video replays, and having assessed Mr McLellan’s drive objectively, we find that his actions amounted to more than a mere error of judgement but that his drive was culpable in the sense that it was blameworthy.
[46] We have taken into account Mr McLellan’s explanation but we do not accept that the reasons given by him justified his lack of action in not driving TILLY PATRON to the finish of the race when it was both reasonable and permissible for him to have done so.
[47] The Committee is comfortably satisfied that Mr McLellan failed, on this occasion, to take all measures that were reasonable and permissible to give TILLY PATRON full opportunity to win the race but, rather, the manner in which he drove the filly over the final stages of the race of a driver in the circumstances fell well short of what would be reasonably expected.
{48] The Committee, therefore, finds the charge to be proved.
Penalty Submissions of the Informant
[49] Mr Wallis told the Committee that, up until 20 May 2015, Mr McLellan has had 190 drives in the current season. He has had 5,322 since Harness Racing New Zealand began keeping records in 1986. He has a clear record under the Rule.
[50] Mr McLellan has failed to show sufficient vigour over the concluding stages of the race to satisfy those bettors that had invested money on the horse. This is detrimental to the image and interests of the industry. His conduct may have also deterred other potential bettors who may have been turned away by his actions. Every driver carries the weight of the public’s money and needs to protect the integrity of harness racing.
[51] It was the duty and responsibility of the Stewards and this Committee, Mr Wallis submitted, to protect the integrity of harness racing.
[52] Stewards were of the view that this breach needed to be dealt with by way of a suspension of Mr McLellan’s licence. A breach of the Rule is serious and requires a significant penalty. This is also necessary as a deterrent to others.
[53] Mr Wallis referred the Committee to several other cases involving breaches of the particular Rule. He likened the circumstances of the case and the drives to the case of RIU v C J DeFilippi in which case the driver received a 5 days’ or 3 weeks suspension.
[54] Mr Wallis submitted that the level of seriousness of the present breach was in the mid-to-high range. He referred to the starting point suggested in the Penalty Guide of a 15 drives’ suspension or a $750 fine. He submitted that Mr McLellan has, on average, 5 to 6 drives per meeting and, on that basis the term of suspension in this case should be 5 racing days – up to and including 26th June 2015. He submitted that, if the Committee saw fit to deal with the breach by way of a fine, that fine should be in the sum of $1,500.
Discussion on Penalty
[55] The Committee then discussed with the parties upcoming meetings at which Mr McLellan would, but for any suspension, be driving. Mr McLellan told the Committee that he drives principally in the Otago/Southland area. He added that he has a horse running in the Harness Jewels at Ashburton on 30 May. He may have also taken “a couple of maidens” to race at Ashburton on 31 May, he said.
[56] Leaving out the two Ashburton meetings, it was established and agreed that relevant meetings were Forbury Park on 29 May, Invercargill on 1 June, and Forbury Park on 4, 11, 18 and 26 June.
[57] Mr McLellan said that he has a racing team of 14 horses. He had 5 racing tonight and has 6 others racing at Winton on 24 May. He asked the Committed to take this into account. He also asked the Committee to consider a fine or a combination of a term of suspension and a fine.
Reasons for Penalty
[58] In determining penalty, the Committee began by taking the suggested Penalty Guide starting point for penalty for a breach of the Rule – that is to say, 15 drives or a $750 fine.
[59] The Committee then had to place the circumstances of this particular breach on a scale of seriousness. The Rule itself simply refers to a horse being given “full opportunity to win the race or to obtain the best possible position and/or finishing place”. The starting point referred to does not differentiate between “opportunity to win the race” or obtain a position from, say, 2nd to 5th. In the present case, there was clear opportunity to win the race, given that TILLY PATRON finished in 2nd placing and given that the official margin at the finish was a head.
[60] It is the view of the Committee that a lost opportunity to win the race, rather than finish in a lower placing, is a clear aggravating factor. In other words, it places the breach at the upper end of a scale of seriousness.
[61] It follows from that, not only that a significant uplift in the penalty starting point is called for but also that a fine alone will not adequately punish the offending. We have assessed the appropriate uplift at 10 drives.
[62] The sole mitigating factor that we can determine in this case is Mr McLellan’s clear record under the Rule. That factor warrants, in the Committee’s view, a discount of 5 drives – bringing us back to 20 drives.
[63] We were informed that Mr McLellan drives only in the Otago/Southland area and averages 5-6 drives per meeting. On that basis, 20 drives equates to, say, four meetings. In this calculation, we have included a single drive at the Harness Jewels meeting at Ashburton on 30 May 2015.
[64] In looking at the appropriate term of suspension, the Committee was conscious that there are diminishing driving opportunities in the Otago/Southland area from this point in the season. A suspension for 20 drives would require a suspension for five meetings (including Ashburton). A suspension of that length would, effectively, mean that Mr McLellan’s season was almost finished. The Committee notes that there are no meetings in the Otago/Southland area this season after 26 June 2015.
[65] In the event, we have decided, rather than imposing a suspension for five meetings, to impose a four meetings’ suspension including one drive at Ashburton on 30 May and, in addition, to impose a fine of $300, which we equate to 6 drives or, in Mr McLellan’s case, one meeting. This is intended to allow Mr McLellan to drive at Forbury Park on 11 June rather than imposing a suspension encompassing that meeting and thereby limiting his opportunities for the remainder of the season in Otago/Southland.
Penalty Decision
[66] Mr McLellan’s Open Horseman’s Licence is suspended from the close of racing on 24 May 2015 up to and including 4 June 2015. This is intended to encompass the meetings at Forbury Park on 29 May, Ashburton on 30 May, Invercargill on 1 June and Forbury Park on 4 June 2015 – 4 days. In addition Mr McLellan is fined the sum of $300.00.
Costs
[67] The Informant did not seek an order for costs.
R G McKenzie P T Knowles
Chair Committee Member
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