Non Raceday Inquiry RIU v C Ferguson – Written Decision dated 29 November 2016 – Chair, Prof G Hall
ID: JCA16734
Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR CRAIG FERGUSON
Open Horseman
Respondent
Information: A6255
Judicial Committee Prof G Hall, Chairman - Mr N Skelt, Committee Member
Appearing: Mr S Wallis, Stipendiary Steward, for the Informant
The Respondent in person
Date of hearing and oral decision: 24 November 2016
Date of written decision: 29 November 2016
DECISION OF JUDICIAL COMMITTEE
[1] Mr Ferguson is charged under r 869(3)(b) that on 6 November last in race 10 at the Wyndham Harness Racing Club’s meeting he drove carelessly rounding the final bend when permitting his horse to improve when there was insufficient room to do so.
[2] Mr Wallis produced a letter dated 10 November 2016 from Mr Godber the General Manager of the RIU authorising the lodging of the information.
Informant’s case
[3] Mr Wallis demonstrated on the videos that just before the final bend the respondent was racing 5 back on the pegs with Mr Beck positioned immediately in front of him.
[4] Mr Ferguson then went for a run inside Mr Beck. In so doing he went inside one pylon and later, as they reached the apex of the bend, he made contact with the inside wheel of Mr Beck. Mr Ferguson’s horse, EL DINERO, broke as a consequence and galloped out of the race.
[5] Mr Wallis pointed out that prior to the contact the inside wheel of MOONDYNE JOE was inside the running line of the outside wheel of EL DINERO.
[6] Mr Wallis said the view was somewhat obscured but there appeared to be a run available briefly for Mr Ferguson but that this was solely due to the fact that Mr Beck had shifted out when he saw Mr Ferguson looking for a run on his inside. Mr Wallis emphasised that in his view there was only ever room for Mr Ferguson’s horse inside Mr Beck and never the horse and the cart.
[7] Mr Wallis called Mr Beck to give evidence. He confirmed he was the driver of MOONDYNE JOE and there had been contact with EL DINERO. He stated that at the 400 metres Mr Ferguson had improved inside his horse. He said MOONDYNE JOE was under pressure at this stage and he moved out in order to give Mr Ferguson a run. He pointed out on the videos that Mr Hunter was racing to his outside so he was unable to allow a great deal of room to Mr Ferguson. When questioned by Mr Wallis as to why he had given Mr Ferguson more room, he said this was because he did not believe there was enough room for Mr Ferguson to make a run to his inside. He stated he was of the opinion there was only enough room for Mr Ferguson’s horse and not his cart. He emphasised racing was tight, it was raining, and visibility was restricted.
[8] Mr Beck further explained he did not want to hold Mr Ferguson up and was giving him “a fair run” because his horse, MOONDYNE JOE, had no chance of running a place. He said after he initially shifted out to give Mr Ferguson a run Mr Hunter had come back down and he was unable to go out further to give Mr Ferguson more room. His position on the track was being dictated by the horse on his outside driven by Mr Hunter.
[9] When questioned by Mr Ferguson, Mr Beck confirmed there was no pressure on him from his outside but he simply could not shift wider on the track. He accepted Mr Hunter had shifted in quite close to the time of contact. He was not sure if it was at the same time or after the contact and when EL DINERO had galloped.
Respondent’s case
[10] Mr Ferguson stated it was clear that he had struck a pylon. It was a dark, dull day and a horse striking a pylon was not unusual. He said he had made ground inside Mr Beck for a distance of 3 pylons and had not struck any of these.
[11] Mr Ferguson stated the first 2 horses behind the leader were trailing a wheel and they had therefore allowed him room for a run on the pylons. He doubted that Mr Beck had deliberately given him room and he believed that Mr Beck had been tightened and that was why he had come into contact with Mr Beck’s cart.
[12] Mr Ferguson emphasised that he initially had room and there was a run for him to the inside of Mr Beck. MOONDYNE JOE was tiring and he believed Mr Beck had come down on to him.
[13] Mr Ferguson concluded his defence by stating there was definitely a run for him and the fact the horses were about to round the bend was irrelevant. Mr Hunter had cut across on an angle in front of Mr Beck’s horse looking for a run. Mr Hunter in his view had contributed to the incident.
Summing up
[14] Mr Wallis summed up by stating there was no clear run for Mr Ferguson and Mr Beck had, as a favour, had initially made room for him. There was never room for the respondent’s sulky. He pointed out the distance between the 3 pylons Mr Ferguson had referred to was only 20 metres.
[15] Mr Wallis concluded by stating and demonstrating on the videos that Mr Hunter had not improved at the time of the interference but after EL DINERO had galloped. It was “well after the fact”.
[16] Mr Ferguson disagreed with Mr Wallis, stating Mr Hunter had shifted in prior to EL DINERO galloping and that there had been room for a run for him inside Mr Beck.
Decision as to breach
[17] The videos demonstrate that Mr Ferguson has gone for a run to the inside of Mr Beck just prior to the horses entering the final bend. In so doing, Mr Ferguson has gone over a pylon. There was initially room for EL DINERO as Mr Beck has shifted a little wider on the track. Mr Beck has said he did this deliberately in order to make room for Mr Ferguson. Mr Ferguson has disputed this stating there was always a run to the inside of Mr Beck, whether or not the horses were racing around the bend and whether or not Mr Beck had shifted out.
[18] We are satisfied that Mr Ferguson has improved to the inside of Mr Beck when there was insufficient room. We believe Mr Beck accurately described the situation when he said there was room for EL DINERO but not the cart as well. Mr Beck has said that Mr Hunter was racing to his outside and while Mr Beck had been initially able to shift outwards and give Mr Ferguson room, due to Mr Hunter’s presence, he was no longer able to do so as they reached the apex of the bend, as he had nowhere to go. We agree with his summation of the incident.
[19] We accept Mr Hunter has moved downwards on the track looking for a run but significantly the head-on video demonstrates this was after EL DINERO broke as a result of contact with Mr Beck’s cart and galloped out of the race.
[20] We believe that the respondent drove carelessly in going for a run to the inside of MOONDYNE JOE when there was insufficient room for both horse and cart and the bend was looming, with the consequence that at its apex there was no possibility of Mr Beck continuing to shift wider to give Mr Ferguson room and there consequently was contact between EL DINERO and the cart of Mr Beck.
[21] We thus find the charge of careless driving proved.
Penalty submissions
[22] Mr Wallis produced the respondent’s record. This evidenced that Mr Ferguson had no breaches of this rule since 27 April 2015. The respondent has had 62 drives this season up until 21 November and 426 in his career. Mr Wallis described him as a very busy driver. Mr Ferguson’s actions had a detrimental effect on only one horse, his own, which was 10/10 in the betting. Mr Wallis submitted a fine in the range of $400 to $450 was appropriate.
[23] Mr Ferguson submitted a fine at the lower end of the range was appropriate.
Penalty decision
[24] We believe the breach is mid range. The only horse affected by Mr Ferguson’s actions was his own. However, the betting public who had invested on the horse were entitled to expect that the horse would be given every chance to pay a dividend in accordance with the Rules.
[25] We take a starting point of $500 as provided in the Penalty Guide. We make no adjustment for the nature of the breach. We accept that the respondent has an excellent record and allow a discount of $100 for this mitigating factor. The absence of an admission of the breach is merely a neutral factor.
[26] The resulting penalty is one of $400.
[27] The RIU do not seek costs.
[28] The fact that this matter was heard as a non-raceday hearing is through no fault of the respondent in this regard. We make no order as to costs for the JCA.
Dated at Dunedin this 29th day of November 2016.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 30/11/2016
Publish Date: 30/11/2016
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: 30/11/2016
hearing_title: Non Raceday Inquiry RIU v C Ferguson - Written Decision dated 29 November 2016 - Chair, Prof G Hall
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appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE A JUDICIAL COMMITTEE OF
THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN RACING INTEGRITY UNIT (RIU)
Informant
AND MR CRAIG FERGUSON
Open Horseman
Respondent
Information: A6255
Judicial Committee Prof G Hall, Chairman - Mr N Skelt, Committee Member
Appearing: Mr S Wallis, Stipendiary Steward, for the Informant
The Respondent in person
Date of hearing and oral decision: 24 November 2016
Date of written decision: 29 November 2016
DECISION OF JUDICIAL COMMITTEE
[1] Mr Ferguson is charged under r 869(3)(b) that on 6 November last in race 10 at the Wyndham Harness Racing Club’s meeting he drove carelessly rounding the final bend when permitting his horse to improve when there was insufficient room to do so.
[2] Mr Wallis produced a letter dated 10 November 2016 from Mr Godber the General Manager of the RIU authorising the lodging of the information.
Informant’s case
[3] Mr Wallis demonstrated on the videos that just before the final bend the respondent was racing 5 back on the pegs with Mr Beck positioned immediately in front of him.
[4] Mr Ferguson then went for a run inside Mr Beck. In so doing he went inside one pylon and later, as they reached the apex of the bend, he made contact with the inside wheel of Mr Beck. Mr Ferguson’s horse, EL DINERO, broke as a consequence and galloped out of the race.
[5] Mr Wallis pointed out that prior to the contact the inside wheel of MOONDYNE JOE was inside the running line of the outside wheel of EL DINERO.
[6] Mr Wallis said the view was somewhat obscured but there appeared to be a run available briefly for Mr Ferguson but that this was solely due to the fact that Mr Beck had shifted out when he saw Mr Ferguson looking for a run on his inside. Mr Wallis emphasised that in his view there was only ever room for Mr Ferguson’s horse inside Mr Beck and never the horse and the cart.
[7] Mr Wallis called Mr Beck to give evidence. He confirmed he was the driver of MOONDYNE JOE and there had been contact with EL DINERO. He stated that at the 400 metres Mr Ferguson had improved inside his horse. He said MOONDYNE JOE was under pressure at this stage and he moved out in order to give Mr Ferguson a run. He pointed out on the videos that Mr Hunter was racing to his outside so he was unable to allow a great deal of room to Mr Ferguson. When questioned by Mr Wallis as to why he had given Mr Ferguson more room, he said this was because he did not believe there was enough room for Mr Ferguson to make a run to his inside. He stated he was of the opinion there was only enough room for Mr Ferguson’s horse and not his cart. He emphasised racing was tight, it was raining, and visibility was restricted.
[8] Mr Beck further explained he did not want to hold Mr Ferguson up and was giving him “a fair run” because his horse, MOONDYNE JOE, had no chance of running a place. He said after he initially shifted out to give Mr Ferguson a run Mr Hunter had come back down and he was unable to go out further to give Mr Ferguson more room. His position on the track was being dictated by the horse on his outside driven by Mr Hunter.
[9] When questioned by Mr Ferguson, Mr Beck confirmed there was no pressure on him from his outside but he simply could not shift wider on the track. He accepted Mr Hunter had shifted in quite close to the time of contact. He was not sure if it was at the same time or after the contact and when EL DINERO had galloped.
Respondent’s case
[10] Mr Ferguson stated it was clear that he had struck a pylon. It was a dark, dull day and a horse striking a pylon was not unusual. He said he had made ground inside Mr Beck for a distance of 3 pylons and had not struck any of these.
[11] Mr Ferguson stated the first 2 horses behind the leader were trailing a wheel and they had therefore allowed him room for a run on the pylons. He doubted that Mr Beck had deliberately given him room and he believed that Mr Beck had been tightened and that was why he had come into contact with Mr Beck’s cart.
[12] Mr Ferguson emphasised that he initially had room and there was a run for him to the inside of Mr Beck. MOONDYNE JOE was tiring and he believed Mr Beck had come down on to him.
[13] Mr Ferguson concluded his defence by stating there was definitely a run for him and the fact the horses were about to round the bend was irrelevant. Mr Hunter had cut across on an angle in front of Mr Beck’s horse looking for a run. Mr Hunter in his view had contributed to the incident.
Summing up
[14] Mr Wallis summed up by stating there was no clear run for Mr Ferguson and Mr Beck had, as a favour, had initially made room for him. There was never room for the respondent’s sulky. He pointed out the distance between the 3 pylons Mr Ferguson had referred to was only 20 metres.
[15] Mr Wallis concluded by stating and demonstrating on the videos that Mr Hunter had not improved at the time of the interference but after EL DINERO had galloped. It was “well after the fact”.
[16] Mr Ferguson disagreed with Mr Wallis, stating Mr Hunter had shifted in prior to EL DINERO galloping and that there had been room for a run for him inside Mr Beck.
Decision as to breach
[17] The videos demonstrate that Mr Ferguson has gone for a run to the inside of Mr Beck just prior to the horses entering the final bend. In so doing, Mr Ferguson has gone over a pylon. There was initially room for EL DINERO as Mr Beck has shifted a little wider on the track. Mr Beck has said he did this deliberately in order to make room for Mr Ferguson. Mr Ferguson has disputed this stating there was always a run to the inside of Mr Beck, whether or not the horses were racing around the bend and whether or not Mr Beck had shifted out.
[18] We are satisfied that Mr Ferguson has improved to the inside of Mr Beck when there was insufficient room. We believe Mr Beck accurately described the situation when he said there was room for EL DINERO but not the cart as well. Mr Beck has said that Mr Hunter was racing to his outside and while Mr Beck had been initially able to shift outwards and give Mr Ferguson room, due to Mr Hunter’s presence, he was no longer able to do so as they reached the apex of the bend, as he had nowhere to go. We agree with his summation of the incident.
[19] We accept Mr Hunter has moved downwards on the track looking for a run but significantly the head-on video demonstrates this was after EL DINERO broke as a result of contact with Mr Beck’s cart and galloped out of the race.
[20] We believe that the respondent drove carelessly in going for a run to the inside of MOONDYNE JOE when there was insufficient room for both horse and cart and the bend was looming, with the consequence that at its apex there was no possibility of Mr Beck continuing to shift wider to give Mr Ferguson room and there consequently was contact between EL DINERO and the cart of Mr Beck.
[21] We thus find the charge of careless driving proved.
Penalty submissions
[22] Mr Wallis produced the respondent’s record. This evidenced that Mr Ferguson had no breaches of this rule since 27 April 2015. The respondent has had 62 drives this season up until 21 November and 426 in his career. Mr Wallis described him as a very busy driver. Mr Ferguson’s actions had a detrimental effect on only one horse, his own, which was 10/10 in the betting. Mr Wallis submitted a fine in the range of $400 to $450 was appropriate.
[23] Mr Ferguson submitted a fine at the lower end of the range was appropriate.
Penalty decision
[24] We believe the breach is mid range. The only horse affected by Mr Ferguson’s actions was his own. However, the betting public who had invested on the horse were entitled to expect that the horse would be given every chance to pay a dividend in accordance with the Rules.
[25] We take a starting point of $500 as provided in the Penalty Guide. We make no adjustment for the nature of the breach. We accept that the respondent has an excellent record and allow a discount of $100 for this mitigating factor. The absence of an admission of the breach is merely a neutral factor.
[26] The resulting penalty is one of $400.
[27] The RIU do not seek costs.
[28] The fact that this matter was heard as a non-raceday hearing is through no fault of the respondent in this regard. We make no order as to costs for the JCA.
Dated at Dunedin this 29th day of November 2016.
Geoff Hall, Chairman
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