Non Raceday Inquiry RIU v MJ Anderson 28 February 2016 – Decision dated 8 March 2016 – Chair, Mr R McKenzie
ID: JCA15308
Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A3640
BETWEEN S P RENAULT, Stipendiary Stewart for the Racing Integrity Unit
Informant
AND MATTHEW JASON ANDERSON, Licensed Junior Driver
Respondent
Judicial Committee: Mr R G McKenzie (Chairman), Mr S C Ching (Committee Member)
Date of Hearing: 28 February 2016
Present: S P Renault, Stipendiary Steward (the Informant), M J Anderson, the Respondent, G D Smith, Licensed Open Horseman (for Mr Anderson)
Date of Decision: 8 March 2016 (Oral decision delivered on 28.2.16)
DECISION OF JUDICIAL COMMITTEE
The Charge
[1] Information No. A3640 alleges that Mr Anderson, as the driver of KYLIE CASTLETON in Race 8, Amity Lodge Motel Trot, at the meeting of Oamaru Harness Racing Club held at Oamaru on the 7th day of January 2016, “failed to drive his horse out to the end of the race, when having a reasonable chance of running second outright” in breach of Rule 868 (3) of the New Zealand Rules of Harness Racing.
The Rule
[2] Rule 868 provides as follows:
(3) Every horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth or sixth.
The Plea
[3] Mr Anderson was present at the hearing and he indicated to the hearing that he denied the breach. He was assisted at the hearing by Mr G D Smith, Licensed Trainer / Open Horseman.
Evidence / Submissions of the Informant
[4] Mr Renault presented the following submissions:
Background
(1) On Thursday 7th January 2016, the Respondent, Mr Matthew Anderson, was the driver of the horse, KYLIE CASTLETON, in Race 8 the AMITY LODGE MOTEL TROT at Oamaru HRC.
(2) KYLIE CASTLETON is trained by Mr Phil Williamson and in this race finished in 2nd equal position.
(3) After questioning Mr Anderson regarding the manner in which he had handled KYLIE CASTLETON over the final stages, an information was filed with the Judicial Control Authority (JCA) alleging that Mr Anderson “failed to drive KYLIE CASTLETON out to the end of the race when he had a reasonable chance of finishing second outright”.
Submissions
(4) The test that must be used in this instance is an objective one.
(5) KYLIE CASTLETON raced three wide in the early stages before improving to the parked position near the 2000 metres. KYLIE CASTLETON then raced in the one x one position from the 1600 metres. KYLIE CASTLETON raced keenly on the final bend and in the home straight before commencing to improve its position inside the final 100 metres.
(6) Once securing clear running KYLIE CASTLETON gains over a length on LITTLE MO (which also finished 2nd equal) without any obvious encouragement. Stewards believe this is significant.
(7) Mr Anderson has sat motionless in the sulky. At no stage did Mr Anderson make any attempt to push the horse with the reins or implement any form of urging upon KYLIE CASTLETON. His whip was still tucked under his arm and he did not activate the removable deafeners. It appears that he has a strong hold of the mare to the finish of the race. It is entirely reasonable to suggest that KYLIE CASTLETON did have a reasonable chance of finishing 2nd on its own.
(8) Stewards ordered a post-race veterinary examination of KYLIE CASTLETON on the day which did not detect any abnormalities.
(9) There was no impediment to Mr Anderson driving KYLIE CASTLETON out to the finish. The mare was trotting fluently. There is no visible reason for Mr Anderson not to drive his horse out.
(10) The Judicial Committee in HRNZ v Tomlinson (2008) said:
“Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings”
(11) This was KYLIE CASTLETON’s 24th raceday start. The mare has broken on three occasions in the home straight in its career. However, in the race in question, KYLIE CASTLETON was trotting well and was in a prominent place which would require Mr Anderson to drive the horse out.
(12) Mr Anderson said, when interviewed by Stewards after the race that he was being careful in the race in question as he felt the mare may break had he placed it under any pressure. He said “You can see there that I’m not a 100% happy with it or I would have asked it for more” and further on he said “It was not trotting up to my standards as driving the horse. And obviously I’ve driven the horse before and know, potentially when it’s going to go rough, because it’s happened with her before at her last start okay”.
(13) This is purely subjective and is not supported by the video evidence. This does not relieve Mr Anderson of his obligations to drive the horse out to the end of the race.
(14) The appeal tribunal in RIU v DeFilippi (2013) said:
“The respondent’s obligation under r 868(3) is to test the mare. It is not sufficient compliance with the Rule for him to conclude that a vigorous or even a not so vigorous use of the stick (which he has now concluded will get the best response from the mare), whether on the dust cart or to the horse, or a shake of the reins would not produce a favourable response. By merely sitting still in the cart and then putting the stick away Mr DeFilippi has denied himself the opportunity to test his horse in a manner that is in accordance with the Rule. His obligation is to continue to put his horse under some form of discernible pressure until the horse has reached the winning post.”
(15) This is the stage of the race where most people viewing, especially those who had invested on the race, would expect to see a driver doing everything reasonable to ensure the horse was fully driven to the line. Instead what everyone saw was a horseman who sat motionless in the sulky. Mr Anderson’s lack of vigour is best highlighted when viewing his drive on KYLIE CASTLETON alongside the actions of the other drivers in the race. Those drivers were all showing the vigour required of them over the final stages.
(16) It can only be speculation to say what the outcome of the race would have been had Mr Anderson showed any vigour in the run home. Stewards allege that Mr Anderson’s lack of vigour in this race was unacceptable. There is an obligation on every driver to leave no doubt in the mind of anyone viewing the race that the horse is driven out to obtain the best possible placing.
(17) The Appeals Tribunal in DeFilippi v HRNZ (2006) said:
“To a degree, compliance with the particular rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a driver in the latter stages of a race. The purpose of the rules is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing. We agree with the Judicial Committee's interpretation of the rule which is an interpretation taken from the 1998 appeal case of Greer. In that case, the Appeals Tribunal stated: “We find that the obligation that arises under Rule 868(3) 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.”
(18) All drivers are expected to display a concerted effort when they have a reasonable chance of finishing in the first six placing’s.
(19) There are two matters to be considered under this Rule.
• Did Mr Anderson drive his horse out to the end of the race; and
• Did he have a reasonable chance of running 2nd on his own?
(20) Firstly, every horseman shall drive his horse out to the finish of the race.
• This element is very clear “every horseman shall”. There was no impediment to Mr Anderson driving KYLIE CASTLETON out in the home straight. There was no anomaly or discernible change apparent with the horse’s gait, which would lead Mr Anderson to not drive his horse out. The horse had trotted fluently in the home straight.
(21) The appeal tribunal in RIU v Patterson (2011) said:
“In our view the point of the Rule is not about the horse but about the actions of the Horseman. The Rule in fact starts “Every Horseman shall”.
(22) The second element of this rule is did KYLIE CASTLETON have a reasonable chance of finishing in 2nd place on its own?
Passing the 100 metres KYLIE CASTLETON is in 5th place and begins to improve its position. To finish ¾ length behind the winner ROYDON’S JEWEL and to dead heat with LITTLE MO it would be entirely reasonable to suggest that KYLIE CASTLETON did have a reasonable chance of finishing 2nd on its own. Any punter that placed an investment on KYLIE CASTLETON has every right to feel aggrieved that the horse was not placed under any pressure to ensure that the horse finished in the best possible position.
(23) Mr Anderson has denied himself the opportunity to test his horse in a manner that is in accordance with the Rule. His obligation is to put his horse under some form of discernible pressure until the horse has reached the winning post.
(24) Mr Anderson’s lack of vigour has fallen well short of what a reasonable minded person would expect. Had Mr Anderson shown a reasonable amount of vigour over the concluding stages it is totally fair to think he may have finished second outright.
(25) Given the international exposure to our betting product it is even more important to protect the image and integrity of our sport.
[5] Mr Renault then showed video replays of the final stages of the race in question. He pointed out KYLIE CASTLETON, driven by Mr Anderson, racing in 5th position approximately 150 metres from the finish and looking for racing room. The mare then got a run between two other runners, Mr Renault said. At that stage, it made up ground but, at no point, did Mr Anderson show any urging. He had “a tight hold” on the horse which was trotting well and there was, Mr Renault submitted, no reason for Mr Anderson not to drive the horse out. The removable deafeners were not activated, Mr Renault said.
[6] In response to a question from Mr Smith, Mr Renault agreed that the gap for KYLIE CASTLETON was small but the mare was clear in the last 50 metres and this is the part of Mr Anderson’s drive with which the Stewards had issues. The margin had been reducing in the last 50 metres and a driver’s actions at that time were critical to his horse’s finishing position, Mr Renault said. Mr Smith submitted that the distance was 40 metres rather that 50 metres.
Submissions of Respondent
[7] Mr Smith submitted that, for a trotter that can gallop, it is difficult for it to accelerate too quickly. That is when it is likely to break. KYLIE CASTLETON had been “running on by itself” , he submitted. After the race, the trainer, Mr Williamson, notified a gear change of no whip, he said.
[8] Mr Anderson said that his pre-race instructions from Mr Williamson had been to get round safely and to get some confidence back in the horse. Mr Smith said that the horse had galloped in the final 200 metres of the last four races in which it had not been driven by regular driver, Brad Williamson, prior to this race.
[9] Mr Smith showed to the hearing a video replay of the final stages of a race at Winton in which KYLIE CASTLETON had galloped in the home straight. Mr Renault said that the mare had hit a knee on that occasion, according to the Stewards’ report, when being angled out, which explained its galloping.
[10] KYLIE CASTLETON’s racing record showed that it had broken in the home straight on three occasions in its 24 starts.
[11] Mr Smith submitted that persons who had invested on the horse were not affected, as it was never going to win. Place bettors had received exactly the same dividend for their bets, he said. Likewise, investors on the quinella, trifecta and First 4 had received a dividend. It was pointed out to him that those pools were shared as a result of the dead-heat. It was 9/10 in the betting and was, therefore, not a fancied runner, Mr Smith said.
[12] Mr Smith called the mare’s trainer, Mr Phil Williamson, to give evidence to the hearing by telephone. Mr Williamson said that his pre-race instructions to Mr Anderson were to be mindful of the fact that, in her previous start, KYLIE CASTLETON had galloped near the 100 metres. He also said to Mr Anderson that he would prefer that she finished the race safely and got some return for the owners rather than risk her breaking and get nothing. A driver gets no warning that the mare is going to break, as she has been prone to do over her career, especially if she has “been asked”. He said that he was “thrilled” with Mr Anderson’s drive to get a placing on this occasion. KYLIE CASTLETON was not an easy horse to drive.
[13] In response to a question from Mr Renault, Mr Williamson described it as “high risk” to drive KYLIE CASTLETON out at the end of her races. Mr Anderson had only driven her on one previous occasion (at Winton), when she had broken near the end of the race. Mr Williamson could not answer a question from Mr Renault as to whether KYLIE CASTLETON had broken on any occasion when driven by Mr Brad Williamson, its regular driver.
[14] Mr Renault showed a video replay of a race at Forbury Park which, he submitted, showed that the horse can be driven out with the whip, as it was on that occasion.
[15] Mr Smith was asked by the Committee to point out on the video replay of the Oamaru race any actions taken by Mr Anderson to drive the horse out in the final 50 metres of the race. Mr Smith acknowledged that Mr Anderson had taken no actions in that regard – it was unnecessary, he said, as the horse was already doing its best. A driver only hits a horse that is not running on and doing its best, he said. In this race, the horse was too late getting clear and had accelerated on its own – it could not have gone any faster, Mr Smith submitted.
[16] Mr Anderson told the Committee that he was unsure, at the time, as to whether the horse had run 2nd or 3rd. Regardless of its final placing, he had been “very proud” of the horse, he said. He knew that the trainer would be pleased and he was trying to establish a relationship with the Williamson stable. It was put to Mr Anderson that he had a wider obligation, as a driver, than to impress the owners and trainer.
[17] Mr Smith suggested that the runners around KYLIE CASTLETON were all being urged along by their drivers. This, in itself, would have encouraged KYLIE CASTLETON to do its best.
[18] It was put to Mr Smith by the Committee that Mr Anderson appeared to have a firm hold on the horse over the last 50 metres. Mr Smith agreed that this was “possibly” the case but submitted that Mr Anderson had let it go, once he cleared wheels, by having his hands in front of his knees. There was no reason for Mr Anderson not to have tried to finish in the highest possible placing, Mr Smith submitted.
[19] Mr Smith submitted that the Committee needed to look at the racing history of KYLIE CASTLETON to see that it had a tendency to break when pushed. A driver must have a choice of whether to push his horse or not, Mr Smith submitted.
Reasons for Decision
[20] It is a mandatory requirement of Rule 868 (3) that a driver “shall drive his horse out”. “Drive” is not defined in the Rules. The most authoritative statement of the obligation placed on a driver under the Rule was made in the decision of the Appeals Tribunal in the 1998 case of Greer in which the Tribunal stated as follows:
We find that the obligation that arises under [Rule 868(3)] 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”.
This has been the test applied by Judicial Committees and Appeals Tribunals since that time in cases involving a breach of Rule 868 (3).
[21] The meanings of “demonstrable” and “discernible” in the Collins English Dictionary are “able to be demonstrated or proved” and “able to be discerned or perceptible” respectively and those meanings are self-explanatory.
That statement in Greer has been expanded on in a subsequent case (Tomlinson 2008) in which the Judicial Committee stated:
. . . it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky.
[22] Turning to the evidence which we saw and heard in the present case, with the statement of principle in Greer in mind, the Committee has asked itself two questions. Firstly, what action or actions did Mr Anderson take to “urge his horse on” and, secondly, was there any “demonstrable or discernible movement” by him.
[23] On the basis of the video evidence shown to the Committee, the Committee found that Mr Anderson took no action or actions to urge his horse on and there was no demonstrable or discernible movement by him. In terms of the statement in the Greer case, this was required of him. Mr Anderson sat still in the sulky taking no action whatsoever by way of using the whip or shaking the reins at the horse. When Mr Smith was asked to point out, on the video replays, any action taken by Mr Anderson to urge his horse on, he was unable to do so.
[24] Mr Anderson’s lack of urging could not be explained by any problem with the horses’s gait. Mr Renault submitted that the mare was “trotting fluently” and this appeared to be the case from the Committee’s own observations. It is significant that Mr Renault’s submission was not challenged by either Mr Smith or Mr Anderson.
[25] There are two matters about which the Informant was required to satisfy the Committee. Firstly, that Mr Anderson had failed to drive his horse out to the end of the race. We have earlier found that Mr Anderson, clearly, failed to do so. The second element that the Informant needed to prove was that Mr Anderson’s horse had a reasonable chance of running first, second, third, fourth, fifth or sixth, bearing in mind that, in the event, it had dead-heated for 2nd placing. When KYLIE CASTLETON secured a clear gap, which we find happened at least 50 metres prior to the finishing line, the horse made up approximately a length on the horse with which it dead-heated, LITTLE MO, with no urging whatsoever on Mr Anderson’s part. It is reasonable to deduce that there was more than a reasonable chance of the horse running outright second with even very minimal urging by Mr Anderson and with some attempt on his part to drive his horse out over the final stages to the finishing line.
[26] Mr Anderson’s defence to the charge was based, principally, on an alleged tendency shown by the mare on previous occasions to break when pressure was applied in the final stages. Mr Smith submitted that the mare had only worked into a gap with approximately 50 metres to run and that it would have been a risk to apply pressure on her at that stage and, in any event, she was making ground and doing her best in the run to the line. As Mr Smith put it, she was “running on by herself”. He submitted that any urging by Mr Anderson would not have made any difference to her finishing position.
[27] Mr P C Williamson, the trainer, told the hearing, by telephone, that KYLIE CASTLETON had broken inside the final 100 metres at her previous start and has shown a tendency to break in her races and has to be “nursed”. He had instructed Mr Anderson to ensure that the horse finish the race and get something for her connections, rather than break and “get nothing”. He said that he was happy with Mr Anderson’s drive.
[28] The combined effect of the matters advanced in Mr Anderson’s defence was that he had driven the horse in accordance with its known waywardness and in accordance with the trainer’s instructions. Both of those matters can only be of very limited assistance to Mr Anderson, as neither relieves him of his obligations under the Rule. In particular, Mr Anderson cannot blame his driving instructions as the reason for his lack of urgency. The obligations of a driver at the finish of a race extend beyond the interests of the owners and trainer. He also has an obligation to members of the betting public who have invested on his horse and, to an objective viewer of the race (an objective test being the appropriate one) it would not have appeared that Mr Anderson’s drive over the final stages had given his horse every opportunity to take second placing outright. It can only be speculation whether the horse would have taken second placing outright had Mr Anderson showed any vigour in his driving tactics. The Committee does not need to determine that. What is relevant is that Mr Anderson must drive the horse out in a manner that gives it a reasonable chance to run second, and in a manner that removes any doubts that the horse has been given every opportunity to finish in that position. In this case, the Committee is satisfied that Mr Anderson did not do so.
[29] For those reasons, the Committee is satisfied that the Informant has discharged the burden of proof to the required standard of the balance of probabilities and the Committee is satisfied that Mr Anderson had failed on this occasion to drive his horse out to the end of the race. The charge is, therefore, found proved.
The Penalty Rule
[30] The penalty Rule is Rule 1003 (1) which provides:
Every person who commits a breach of any Rule shall . . . be liable to the following penalties:
(a) a fine not exceeding $10,000.00; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months.
Penalty Submissions
[31] Mr Renault informed the Committee that Mr Anderson has had 234 career drives – 92 last season and 85 this season. He referred to the Penalty Guide starting point of a 12 drives suspension or a $600 fine having regard to the placing involved. The placing involved in this case was 2nd placing. He submitted that the Committee also needed to have regard to the consequential effects and the need to maintain the integrity of harness racing. KYLIE CASTLETON had been denied the opportunity to earn a larger stake and the betting public had also been affected. Mr Renault submitted that the breach was in the mid to high range of seriousness considering that Mr Anderson had shown no vigour at all. Mr Anderson averages 1-2 drives per meeting and Stewards were seeking a suspension of 14-16 drives – the equivalent of 7-8 meetings.
[32] Mr Smith submitted that Mr Anderson had followed the trainer’s instructions and it had cost the owners only a minimal amount, having to share the stake for 2nd. Mr Smith submitted that it had been a good drive and that the penalty submitted by the Stewards was an excessive penalty for a Junior Driver. He suggested that a fine was appropriate rather than a suspension, or a fine coupled with a suspension. It was Mr Anderson’s first breach of the Rule, Mr Smith said.
[33] A discussion ensued as to the upcoming meeting at which Mr Anderson would be likely to have driving engagements. Mr Renault accepted that Mr Anderson would possibly have drives in Southland and on the West Coast and, therefore, those meetings should be taken into account in any term of suspension.
Reasons for Penalty
[34] In arriving at penalty, the Committee had regard to the Penalty Guide starting point of a 12 drives’ suspension. The Committee was of the view that a period of suspension was appropriate in this case. We increased that starting point to 14 drives for the reasons that the breach involved 2nd placing and was in the mid-to-high range of seriousness.
[35] From the starting point arrived at, Mr Anderson was entitled to a discount for a combination of his previous good record and his Junior Driver status. The Committee fixed that starting point at 2 drives, bringing the penalty back to 12 drives which, in Mr Anderson’s case, we take as 6 meetings on the basis that he has 1-2 drives per meeting.
Penalty
[36] Mr Anderson’s Junior Horseman’s Licence is suspended from after the close of racing on 27 February 2016 up to and including 12 March 2016 – 6 days. The meetings intended to be included in the period of suspension are Forbury Park on 3 March, Westport on 4 March, Reefton on 6 March, Invercargill on 9 March, Timaru at Addington on 10 March and Northern Southland on 12 March.
Costs
[37] There is no order as to costs.
R G McKENZIE S C CHING
Chair Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 08/03/2016
Publish Date: 08/03/2016
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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decisiondate: 08/03/2016
hearing_title: Non Raceday Inquiry RIU v MJ Anderson 28 February 2016 - Decision dated 8 March 2016 - Chair, Mr R McKenzie
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE A JUDICIAL COMMITTEE
AT CHRISTCHURCH
IN THE MATTER of the New Zealand Rules of Harness Racing
IN THE MATTER of Information No. A3640
BETWEEN S P RENAULT, Stipendiary Stewart for the Racing Integrity Unit
Informant
AND MATTHEW JASON ANDERSON, Licensed Junior Driver
Respondent
Judicial Committee: Mr R G McKenzie (Chairman), Mr S C Ching (Committee Member)
Date of Hearing: 28 February 2016
Present: S P Renault, Stipendiary Steward (the Informant), M J Anderson, the Respondent, G D Smith, Licensed Open Horseman (for Mr Anderson)
Date of Decision: 8 March 2016 (Oral decision delivered on 28.2.16)
DECISION OF JUDICIAL COMMITTEE
The Charge
[1] Information No. A3640 alleges that Mr Anderson, as the driver of KYLIE CASTLETON in Race 8, Amity Lodge Motel Trot, at the meeting of Oamaru Harness Racing Club held at Oamaru on the 7th day of January 2016, “failed to drive his horse out to the end of the race, when having a reasonable chance of running second outright” in breach of Rule 868 (3) of the New Zealand Rules of Harness Racing.
The Rule
[2] Rule 868 provides as follows:
(3) Every horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth or sixth.
The Plea
[3] Mr Anderson was present at the hearing and he indicated to the hearing that he denied the breach. He was assisted at the hearing by Mr G D Smith, Licensed Trainer / Open Horseman.
Evidence / Submissions of the Informant
[4] Mr Renault presented the following submissions:
Background
(1) On Thursday 7th January 2016, the Respondent, Mr Matthew Anderson, was the driver of the horse, KYLIE CASTLETON, in Race 8 the AMITY LODGE MOTEL TROT at Oamaru HRC.
(2) KYLIE CASTLETON is trained by Mr Phil Williamson and in this race finished in 2nd equal position.
(3) After questioning Mr Anderson regarding the manner in which he had handled KYLIE CASTLETON over the final stages, an information was filed with the Judicial Control Authority (JCA) alleging that Mr Anderson “failed to drive KYLIE CASTLETON out to the end of the race when he had a reasonable chance of finishing second outright”.
Submissions
(4) The test that must be used in this instance is an objective one.
(5) KYLIE CASTLETON raced three wide in the early stages before improving to the parked position near the 2000 metres. KYLIE CASTLETON then raced in the one x one position from the 1600 metres. KYLIE CASTLETON raced keenly on the final bend and in the home straight before commencing to improve its position inside the final 100 metres.
(6) Once securing clear running KYLIE CASTLETON gains over a length on LITTLE MO (which also finished 2nd equal) without any obvious encouragement. Stewards believe this is significant.
(7) Mr Anderson has sat motionless in the sulky. At no stage did Mr Anderson make any attempt to push the horse with the reins or implement any form of urging upon KYLIE CASTLETON. His whip was still tucked under his arm and he did not activate the removable deafeners. It appears that he has a strong hold of the mare to the finish of the race. It is entirely reasonable to suggest that KYLIE CASTLETON did have a reasonable chance of finishing 2nd on its own.
(8) Stewards ordered a post-race veterinary examination of KYLIE CASTLETON on the day which did not detect any abnormalities.
(9) There was no impediment to Mr Anderson driving KYLIE CASTLETON out to the finish. The mare was trotting fluently. There is no visible reason for Mr Anderson not to drive his horse out.
(10) The Judicial Committee in HRNZ v Tomlinson (2008) said:
“Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings”
(11) This was KYLIE CASTLETON’s 24th raceday start. The mare has broken on three occasions in the home straight in its career. However, in the race in question, KYLIE CASTLETON was trotting well and was in a prominent place which would require Mr Anderson to drive the horse out.
(12) Mr Anderson said, when interviewed by Stewards after the race that he was being careful in the race in question as he felt the mare may break had he placed it under any pressure. He said “You can see there that I’m not a 100% happy with it or I would have asked it for more” and further on he said “It was not trotting up to my standards as driving the horse. And obviously I’ve driven the horse before and know, potentially when it’s going to go rough, because it’s happened with her before at her last start okay”.
(13) This is purely subjective and is not supported by the video evidence. This does not relieve Mr Anderson of his obligations to drive the horse out to the end of the race.
(14) The appeal tribunal in RIU v DeFilippi (2013) said:
“The respondent’s obligation under r 868(3) is to test the mare. It is not sufficient compliance with the Rule for him to conclude that a vigorous or even a not so vigorous use of the stick (which he has now concluded will get the best response from the mare), whether on the dust cart or to the horse, or a shake of the reins would not produce a favourable response. By merely sitting still in the cart and then putting the stick away Mr DeFilippi has denied himself the opportunity to test his horse in a manner that is in accordance with the Rule. His obligation is to continue to put his horse under some form of discernible pressure until the horse has reached the winning post.”
(15) This is the stage of the race where most people viewing, especially those who had invested on the race, would expect to see a driver doing everything reasonable to ensure the horse was fully driven to the line. Instead what everyone saw was a horseman who sat motionless in the sulky. Mr Anderson’s lack of vigour is best highlighted when viewing his drive on KYLIE CASTLETON alongside the actions of the other drivers in the race. Those drivers were all showing the vigour required of them over the final stages.
(16) It can only be speculation to say what the outcome of the race would have been had Mr Anderson showed any vigour in the run home. Stewards allege that Mr Anderson’s lack of vigour in this race was unacceptable. There is an obligation on every driver to leave no doubt in the mind of anyone viewing the race that the horse is driven out to obtain the best possible placing.
(17) The Appeals Tribunal in DeFilippi v HRNZ (2006) said:
“To a degree, compliance with the particular rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a driver in the latter stages of a race. The purpose of the rules is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing. We agree with the Judicial Committee's interpretation of the rule which is an interpretation taken from the 1998 appeal case of Greer. In that case, the Appeals Tribunal stated: “We find that the obligation that arises under Rule 868(3) 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.”
(18) All drivers are expected to display a concerted effort when they have a reasonable chance of finishing in the first six placing’s.
(19) There are two matters to be considered under this Rule.
• Did Mr Anderson drive his horse out to the end of the race; and
• Did he have a reasonable chance of running 2nd on his own?
(20) Firstly, every horseman shall drive his horse out to the finish of the race.
• This element is very clear “every horseman shall”. There was no impediment to Mr Anderson driving KYLIE CASTLETON out in the home straight. There was no anomaly or discernible change apparent with the horse’s gait, which would lead Mr Anderson to not drive his horse out. The horse had trotted fluently in the home straight.
(21) The appeal tribunal in RIU v Patterson (2011) said:
“In our view the point of the Rule is not about the horse but about the actions of the Horseman. The Rule in fact starts “Every Horseman shall”.
(22) The second element of this rule is did KYLIE CASTLETON have a reasonable chance of finishing in 2nd place on its own?
Passing the 100 metres KYLIE CASTLETON is in 5th place and begins to improve its position. To finish ¾ length behind the winner ROYDON’S JEWEL and to dead heat with LITTLE MO it would be entirely reasonable to suggest that KYLIE CASTLETON did have a reasonable chance of finishing 2nd on its own. Any punter that placed an investment on KYLIE CASTLETON has every right to feel aggrieved that the horse was not placed under any pressure to ensure that the horse finished in the best possible position.
(23) Mr Anderson has denied himself the opportunity to test his horse in a manner that is in accordance with the Rule. His obligation is to put his horse under some form of discernible pressure until the horse has reached the winning post.
(24) Mr Anderson’s lack of vigour has fallen well short of what a reasonable minded person would expect. Had Mr Anderson shown a reasonable amount of vigour over the concluding stages it is totally fair to think he may have finished second outright.
(25) Given the international exposure to our betting product it is even more important to protect the image and integrity of our sport.
[5] Mr Renault then showed video replays of the final stages of the race in question. He pointed out KYLIE CASTLETON, driven by Mr Anderson, racing in 5th position approximately 150 metres from the finish and looking for racing room. The mare then got a run between two other runners, Mr Renault said. At that stage, it made up ground but, at no point, did Mr Anderson show any urging. He had “a tight hold” on the horse which was trotting well and there was, Mr Renault submitted, no reason for Mr Anderson not to drive the horse out. The removable deafeners were not activated, Mr Renault said.
[6] In response to a question from Mr Smith, Mr Renault agreed that the gap for KYLIE CASTLETON was small but the mare was clear in the last 50 metres and this is the part of Mr Anderson’s drive with which the Stewards had issues. The margin had been reducing in the last 50 metres and a driver’s actions at that time were critical to his horse’s finishing position, Mr Renault said. Mr Smith submitted that the distance was 40 metres rather that 50 metres.
Submissions of Respondent
[7] Mr Smith submitted that, for a trotter that can gallop, it is difficult for it to accelerate too quickly. That is when it is likely to break. KYLIE CASTLETON had been “running on by itself” , he submitted. After the race, the trainer, Mr Williamson, notified a gear change of no whip, he said.
[8] Mr Anderson said that his pre-race instructions from Mr Williamson had been to get round safely and to get some confidence back in the horse. Mr Smith said that the horse had galloped in the final 200 metres of the last four races in which it had not been driven by regular driver, Brad Williamson, prior to this race.
[9] Mr Smith showed to the hearing a video replay of the final stages of a race at Winton in which KYLIE CASTLETON had galloped in the home straight. Mr Renault said that the mare had hit a knee on that occasion, according to the Stewards’ report, when being angled out, which explained its galloping.
[10] KYLIE CASTLETON’s racing record showed that it had broken in the home straight on three occasions in its 24 starts.
[11] Mr Smith submitted that persons who had invested on the horse were not affected, as it was never going to win. Place bettors had received exactly the same dividend for their bets, he said. Likewise, investors on the quinella, trifecta and First 4 had received a dividend. It was pointed out to him that those pools were shared as a result of the dead-heat. It was 9/10 in the betting and was, therefore, not a fancied runner, Mr Smith said.
[12] Mr Smith called the mare’s trainer, Mr Phil Williamson, to give evidence to the hearing by telephone. Mr Williamson said that his pre-race instructions to Mr Anderson were to be mindful of the fact that, in her previous start, KYLIE CASTLETON had galloped near the 100 metres. He also said to Mr Anderson that he would prefer that she finished the race safely and got some return for the owners rather than risk her breaking and get nothing. A driver gets no warning that the mare is going to break, as she has been prone to do over her career, especially if she has “been asked”. He said that he was “thrilled” with Mr Anderson’s drive to get a placing on this occasion. KYLIE CASTLETON was not an easy horse to drive.
[13] In response to a question from Mr Renault, Mr Williamson described it as “high risk” to drive KYLIE CASTLETON out at the end of her races. Mr Anderson had only driven her on one previous occasion (at Winton), when she had broken near the end of the race. Mr Williamson could not answer a question from Mr Renault as to whether KYLIE CASTLETON had broken on any occasion when driven by Mr Brad Williamson, its regular driver.
[14] Mr Renault showed a video replay of a race at Forbury Park which, he submitted, showed that the horse can be driven out with the whip, as it was on that occasion.
[15] Mr Smith was asked by the Committee to point out on the video replay of the Oamaru race any actions taken by Mr Anderson to drive the horse out in the final 50 metres of the race. Mr Smith acknowledged that Mr Anderson had taken no actions in that regard – it was unnecessary, he said, as the horse was already doing its best. A driver only hits a horse that is not running on and doing its best, he said. In this race, the horse was too late getting clear and had accelerated on its own – it could not have gone any faster, Mr Smith submitted.
[16] Mr Anderson told the Committee that he was unsure, at the time, as to whether the horse had run 2nd or 3rd. Regardless of its final placing, he had been “very proud” of the horse, he said. He knew that the trainer would be pleased and he was trying to establish a relationship with the Williamson stable. It was put to Mr Anderson that he had a wider obligation, as a driver, than to impress the owners and trainer.
[17] Mr Smith suggested that the runners around KYLIE CASTLETON were all being urged along by their drivers. This, in itself, would have encouraged KYLIE CASTLETON to do its best.
[18] It was put to Mr Smith by the Committee that Mr Anderson appeared to have a firm hold on the horse over the last 50 metres. Mr Smith agreed that this was “possibly” the case but submitted that Mr Anderson had let it go, once he cleared wheels, by having his hands in front of his knees. There was no reason for Mr Anderson not to have tried to finish in the highest possible placing, Mr Smith submitted.
[19] Mr Smith submitted that the Committee needed to look at the racing history of KYLIE CASTLETON to see that it had a tendency to break when pushed. A driver must have a choice of whether to push his horse or not, Mr Smith submitted.
Reasons for Decision
[20] It is a mandatory requirement of Rule 868 (3) that a driver “shall drive his horse out”. “Drive” is not defined in the Rules. The most authoritative statement of the obligation placed on a driver under the Rule was made in the decision of the Appeals Tribunal in the 1998 case of Greer in which the Tribunal stated as follows:
We find that the obligation that arises under [Rule 868(3)] 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”.
This has been the test applied by Judicial Committees and Appeals Tribunals since that time in cases involving a breach of Rule 868 (3).
[21] The meanings of “demonstrable” and “discernible” in the Collins English Dictionary are “able to be demonstrated or proved” and “able to be discerned or perceptible” respectively and those meanings are self-explanatory.
That statement in Greer has been expanded on in a subsequent case (Tomlinson 2008) in which the Judicial Committee stated:
. . . it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky.
[22] Turning to the evidence which we saw and heard in the present case, with the statement of principle in Greer in mind, the Committee has asked itself two questions. Firstly, what action or actions did Mr Anderson take to “urge his horse on” and, secondly, was there any “demonstrable or discernible movement” by him.
[23] On the basis of the video evidence shown to the Committee, the Committee found that Mr Anderson took no action or actions to urge his horse on and there was no demonstrable or discernible movement by him. In terms of the statement in the Greer case, this was required of him. Mr Anderson sat still in the sulky taking no action whatsoever by way of using the whip or shaking the reins at the horse. When Mr Smith was asked to point out, on the video replays, any action taken by Mr Anderson to urge his horse on, he was unable to do so.
[24] Mr Anderson’s lack of urging could not be explained by any problem with the horses’s gait. Mr Renault submitted that the mare was “trotting fluently” and this appeared to be the case from the Committee’s own observations. It is significant that Mr Renault’s submission was not challenged by either Mr Smith or Mr Anderson.
[25] There are two matters about which the Informant was required to satisfy the Committee. Firstly, that Mr Anderson had failed to drive his horse out to the end of the race. We have earlier found that Mr Anderson, clearly, failed to do so. The second element that the Informant needed to prove was that Mr Anderson’s horse had a reasonable chance of running first, second, third, fourth, fifth or sixth, bearing in mind that, in the event, it had dead-heated for 2nd placing. When KYLIE CASTLETON secured a clear gap, which we find happened at least 50 metres prior to the finishing line, the horse made up approximately a length on the horse with which it dead-heated, LITTLE MO, with no urging whatsoever on Mr Anderson’s part. It is reasonable to deduce that there was more than a reasonable chance of the horse running outright second with even very minimal urging by Mr Anderson and with some attempt on his part to drive his horse out over the final stages to the finishing line.
[26] Mr Anderson’s defence to the charge was based, principally, on an alleged tendency shown by the mare on previous occasions to break when pressure was applied in the final stages. Mr Smith submitted that the mare had only worked into a gap with approximately 50 metres to run and that it would have been a risk to apply pressure on her at that stage and, in any event, she was making ground and doing her best in the run to the line. As Mr Smith put it, she was “running on by herself”. He submitted that any urging by Mr Anderson would not have made any difference to her finishing position.
[27] Mr P C Williamson, the trainer, told the hearing, by telephone, that KYLIE CASTLETON had broken inside the final 100 metres at her previous start and has shown a tendency to break in her races and has to be “nursed”. He had instructed Mr Anderson to ensure that the horse finish the race and get something for her connections, rather than break and “get nothing”. He said that he was happy with Mr Anderson’s drive.
[28] The combined effect of the matters advanced in Mr Anderson’s defence was that he had driven the horse in accordance with its known waywardness and in accordance with the trainer’s instructions. Both of those matters can only be of very limited assistance to Mr Anderson, as neither relieves him of his obligations under the Rule. In particular, Mr Anderson cannot blame his driving instructions as the reason for his lack of urgency. The obligations of a driver at the finish of a race extend beyond the interests of the owners and trainer. He also has an obligation to members of the betting public who have invested on his horse and, to an objective viewer of the race (an objective test being the appropriate one) it would not have appeared that Mr Anderson’s drive over the final stages had given his horse every opportunity to take second placing outright. It can only be speculation whether the horse would have taken second placing outright had Mr Anderson showed any vigour in his driving tactics. The Committee does not need to determine that. What is relevant is that Mr Anderson must drive the horse out in a manner that gives it a reasonable chance to run second, and in a manner that removes any doubts that the horse has been given every opportunity to finish in that position. In this case, the Committee is satisfied that Mr Anderson did not do so.
[29] For those reasons, the Committee is satisfied that the Informant has discharged the burden of proof to the required standard of the balance of probabilities and the Committee is satisfied that Mr Anderson had failed on this occasion to drive his horse out to the end of the race. The charge is, therefore, found proved.
The Penalty Rule
[30] The penalty Rule is Rule 1003 (1) which provides:
Every person who commits a breach of any Rule shall . . . be liable to the following penalties:
(a) a fine not exceeding $10,000.00; and/or
(b) suspension from holding or obtaining a licence for a period not exceeding 12 months; and/or
(c) disqualification for a period not exceeding 12 months.
Penalty Submissions
[31] Mr Renault informed the Committee that Mr Anderson has had 234 career drives – 92 last season and 85 this season. He referred to the Penalty Guide starting point of a 12 drives suspension or a $600 fine having regard to the placing involved. The placing involved in this case was 2nd placing. He submitted that the Committee also needed to have regard to the consequential effects and the need to maintain the integrity of harness racing. KYLIE CASTLETON had been denied the opportunity to earn a larger stake and the betting public had also been affected. Mr Renault submitted that the breach was in the mid to high range of seriousness considering that Mr Anderson had shown no vigour at all. Mr Anderson averages 1-2 drives per meeting and Stewards were seeking a suspension of 14-16 drives – the equivalent of 7-8 meetings.
[32] Mr Smith submitted that Mr Anderson had followed the trainer’s instructions and it had cost the owners only a minimal amount, having to share the stake for 2nd. Mr Smith submitted that it had been a good drive and that the penalty submitted by the Stewards was an excessive penalty for a Junior Driver. He suggested that a fine was appropriate rather than a suspension, or a fine coupled with a suspension. It was Mr Anderson’s first breach of the Rule, Mr Smith said.
[33] A discussion ensued as to the upcoming meeting at which Mr Anderson would be likely to have driving engagements. Mr Renault accepted that Mr Anderson would possibly have drives in Southland and on the West Coast and, therefore, those meetings should be taken into account in any term of suspension.
Reasons for Penalty
[34] In arriving at penalty, the Committee had regard to the Penalty Guide starting point of a 12 drives’ suspension. The Committee was of the view that a period of suspension was appropriate in this case. We increased that starting point to 14 drives for the reasons that the breach involved 2nd placing and was in the mid-to-high range of seriousness.
[35] From the starting point arrived at, Mr Anderson was entitled to a discount for a combination of his previous good record and his Junior Driver status. The Committee fixed that starting point at 2 drives, bringing the penalty back to 12 drives which, in Mr Anderson’s case, we take as 6 meetings on the basis that he has 1-2 drives per meeting.
Penalty
[36] Mr Anderson’s Junior Horseman’s Licence is suspended from after the close of racing on 27 February 2016 up to and including 12 March 2016 – 6 days. The meetings intended to be included in the period of suspension are Forbury Park on 3 March, Westport on 4 March, Reefton on 6 March, Invercargill on 9 March, Timaru at Addington on 10 March and Northern Southland on 12 March.
Costs
[37] There is no order as to costs.
R G McKENZIE S C CHING
Chair Committee Member
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