Non Raceday Inquiry RIU v R Allen – Decision of Judicial Committee dated 22 September 2014
ID: JCA16930
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
Informant
AND RICHARD ALLEN
Open Horseman
Respondent
Information: A6484
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Committee Member
Appearing: Mr S Renault, for the Informant
The Respondent in person
Date of hearing: 14 September 2014
DECISION OF JUDICIAL COMMITTEE
[1] Mr R Allen is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing. It is alleged that in race 1 the Osborne Contracting Gore Trot at the Gore Harness racing Club’s meeting on 24 August last he committed a breach of r 868(3) in that he failed to drive ZACHARY SMITH out over the final 200 metres when having a reasonable chance of running first.
[2] Rule 868(3) provides: “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.”
[3] Mr Renault stated that ZACHARY SMITH is owned and trained by Mr Allen. The horse was 6/6 in the betting and had finished 2nd, beaten half a length. The overall time for the race was 2.59.9, a mile rate of 2.11.6. The last half was run in 61.7 and the final quarter in 31.1. This was 3rd slowest last 400 metres of the 6 maiden trots run over the same distance at the course in the previous 12 months. Mr Renault described the race times as “only average”.
[4] ZACHARY SMITH was in a prominent position as the field entered the home straight, being some 2 lengths behind the eventual winner PYRAMID MAGIC. Mr Renault demonstrated on the side and head-on videos that Mr Allen, who was not carrying a whip, in his opinion, had shown a complete lack of vigour from the 200 to the 100-metre mark where he had given the horse a gentle tap with the right rein and had repeated these very gentle taps on 4 more occasions.
[5] Mr Renault acknowledged that ZACHARY SMITH had been 3 wide since the 800 metre mark but he believed the horse had finished the race under a hold and for the last 50 metres Mr Allen had sat motionless in the cart. The horse was not trotting roughly and had gained about a length on PYRAMID MAGIC without any obvious encouragement. He compared the respondent’s actions with those of the other drivers in contention over the final 200 metres, emphasising Mr Allen’s complete lack of vigour. He said all drivers were expected to display a concerted effort when they had a reasonable chance of finishing in the first six placings, and, in his mind, the respondent’s actions were unacceptable.
[6] Mr Renault stated that the stipendiary stewards were aware that earlier in his career ZACHARY SMITH had broken on occasions in the run home. The horse had raced 28 times and had broken on 4 occasions in the run home.
[7] Mr Allen stated he had been driving for 35 years and had had only one breach of the Rules in that time. This was in 1988, and it was unrelated in that it was for not taking a galloping trotter clear of the field. He said he concentrated on trotters and had had 30 plus winners. In 1989 he had the champion strike rate. He said he only engaged the best drivers for his horses, currently these were Ricky May, Dexter Dunn, Kirstin Barclay and Brad Williamson. He said he only drove a horse if it had issues that he wanted to sort out.
[8] Mr Allen stated that ZACHARY SMITH was a difficult horse to train. The horse would frequently break when placed under pressure. He said Mr Faulks sometimes accompanied him on the beach and ZACHARY SMITH would often break when he would try to steady him to follow the other horse. He said his policy was to keep the horse trotting and that is what he would tell other drivers who drove the horse.
[9] ZACHARY SMITH had had 13 starts for Mr Edge and had had 3 placings. He had had 15 starts for the respondent and had had 7 misses and 8 placings.
[10] Mr Allen described a number of races in which ZACHARY SMITH had competed. We also viewed a number of these races. We accept in a number of them ZACHARY SMITH broke for no apparent reason, as alleged by Mr Allen, and on occasion this would be in the home straight.
[11] Mr Allen described ZACHARY SMITH as having lost his confidence due to an unsoundness issue related to his knees and this was the reason he had been driving the horse. He believed that after the race in question ZACHARY SMITH had regained his confidence and was again sound. He had won his 2 starts subsequent to this race.
[12] With reference to the race at Gore on 24 August, Mr Allen said he had exerted as much pressure as he could whilst trying to keep ZACHARY SMITH in his gait. He said he had moved his wrists more on this occasion than he had on any previous occasion and, if he had applied any more pressure, ZACHARY SMITH would have galloped. He said while ZACHARY SMITH was a tricky horse to train, it was a trickier horse to drive. He said he was using his mouth to encourage the horse in the home straight and that Mr M Williamson would confirm this. Mr Renault acknowledged that this was evident from the videos.
[13] Mr Allen submitted that the winner of the race PYRAMID MAGIC had knocked off near the line and that this had contributed to the narrowness of the margin, which had flattered ZACHARY SMITH. He said ZACHARY SMITH had kept going and he was getting the best out of him.
[14] In summing up, Mr Renault stated that he accepted the horse had a history of breaking and, with reference to previous drives, he said the margins were significant. On many of those occasions the horse was some distance away from the horse that finished one place better than it, but on this occasion the margin between 1st and 2nd was only half a length. He added that since breaking at Marlborough when racing 3 wide at about the 250 metres and coming into the race, ZACHARY SMITH had had 6 starts without breaking in the home straight (although we note it had broken at other stages in two of these races).
[15] Mr Renault concluded by stating that ZACHARY SMITH was not trotting roughly and that Mr Allen had simply not done enough in the home straight, and in the last 50 metres, especially, he was sitting in the cart motionless. He said ZACHARY SMITH had made up a length and a half in the straight and the respondent had not driven his horse out to the end of the race when he had a reasonable chance of winning.
[16] Mr Allen stated he had driven the horse no differently to other occasions when he had driven the horse and he had driven in accordance with the instructions he would give to other drivers who drove the horse. He simply had driven the horse to keep it trotting. The horse would give no indication as to when it would break and he was holding ZACHARY SMITH together and was getting the best out of him. Mr Allen reminded us he did not carry a whip. The horse was now confident and sound.
[17] Mr Allen concluded by stating he had put a lot of time and effort into ZACHARY SMITH and that he was passionate about Harness Racing. He believed this charge was not a good reflection on him and his life-time involvement in the industry.
Decision
[18] We accept ZACHARY SMITH is not an easy horse to drive. The horse’s history evidences the fact that it has a history of breaking. This can be at the start (as at Auckland), during the running of the race (as at Kurow and Oamaru), or when in the home straight (as at Marlborough). We note from the videos Mr Allen has shown that many drivers have been circumspect when driving the horse out to the finish of the race.
[19] A driver’s obligation under r 868(3) is clear. He or she must drive the horse out to the finish of the race when it has any reasonable chance of running first, second, third, fourth, fifth, or sixth. There must be some demonstrable or discernible action that evidences a driver is getting the best from the horse: HRNZ v T (2008).
[20] We are satisfied that ZACHARY SMITH had a reasonable chance of winning the race. The horse had finished on up the home straight, making ground on the horses racing near him. Mr Allen did not challenge Mr Renault’s estimate that the horse had entered the home straight in 3rd or 4th position and had made up a length and a half in in the final 200 metres. Mr Allen may be correct when he says PYRAMID MAGIC knocked off near the winning post and this flattered ZACHARY SMITH in that the winning margin should have been greater. But this did not excuse Mr Allen from driving out ZACHARY SMITH.
[21] The only vigour evident from Mr Allen in the final 200 to 250 metres was some 100 metres from the line when the right rein was flicked at the horse and there was some gentle wrist movement from Mr Allen with the same rein on 4 further occasions. This, together with his shouting encouragement to the horse, was, in our view, insufficient.
[22] Unlike many of the previous starts where ZACHARY SMITH did not appear to have a reasonable chance of finishing in a better position were the horse driven more vigorously, on this occasion we believe the horse could have won the race had it been more truly tried in the run home. The horse, which was trotting fluently and was in a prominent position all the way up the straight, was not placed under any significant pressure by Mr Allen to ensure that it had a reasonable chance of finishing in a better position.
[23] We add that we do not question Mr Allen’s motives. It is evident that his concern was to try to ensure ZACHARY SMITH kept trotting by keeping a hold on the horse, as he has stated, but this notwithstanding, he has an obligation to those persons that invested on the horse to drive it out to the end of the race, where, as here, there was the reasonable chance of the horse finishing in a better placing. This was not the occasion to restore the horse’s confidence or to see if it was over its unsoundness issues.
[24] We thus find the breach of r 868(3) to be proved. We were unable to deliver an oral decision on the day, as the respondent did not return to the hearing room. We thus give Mr Renault 5 working days from receipt of this judgment to make submissions as to penalty and require that Mr Allen make submissions within 5 days of his receiving Mr Renault’s submissions.
Dated at Dunedin this 22nd day of September 2014.
Geoff Hall, Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 19/09/2014
Publish Date: 19/09/2014
JCA Decision Fields (raw)
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decisiondate: 19/09/2014
hearing_title: Non Raceday Inquiry RIU v R Allen - Decision of Judicial Committee dated 22 September 2014
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
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
Informant
AND RICHARD ALLEN
Open Horseman
Respondent
Information: A6484
Judicial Committee: Prof G Hall, Chairman - Mr P Knowles, Committee Member
Appearing: Mr S Renault, for the Informant
The Respondent in person
Date of hearing: 14 September 2014
DECISION OF JUDICIAL COMMITTEE
[1] Mr R Allen is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing. It is alleged that in race 1 the Osborne Contracting Gore Trot at the Gore Harness racing Club’s meeting on 24 August last he committed a breach of r 868(3) in that he failed to drive ZACHARY SMITH out over the final 200 metres when having a reasonable chance of running first.
[2] Rule 868(3) provides: “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.”
[3] Mr Renault stated that ZACHARY SMITH is owned and trained by Mr Allen. The horse was 6/6 in the betting and had finished 2nd, beaten half a length. The overall time for the race was 2.59.9, a mile rate of 2.11.6. The last half was run in 61.7 and the final quarter in 31.1. This was 3rd slowest last 400 metres of the 6 maiden trots run over the same distance at the course in the previous 12 months. Mr Renault described the race times as “only average”.
[4] ZACHARY SMITH was in a prominent position as the field entered the home straight, being some 2 lengths behind the eventual winner PYRAMID MAGIC. Mr Renault demonstrated on the side and head-on videos that Mr Allen, who was not carrying a whip, in his opinion, had shown a complete lack of vigour from the 200 to the 100-metre mark where he had given the horse a gentle tap with the right rein and had repeated these very gentle taps on 4 more occasions.
[5] Mr Renault acknowledged that ZACHARY SMITH had been 3 wide since the 800 metre mark but he believed the horse had finished the race under a hold and for the last 50 metres Mr Allen had sat motionless in the cart. The horse was not trotting roughly and had gained about a length on PYRAMID MAGIC without any obvious encouragement. He compared the respondent’s actions with those of the other drivers in contention over the final 200 metres, emphasising Mr Allen’s complete lack of vigour. He said all drivers were expected to display a concerted effort when they had a reasonable chance of finishing in the first six placings, and, in his mind, the respondent’s actions were unacceptable.
[6] Mr Renault stated that the stipendiary stewards were aware that earlier in his career ZACHARY SMITH had broken on occasions in the run home. The horse had raced 28 times and had broken on 4 occasions in the run home.
[7] Mr Allen stated he had been driving for 35 years and had had only one breach of the Rules in that time. This was in 1988, and it was unrelated in that it was for not taking a galloping trotter clear of the field. He said he concentrated on trotters and had had 30 plus winners. In 1989 he had the champion strike rate. He said he only engaged the best drivers for his horses, currently these were Ricky May, Dexter Dunn, Kirstin Barclay and Brad Williamson. He said he only drove a horse if it had issues that he wanted to sort out.
[8] Mr Allen stated that ZACHARY SMITH was a difficult horse to train. The horse would frequently break when placed under pressure. He said Mr Faulks sometimes accompanied him on the beach and ZACHARY SMITH would often break when he would try to steady him to follow the other horse. He said his policy was to keep the horse trotting and that is what he would tell other drivers who drove the horse.
[9] ZACHARY SMITH had had 13 starts for Mr Edge and had had 3 placings. He had had 15 starts for the respondent and had had 7 misses and 8 placings.
[10] Mr Allen described a number of races in which ZACHARY SMITH had competed. We also viewed a number of these races. We accept in a number of them ZACHARY SMITH broke for no apparent reason, as alleged by Mr Allen, and on occasion this would be in the home straight.
[11] Mr Allen described ZACHARY SMITH as having lost his confidence due to an unsoundness issue related to his knees and this was the reason he had been driving the horse. He believed that after the race in question ZACHARY SMITH had regained his confidence and was again sound. He had won his 2 starts subsequent to this race.
[12] With reference to the race at Gore on 24 August, Mr Allen said he had exerted as much pressure as he could whilst trying to keep ZACHARY SMITH in his gait. He said he had moved his wrists more on this occasion than he had on any previous occasion and, if he had applied any more pressure, ZACHARY SMITH would have galloped. He said while ZACHARY SMITH was a tricky horse to train, it was a trickier horse to drive. He said he was using his mouth to encourage the horse in the home straight and that Mr M Williamson would confirm this. Mr Renault acknowledged that this was evident from the videos.
[13] Mr Allen submitted that the winner of the race PYRAMID MAGIC had knocked off near the line and that this had contributed to the narrowness of the margin, which had flattered ZACHARY SMITH. He said ZACHARY SMITH had kept going and he was getting the best out of him.
[14] In summing up, Mr Renault stated that he accepted the horse had a history of breaking and, with reference to previous drives, he said the margins were significant. On many of those occasions the horse was some distance away from the horse that finished one place better than it, but on this occasion the margin between 1st and 2nd was only half a length. He added that since breaking at Marlborough when racing 3 wide at about the 250 metres and coming into the race, ZACHARY SMITH had had 6 starts without breaking in the home straight (although we note it had broken at other stages in two of these races).
[15] Mr Renault concluded by stating that ZACHARY SMITH was not trotting roughly and that Mr Allen had simply not done enough in the home straight, and in the last 50 metres, especially, he was sitting in the cart motionless. He said ZACHARY SMITH had made up a length and a half in the straight and the respondent had not driven his horse out to the end of the race when he had a reasonable chance of winning.
[16] Mr Allen stated he had driven the horse no differently to other occasions when he had driven the horse and he had driven in accordance with the instructions he would give to other drivers who drove the horse. He simply had driven the horse to keep it trotting. The horse would give no indication as to when it would break and he was holding ZACHARY SMITH together and was getting the best out of him. Mr Allen reminded us he did not carry a whip. The horse was now confident and sound.
[17] Mr Allen concluded by stating he had put a lot of time and effort into ZACHARY SMITH and that he was passionate about Harness Racing. He believed this charge was not a good reflection on him and his life-time involvement in the industry.
Decision
[18] We accept ZACHARY SMITH is not an easy horse to drive. The horse’s history evidences the fact that it has a history of breaking. This can be at the start (as at Auckland), during the running of the race (as at Kurow and Oamaru), or when in the home straight (as at Marlborough). We note from the videos Mr Allen has shown that many drivers have been circumspect when driving the horse out to the finish of the race.
[19] A driver’s obligation under r 868(3) is clear. He or she must drive the horse out to the finish of the race when it has any reasonable chance of running first, second, third, fourth, fifth, or sixth. There must be some demonstrable or discernible action that evidences a driver is getting the best from the horse: HRNZ v T (2008).
[20] We are satisfied that ZACHARY SMITH had a reasonable chance of winning the race. The horse had finished on up the home straight, making ground on the horses racing near him. Mr Allen did not challenge Mr Renault’s estimate that the horse had entered the home straight in 3rd or 4th position and had made up a length and a half in in the final 200 metres. Mr Allen may be correct when he says PYRAMID MAGIC knocked off near the winning post and this flattered ZACHARY SMITH in that the winning margin should have been greater. But this did not excuse Mr Allen from driving out ZACHARY SMITH.
[21] The only vigour evident from Mr Allen in the final 200 to 250 metres was some 100 metres from the line when the right rein was flicked at the horse and there was some gentle wrist movement from Mr Allen with the same rein on 4 further occasions. This, together with his shouting encouragement to the horse, was, in our view, insufficient.
[22] Unlike many of the previous starts where ZACHARY SMITH did not appear to have a reasonable chance of finishing in a better position were the horse driven more vigorously, on this occasion we believe the horse could have won the race had it been more truly tried in the run home. The horse, which was trotting fluently and was in a prominent position all the way up the straight, was not placed under any significant pressure by Mr Allen to ensure that it had a reasonable chance of finishing in a better position.
[23] We add that we do not question Mr Allen’s motives. It is evident that his concern was to try to ensure ZACHARY SMITH kept trotting by keeping a hold on the horse, as he has stated, but this notwithstanding, he has an obligation to those persons that invested on the horse to drive it out to the end of the race, where, as here, there was the reasonable chance of the horse finishing in a better placing. This was not the occasion to restore the horse’s confidence or to see if it was over its unsoundness issues.
[24] We thus find the breach of r 868(3) to be proved. We were unable to deliver an oral decision on the day, as the respondent did not return to the hearing room. We thus give Mr Renault 5 working days from receipt of this judgment to make submissions as to penalty and require that Mr Allen make submissions within 5 days of his receiving Mr Renault’s submissions.
Dated at Dunedin this 22nd day of September 2014.
Geoff Hall, Chairman
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