Non Raceday Inquiry RIU v R McIlwrick – Decision dated 20 April 2016 – Chair, Prof G Hall

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decisiondate: 20/04/2016

hearing_title: Non Raceday Inquiry RIU v R McIlwrick - Decision dated 20 April 2016 - Chair, Prof G Hall

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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 RORY MCILWRICK

Junior Horseman

Respondent

Information: A8022

Judicial Committee : Prof G Hall, Chairman

Mr P Knowles, Committee Member

Appearing: Mr N McIntyre, Co-chief Stipendiary Steward for the Informant

The Respondent in person, with the assistance of Mr N Williamson

Hearing and oral decision: 17 April 2016

DECISION OF JUDICIAL COMMITTEE

[1] The Respondent, Mr McIlwrick, is the holder of a Junior Horseman’s licence under the Rules of Harness Racing.

[2] Mr McIlwrick is charged under r 868(2) that on 12 March 2016, at a race meeting conducted by the Northern Southland Trotting Club at Invercargill in race 8, The Northern Southland Cup, as the driver of TITAN BANNER, he failed to improve his position prior to the final 140 metres by failing to take all reasonable and permissible measures to ensure TITAN BANNER finished in the highest possible placing.

[3] Rule 868(2) provides:

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.

[4] Mr McIntyre produced a letter from Mr Godber, General Manager of the RIU, dated 24 March, which authorised the laying of the charge.

[5] TITAN BANNER is trained by Mr G Anderson and was 4/4 in the betting. The horse started from a 30-metre handicap.

[6] TITAN BANNER began slowly and settled near the back of the field. Throughout the race TITAN BANNER held the position behind QUICK AS A TRICK, which was driven by Ms Young.

[7] Approaching the 130 metres TITAN BANNER was drawn outwards off the back of QUICK AS A TRICK and asked to sprint over the concluding stages.

[8] The horse finished the race off very attractively and made up considerable ground to finish in 4th placing 3.3 lengths behind the winning horse MOSSDALE CONNER and 1.3 lengths behind the third placed DEMOCRAT PARTY.

[9] The race was run in a time of 3.20.2 (amended for a horse which started off a 20 metre handicap). The final 800m was run in 56.6 and the 400m in 28.0.

The RIU’S case

[10] The crux of the RIU’s case was that the actions of Mr McIlwrick in not shifting outwards at an earlier stage were unreasonable, and that they had affected the horse’s ability to finish in a higher position.

[11] The RIU alleged that Mr McIlwrick should have improved, or, attempted to improve his position at a much earlier stage to allow his horse the opportunity to become balanced and be allowed sufficient time to utilise its powerful sprint to the best of its capabilities. In so doing, they believed this would have left “no room for query or question as to whether TITAN BANNER had finished in the highest possible placing”.

[12] Mr McIlwrick had, in the opinion of the Stewards, left his run too late when it was both reasonable and permissible to improve at an earlier stage.

[13] Mr McIlwrick had driven TITAN BANNER at its last five race-day starts and had driven the horse in seven of its 23 starts. The race in question was Mr McIlwrick’s 5th drive on the horse. From the previous four drives he had had two firsts, one second and one third.

[14] Mr McIntyre outlined the recent starts of the horse.

[15] On 20 September 2015 Mr McIlwrick drove TITAN BANNER for the first time at the races. It was off a 10m handicap in a race over 2700 metres. Approaching the 2000m TITAN BANNER found the front where it remained to record an easy victory. The second placed horse in that race was COSTA DEL MAGNIFICO, which beat TITAN BANNER in the race in question.

[16] On 25 October 2015 Mr D Dunn drove TITAN BANNER in a two-mile event at Forbury Park. The horse raced in the one-one throughout, improved four and five wide on the final bend and sprinted well to win the Tuapeka Cup.

[17] On 30 January 2016 Mr McIlwrick drove TITAN BANNER in the Invercargill Cup. He started from a 20m handicap. TITAN BANNER raced in the one-one early and was then left parked near the 2000m. TITAN BANNER stuck on well to finish 3rd behind COSTA DEL MAGNIFICO and ran 4.00.2, nearly 1 second quicker than the winner’s time.

[18] These three races, Mr McIntyre believed, showed the horse was a very versatile horse. He could lead, race with cover, or sit outside the leader and, if given the opportunity, still be very competitive against strong opposition.

[19] TITAN BANNER’s previous start was 6 March at Gore on the grass track. This was the horse’s first start on grass. Prior to that the horse had not raced since 30 January, so it was its first race day start in over five weeks. Due to it being the most tightly assessed horse, TITAN BANNER started from the back mark of 20m. It raced largely in the one-one throughout and improved wide near the 350m to make its run. TITAN BANNER was not put under any pressure until the final 100 metres where it was urged by Mr McIlwrick and won the race. Running second in that race was DELIGHTFUL DASH, an 11-win mare.

[20] Mr McIlwrick stated when questioned by the Stipendiary Stewards at Invercargill after the race in question, that he was disappointed at the “horrific” winning performance of TITAN BANNER at Gore. Mr McIntyre stated, “The Stewards feel that Mr McIlwrick has grossly underestimated this horse’s performance”. This was TITAN BANNER’s first performance on a grass circuit. It was a widely accepted fact that many horses were not well suited to racing on grass compared to an all weather track. This was a factor that had to be considered when assessing the horse’s performance that day. The horse was fresh up although it had raced in two workouts. TITAN BANNER raced up to the other horses in a convincing manner and then appeared to ease somewhat once reaching the front causing the driver to urge the horse over the final stages to ensure a victory.

[21] On 6 January 2016 TITAN BANNER raced fresh up from a 65 day racing break. On that occasion the horse finished 5th in the Cromwell Cup after breaking briefly at the start. This was a c2 front race and the field was of considerably lesser quality than what TITAN BANNER raced when fresh up at Gore. On this occasion TITAN BANNER finished 5th 3.8L behind CLIVE, which at the time was a c3 horse. When TITAN BANNER raced 8 days later it ran 1.5L 2nd behind I’M FULL OF EXCUSES in the Summer Cup. Mr McIntyre said this strongly suggested that the horse races well second up and had derived considerable benefit from its first up run.

[22] On 27 August 2015 TITAN BANNER raced at Forbury Park fresh up from an 89 day racing break. It ran 5th. At its next start TITAN BANNER sat parked out and ran 3rd behind PULP FICTION. Again, this supported the contention that TITAN BANNER had a very good second up record and was a horse that derived considerable benefit from its first up runs.

[23] In the race in question TITAN BANNER made a slightly slow beginning. The horse settled last as a result of being off the back mark, where it remained until near the 130m. At this point it was taken outwards and allowed to sprint to the line. A strong pace had been set throughout. This resulted in a time of 3.20.2. This time, Mr McIntyre acknowledged, supported the decision by Mr McIlwrick and other drivers to not improve during the middle stages. As was generally the case, when such a strong time was being dictated in front, it favoured the back runners. TITAN BANNER had enjoyed a run where it had to do no work throughout and had received cover from the very early stages.

[24] The Stewards alleged that Mr McIlwrick had simply left his run too late. After such strong sectionals TITAN BANNER should have improved at an earlier stage. With the first quarter of the last half being run in 28.6 it would have been reasonable to expect to see Mr McIlwrick attempt to improve his position anytime on the final bend. He should have been wider and challenging once the field entered the final bend. This way TITAN BANNER would have been allowed sufficient time to sprint to the best of its capability and also to take full benefit of the advantageous run the horse had enjoyed throughout. At a time when he should have already activated the horse’s gear and been asking it for its best efforts, Mr McIlwrick could be seen to be holding his position on the back of QUICK AS A TRICK. A position from where it was impossible for his horse to improve.

[25] Mr McIntyre asked the committee to consider a quote from the Hon Justice Mr W R Haylen in a ruling S, dated 20 May 2009, where he said “perhaps to throw my own interpretation into the mix I might view it this way – that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect ‘what on earth is he doing’ or ‘my goodness look at that’ or some such exclamation.”

[26] At the 150 metres, the leaders had further increased their advantage over Mr McIlwrick. Mr McIntyre said the drivers of every horse except the Respondent were all driving, as any reasonable minded person would expect, using every effort within the rules to encourage their horses to improve at a vital stage in the race. Their actions were in complete contrast to those of Mr McIlwrick who was sitting motionless. He had at this stage still not angled his runner out one space into clear running to allow his horse to improve. He had lost ground and momentum and was following a horse that was not progressing. Mr McIlwrick’s actions were simply not reasonable. He had set TITAN BANNER an impossible task. No horse was capable of running the leaders down when driven in such a manner. It was no small feat that TITAN BANNER had finished as close as it had.

[27] Mr McIntyre emphasised there was no impediment to Mr McIlwrick improving his position earlier. The horse was vetted subsequent to the run and found to be in good health. He said the Stewards did not and could not accept drivers leaving their run so late without a valid cause or justifiable reasoning. On this occasion Mr McIlwrick had made an error of judgement. He had failed to give TITAN BANNER its chance to race to its full potential and finish in the highest possible place. 130 metres was not a long enough distance for many horses to come from so far back in the field and ensure it had enough time to win or finish in the highest place possible.

[28] Mr McIntyre drew the Committee’s attention to the fact when questioned on the day by Mr Ydgren, Stipendiary Steward, Mr McIlwrick stated that he might have underestimated the run of TITAN BANNER and the benefit it had derived from its fresh up run. He commented to Mr Ydgren, “I think there was a definite improvement in performance today and I possibly haven’t taken that completely into calculations”. This was an opinion the Stewards shared. TITAN BANNER’s first up run was not a poor run. In the circumstances it was a good run and one that should have given Mr McIlwrick considerable confidence going into the race at issue, especially considering the horse’s good second up record.

[29] Mr McIntyre concluded his written submission by stating that Mr McIlwrick had forfeited any advantage he had received through the good run he had throughout and the race being run at such a fast speed that benefited the back runners. Mr McIlwrick had allowed his horse to follow a horse that was not improving, for too long. Long after the time that he should have improved outwards to mount his run, Mr McIlwrick was still waiting to shift into clear running. All the other drivers had already placed their horses under full pressure, some of which were beginning to tire but Mr McIlwrick was still waiting.

[30] Mr McIlwrick had the opportunity to ensure TITAN BANNER could fully utilise its powerful finishing burst by shifting outwards anytime in the previous 150-300m. Had he done so, TITAN BANNER would have had ample time to become balanced and begin to sprint, ideally having expended all of its energies as it crossed the line. Instead, TITAN BANNER was restrained for an unusually long period at a crucial time and once shown clear running sprinted well to rapidly take considerable ground off the leaders. Had TITAN BANNER been given more time to do so, the Stewards were confident that the horse would have finished in a higher position.

The respondent’s case

[31] Mr McIlwrick placed before the Committee a written submission prepared on his behalf by Mr G Anderson, the trainer of TITAN BANNER. He supplemented this with oral submissions of his own and Mr N Williamson also assisted him.

[32] The written submission stated that TITAN BANNER had trialled at Forbury Park on 13 February below expectations. Mr Anderson said this run had stopped him from entering the horse in the Wyndham Cup the following week, “a race he should have won.”

[33] Mr Anderson took TITAN BANNER to the Gore workouts on 26 February where he beat “ordinary horses” and, in his opinion, he was not impressive. He said he “left Gore concerned”.

[34] The veterinarian looked at TITAN BANNER on 1 March and did some remedial work on a front joint. The horse did no fast work that week.

[35] On 6 March TITAN BANNER won the Gore Cup after a good drive, but the horse was not dominant. There was a 6-day turnaround until the Northern Southland meeting and consequently the horse did no fast work, so Mr Anderson was not over confident.

[36] Mr Anderson did not attend the Northern Southland meeting. His instructions to the respondent were to get into the race if all went to plan. After the start TITAN BANNER was 60 metres behind the leaders so this plan could not be adhered to. He believed “saving him for one run was the only option left to Rory in those circumstances”.

[37] Mr Anderson noted that TITAN BANNER wears a Murphy blind on its near side because of its tendency to hang in when forced wide on the final bend, making it touch a knee and therefore pace a little roughly and lose momentum. He emphasised that at any stage from the 600-metre mark any attempt to improve would have seen the horse pushed three to four carts wide, and this would not have helped its chances.

[38] Mr Anderson concluded his submission by stating, “Rory followed my wishes on this occasion”.

[39] Mr McIlwrick stated TITAN BANNER was slow away and had gone rough for several strides. The horse was already giving away distance to Group 1 horses and was further disadvantaged by the slow start. He had worked his way onto Ms Young’s back and had elected to follow her.

[40] Mr McIlwrick emphasised TITAN BANNER had run quick sectionals (including a hand timed 26.9 off the video from the 600 to the 200 metres) and said to have moved down the back or on the final bend was not feasible in these circumstances. In addition, he was aware that TITAN BANNER had a history of going rough on the final bend. The horse at times could be “unco-ordinated” and was wearing a Murphy blind. It was hanging in early in the straight and did not want to be wide. He showed the head of TITAN BANNER being just to the inside of the helmet of Ms Young at one point early in the run home. He wanted to get around Ms Young and not lose momentum. He believed his best option was to follow her for as long as he could. He said he was slow coming out from behind Ms Young because it had taken him 50 metres to balance his horse.

[41] Mr Williamson stated the race had been run at near record speed and TITAN BANNER had given away a lot of ground at the start. It had run impressive sectionals through the middle of the race. TITAN BANNER was only 4/4 in the betting and this demonstrated the field was of better quality than the fields the horse had raced against previously. He drew the Committee’s attention to the significantly higher stakes that some of the horses had won, compared to TITAN BANNER.

[42] Mr Williamson emphasised it would not have been an option to have moved before the field straightened as this could have pushed TITAN BANNER five or six wide on a hot pace. If the respondent had so moved, TITAN BANNER’s race would have been over before the field straightened for home. The finish of TITAN BANNER looked good because the horse had had cover and the runs of majority of the horses had finished and Mr McIlwrick was coming at them with the last run. He said TITAN BANNER “did not fly, the other horses were stopping”.

[43] Mr Williamson had not driven TITAN BANNER but he was aware that it was not an easy horse to drive. It wore a Murphy blind and could go rough on the final bend. He said the horse had put in a rough one after the line. He believed TITAN BANNER was lugging in towards Ms Young and Mr McIlwrick had had to keep TITAN BANNER balanced and ease it off QUICK AS A TRICK.

[44] When questioned by Mr McIntyre, Mr Williamson agreed that the head of TITAN BANNER was not around in a chronic manner early in the home straight. He added he believed the respondent was flicking his horse to keep its mind on the job, to keep it on the bit, before asking it to give its best in the run to the line. When questioned by Mr McIntyre as to why TITAN BANNER might have been pushed five or six wide, he disagreed with Mr McIntyre that it would only have been three wide. He said Ms Young may have moved out at the same time as Mr McIlwrick and pushed him wider as a consequence.

Summing up

[45] Mr McIntyre in summing up stated that the trainer, Mr Anderson, clearly believed in the ability of TITAN BANNER as the horse’s next start was in the Easter Cup at Addington. He reiterated he believed there was no clear racing pattern for TITAN BANNER.

[46] Mr McIntyre concluded by stating the Respondent had simply left it too late. He should have shifted off Ms Young earlier in the run home. Had he done so, he would have given TITAN BANNER the opportunity to finish in a higher placing.

[47] Mr McIlwrick responded that form is temporary and the question was how good was TITAN BANNER going at the time. He had not been confident leading into this race of TITAN BANNER performing well due its performance at Gore, its run in its trial, and the calibre of the field that the horse had to beat.

[48] Mr McIlwrick emphasised he had taken 50 metres to balance TITAN BANNER and that he had had to ease off QUICK AS A TRICK gradually. Ms Young was moving wider on the track, TITAN BANNER was wearing a Murphy blind, and he had had to grab the rein to get outside Ms Young. He concluded by stating if the horse had been unbalanced, it would not have finished the race off well.

Decision as to breach

[49] We have no concerns with the Respondent’s drive up until the field straightened for the run home. We accept that were he to have moved earlier than this Mr McIlwrick would have been forced to race three or four wide on the track.

[50] The section of the race that is of concern to us is from the 200 to after the 140 metres where the respondent has elected to remain behind Ms Young. He had a clear opportunity to come out during this time but chose not to do so.

[51] Mr McIlwrick only came out for a run after the 140 metres mark and from that time TITAN BANNER finished the race off strongly. The earplugs on TITAN BANNER were only pulled after Mr McIlwrick commenced his run outside QUICK AS A TRICK. Mr McIntyre was correct when he stated that TITAN BANNER only had 100 metres to the finish of the race after the horse came out from behind Ms Young, the plugs were pulled, and the horse was balanced. TITAN BANNER clearly finished the race off strongly, even making an allowance for the fact that a number of the horses he ran past were coming to the end of their runs, having been put in the race earlier than had TITAN BANNER.

[52] We have had regard to the sectional times, the fact that TITAN BANNER was slow away, and that TITAN BANNER was racing against a much better class of horse than it had met previously, and that the horse had not been dominant when it won on the grass at Gore.

[53] We accept that TITAN BANNER is not the easiest horse to drive and note that the horse put in the odd rough pace on the bend when easing down. But we do not accept Mr McIlwrick’s submission that he needed 50 metres to balance TITAN BANNER. There is no video evidence that the horse was hanging in at the relevant time and we note that when Mr McIlwrick did come to the outside of QUICK AS A TRICK it was not a gradual move but one that was made quite quickly.

[54] We thus do not accept that the racing manners of TITAN BANNER provide a sufficient reason for Mr McIlwrick’s failure to improve to the outside of QUICK AS A TRICK for a distance of some 60 plus metres immediately after straightening for the run home. We believe this was the time that Mr McIlwrick should have improved his position and that his failure to do so amounted to a failure on his part to take all reasonable and permissible measures to ensure that TITAN BANNER obtained the best possible finishing position.

[55] We thus find the charge under r 868(2) to be proved.

Submissions as to penalty

[56] Mr McIntyre stated that in considering penalty the Judicial Committee should have regard to the gravity of the breach, the outcome of the race and whether race goers were affected by the breach, and the personal circumstances of the Respondent, including his experience and whether there had been previous breaches.

[57] Mr McIntyre produced the Respondent’s record, which evidenced that Mr McIlwrick had a clear penalty record for a breach of this rule. He had had 820 drives as a Junior Horseman.

[58] Mr McIntyre emphasised the need to maintain integrity and public confidence in Harness Racing but added that the Stewards were not in the possession of any evidence that questioned the integrity of Mr McIlwrick, personally.

[59] In recent times breaches of this rule have resulted in the following penalties. RIU v Rasmussen - 19 driving days and a $600 fine (major race) Group 1, $100,000; RIU v Williams (6 days plus $750 — the starting point was 30 drives, with the Appeals Tribunal noting that the stake was $28000 and that it was not a “major race” for the purpose of the Penalty Guide.

[60] The RIU submitted the appropriate penalty was a suspension of five days, which they equated in Mr McIlwrick’s instance, to 20 to 25 drives.

[61] Mr McIlwrick stated we should take into account the fact that he was a junior driver and had a good record. He said that if the penalty included a fine, he would have to pay by instalments. He emphasised he did not want to be suspended for too many meetings as once he lost a drive, it was hard to pick up the drive on that horse again.

Decision as to penalty

[62] We are required to address the need for general deterrence and to hold Mr McIlwrick accountable for his breach of r 868(2). We do not emphasise specific deterrence, as it is very clear to this Committee that Mr McIlwrick is remorseful and has emphasised to the Committee that he will learn from this experience.

[63] We also make reference to r 1114(2) which states:

In imposing a penalty or affecting any remedy provided in these Rules the Judicial Committee may have regard to such matters as they consider appropriate including:

(a) the status of race;

(b) the stake payable in respect of the race;

(c) any consequential effects upon any person or horse as a result of breach of the Rule;

(d) the need to maintain integrity and public confidence in Harness Racing.

[64] The JCA Penalty Guide states 50 drives or a $2500 fine as a starting point in a major race. The race in question was a Group III race with a stake of $40000. We thus factor this into the mix and are of the view that a starting point in the region of 30 drives is appropriate in this instance.

[65] Mr McIlwrick has four to five drives a meeting on average, although we have before us a list of his last 50 drives and note at the three previous meetings his number of drives has been five. His record is clear and he is a junior driver with relatively limited experience. These mitigating factors reduce our starting point to a final penalty of 20 drives.

[66] Mr McIlwrick assists with Mr Anderson’s horses and receives board and lodging in return. His only source of income is his driving. We have thus taken into account his limited means and have chosen not to impose, in addition to a suspension, a financial penalty.

[67] We have had regard to the forthcoming meetings and the fact that the Respondent drives primarily in Otago and Southland. Mr McIlwrick has requested that any suspension be deferred until after the Invercargill meeting on Friday 22 April.

[68] We suspend Mr McIlwrick from driving from the end of 22 April up to and including 8 May. This is four Otago and Southland days, but also includes three in Canterbury, two of which are at Addington, where he has driven in the past, principally in junior driver races. Mr McIntyre has informed us that there are no junior driver races on the cards of these two meetings. However, were there to be so, we believe it is appropriate that Mr McIlwrick’s suspension encompass those days as well.

[69] The RIU does not seek costs.

[70] As the hearing was on raceday, we make no costs award in favour of the JCA.

Dated at Dunedin this 20th day of April 2016.

Geoff Hall, Chairman

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