Non Raceday Inquiry RIU v S Phelan 7 June 2013 – Decision dated 11 June 2013

hearingid: 99772e2cc3e83f9b78076a9f2b9124b1

informantnumber: A2329

horsename:

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startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 31/05/2013

hearing_title: Non Raceday Inquiry RIU v S Phelan 7 June 2013 - Decision dated 11 June 2013

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

NON RACEDAY INQUIRY

HRNZ v Mr S Phelan

Rule: 868(2)

Held:  Friday, 7 June 2013 at Alexandra Park, Auckland

Judicial Committee:  AJ Dooley, Chairman - A Godsalve, Committee Member

Present:  Mr J M Muirhead - Stipendiary Steward, Mr S Phelan - Open Horseman, Mr R Lawson - Lay Advocate for Mr S Phelan

DECISION OF JUDICIAL COMMITTEE

Charge:

A charge was brought against the Defendant, Open Horseman Mr S Phelan, in that he committed a breach of Rule 868(2). The informant, Mr N Ydgren, alleged that on 17th May 2013, at Palmerston North, during the course of a race meeting held by the Manawatu Harness Racing Club, Mr Phelan failed to take all reasonable and permissible measures available to him between the 200m and the 50m to ensure that LATENT was given full opportunity to win the race.

Mr Phelan acknowledged that he had received a copy of the charge and the relevant documents.

The Rule was read aloud and Mr Phelan acknowledged he understood the nature of the charge and the Rule. Mr Phelan confirmed he denied the breach.

Rule 868(2) reads: “(2) 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.”

The Informant Mr N Ydgren served an Information on Mr S Phelan on the 17th May 2013. He alleged that Mr Phelan breached Rule 868(2) whilst driving LATENT in Race 10 at the Manawatu HRC on the 17th May 2013.

The charge was denied and subsequently heard as a Non Race day Inquiry on the 7th June 2013 at Alexandra Park at 3.30pm.

Stipendiary Steward Mr J Muirhead gave evidence on behalf of Mr N Ydgren.

Mr S Phelan was represented at the hearing by Mr R Lawson – Lay Advocate.

Mr Muirhead read the rule and Mr Phelan acknowledged that he understood the nature of the charge and the Rule. He confirmed to the Committee he was denying the charge.

Evidence for Informant:

Mr Muirhead at the commencement of the hearing provided the following exhibits to the Committee:

(a) The race record of LATENT.
(b) The official result sheet of the subject race.
(c) Two photo finishes of Race 10 from Manawatu HRC on the 17th of May.
(d) The transcript of the post race interview between Mr Phelan and the Stipendiary Stewards.
(e) Copies of previous JCA decisions under this Rule for Mr H and Mr M.

Mr Muirhead then explained to the Committee his interpretation of the Rule. He said he considered the breach to be bad judgement for a Horseman of Mr Phelan's experience in comparison to a Junior Horseman for which he would have described it as an error of judgement.

Mr Muirhead then read aloud the submissions that he had documented, they are as follows:

This charge relates to the meeting on the 17th of May at the Manawatu Raceway. Mr Scott Phelan was the driver of the horse LATENT which was entered for and raced In Race Ten, the Visque Naylor Palmer Optometrists Handicap Trot. LATENT is trained by Mr Peter Scaife and in this race was both the win and place favourite.

This race was run over the distance of 2500m; LATENT drew one and started from the front mark.

Early in the run home LATENT was positioned widest on the track and had assumed the lead in the race. LATENT lead the field throughout the run home but in the final 40 metres of the race was overtaken on his inside by eventual winner SUNSHIELD.

The particulars of the Stewards’ allegation is that, from turning for home until passing the 50 metres, Mr Phelan has made no discernible or demonstrable effort to urge LATENT and it was not until shortly after racing past the 40 metres (at the time that SUNSHIELD improves on his inside), that Mr Phelan made an obvious and sudden change to his driving style and began to vigorously urge his horse with the reins. He did so on three occasions, however these efforts on Mr Phelan’s part were, in essence, too little, too late. It was not feasible to expect LATENT to quicken in this short time and so suddenly.

When assessing this charge we ask the Committee to keep the following points in mind throughout the hearing as these are considered paramount to this charge.

The Stewards allege that Mr Phelan’s clear lack of vigour from approximately the 200m to the 40m was unacceptable in all the circumstances.

There is an obligation on all drivers, when circumstances permit, that they leave no doubt in the minds of all those viewing the race, be it the betting public, the Judicial Control Authority or anyone associated with racing.

Never do the Stewards demand that horseman use excessive force or to unduly punish a horse but a driver is expected to display a concerted effort and pursue the horse to full advantage especially when they are in contention for stake and/or dividend bearing places and where no impediment exists for them not to do so.

The Stewards contend that there was no reason why Mr Phelan could not have urged LATENT in the initial 200m of the final straight to ensure that he established a winning break over the field instead of sitting motionless and being caught in the final stages of the race to eventually run second.

LATENT, when viewed by way of the films, was trotting well in the run home. It is balanced and giving no indication that it is under any pressure or that it is having any difficulty with its gait.

When questioned, Mr Phelan confirmed that LATENT had handled the wet track and that it was trotting free of ailment or restriction in the run home.

However throughout the entire run home Mr Phelan has slapped LATENT only three times with the reins. All three of these slaps being within the final 40m when SUNSHIELD was in the process of passing LATENT. That is to say that throughout the entire final straight aside from the final 40m Mr Phelan makes no demonstrable or discernible effort to urge his horse. At no stage of the run home does he turn his whip. It remains unturned throughout the run home and is never used.

Given that LATENT was not in danger of breaking and given that the evidence tendered by Mr Phelan it was entirely reasonable for him to apply more vigour during the outlined stages of concern. However Mr Phelan remained motionless from the 200 to the 40m.

Nevertheless the extent of Mr Phelan’s urgings in the final straight amounted to three shakes of the reins. Given the fact LATENT was beaten by a head margin the Stewards are completely satisfied that the vigour displayed fell well below the expected standards of a horseman. LATENT has not been given ample opportunity to hold its lead to the finish. Its distance from the winner at the finishing line is a head. It cannot be said that LATENT had the field covered, the end result of the race confirms this, he did not have them covered as he did not win the race. Perhaps Mr Phelan thought he had the field beaten but by mere examination of the finishing result he did not.

As with every other horseman who takes their place in a race, Mr Phelan had a very clear and a very important obligation placed upon him, that is he is to leave no doubt in the minds of the viewing public that he has afforded his runner every chance to win the race. That is to say that there should be no doubt in the mind of any person that each driver takes all available measures that are both reasonable and permissible to ensure their horse receives every chance to run to its full capabilities.

Mr Phelan on this occasion has fallen short of his obligations and failed in his duties to ensure these obligations were not compromised. LATENT has not been given every chance to win the race by the simple fact that it has not been asked for its best. Had Mr Phelan displayed some demonstrable and discernible urgings in the early and middle stages of the run home then it would have removed all doubt about his driving and we would not be sitting here today. Factors in support of this position are;

LATENT was in a reasonable position to win the race.

The margin between first and second was a head.

A distance of approximately 150m in the run home where there was NO vigour by the driver.

That LATENT was trotting well.

The Stewards are clearly opposing of the view that LATENT is not able to be placed under pressure, reviews of both its previous and subsequent races clearly demonstrate that the gelding can be pursued with the whip. These films showing LATENT being struck with the whip and showing no adverse reaction.

This being evidenced by Mr Phelan suddenly and vigorously beginning to urge LATENT over the final 40m, this proving LATENT could have been placed under more vigour in the straight.

Stewards say that Mr Phelan has taken his lead too cheaply, he has failed to notice the impending presence of SUNSHIELD until it is too late. At the point at which he realises that he is in danger of losing the race he immediately begins to urge his runner to an acceptable level. These urgings that Mr Phelan has employed late in the race are as previously stated “too little too late”. He should have made a far greater effort, as required under the rules, in the early stages of the run home to put a margin on his rivals. His horse was trotting well within itself yet has not been fully tested. Mr Phelan had not asked it to quicken in the run home. The Stewards submit that on this occasion, Mr Phelan has made a significant error of judgement.

The Stewards are firm in the belief that the vigour of Mr Phelan between the 200m and the 40m was insufficient and unacceptable. Mr Phelan should have shown more discernible action in urging his horse between the 200m and the 40m when it was both completely reasonable and permissible to do so. Any viewer watching this race, especially those who had invested their money on LATENT would rightly feel aggrieved that the driver of this horse had not taken all available steps to ensure it was given its chance to win the race.

The Stewards understand that weight will be given to Mr Phelan’s professional opinion that perhaps the horse was doing its best or had nothing left to give but more weight must be given to the expectations of those who view the sport. It is therefore not possible to accept this opinion when the horse was not placed under reasonable pressure at this stage of the run home.

The Stewards contend that the perception of this is poor at best and it is imperative that the image and integrity of racing cannot be placed in jeopardy or compromised as they have on this occasion.

When referring to Rule 868 (2) it is accepted by the Stewards that the rule does not seek to punish mere errors of judgment during the race but rather it requires that the driver's conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.

With respect to this point the Committee are referred to comments made by Hon Justice Mr W R Haylen in Harness Racing NSW vs. F in a decision dated May 2009 where he said the following;

“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.

That statement of the Rule demonstrates how Rule 868 (2) should be applied and represents a common-sense application of the Rule.

Mr Muirhead then went and demonstrated the alleged incident by way of the video films. He pointed out to the Committee that approaching the 200 metres LATENT was improving around the outside of the field and heading for the lead. He showed that Mr Phelan was sitting quietly on LATENT, his posture was forward, his hands were not moving and he was not using his whip, and in fact he had made no attempt to free his hands to use the whip.

Mr Muirhead demonstrated on the films that LATENT was clearly in the lead at the 150 metre mark and he noted that the eventual winner SUNSHIELD shifted ground inwards and in his view Mr Phelan hasn't seen the other horse coming.

Mr Muirhead then rolled the film onto the 100 metre mark which showed LATENT to be 1 1/2 and 2 lengths in front. He pointed out again at this stage Mr Phelan did not appear to notice SUNSHIELD improving on his inside. He believed Mr Phelan had been surprised to see SUNSHIELD on his inside otherwise he would have used vigour prior to the final 50 metres. He said Mr Phelan left it far too late and all he had time for was to shake the reins at LATENT.

Mr Muirhead summed up by saying LATENT was trotting well and evenly and Mr Phelan should have shown more vigour when it was reasonable and permissible to do so.

Under cross examination Mr Lawson had several questions and sought Mr Muirhead's interpretation of the alleged incident from the 200 metre mark until 50 metre mark.

Mr Lawson acknowledged that Mr Phelan had not shown any vigour during this section of the race and asked Mr Muirhead to explain what Mr Phelan should have done. In response Mr Muirhead stated that from the 200 metres to the 150 metres, Mr Phelan should have been prepared to be aware of any challenge from another horse which includes having his reins crossed over and being ready to encourage LATENT.

Mr Lawson then moved onto the 150 metres to the 100 metres mark, Mr Muirhead submitted that Mr Phelan assumed he was going to win the race when doing nothing on the horse and was of the view Mr Phelan was lackadaisical in his actions. He believed Mr Phelan failed to put the race beyond all doubt, noting he was sitting dead quiet in the sulky.

Mr Lawson then questioned Mr Muirhead on the incident from the 100 metres to the 50 metres. Mr Muirhead’s assessment was Mr Phelan underestimated the challenge from SUNSHIELD and he wasn't ready for it. When asked by Mr Lawson if Mr Phelan had breached the rule for this section of the race Mr Muirhead was adamant Mr Phelan had failed to comply with the Rule from the 150 metre through to the 50 metres.

Evidence for Defendant:

Mr Lawson, on behalf of Mr Phelan, then read aloud the submissions that he had documented, they are as follows:

Mr Phelan vehemently denies the breach and has submitted a not guilty plea.

Mr Phelan essentially agrees with the assessment that he did not make any discernible or demonstrable effort to urge LATENT until approximately the 40 metre mark. The film of the race is quite clear and this is not in dispute.

Mr Phelan unequivocally believes that he drove this horse in a reasonable manner in that he was confident that he had the field covered between the 200 to 40 metre mark.

We intend to convince the Judicial Panel that Mr Phelan's driving during this section in fact in the section of the race between the 200 metres and 50 metres (as per the Information) did not in fact breach this rule and in fact was REASONABLE’.

Mr Phelan believed that at all times during this period he had this race won (that he had a winning break) and that he had sufficient margin on the other runners.

Because of the belief that Mr Phelan had he saw no need or requirement to use vigour on the horse because a) he had them covered and b) the horse was running well and strongly.

Mr Phelan believed that he acted as a reasonable driver would have, in not applying pressure at this stage.

Mr Phelan was also cognisant of the instructions given to him by Mr Scaife the trainer of LATENT, that he was to be cautious and "nurse” him around however, that said Mr Phelan is not conceding that he "nursed" the horse.

The entire basis of our case is that Mr Phelan acted as a REASONABLE horseman would have in not having to show vigour when he is of the firm belief that he had the field covered.

The Stewards contend that Mr Phelan should have used vigour to get further clear; surely this is entirely subjective, as is our contention that the horse was doing its best (running as fast as it could) under its own steam anyway. Even though Mr Phelan was not using vigour that does not mean it is not running as fast as it can. As an example of this we would argue that in the last 40 metres when vigour was used, the horse did NOT quicken.

The Stewards have alluded to the perception of Mr Phelan's drive. We will respond in this manner Perception is in the eye of the beholder and I can give my personal opinion and that is that LATENT had the field well and truly covered in the period of the alleged breach. However I do not expect you to consider my opinion that of an unbiased judge and that is fair enough - although I would argue that I watch as many if not more Harness races than the individual Stipendiary Stewards. However I would suggest you listen to the commentary by Mr J. Bright. Early in the run home- 150m approximately he states "and LATENT has burst on to the scene" and around the 100m "it’s all LATENT it’s got the favourite covered ". Mr Bright is the Racing Board appointed commentator who is going live on TV and radio and obviously therefore going to the overseas posts that is mentioned in the Informant’s submissions.

I put to you that his words will influence most into thinking that LATENT is a very likely winner of the race.

Another aspect of this case is that if LATENT had officially won the race then no charges would have been laid by the RIU against Mr Phelan.

This race was subject to an enquiry into the galloping of SUNSHIELD over the finish line.

The Stewards on the night considered that it may well have galloped on the line and sought the relegation of SUNSHIELD that being the case. The JCA on the night dismissed the case on the grounds that "there was an element of doubt and an aspect of uncertainty" and "it was difficult to identify" the exact point that SUNSHIELD galloped and "in light of such doubt” dismissed the protest.

Mr Phelan was in a good position to judge and he was adamant it galloped on the line and the finish lynx photo to me clearly shows the horse in a gallop however that is an uncontestable decision now. We do concede that is now "spilt milk" as far as this case goes but may well be a catalyst for better cameras etc at Manawatu Raceway.

Finally, we wish to show the closing stages of the race and dissect the last 150 metres (from the 200m to the 50m) into 50 metre sections. Mr Phelan will explain a) his actions during that 50 metre section and b) explain his thought process also in the 50 metre section.

The entire thrust of our argument is that Mr Phelan acted as a reasonable driver would in not showing vigour during the section of the information (200m to 50m).

Mr Lawson also made reference to a letter the Committee received from Mr Scaife, trainer of LATENT. Mr Scaife submitted that the instructions he gave Mr Phelan were to “nurse him around as he wasn’t sure how LATENT would handle the conditions”.

Mr Lawson then asked Mr Phelan to talk to the video films and place his interpretation on the alleged incident.

Mr Phelan said he hit the front by a neck at the 200 metre mark. At the 150 metre mark he was a length in front and he was letting LATENT run on his own steam. At the 100 metre mark he believed he was 2 lengths in front of the field and not needing to show any vigour. At the 50 metres he said he was 1 ½ lengths in front when he noticed SUNSHIELD’s nose get to his shoulder. This he said was when he showed some vigour as SUNSHIELD had come at LATENT quick but LATENT didn't respond as it had nothing left.

Mr Lawson then asked Mr Phelan to explain to the hearing his thought pattern over the final 200 metres.

Mr Phelan said he thought at the 200 metres he was going to win by 2 to 3 lengths. In his opinion there was no need to use the whip in the final straight because he was going to win easily. However, he conceded that SUNSHIELD did come up his inside quickly and in the last 40 metres he believed it was in his best interests to give LATENT a few slaps.

Under cross examination, Mr Muirhead questioned Mr Phelan as to why when it was reasonable and permissible to use some form of vigour he chose not to. Mr Phelan maintained he didn't need to. Mr Muirhead then stated it was incumbent on any driver to ensure their horses are given every chance to win. He believed Mr Phelan failed to ensure LATENT was given a winning opportunity.

Under cross examination, Mr Phelan confirmed to Mr Muirhead that during the running of a race, LATENT can accept the whip and has in the past.

Under cross examination, the Committee said to Mr Phelan in our experience it was abnormal for a Horseman to move clear in the final straight and sit motionless in the sulky. Mr Phelan responded by saying he thought LATENT was going to win by a length and the horse did not require any encouragement.

Under cross examination, the Committee asked Mr Phelan if was aware SUNSHIELD was moving up quickly along his inside. He said he was aware of SUNSHIELD “when it got up to me” and stated it was at this point inside the final 50 metres that he started to show some form of vigour.

Summary/Submissions for Informant:

We do not question the integrity of Mr Phelan. However we do question his failure to fulfill an obligation which is placed on every driver when they step onto the racetrack.

Mr Phelan has shown bad judgement. To put it bluntly he has taken his lead in the race too cheaply and been ‘caught napping’ in the run home. He has noticed SUNSHIELD too late and been unable to respond in time to win the race.

It is absolutely imperative that when circumstances permit drivers meet their requirements within the rules. In this particular case the Stewards say that the evidence overwhelmingly supports a charge brought under this Rule. If this race is viewed objectively any person reasonably acquainted with racing would be asking questions regarding the lack of vigour shown by Mr Phelan. The onus is solely on him to ensure those questions do not arise. On this occasion he has failed to do that.

In a decision dated 18th of February 2005, HRNZ vs. H it says the following;

“A breach of this particular Rule is one that invariably jeopardises the integrity of harness racing for reasons which are self-evident. Harness races are based on the requirement that all contestants in a race are given every possible opportunity by their drivers and that, when the race has been run, all contestants have been fully tested and have been asked to do the best that they can. This has to be the case in order that the betting public, so important to the industry, can have confidence that they have had a run for their money when they have invested their money on contestants in a harness race. Any suggestion that a horse has not been given every possible opportunity and has not been asked to do the best that it can, for whatever reason, will result in loss of public confidence in harness racing. As stated, it is the primary function of Judicial Committees, in dealing with penalty, to "maintain integrity and public confidence in harness racing".

The urgings from Mr Phelan between the 200m and the 40m have fallen well short of what a reasonable minded person would expect. Especially when taking into account that at all times it was entirely reasonable and permissible to be implementing more vigour. Quite simply when faced with the position that Mr Phelan found himself in he must exhaust all available opportunities to give his horse every opportunity to win the race. Had Mr Phelan shown a reasonable amount of vigour in the run home and offered LATENT every opportunity it is entirely feasible to expect that he could have won the race.

The image of racing would not have been dented and we would not have been sitting here today.

Given the international exposure to our betting product it is even more important to protect the image and integrity of the sport.

Summary/Submissions by Defendant:

Mr Phelan denies the charge in question, that he failed to all reasonable and permissible measures between the 200 metres and the 50 metres to ensure that LATENT was given the full opportunity to win the race.

He vehemently believes he did give LATENT full opportunity to win the race during this period of the race.

Mr Phelan did not use vigour during this period of the race as he acted as he believed a reasonable man would in not using vigour because he did not believe that he needed to and did not believe that it was necessary.

LATENT has run disappointingly in the last 40 metres of the race in not responding at all to the vigour shown in that period and been beaten.

The public perception of this drive is influenced markedly by the perception and subsequent comments of the commentator "it’s all LATENT –it’s got the field covered" resonates in the commentary.

Any breach of Rule 868 (2) is to be treated seriously. This is a very unusual one for a breach of this rule and therefore evidence must be damning for a conviction to be found.

If a horseman acts in a reasonable manner and despite the fact that his horse does not win he should not be convicted for a breach of this rule.

Finally it is imperative that the definitions of REASONABLE and UNREASONABLE are strongly considered in this instance: -

REASONABLE : rational, sensible, moderate, fair , sane.

UNREASONABLE : beyond the limits of acceptability or fairness, irrational, unconscionable, extravagant, senseless.

Again we reiterate that Mr Phelan acted as a reasonable man would.

Mr Lawson objected to reference being made to Mr H breach of this Rule because he believed it was totally different circumstances to the case today.

At the completion of all the evidence and submissions both parties acknowledged they had been given a fair hearing and had nothing further to submit to the Committee.

Reasons for Decision:

The Committee carefully listened to and independently assessed the evidence of both parties and reviewed the video films numerous times at slow speed concentrating on the points that were highlighted by each party.

From our observations we were satisfied of the following

1. At the 200 metre mark LATENT moved up to challenge for the lead 4 wide on the track and was full of running trotting squarely. We note that Mr Phelan was sitting quietly in the sulky with no pressure being applied to LATENT. The Committee accept Mr Phelan's actions at this point in the race were reasonable.

2. However, at the 150 metre mark LATENT had assumed the lead by approximately 1 length and still travelling strongly with Mr Phelan sitting motionless in the sulky. At this point the Committee would have expected a horseman of Mr Phelan's experience to demonstrate some form of vigour on LATENT to ensure the winning margin was put beyond any doubt.

3. Between the 150 metre mark and the 100 metre mark LATENT was travelling strongly in the lead and approximately 1 ½ lengths clear of SUNSHIELD, which had gained an inside run after earlier in the straight being held up. It is clear on the films that Mr Phelan is still sitting motionless in the sulky looking straight ahead with no form of encouragement being applied to LATENT. We are of the view that Mr Phelan made a poor error of judgement by not looking to see where any challengers were coming from.

4. Mr Phelan when questioned by Mr Muirhead conceded that he had been surprised when he saw the eventual winner SUNSHIELD out of the corner of his eye at the 50 metre mark. He told Mr Muirhead that it was easy to say afterwards, but he agreed that he hadn't looked around because he thought he was going to win the race.

5. Between the 100 metre mark and the 50 metre mark Mr Phelan still remained motionless in the sulky with SUNSHIELD gaining ground quickly on the inside of LATENT.

6. As a matter of record SUNSHIELD on to win the race from LATENT the official margin being a head.

7. Mr Phelan by his own admission told the Committee that LATENT handling the existing wet track condition.

8.

sumissionsforpenalty:

reasonsforpenalty:

penalty:

Accordingly, we order Mr Phelan is to pay a fine of $750 as well as $250 costs to the Judicial Control Authority.

hearing_type: Non-race day

Rules: 868(2)

Informant: Mr N Ydgren - Stipendiary Steward

JockeysandTrainer:

Otherperson:

PersonPresent: Mr S Phelan - Open Horseman, Mr R Lawson - Lay Advocate for Mr S Phelan, Mr J M Muirhead - Stipendiary Steward

Respondent: Mr S Phelan - Open Horseman

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