Non Raceday Inquiry RIU v SP Murtha – Reserved Decision dated 12 July 2016 – Chair, Mr R McKenzie

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decisiondate: 14/07/2016

hearing_title: Non Raceday Inquiry RIU v SP Murtha - Reserved Decision dated 12 July 2016 - Chair, Mr R McKenzie

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appealdecision: NO LINKED APPEAL DECISION

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BEFORE A JUDICIAL COMMITTEE

AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A1683

BETWEEN S P RENAULT, Stipendiary Stewart for the Racing Integrity Unit

Informant

AND SHELDON PHILLIP MURTHA, Licensed Advanced Amateur Driver

Respondent

Judicial Committee: Mr R G McKenzie, Chairman - Mr D Jackson, Committee Member

Date of Hearing: 30 June 2016

Present: Mr S P Renault, the Informant

Mr S P Murtha, the Respondent

Date of Decision: 12 July 2016

RESERVED DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A1683 alleges that Mr Murtha, as the driver of NUI TOC TIEN in Race 1, Hydroflow - Bishopdale/Bush Inn TAB’s Mobile Pace, at the meeting of New Zealand Club held at Addington Raceway, Christchurch, on the 29th day of April 2016, “failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the race or to obtain the best possible position and/or finishing place” in breach of Rule 868 (2) of the New Zealand Rules of Harness Racing.

[2] Mr Renault produced a letter from Mr M R Godber, General Manager of the Racing Integrity Unit, pursuant to Rule 1108 (2) authorising the filing of the information.

[3] Rule 868 provides as follows:

(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 Plea

[4] Mr Murtha was present at the hearing of the information and he indicated to the hearing that he denied the breach.

Evidence of the Informant

[5] Mr Renault presented the following written submissions: -

1. On Friday 29 April 2016, the Respondent, Mr Sheldon Murtha, was the driver of the horse NUI TOC TIEN in Race 1, Hydroflow-Bishopdale & Bush Inn TAB’s Mobile Pace, at the NZ Metropolitan TC meeting held at Addington Raceway.

2. NUI TOC TIEN is trained by Mr Steve Dolan and in this race finished in 9th position.

3. After questioning Mr Murtha regarding the manner he had handled NUI TOC TIEN during this race, an Information was filed with the Judicial Control Authority (JCA) alleging that Mr Murtha “as the driver of NUI TOC TIEN failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the race or to obtain the best possible position and/or finishing place.” This rule being;

“868 (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.

4. The test that must be used in this instance is an objective one.

5. Rule 868(2) is aimed at ensuring that the integrity of Harness Racing is protected. A driver has two main obligations. They are to drive his horse in a manner that is both reasonable and permissible in order to gain the best possible finishing place, as an investor is entitled to have a driver do his best to gain a return from that investment.

The Judicial Committee in HRNZ v. H (2005) said –

• The Rule requires both a demonstration of tactics which can, by objective standards, be said to be both reasonable and permissible. Those have to be tactics which can be seen by not only the Stipendiary Stewards, but also those present at the racetrack, and in particular the betting public, to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The informant does not have to prove any deliberate intent not to win the race. There may be circumstances in which a driver’s manner of driving may amount merely to a permissible error of tactics, but where that error of tactics amounts to bad judgement that results in disadvantage to his horse, then such manner of driving falls within the terms of the rule.”

6. NUI TOC TIEN was the favourite for the race and was paying $2.30 to win and $1.50 for a place.

7. NUI TOC TIEN drew 8 from the mobile barrier and was restrained in the early stages to race at the rear of the field. NUI TOC TIEN raced at the rear of the field until being briefly shifted to a three wide position approaching the 800 metres before again being restrained to the rear. NUI TOC TIEN again raced wider for short distance near the 600 metres however still remained at the back of the field. NUI TOC TIEN was then shifted wider on the track in the early stages of the run home.

8. Once securing clear running passing the 150 metres Mr Murtha urges NUI TOC TIEN with the reins on approximately 3 to 4 occasions. He does not turn his whip or release the earplugs on the horse.

9. Stewards ordered a post-race veterinary examination of NUI TOC TIEN on the night which did not detect any abnormalities.

10. The overall time of the race was 3.16.6, the mile rate was 2.01.7, last 800m in 58.2 and the final 400m in 28.7.

11. The lead time for the race (which is from the start until the 1600m) was 1.15.9. The first quarter from the 1600m to the 1200m was run in 31.3. The second quarter from the 1200m to the 800m was run in 30.8. The third quarter from the 800m to the 400m was run in 29.5. The fourth quarter from the 400m to the finish was run in 28.7.

12. Stewards do not believe that it is acceptable in these circumstances that Mr Murtha has simply followed the body of the field throughout and allowed the horse to run home without being placed under any significant pressure.

13. This was Mr Murtha’s second race day drive on NUI TOC TIEN. His previous drive on the horse was at Addington on the 25th of February 2016.

14. On that occasion Mr Murtha raced 4 back on the outside and improved three wide with approximately 700m to run. NUI TOC TIEN sustained a run around the field and finished 2 and a half lengths behind MACH CRUISER in 2nd place with a further 8 lengths back to 3rd. This clearly shows that NUI TOC TIEN is well capable of improving wide around the field in a race and still finish off strongly.

15. Of interest on that occasion was that the time of the race was 3.11.0, mile rate of 1.58.2, 800m in 57.3 and last 400m in 29.2. The lead time from the start to the 1600m was 1.12.9. The first quarter was run in 30.2, second quarter in 30.2, third quarter in 28.3 and fourth quarter in 29.4. This race was 5.6 seconds faster than the race in question with the final 800m 0.9 of a second faster. From these times it is absolutely clear that racing on the same track with the track conditions rated as Fast on both occasions, NUI TOC TIEN is more than capable of running these times.

16. In relation to the race in question, it is the Stewards view that since Mr Murtha chose to restrain NUI TOC TIEN in the early stages he would be expected to have made his run out wide to improve his position during the race. After a slow lead time of 1.15.9, Mr Murtha had an opportunity to improve three wide once the field had settled into two lines. When asked about why he did not improve in the middle stages, Mr Murtha said (on Page 3 comment 1) “It actually first occurred, because they were, they sort of pulled up pretty quick. It first occurred to me to maybe try and go at about the 1600 but then, something happened.” At that stage of the race the parked horse BILLY JACK was retired from the race with two flat tyres.

(At this point in the hearing, Mr Renault showed video replays of the race in support of the above submissions.)

17. The first quarter of the last mile was run in 31.3. Mr Murtha could have improved around three wide at this stage to race in the parked position comfortably. This quarter was the slowest part of the final 1600m. Mr Murtha elected to remain at the rear of the field.

18. From the 1200m to the 800m the quarter was run in 30.8. Once again Mr Murtha elected to remain at the rear of the field. During a half covered in 62.1. It could be expected that Mr Murtha would attempt to improve his position as this was an opportune time to do so given there was no pressure being applied in the race.

19. Approaching the 800m Mr Murtha shifted NUI TOC TIEN out to a three wide position briefly before once again restraining to a two wide position at the rear of the field. When questioned regarding this Mr Murtha stated (on Page 2 comment 7) “I was about to go here, and see he’s just. He just doesn’t want to come off the back and Gav’s sort of, Gav sort of wants to, sort of flush me, or he wants to sort of shove me 4 wide and he was sort of” The film clearly shows that Mr Murtha was able to shift NUI TOC TIEN to a three-wide position without difficulty.

20. When questioned further by Stewards as to whether he had attempted to bluff Gavin Cook (RED UNDER FIRE) to get going, Mr Murtha said (on Page 2 comment 9) ”Yeah I thought if I go myself I’m going to get into trouble, you know he’d probably lug in and lock a wheel or something like that, and if I wait for him to go, which he looked like he was going to do, I can follow him around and maybe I’ve got a better shot at them in the straight, but no, yeah by this point I’m thinking well, what do I do here. No one’s gone in front of me, you know, Waihemo Art’s. Yeah we were just in no man’s land. And then when they went he sort of lost a bit of ground we were just left flat.”

21. Following this the pace of the race begins to quicken and the 3rd quarter is run in 29.5. Mr Murtha still remains at the rear of the field. Racing inside the final 600 metres Mr Murtha is approximately 30m behind the lead horse TUFFLITTLEROOSTER however he still does not elect to improve his position or show any great vigour to encourage NUI TOC TIEN. Rounding the final bend, he slaps NUI TOC TIEN with the reins only on one occasion.

22. In the home straight Mr Murtha shifts NUI TOC TIEN wider on the track to obtain clear running. Once inside the final 150m NUI TOC TIEN has a clear and unobstructed run to the finish. Mr Murtha slaps the horse with the reins on approximately 3 to 4 occasions. He does not turn the whip or release the earplugs. However, the horse makes ground with minimal urgings.

23. In the transcript on Page 1 comment 14, Mr Murtha offers an explanation for him not coming out was that NUI TOC TIEN was lugging all the time. On the bend near the 1600 metres, Stewards accept that NUI TOC TIEN’s head is turned inwards however just about every horse in the race has their head turned inwards slightly. It is a common fact that horses do not keep their heads straight when rounding bends. There is no film to support Mr Murtha’s explanation for not improving after that. Mr Murtha’s explanation is easily countered by the fact that he was able to shift 3-wide on the bend turning into the back straight.

24. Mr Murtha was asked if he had any instructions from the trainer Mr Steve Dolan. Mr Murtha said (on Page 4 comment 3) “Other than don’t sort of don’t try and cross them and try and latch onto something and try and get into it without waiting that long preferably.” Mr Murtha was also asked what Mr Dolan thought of his drive to which he replied “He probably said you should have tried to launch down the back. And I sort of said, well yeah.”

25. Mr Murtha said that the horse is a sit-sprinter who will capitulate if you use him. This does not appear to be accurate given Mr Murtha’s previous drive on the horse. However, he said under questioning that he had thought about improving at the 1600m so Mr Murtha was obviously not concerned with NUI TOC TIEN working in the middle stages.

26. Mr Murtha also said (on Page 4 comment 10) “It’s probably not my best work” and also “Yeah, in hindsight I should of just had a crack Nigel”. In every race, each driver is faced with 50/50 decisions, often they make the wrong ones however as long as their reasoning they offer is reasonable then they are not culpable. On this occasion though there is no logical or reasonable explanation and therefore Murtha is deserving of penalty.

27. Racing in general relies on betting turnover and therefore it is important to maintain confidence of the betting public. NUI TOC TIEN was a short priced favourite for the race and there would have been a substantial amount of money lost on the horse. Mr Murtha was required to demonstrate tactics during the race which are both reasonable and permissible. Apart from a brief period where he shifted to a three wide position near the 800m hoping that he could flush a horse out in front of him. Mr Murtha’s tactics were unreasonable. He sat at the rear of the field throughout the race, improved to the outside of the track in the early stages of the home straight and went to the line without being fully tested.

28. Stewards (and incidentally the punters) felt that NUI TOC TIEN would be a very real winning chance when considering its previous racing history combined with the quality of opposition. Mr Murtha has at no stage put his horse into a position where winning, or even placing, was a viable option.

29. There was no obvious impediment to this. That is to say that that at all times of the race it was both reasonable and permissible for Mr Murtha to improve his position to significantly increase his chances of winning or placing.

30. Mr Murtha’s tactics amount to bad judgement which results in disadvantage to NUI TOC TIEN. As mentioned earlier in the HRNZ v H (2005) case, this drive falls within the terms of the Rule.

31. A quote from the Hon Justice Mr W R Haylen in relation to a ruling dated 20 May 2009.

• “perhaps to throw my 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 explanation”.

32. Mr Murtha has set NUI TOC TIEN an impossible task. He has failed to give NUI TOC TIEN the chance to race at its full potential and finish in the highest possible place.

Submissions of the Respondent

[6] Mr Murtha pointed out that, in relation to the transcript of the racenight interview, that interview was conducted shortly after the race and before he had an opportunity to view the replay of the race. He had no reason to believe that any charge was likely to arise out of his drive. The transcript was accepted as accurate but Mr Murtha wished to point out that the circumstances in which the interview was conducted were “disadvantageous” to him. Neither was he aware that the interview was being recorded, he said.

[7] Mr Murtha submitted that NUI TOC TIEN is not a “superstar horse” and is difficult to drive when he is not “happy” in a race. It wears a rein pricker, a murphy blind and a jawbreaker bit. It was not on his “A-game” going into the race. He also referred to the drives of two other drivers in the race.

[8] NUI TOC TIEN races primarily in amateur race class or similar. He has had 34 raceday starts for 3 wins (all on grass tracks), 12 placings and 19 unplaced runs. In the race in question the horse needed to win to earn the $7,500 “Met Multiplier” and Mr Murtha himself needed to win the race to stay alive in the New Zealand Amateur Drivers Series.

[9] The horse’s previous start was a “gutbusting” 6th placing, beaten 12 lengths over 2600 metres in a 1.58 mile rate in a Junior Drivers’ race, fourteen days prior. The trainer had told him that the horse had been “flat” for the week after that run, but was improving. He and the trainer had agreed that they had a horse that could win but needed to be looked after early in the race.

[10] Mr Murtha then presented a written statement from the trainer, Mr Steve Dolan.

[11] Mr Murtha then showed a video replay of the race. He submitted that, in comparison to another runner, RED UNDER FIRE, NUI TOC TIEN was difficult to restrain. At the 1600 metres point in the race, BILLY JACK, that had been racing outside the leader was pulled out with a flat tyre – an unusual occurrence, he submitted. This was a “distraction” to the drivers behind, including himself, and as a consequence no moves were made.

[12] At the 1200 metres, the first four horse on the markers were the first four horse home, in that order, Mr Murtha said.

[13] Rounding the bend out of the straight, NUI TOC TIEN began to lug in and got on one rein, he submitted. The horse has a tendency to do this. He is a big-striding horse and not easy to control.

[14] Mr Murtha then submitted that NUI TOC TIEN and the two horses immediately in front of him, WAIHEMO ART and RED UNDER FIRE were the best three horses in the race. At that stage, he was looking for a “drag” into the race from either or both of those other runners. He was afraid that, if he made the first move, he was likely to be forced 3-wide or wider down the back straight, given the steering difficulties he was having.

[15] When he moved out 3-wide briefly entering the back straight near the 800 metres, he was hoping to entice Mr Cook, on RED UNDER FIRE, to go. The leaders were increasing the pace at this stage, Mr Murtha said. It was still preferable, if he was to win the race, to flush the other two runners out.

[16] When WAIHEMO ART commenced his run at the 450 metres, he “goes nowhere”, Mr Murtha submitted. He referred to the Stewards’ report on the race. Both he and Mr Murtha had been relying on that runner to take them into the race. NUI TOC TIEN lost momentum at this stage and, at that point, he realised he could not win the race. Mr Cook had taken an inside run.

[17] Mr Renault asked Mr Murtha if he was familiar with NUI TOC TIEN. Mr Murtha replied that he drives the horse regularly in trackwork and he had driven him in one previous race. When asked, Mr Murtha said that he made no move at the 1600 metres because neither WAIHEMO nor RED UNDER FIRE, which he was following made any move. Had they done so, he would have considered following them, he said. As for the run down the back straight, he had been confident that had either Mr Cook or Mr Edge, on WAIHEMO ART, made a move he would still have had a chance of winning the race, he said. He had no way of knowing that WAIHEMO ART would not run up to its ability, which it did not in hindsight. He had been waiting for that runner to take him into the race but it had “gone nowhere”. In the meantime, the horses in front were sprinting and NUI TOC TIEN was left “flatfooted”.

[18] Mr Murtha was asked by the Committee why he appeared to have no other plan when his plan to wait and get taken into the race by WAIHEMO ART and/or RED UNDER FIRE was not possible. His reply was that he was out there to win the race and this was his best chance. The wording of the Rule was referred to him and he replied that it is a breach of the Rule for a driver to drive the race to simply finish in the best possible placing. He again referred to the fact that there was no way that he could predict that WAIHEMO ART was going to run poorly.

[19] Mr Murtha then showed videos of other races. One involved another driver driving another horse at a meeting in July of last year. Although the Committee permitted Mr Murtha to show this video, it was not relevant to the issues before the Committee and the Committee attached no weight to it.

[20] One video was of NUI TOC TIEN’s race at Addington on 13 April 2016, in which it was driven by Junior Driver, M J Anderson. The horse had been taken to the lead at about the 1500 metres after a very fast 1200 metres. The horse weakened from the 600 metres and finished 12 lengths sixth. Mr Murtha submitted that this demonstrated that the horse could not be used early in the race.

[21] The next race was at Rangiora on 29 May 2016. NI TOC TIEN had been taken back at the start. As the pace eased, its driver took it round the field and got to the lead. Following that, it had an easy lead, Mr Murtha submitted, but “capitulated” when take on from the 900 metres, finishing more than 20 lengths from the leader. Once again, the horse had been put into the race early and had run poorly.

[22] Mr Renault then showed the race of NUI TOC TIEN at Addington on 8 May 2016. The horse had been “chased out” by Mr Murtha in the early stages and took the lead. The horse led throughout and finished in 2nd placing. The time for the race was 3.12. This demonstrated that the horse can work early in a race and still finish the race off. Mr Murtha explained that he made the decision to try for the lead only after the start. He was happy to lead but would have taken a trail if necessary.

[23] Mr Murtha referred to the horse’s most recent start on 17 June over 1950 metres in which the horse had raced at the rear until the 800 metres, from which point he “launched” around the field. He was forced 4-wide down the back straight and wide on the home turn, getting outside the leader at the turn, and had finished 3rd. Mr Murtha said that he had been prepared to try different tactics to try to win the race.

[24] In summing up, Mr Murtha made a number of points. There were a number of things that took place in the race, he submitted. BILLY JACK had been retired from the race at the 1600 metres, WAIHEMO ART not performing to its best, and no other horse had improved its position during the race.

[25] Mr Murtha said that, had he attempted to improve from the back 3-wide or wider, the horse may have finished closer. However, the horse was lugging in and having regard to the trainer’s instructions he had not done so. His tactics were based on trying to win the race and not finish 3rd or 4th, he said. A driver does not drive the race to finish 3rd or 4th but rather to win, he said. He submitted that if he drove the race to do the best he can with the attitude “top three will do”, this would be a breach of Rule 869 (2).

REASONS FOR DECISION

[26] A number of principles emerge from the various cases decided under Rule 868 (2). Those principles include the following:

(1) It is the quality of the drive in the circumstances of the particular case which has to be judged;

(2) That judgement must be based on an objective assessment of the drive in the particular race;

(3) A mere error of judgement by a driver is not a sufficient basis for an adverse finding that the Rule has been breached; and

(4) The driver’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.

[27] The core focus of the Rule is the quality or otherwise of the drive. That is to say, if the driver fails, given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field, then he is in breach of the Rule and liable to penalty.

[28] The Rule imposes an objective standard of care. The standard of care takes into account, among other things, the views and explanation of the driver and the opinion of the Stewards.

[29] The onus is on the Stewards to prove that a driver has been in breach of the Rule. A driver is required to give an explanation for his actions, but the onus always remains with the Stewards.

[30] The standard of proof is on the balance of probabilities. However, because of the seriousness of the charge and the gravity of the consequences that flow from a finding that the charge is proved, the Committee must have a reasonable degree of satisfaction that the charge has been proved. Essentially, we must be comfortably satisfied that, in the circumstances of the case and viewed objectively, the manner in which Mr Murtha drove his horse fell well short of what would reasonably be expected of a driver in his position.

[31] Turning to the facts of the present case, the Stewards are alleging that Mr Murtha has “simply followed the body of the field throughout the race and allowed his horse to run home without being placed under any significant pressure”. It is fair to say that the video replays tend to support this allegation. Mr Murtha was required, it was submitted, to demonstrate tactics during the race which were both reasonable and permissible. Mr Renault alleged that, apart from a brief period where he shifted to a 3-wide position near the 800 metres hoping to “flush” another runner out in front of him, his tactics were unreasonable – he stayed at the rear of the field throughout before improving to the outside in the home straight, going to the line without being fully tested. We were told that Mr Murtha did not turn his whip around or activate the removable deafeners on the horse. Mr Renault further submitted that, at all times during the race, it was both reasonable and permissible for Mr Murtha to attempt to improve his position to significantly improve his chances of winning or, at least, running into a stakes and/or dividend bearing placing. This Mr Murtha did not do.

[32] Mr Murtha put forward a number of matters to explain his drive on this occasion and by way of a defence to the charge. He submitted that the horse was not “on his A-game” on the night as a result of a hard run in a Junior Drivers’ race a fortnight earlier. He had been instructed by the trainer that the horse needed to be looked after early.

[33] Mr Murtha also placed some reliance on an incident in the race near the 1600 metres in which BILLY JACK, which had been racing outside the leader, retired from the race with a flat tyre. The Committee does not accept that this needed to have any effect on the tactics adopted by Mr Murtha at that point in the race as BILLY JACK was taken well clear of the field by its driver and did not impede NUI TOC TIEN in any way.

[34] Mr Murtha submitted that, as the field left the home straight (with 1200 metres to race) with NUI TOC TIEN still in last position, the horse commenced to lug in and got on one rein. He was a big-striding horse and not easy to control, Mr Murtha said.

[35] Up to just past that point in the race - that is to say, until approximately the 800 metres – Mr Murtha’s tactics were questionable, but it was the Committee’s view that it was from the 800 metres that his drive can really be called into question. Passing the 800 metres, Mr Murtha could be seen on the head-on video replay to briefly shift out to a 3-wide position to outside the wheel of RED UNDER FIRE and then move back down onto the back of that runner.

[36] His explanation for so doing was that he was hoping that one of the two favoured runners immediately in front of him, RED UNDER FIRE and WAIHEMO ART, both well-favoured runners, at that point would pull out for a run, enabling him to get onto the back of one or both of them and give him cover as he improved round the field. That was a reasonable plan for Mr Murtha to have. However, when this did not work out as planned, he elected to remain in his position without any attempt to improve. Effectively, he placed the blame on those runners for his driving tactics over the last 1600 metres but, particularly, from the 800 metres. It is trite to say it, but a driver cannot rely on another horse or driver to assist his chances of winning or finishing in a higher position in a race and then blame that horse or driver when he does not receive the assistance hoped for.

[37] Even more remarkable was Mr Murtha’s statement to the effect that he was driving to win the race and, when it became apparent that he could not do so, he did not see fit to continue to drive his horse to finish in the highest possible finishing position, as required by the Rule. In the Committee’s view, this was tantamount to an admission by Mr Murtha that he had not taken all reasonable and permissible measures to finish in the highest possible position and/or finishing place.

[38] The Committee was particularly interested in viewing two of the videos that were shown to the hearing. Those videos showed contrasting performances by NUI TOC TIEN at Addington on 8th May and 17th June, on both occasions when driven by Mr Murtha. Those videos clearly showed that the horse was multifaceted and, by no means, a “one-trick pony”. In the former race, NUI TOC TIEN drew barrier position 8 at the 2600 metres mobile start. It showed early gate speed and led after 200 metres. It was run down in the home straight and finished in 2nd placing, beaten 1¼ lengths. In the la

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