Non Raceday Inquiry RIU WE Higgs – 19 September 2011 – Reserve Decision dated 28 September 2011

hearingid: 26d9857c037403a7106e6dd5ad942656

informantnumber: 68884 and 68887

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startdate: no date provided

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decisiondate: 11/10/2011

hearing_title: Non Raceday Inquiry RIU WE Higgs - 19 September 2011 - Reserve Decision dated 28 September 2011

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facts:

appealdecision: NO LINKED APPEAL DECISION

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Decision:

NON RACEDAY JUDICIAL COMMITTEE DECISION

Informant: C. J. Allison - Stipendiary Steward 

Defendant: Mr W. E. Higgs – Open Horseman

Information Nos: 68884 and 68887

Meeting: Gore Harness Racing Club

Date: 28 August 2011

Venue: Gore

Race No. 5: Kubala Seeds Gore Fillies & Mares Mobile Pace

Rule No: 869(3)(d) and (g)

Judicial Committee: J. M. Phelan Chairman - N. D. Skelt Committee Member

Pleas: Not Admitted

Also Present: Stipendiary Steward Mr M. R. Davidson (Registrar), Racing Investigator Mr R. D. Scott (Observer), Mr J. V. Douglas – Graduation Horseman (Witness), Mr J. W. Cox – Open Horseman (Witness), Mr K. N. Larsen – Open Horseman (Witness)

Charge:

[1] These matters were heard at Invercargill on 19 September 2011. The informations were filed on the day of the race meeting, but as they were deemed to be serious they were adjourned to be heard as non race day matters. The charges were heard on the same day, but the charge under Rule 869(3)(g) was heard first.

[2] Following the running of Race 5, the Kubala Seeds Gore Fillies & Mares Mobile Pace, an information was filed by Stipendiary Steward Mr C. J. Allison against Open Horseman Mr W. E. Higgs, the driver of “Motu Miss Lilli” (2), alleging that he had committed a breach of Rule 869(3)(g) in that he drove his horse in a manner that was capable of diminishing the chances of his horse winning the race.

[3] The charge reads as follows.

“I the above named informant allege that the above named Defendant committed a breach of Rule 869(3)(g) in that Mr Higgs drove his horse “Motu Miss Lilli” in a manner that was capable of diminishing its chances of winning by duelling for the lead through this race.”

[4] Rule 869(3)(g) reads as follows.

“(3) No horseman in any race shall drive:-
(g) in any manner capable of diminishing the chances of his horse winning.”

[5] Mr Higgs had indicated on the Information that he did not admit this breach of the Rules and he confirmed this at the hearing. Mr Higgs also agreed that he understood the charge and the Rule it was brought under.

Facts:

[6] During this hearing video coverage of the race was shown on many occasions to illustrate the evidence given by the parties and the witnesses. In order to best understand the evidence it is necessary to set out in full what the video coverage shows.

[7] This was a 2200 metre mobile start race for fillies and mares only. The main players were “Motu Miss Lilli” (2) which started from 2 on the front line; “Pandora’s Maya” (7) which started from 7 on the front line, and “Temporary Use” (12) which started from 2 on the second line. After the start, and by the winning post on the first occasion, “Motu Miss Lilli” had gone to the lead, and “Pandora’s Maya” was able to cross over and sit outside that horse. “Temporary Use”, which had drawn the second line directly behind “Motu Miss Lilli”, was able to follow that horse through and into the trail.

[8] The order of these first three horses remained the same, and by the end of the first 400 – 500 metres it was noticeable that these three horses had started to open up a gap on the rest of the field. With a lap (1000 metres) to run there was a considerable gap between the first three and the rest of the field, this gap estimated to be 30 metres. By the time the 800 metre mark was reached this gap had been reduced to about 10 metres, and from that point on the three leaders were overtaken. At the end of the race “Motu Mis Lilli” finished 7th; “Pandora’s Maya” 6th, and “Temporary Use” 3rd. “Motu Miss Lilli” finished about 10 lengths from the winner of this race.

[9] “Motu Miss Lilli” was having its second race day start, having been placed at its first start, and it was 1/1 in the betting. “Pandora’s Maya” was having is third race day start, having been placed in both its race day starts, and it was 3/3 in the betting.

The Evidence:

[10] Mr Allison gave evidence that this charge related to the drivers of both “Motu Miss Lilli” and “Pandora’s Maya” being unwilling to give up the lead. By doing this the drivers had driven at an unsustainable pace and therefore diminished the chances of their horses. Mr Allison produced the official race timings for all nine races on this day. It showed that the final 800 metres of this race took 62.2 seconds, and was the slowest of the day by 2.3 seconds.

[11] There were three other 2200 metre mobile starts on this day (a maiden, a 1 win and a 2 win) and the times for the first 1400 metres of these races were (respectively) 1-48.0 seconds; 1-51.3 seconds, and 1-49.5 seconds. By comparison the lead time in this race was 1-44.0 seconds.

[12] Mr Allison called three witnesses. Mr J. V. Douglas is a Licensed Trainer and Graduation Horseman and he drove “Pandora’s Maya”, which he trains, in this race. It was established that Mr Douglas had also been charged with a breach of Rule 869(3)(g), and that he had admitted this breach and had his Graduation Horseman’s licence suspended.

[13] Mr Douglas gave evidence that shortly after coming alongside “Motu Miss Lilli” he asked Mr Higgs if he could go to the front, but Mr Higgs refused saying that he would be “pressing forward”. Not much was said after this, but Mr Douglas said that he pressurised Mr Higgs again for the lead, but he wouldn’t let him take it. Mr Douglas said that with a lap to go he got well in front, but not enough to cross to the lead. Shortly after this he “relented” but by this time it was too late.

[14] When asked about the options available to him Mr Douglas said he could have eased but decided not to.

[15] Mr K. N. Larsen is an Open Horseman, Public Trainer and was the driver of “Temporary Use” in this race. He has been involved as a Horseman and Trainer for about 27 years. Mr Larsen gave evidence that he was able to position his horse in the trail behind “Motu Miss Lilli” shortly after the start. He said that Mr Douglas took Mr Higgs on in front, but Mr Higgs was intent on retaining the lead. The speed was always on in front, and it was a “solid grind” with Mr Douglas continuing to try for the lead.

[16] In answer to questions from Mr Allison, Mr Larsen said that both drivers had options and either could have eased. There was plenty of time to consider these options and Mr Larsen said it was not a common occurrence to have this sort of pressure on the leaders kept up for so long. Mr Larsen’s horse finished 3rd in this race, but was 7½ lengths from the winner.

[17] Mr J. W. Cox is an Open Horseman and he was the driver of “Power Within” (3) in this race. He gave evidence that the speed was on most of the way and both Mr Higgs and Mr Douglas were intent on leading. He said that he “had his stick up” at the 800 metre mark but was making no progress. He also said that he had never been in a race like this one, as usually someone will give up. Mr Cox said that in his opinion both were “driving like idiots” and that both “were as bad as each other”.

[18] Mr Higgs gave evidence, and he provided the hearing with written notes, which were of great assistance. The relevant evidence is as follows.

[19] Shortly after the start Mr Higgs told Mr Douglas “I’m staying here” as he believed that he could win the race if he led. Mr Higgs also said – “After a further 200 metres I again spoke to the driver [Mr Douglas] …. and suggested he pull onto my back but he chose to stay put. The lead was there if he chose to pressure me for it.”

[20] Mr Higgs also gave evidence that he was confident during the race that “Motu Miss Lilli” could sustain the pace he was driving it at. He said that his times were as follows –
-15.0 seconds for the first 200 metres
- 30.7 seconds for the next 400 metres
- 30.9 seconds for the next 400 metres
- 30.8 seconds for the next 400 metres
- 30.9 seconds for the next 400 metres
- 33.6 seconds for the last 400 metres

When asked Mr Higgs said that he had established these times from watching and timing the video coverage of the race.

[21] In relation to the options available to Mr Higgs he said that he took the option to keep the lead. At the 1000 metre mark, when Mr Douglas did almost get to the lead, he did think about giving the lead away, but decided Mr Douglas would have to “take it”.

[22] In cross examination Mr Allison disputed the sectional times given by Mr Higgs, and pointed out that the official times for the race showed that the first 1400 metres was covered in
1-44.0 seconds, and the final 800 metres taking 62.2 seconds. By Mr Higgs’ calculation the first 1400 metres of the race took 1-47.4.

[23] After the completion of the evidence we reserved our decision.

Reasons for Decision:

[24] Rule 869(3)(g) states that it is a breach of the Rules of Harness Racing for a horseman to drive in a manner which is capable of diminishing the chances of his horse winning. It is not necessary for the Informant to prove that the manner of driving did in fact diminish the horse’s chances.

[25] After reviewing the evidence and the video coverage we were satisfied that this incident was a duel for the lead over most of the race. It could be clearly seen that neither driver was prepared to give up the lead, and just as clear that the horses were being driven at an unsustainable speed, and that neither driver was prepared to take available options to end that duelling.

[26] Mr Higgs gave evidence that he drove his horse within its capabilities, and that he was running quarters (400 metres) in about 31 seconds, which his horse was well capable of. The official times for this race show that the first 1400 metres of the race was completed in 1.44.0 seconds. We reject Mr Higgs’ evidence (see paras. [20] and [22] above) that this part of the race was completed in 1-47.4 seconds. A time of 1-44.0 seconds for 1400 metres equates to an average of slightly less than 30.0 seconds for each 400 metres, and compared with other races on this day was much faster.

[27] As a consequence of this early speed it took “Motu Miss Lilli” 64.17 seconds to run the final 800 metres of the race. Put in another way “Motu Miss Lilli” took 1-44.0 seconds for the first 1400 metres, and its official race time was 2-48.17 seconds, the difference being 64.17 seconds. In contrast the times for the last 800 metres in the other eight races ranged between 57.9 and 59.9 seconds. We reject Mr Higgs’ evidence that he drove his horse within its capabilities.

[28] We have also taken particular note of the evidence of Mr Higgs and Mr Douglas. Both drivers were quite clear in their evidence that they wanted to lead. Mr Douglas continued to try for the lead until about the 800 metre mark, and Mr Higgs never wavered from his determination to keep the lead. Both drivers had “options” available to avoid this situation, but neither of them did so.

[29] Mr Allison referred to the Appeals Tribunal’s decision in N. A. C v. HRNZ (2010), and that case in turn referred to the Appeals Tribunal’s decision in HRNZ v. J. and C. (2000). Although the charge in the J. & C. case was brought under Rule 868(2), it related to an alleged speed duel, as in the present case. The factors identified as being relevant in the J. & C. case were as follows.
- The distance of the race.
- The stage of the race where the duelling occurred.
- The distance over which the duelling occurred.
- The distance which the horses in question were ahead of the rest of the field.
- The speed at which the horses were travelling in order to maintain or take the lead, and in this regard sectional times for the race are relevant.
- The energy expended in having to maintain or reach the lead, in this regard the relevance is did the driver have to urge the horse merely by shaking the reins or did the driver resort to use of whip, pulling ear plugs etc.

[30] To apply these factors to the present case, most of them are present. The duelling went on for most of the race; at one stage the horses were 30 metres in front of the rest of the field, and the sectional times were considerably faster than for other races run that day.

[31] Taking all the above matters into account we are satisfied that there is clear evidence that Mr Higgs drove “Motu Miss Lilli” in a manner capable of diminishing the chances of his horse winning, and we find the charge proved.

The dangerous driving charge:

[32] Following the running of Race 5, the Kubala Seeds Gore Fillies & Mares Mobile Pace, an information was filed by Stipendiary Steward Mr C. J. Allison against Open Horseman Mr W. E. Higgs, the driver of “Motu Miss Lilli” (2), alleging that he had committed a breach of Rule 869(3)(d) in that he drove dangerously.

[33] The charge reads as follows.

“I the above named informant allege that the above named Defendant committed a breach of Rule 869(3)(g) in that Mr Higgs drove dangerously after the finishing post when turning abruptly across the path of “Pandora’s Maya” causing this horse to be sharply and dangerously taken to the outside of the track.”

[34] Rule 869(3)(d) reads as follows.

“(3) No horseman in any race shall drive:-
(d) dangerously…”

[35] Mr Higgs had indicated on the Information that he did not admit this breach of the Rules and he confirmed this at the hearing. Mr Higgs also agreed that he understood the charge and the Rule it was brought under.

[36] Mr Allison used video coverage to show that after the race had finished “Motu Miss Lilli” and “Pandora’s Maya” continued on together for the next 100 metres or so. At this stage “Pandora’s Maya” was about a horse’s length behind “Motu Miss Lilli”, and on its outside. Mr Higgs then made a sharp right turn in front of “Pandora’s Maya”, taking that horse out towards the outside fence.

[37] Mr Allison called two witnesses. Mr Douglas said that at the time of this incident he had a feeling that something was about to happen because of what had taken place during the race. For this reason he was alert, and when Mr Higgs made this sharp movement he was able to turn with him. There was no contact between the two horses. Mr Douglas said that it was quite unusual for a driver to turn his horse around so sharply after a race, and had he been less vigilant there could have been a collision.

[38] Mr Douglas also said there was the potential for a “nasty outcome” in this incident, but that nothing came of it. When questioned by the Stipendiary Stewards about this incident afterwards he said that it was just an “emotional incident” and that he didn’t want the matter taken any further.

[39] Mr Higgs asked Mr Douglas what was said before this incident, and he alleged that Mr Douglas called him a “wanker” and made other derogatory comments. Mr Douglas denied that he said anything at all just prior to the incident.

[40] Mr J. W. Cox gave evidence that he was behind Mr Higgs when the race ended. He said that after Mr Higgs pulled his horse round Mr Douglas took evasive action, otherwise there would have been a collision. It was also Mr Cox’s evidence that it is not normal for a horseman to turn around in this way.

[41] Mr Higgs said that he was not emotional after this race, but that he was disappointed with his horse’s performance. He also said that although Mr Douglas said some things to him after the race it did not affect him. He also said that when he was turning around his horse over-reacted and turned more sharply than he intended.

After hearing the evidence relating to this matter we reserved our decision.

Reasons For Decision:

[42] After considering the evidence and the video coverage we were satisfied that about 100 metres after the completion of this race Mr Higgs turned his horse abruptly to the right, and in doing so took Mr Douglas wider on the track. There was no contact between the two horses, and this was probably due to Mr Douglas sensing something might happen.

[43] It was clear from the evidence that Mr Higgs’ actions in abruptly turning his horse to the right were deliberate. We are also satisfied that this action was directly related to the incident in the race between himself and Mr Douglas when there was a contest for the lead. It is clear Mr Higgs knew that Mr Douglas was outside him and would be affected by his actions. Further the evidence from the witnesses was that drivers do not turn around after a race in the way that Mr Higgs did.

[44] Mr Higgs’ evidence was that his horse over-reacted, and that the turn was more abrupt than he intended. He also contended that drivers needed to be vigilant at all times when following another horse.

[45] A charge of dangerous driving is very serious, and the standard of proof required is higher than for less serious charges under the Rules. The word “dangerously” is defined in the Concise Oxford Dictionary as “involving or causing danger”. In this case the following factors are relevant.
- Mr Higgs made an abrupt turn to the right when such a movement was not necessary, and not in accord with the usual procedure after a race.
- Both horses involved were travelling quite slowly but close together at the time.
- There was no contact between the two horses, but this was due to Mr Douglas’s being vigilant because he was concerned that something might happen.
- We also took into account Mr Higgs’ evidence that his horse probably over-reacted when he made this turn.

[46] Taking all the above matters into account we are satisfied that Mr Higgs did drive “dangerously” in that his actions did “involve or cause danger” to Mr Douglas and his horse. We find the charge has been proved to the required standard.

sumissionsforpenalty:

reasonsforpenalty:

penalty:

[47] We now need to deal with the matter of penalty in relation to the charge under Rule 869(3)(g). We direct the RIU make written submissions as to penalty and, if relevant, costs.
These are to be sent to the Executive Officer of the JCA and also to Mr Higgs by 7 October 2011.

Mr Higgs is to make his submissions in reply and send them to the Executive Officer of the JCA by 14 October 2011

________________              __________________
J. M. Phelan                       N. D. Skelt
Chairman                          Committee Member

hearing_type: Non-race day

Rules: 869(3)(d) and (g)

Informant: Mr CJ Allison - Stipendiary Steward

JockeysandTrainer:

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PersonPresent: Mr MR Davidsion - Registrar, Mr RD SOctt - Observer, Mr JV Douglas - Witness, Mr JW Cox - Witness, Mr KN Larsen - Witness

Respondent: Mr WE Higgs - Open Horseman

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