NZ Metro TC – 15 December 2004 – Race 2

Following the running of Race 2, Blue Jean Cuisine Trot, an information was filed by Stipendiary Steward, Mr S T Larkins, against Licensed Open Horseman, Mr D D Nyhan, alleging a breach of the push-out rule in that Mr Nyhan, as the driver of MORNING HAS BROKEN in the race, with approximately 1900 metres to run, moved TRACY?S DREAM (C J de Filippi) wider on the track.

Mr Nyhan did not admit the breach.

Mr Larkins submitted that Mr Nyhan had committed a "clear breach" of the push-out rule. He said that Mr Nyhan had been travelling on the back of KELLEHER (I L Schwamm). Mr Nyhan's horse had pulled during the running but was "a wee distance back off Mr Schwamm". Mr Schwamm progressed to the two-wide line and Mr Nyhan had maintained his position on Mr Schwamm's back. As a result, Mr de Filippi who had been progressing forward and was outside the wheel of Mr Nyhan, was forced to race in a 3-wide position.

Mrs K R Williams, Stipendiary Steward, showed video replays of the incident. She pointed out that Mr de Filippi had improved up on the outside of Mr Nyhan who was still one out in the running line. Mr Schwamm came fully out, before Mr de Filippi got up to his wheel, and Mr Nyhan stayed on his back thereby forcing Mr de Filippi to race wider on the track.

Mr Nyhan stated that Mr Schwamm was racing half a cart out on the wheel and not on the back of the horse in front. Mr Nyhan said that MORNING HAS BROKEN is a big-striding horse and was pulling. He claimed that he had to stay on Mr Schwamm's back otherwise he would have hit the inside wheel and broken. He submitted that Mr Schwamm had come out and moved Mr de Filippi 3-wide and all he, Mr Nyhan, had done was keep on Mr Schwamm's back. Mr Nyhan demonstrated on the video that MORNING HAS BROKEN had run off turning for home. He was not an easy horse to drive. Mr Nyhan said that Mr de Filippi had acknowledged that the incident had not affected the chances of TRACY?S BEST.

Under cross-examination by Mr Larkins, Mr Nyhan admitted that MORNING HAS BROKEN was not hard up on the back of Mr Schwamm and, after moving out to follow Mr Schwamm, trailed Mr Schwamm for the next round.

Mr Larkins submitted that Mr Schwamm's moving out was a "legitimate move" as he had no other runner outside him at that point. Mr Nyhan's move was a "conscious move" and he did not believe that the horse's manners had any bearing on the incident as Mr Nyhan was able to keep his horse back off Mr Schwamm's cart for some distance thereafter.

Mr Nyhan, in summing up, repeated that MORNING IS BROKEN is a very hard horse to drive and that he had pulled "exceptionally hard".

Following a deliberation, the Committee delivered the following oral decision:

"In deciding this matter, I have looked, as I must do, at the wording of the relevant Rule ? in this case, Rule 869 (b) and (c). The wording of the Rule is quite specific. In this particular case, I am required to determine, firstly whether Mr de Filippi was making a forward movement. Secondly, whether in doing so, he was forced by Mr Nyhan to race wider on the track. And, thirdly, whether Mr Nyhan moved ground outwards after the nose of Mr de Filippi's drive was in line with or past his, Mr Nyhan's, sulky wheel.

Having heard the evidence of both parties and viewed the video replays, I am satisfied that those three elements have been proved in this instance. I am satisfied that Mr de Filippi was making a forward move ? this was clear from the video. Further, I am satisfied that Mr de Fillippi was forced by Mr Nyhan to race wider on the track. He was moved from the two out position to a 3-wide position. I further find that no blame can be attached to Mr Schwamm for Mr de Filippi's being forced to race wider. Mr de Filippi was, I find, forced to race wider on the track purely as the result of Mr Nyhan moving outwards to get on the back of Mr Schwamm which he was not entitled to do since the nose of Mr de Filippi's horse was clearly past Mr Nyhan's sulky wheel at that point.

Mr Nyhan has submitted that the incident was the result of MORNING HAS BROKEN pulling and proving to be a difficult drive. I am not satisfied that this was the reason that Mr Nyhan pulled out to follow Mr Schwamm and thereby force Mr de Filippi to race wider on the track. I am not prepared to accept this as a defence to a charge of a breach of the push-out rule on this occasion.

Therefore, I find the charge of a breach of the push-out rule to be proved.

Mr Larkins informed the Committee that Mr Nyhan had a clear record. He recommended a fine of $200 based on the level of fines imposed in similar cases in recent weeks.

Mr Nyhan had no submissions to make in relation to penalty.

Mr Nyhan was fined the sum of $200.