NZ Metro TC 25 May 2010 – R 2 (heard 1 June at NZ Metro TC)

ID: JCA18802

Hearing Type:
Old Hearing

Rules:
869(2)(a)

Hearing Type (Code):
harness-racing

Meet Title:
NZ Metro TC - 25 May 2010

Meet Chair:
tom

Meet Committee Member 1:
tom

Meet Committee Member 2:
tom

Race Date:
2010/05/25

Race Number:
R 2

Decision: --

RACEDAY JUDICIAL COMMITTEE DECISION

Informant: Mr S P Renault – Stipendiary Steward

Defendant: Mr S J Clarke – Open Horseman

Information No: 68977

Meeting: New Zealand Metropolitan Trotting Club

Date: 25 May 2010

Venue: Addington Raceway

Race: 2 – Christian Cullen – Simply The Best Pace

Rule No: 869(20(a)

Judicial Committee: J M Phelan, Chairman – J Millar, Committee Member

Plea: Not admitted

Also present: Mr B R McConchie

This matter was heard at the New Zealand Metropolitan Trotting Club’s race meeting at Addington Raceway on 1 June 2010.

CHARGE:

Following the running of Race 2, the Christian Cullen – Simply The Best Pace, an information was filed by Stipendiary Steward Mr S. P. Renault, against Mr S. J. Clarke, the driver of “Melodie” (10), alleging that he had committed a breach of Rule 869(2)(a). Mr Clarke was accompanied and assisted at this hearing by Mr B. R. McConchie.

The charge reads as follows.

“I the above named informant allege that the above named Defendant committed a breach of Rule 869(2)(a) in that Mr Clarke used his whip excessively throughout the run home whilst driving Melodie.”

Rule 869(2)(a) reads as follows.

“(2) No horseman shall during any race:-

(a) use his whip in an unnecessary, excessive

or improper manner.”

FACTS:

Mr Clarke had indicated on the information that he did not admit this breach of the Rules and he confirmed this at the hearing. Mr Clarke also agreed that he understood the nature of the charge and the Rule it was brought under. When asked if he was aware of and understood the “Use of the Whip” guidelines, he said that he was aware of them, but did not understand them.

Stipendiary Steward Mrs K. R. Williams gave evidence and used video coverage to show that Mr Clarke had used his whip on 21 occasions in the home straight. The first two strikes were made shortly after entering the final straight, with another strike being made after a short interval. From about the 160 metre mark Mr Clarke used his whip on a further 18 occasions, and this use was continuous.

Mr Ydgren read the “Use of the Whip” guidelines.

During the hearing Mr Clarke did not dispute that he had used his whip on the number of occasions referred to by Mrs Williams.

SUBMISSIONS:

Mr Ydgren made submissions that the use of the whip by Mr Clarke on this occasion was clearly “too much” and in breach of the Rules.

Mr Clarke made submissions that the “Use of the Whip” guidelines were not clear, and that he was not sure how many times he was allowed to use his whip and remain within those guidelines. Mr Clarke also said that in another region there were a specific number of times that a whip could be used, and that he was not aware of a specific number that applied to this region.

Mr Clarke asked Mr Ydgren what “too much” meant, and he responded by saying that each charge was dealt with on a case by case basis. Mr Ydgren also said that there was no specific number of strikes with a whip that constituted a breach of this Rule.

Mr Clarke also referred to other occasions where a driver had used his whip in what seemed to be an excessive manner, and that the drivers concerned had not been charged. Mr Clarke wanted to show video coverage of these alleged incidents. However he was told by us that only relevant evidence was admissible, and also that it was not helpful to compare other similar incidents where charges had not been preferred. Mr Clarke did not pursue this line of evidence any further.

It was part of Mr Clarke’s defence that he had not used his whip “too much”. He also said that he had a “genuine chance” of winning this race [“Melodie” finished 2^nd beaten by a neck] and that he needed to use his whip the number of times that he did to try and win the race, and that he owed it to the connections of the horse to do so.

In answer to this evidence Mr Ydgren read an excerpt from the Enright decision, which basically states that it is not a defence to a charge of excessive whip use to say that it was necessary in order to win the race. We will deal with this more fully later.

In summary Mr Clarke’s defence to this charge was that he did not understand what the “Use of the Whip” guidelines meant as they did not give sufficient information to enable him to judge what the meaning of “too much” was. In addition he said that he needed to use his whip as much as he did to try and win the race.

When giving our decision on this matter (see below) we undertook to deal with five matters that Mr Clarke raised during this hearing. This we now do.

[1] This Information was filed by Stipendiary Steward Mr S. P. Renault who was not officiating at this race meeting. Stipendiary Steward Mr Ydgren prosecuted this charge, and Mr Clarke queried if this was permissible. At the time this matter was raised we said that we believed that this was permitted by the Rules.

After checking the Rules we could find nothing specific. Also we could find nothing that prevented one Stipendiary Steward from prosecuting a charge that had been commenced by a different Stipendiary Steward.

There are often occasions when prosecutions are conducted on behalf of HRNZ by their legal representative. There are also numerous occasions like the present one.

We are satisfied that there is nothing to prevent a Stipendiary Steward prosecuting a charge filed by a different Stipendiary Steward.

[2] Mr Clarke wanted to introduce video evidence of other incidents which he believed would show that HRNZ’s enforcement of the excessive whip rule is inconsistent. Rule 1111(1)(b) provides that the Judicial Committee may, at its discretion, admit any evidence it deems relevant whether admissible in a Court of Law or not.

It is essential that evidence is relevant. If it is not relevant then it is not admissible. In this case evidence of other occasions where the excessive whip Rule may or may not have been breached is not relevant to the charge being heard.

If Mr Clarke has concerns about the Stipendiary Stewards’ consistency in enforcing this Rule he should take the matter up with HRNZ.

[3] During the hearing Mr Ydgren quoted an excerpt from the Enright decision which we have briefly referred to above.

Mr Clarke said the he had a “genuine chance” of winning the race and that he used his whip the way he did as it was necessary to do so to try and win the race. At the hearing Mr Clarke was advised that this was not a valid defence to this charge.

The Enright decision is an appeals case [M. J. Enright v. New Zealand Thoroughbred Racing (16 July 1996)]. A jockey (M. J. Enright) was the rider of “Fighter Boy” which won the race, and he was charged with excessive use of the whip. He was convicted and appealed.

This is a case which we use as a guideline because it was an appeals decision and a Q.C. was the chairman, so it was quite an important case and there are similarities between the rules of excessive use of the whip by a jockey and a harness racing driver. In fact Harness Racing Rules says “too much” and so does this particular decision. One of the defences raised by Mr Enright on appeal was that he needed to use his whip as often as he did in order to win the race. The decision said –

“All horses are meant to compete in the race under the same conditions and Rules. If a horse has an inherent flaw in its personality or makeup so that it needs to be ridden hard with the whip, sobeit. But it still must only be ridden within the provisions of the Rules of Racing. Likewise it is not an excuse for a breach of the Rules for one to say it was necessary to ride in that particular way in order to win a race. If the horse race cannot be won within the application of the Rules of Racing which govern the manner in which the race is to be run, then sobeit and it cannot win. The same rules apply to all competitors and if there is some inherent deficiency or makeup in the character or ability of a horse that requires it to be treated in a way that is outside the Rules then that is not permitted.”

Mr Clarke pointed out that the whip rules in thoroughbred racing and harness racing are different, and this is true. However it is a breach of the Rules in both codes to use the whip excessively. The decision in Enright applies to both codes, and excessive whip use cannot be justified because it was necessary to use it in that way to try and win the race.

[4] Mr Clarke was also critical of the “Use of the Whip” guidelines because he did not understand them. These guidelines have been in place for quite some time, and our experience has been that drivers do understand them.

These guidelines, so far as they are relevant to excessive use of the whip, provide as follows.

“Excessive use of the whip simply means “too much” and relates to the number of times and/or the force with which the whip is used.

Applies whether striking the horse, harness or sulky.

A horse does not need to be marked for an excessive charge to be preferred.

………..

Subject to the provisions of Rule 869(2) no horseman shall use the whip

continuously at any time during a race and there must be distinct pauses between the whip being used or the use of the whip shall be interrupted by alternative acceptable actions.

These actions include:-

- Running the rein(s) over the horse’s rump

- Touching or holding the whip on the top of the horse’s tail or rump

- Running the whip through the horse’s tail”

It was Mr Clarke’s contention that these guidelines were hard to understand, and that he was unable to judge when he was using the whip excessively. As Mr Ydgren said during the hearing each incident is dealt with on a case by case basis. We agree. When a charge is filed it is put before a Judicial Committee and it is for that committee to decide on the evidence whether the Rule has been breached or not.

[5] Finally Mr Clarke contended that there are regional differences relating to the enforcement of the excessive whip rule in that some regions allow a specific number of strikes with the whip before the rule is infringed. We are unaware of procedures in other regions, but in our experience there has never been a specific number stated in this region.

REASONS:

After hearing the evidence we adjourned to consider our decision. We were satisfied that Mr Clarke used his whip 18 times in the final 160 metres of the race, and that this use was continuous. We were satisfied that the charge had been proved.

DECISION:

On returning to the Enquiry Room we advised that a full written decision would be given later, and we gave the following oral decision.

“Having heard the evidence, and having seen the video coverage, we are satisfied that Mr Clarke used his whip on three occasions just after entering the final straight. This use of the whip was, we believe, within the “Use of the Whip” guidelines.

From about the 160 metre mark Mr Clarke used his whip on 18 occasions. This use was continuous, and there were no distinct pauses, and neither was the whip used in acceptable alternative actions.

Mr Ydgren’s case was that this use of the whip was clearly “too much”.

Mr Clarke gave evidence and he was assisted by Mr B. R. McConchie. He said that he was aware of the “Use of the Whip” guidelines, but that he did not understand them.

Mr Clarke’s defence was that there was no standard as to an acceptable number of times that the whip could be used. He said this was unsatisfactory in that he could not judge how much he could use his whip.

Mr Clarke also said that he had a realistic chance of winning the race, and he owed it to the owners and punters to try and do this. In response Mr Ydgren read an excerpt from the Enright decision.

We will deal with the following matters more fully in our written decision.

1. Whether Mr Ydgren has the ability to prosecute this case, in the absence of the informant, Mr Renault.

2. The relevance of other instances of whip use which have not been prosecuted.

3. The Enright decision.

4. The effect of the “Use of the Whip” guidelines.

5. Mr Clarke’s contention of regional differences relating to the acceptable number of times a whip can be used.

We are satisfied after reviewing the evidence and the video coverage that Mr Clarke used his whip in an excessive manner, and we find the charge proved.”

SUBMISSIONS ON PENALTY:

Mr Ydgren advised that Mr Clarke had no previous relevant convictions. He also made submissions that the Penalty Guide stated that an appropriate starting point for a fine in this case was $250-00, and recommended that this would be an appropriate fine in this case.

Mr Clarke said that he would prefer a suspension to a fine. He said that the next meetings he intended to attend were Nelson on 11 and 13 June 2010, and that he had nothing in mind before then.

Mr Ydgren said that a suspension would be an acceptable alternative to a fine, and submitted that a suspension until after the NZMTC meeting on 15 June 2010 would be appropriate.

Mr Clarke agreed that the recommended period for a suspension was fair.

REASONS:

We were satisfied that a suspension as recommended was appropriate in this case.

PENALTY:

Accordingly Mr Clarke’s Open Horseman’s Licence was suspended from after the completion of racing on 1 June 2010, until after the completion of racing on 15 June 2010, which is effectively a 3 day suspension.

J M Phelan J Millar

CHAIR Committee Member

68977

JCA Decision Fields (raw)

Dmitry: This section contains all JCA fields migrated from the raw data.

Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.

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hearing_racingtype: harness-racing

startdate: 25/05/2010

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decisiondate: no date provided

hearing_title: NZ Metro TC 25 May 2010 - R 2 (heard 1 June at NZ Metro TC)

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facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision: