NZ Metro TC – 25 May 2010 – R 3

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hearing_title: NZ Metro TC - 25 May 2010 - R 3

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RACEDAY JUDICIAL COMMITTEE DECISION

Informant:  S P Renault - Stipendiary Steward

Defendant:  D J Butt - Licensed Open Driver

Information No:  68978

Meeting:  New Zealand Metropolitan Trotting Club

Date:  25 May 2010

Venue:  Addington Raceway, Christchurch

Race:  3

Rule No:  303 (2)

Judicial Committee:  R G McKenzie, Chairman – S C Ching, Panellist

Plea:  Not Admitted

Also present:  Mr P R Lamb - Licensed Starter, Mr A Clarke - Starter’s Assistant, Mr C D Thornley - Licensed Open Driver, Messrs N G McIntyre & N M Ydgren - Stipendiary Stewards

THE CHARGE(S):

Following the running of Race 3, Paul Yesberg Insurance Mobile Pace, Information No. 68978 was filed by Stipendiary Steward, Mr S P Renault, against Licensed Open Driver, Mr D J Butt, alleging a breach of Rule 303 (2) in that Mr Butt “misconducted himself by the manner in which he addressed the starter, Mr Peter Lamb”.

Mr Butt was present at the hearing of the information and he indicated that he did not admit the breach.

Rule 303 provides as follows:

(2)     No person or body who holds a permit or licence under these Rules and no owner, trainer, breeder, stablehand, unlicensed apprentice or racing manager shall misconduct himself or fail to comply with any request, direction, or instruction of any Stipendiary Steward, Racecourse Inspector or Starter.

FACTS:

Mr Butt was the driver of STAR MACH in Race 3. Following the race, the Starter, Mr Lamb had laid a complaint with the Stewards as to the manner in which Mr Butt had conducted himself by failing to arrive at the start in time and in the way he spoke to a starter’s assistant.

Mr Lamb said that he had received the “5 minute call” prior to Race 3. He blew his whistle and the horses began to assemble. He noticed Mr Butt continuing with his preliminary – he had passed the mobile gate and was at the end of the back straight and proceeded to complete another lap of the track (in the reverse direction). He arrived at the start less than 2 minutes before start time, Mr Lamb said. Mr Butt had drawn the second row, but was observed to be circling in the front row. He called to Mr Butt to make his way to his correct position, as the field was about to go. Mr Butt remained where he was and called for an assistant to lead him. He had inconvenienced the front row horses which were beginning to come up behind the mobile gate, Mr Lamb said. At the start point, Mr Butt was in his correct position, but he had caused inconvenience to everyone else.   

After the race, Mr Lamb said that he spoke to his assistant, Mr A Clarke, who had gone to Mr Butt’s aid at the start. Mr Clarke was not happy about the way he had been spoken to by Mr Butt. Mr Lamb said that he then spoke to Mr Butt and informed him that he was not happy about how he was late to the start and that he had inconvenienced other runners at the start. He also told Mr Butt that he was not happy about how he had spoken to one of his assistants in an inappropriate manner. Mr Butt had replied that he would speak to his assistants as he deemed fit. Mr Butt did not use any obscene or abusive language to Mr Lamb.

Mr Clarke, Starter’s Assistant, said that he was back attending to the runners on the second line. He did not hear Mr Butt on the first occasion that he called out. On the second occasion, he went to assist Mr Butt but the whistle had gone, so Mr Butt just turned around, with Mr Clarke’s assistance. Mr Butt was yelling, but was not abusive. Mr Butt had said that he was supposed to be on the second line.

Mr Clarke said to Mr Lamb, following the race, that it was not their fault Mr Butt was in the wrong position. He then overheard the conversation between Mr Butt and Mr Lamb.

Mr Lamb confirmed, when asked by Mr Butt, that although they had “heated words”, Mr Butt had not said anything “objectionable”.

Mr Butt confirmed that a “heated discussion” had taken place. He said that Mr Lamb was probably not aware of what had happened with his horse. He had been late getting onto the track when the horse would not go down the middle of the barn without swinging around. This was confirmed by Stipendiary Steward, Mr N M Ydgren. When he got out onto the track, and after Mr Lamb had blown his whistle, he had gone to turn the horse around to return to the starting point, but the horse had refused to turn around. By the end of the back straight, he decided to do another lap of the track and return to the starting point. At the start, the horse would not turn around and get into the second row. He called a couple of times to Mr Clarke, who was running the back row. By the time Mr Clarke had heard him, it was too late although Mr Clarke tried to help him get into the second row.

Mr Butt said that he “took offence” when Mr Lamb spoke to him and informed him that he was not happy about how he had spoken to the assistant and that, if he had been there at the correct time, he would have been in the correct position. Mr Butt said that he would have been there on time had he been able to turn his horse around. He denied that he had spoken “badly” to the starter’s assistant. It was “a little bit heated” at the time but it was “no big deal”, Mr Butt said.

Licensed Open Driver, Mr C D Thornley, who had driven LUCY LOWE in the race, confirmed that he had observed Mr Butt having difficulty turning his horse around in the back straight during its preliminary.

When asked by the Committee, Mr Lamb said it was not the language used, but rather the manner in which Mr Butt had spoken to him and the fact that it could clearly be overheard by bystanders. Mr Butt explained that he was being accused of something that was not his fault.

REASONS:

The Committee takes “misconduct” to mean “wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts” (Butterworths New Zealand Law Dictionary, 5^th Edition).

The Committee considered Mr Butt’s actions and words in the light of that definition. The allegation of the Stewards is that Mr Butt “misconducted himself by the manner in which he addressed the Starter, Mr Peter Lamb”.  The Committee has no doubt that words can amount to misconduct for the purposes of Rule 303 (2), which is set out above. The particulars of the words used by Mr Butt to Mr Lamb were presented in a manner which lacked detail. The Committee suspects that all of the particulars were not put before it at the hearing and that there may have been more to what took place. Be that as it may, the only allegation made by Mr Lamb was that Mr Butt had said something to the effect that he would speak to the starter’s assistants as he deemed fit. The Committee is in no doubt that these words, on their own, do not even come close to amounting to misconduct on Mr Butt’s part.

There were other matters raised in the evidence adduced by the Stewards. Mr Butt acknowledged that he was late arriving at the start with STAR MACH (for reasons which he explained to our satisfaction) and then proceeded to circle with that horse with the horses drawn on the front row. It was alleged that, in doing so, he had “inconvenienced” other runners in the field in the run-up to despatch. While all of those matters were unsatisfactory, they did not amount to misconduct and, indeed, they did not form part of the allegation of misconduct in the information.

Likewise, it was alleged that Mr Butt had yelled at the starter’s assistant, Mr Clarke, on a couple of occasions but he was, we accept, only trying to get his attention to assist him. Mr Clarke stated that Mr Butt was not abusive. Mr Lamb also said that, while he and Mr Butt had “heated words”, Mr Butt had not said anything “objectionable” and had not used abusive language.

In the Committee’s view, the Stewards have, by some margin, failed to discharge the burden of proving, on a balance of probabilities, that Mr Butt had misconducted himself. There was no evidence presented to the Committee that satisfied the Committee that any of Mr Butt’s conduct or words were “wrongful, improper or unlawful” in terms of the definition referred to above.         

DECISION:

The charge was dismissed.

R G McKenzie          S C Ching

CHAIR                     Committee Member

68978

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