Appeal – Decision dated 15 June 2023 – Matthew White

Background

1. On Thursday 18 May 2023 the Waikato Bay of Plenty Harness Racing Club conducted a Harness meeting at the Cambridge Raceway.

2. Following Race 5, the Appellant was charged under Rule 869(3)(b) of Harness Racing New Zealand Rules with careless driving.

3. The Appellant was the Driver of “SUNSHINE MOMENT”. It was alleged the Appellant allowed SUNSHINE MOMENT to move outwards at the 100-metre mark, causing an interference to “FONTEYN”, driven by Mr S McCaffrey. Immediately to the outside of FONTEYN, was “GREATER GOOD”, driven by Mr P Ferguson.

4. At the raceday hearing, the Appellant argued he was entitled to move out when he did. This was because he was placed ahead of FONTEYN. He also alleged it was necessary for him to move out to avoid “AMERICAN ROCKER”, driven by Mr A Poutama, who was not only giving ground, but also moving outwards into the line of SUNSHINE MOMENT.

5. Following the defended hearing, the Adjudicative Committee found the charge proved and suspended the Appellant’s Open Driver Licence for a period of two (2) days.

6. The Appellant appeals against both the finding and also penalty imposed.

Appellants Submissions

7. The Appellant pointed to various film angles of the incident and submits the horse in front, being AMERICAN ROCKER, was stopping and shifting. This was not given sufficient emphasis by the Adjudicative Committee. The Appellant maintains it was necessary for him to shift out in order to go around AMERICAN ROCKER.

8. He further submits he angled out when he had an advantage over FONTEYN and GREATER GOOD.

9. The Appellant submits this was nothing more than an ordinary racing incident, and he was not guilty of the charge of careless driving.

Respondents Submissions

10. Mr Dooley on behalf of the Respondent, also referred to various film angles.

11. The Respondent submits FONTEYN was situated immediately to the outside of SUNSHINE MOMENT with GREATER GOOD further out again. Therefore, the Appellant was not entitled to endeavour to move FONTEYN further up the track. To do so, would cause interference to GREATER GOOD.

12. He drew the Appeals Tribunal’s attention to the Shifting Ground Regulations, which have been issued by Harness Racing New Zealand. In particular, he references the following:

“The onus shall be on the driver shifting ground to ensure the move is made with safety and does not cause interference by conducting it in a gradual and acceptable manner, thereby enabling the driver of the runner being moved to be able to take the necessary action to accommodate the manoeuvre.”

13. Mr Dooley submits the outward movement of SUNSHINE MOMENT was not:
(a) made with safety;
(b) gradual or acceptable, but abrupt;
(c) made in a manner which did not enable Mr McCaffrey to accommodate the outwards movement due to the presence of GREATER GOOD.

14. Mr Dooley also referred to the head on film, which showed the Appellant activating the gear with his left hand and then applying pressure on the right rein of SUNSHINE MOMENT, to make the outward movement.

15. It was accepted SUNSHINE MOMENT is an inexperienced horse. It was also accepted SUNSHINE MOMENT moved further out than had been intended by the Appellant.

16. Nevertheless, it was submitted the onus was on the Driver of the horse making the manoeuvre, to ensure the Shifting Ground Regulations are complied with. Any course of action taken by the Appellant to correct the line of SUNSHINE MOMENT, was taken too late to be acceptable in terms of the Regulations.

Discussion

17. The Appeal has been conducted by way of a rehearing. The Appeals Tribunal procedure is set out in Rule 126 of the Rules. The Fifth Schedule to the Rules sets out the actual procedure to follow. Paragraph 44 confirms the Appeal was to be by way of a re-hearing and we have adopted that procedure.

18. In considering this Appeal, we are required to form our own opinion as to matters of law and fact. However, we should give due weight to findings made by the Adjudicative Committee.

19. We have carefully read the Adjudicative Committee’s Decision, and also the submissions which had been made on behalf of both parties to the Appeal.

20. We have also reviewed films of the incident. These included the head on, side on and back straight films.

21. The issue is whether the Appellant was entitled to direct SUNSHINE MOMENT on this outward movement, and having done so, did he take corrective action sufficiently early once interference had been caused.

22. We accept SUNSHINE MOMENT is a green and inexperienced horse. However, it has had one (1) raceday start at Cambridge when driven by the Appellant, who is also the Trainer. He should therefore have been aware of any tendencies which the horse may have shown in such circumstances.

23. We have also taken particular note of the Adjudicative Committee’s Decision, where it was noted the head of SUNSHINE MOMENT was directed in an outwards manner as the incident was unfolding, which indicates an action by the Appellant to direct the horse outwards.

24. When coupled with the obligation on the Appellant in making such a manoeuvre under the Shifting Ground Regulations, we come to the conclusion the Appellant did not comply with those Regulations, and his actions in making an attempt to straighten the horse, was too late as the “damage” had already occurred. He was not entitled to move FONTEYN further up the track, as to do so would cause interference to GREATER GOOD, who was placed immediately to the outside of FONTEYN. Had GREATER GOOD not been in that position, then the circumstances may well have been different.

25. Therefore, we come to the conclusion the Adjudicative Committee’s assessment of the accident was correct and the actions of the Appellant in this event did amount to a breach of the Rule. We also agree with the Adjudicative Committee that the breach was a low level breach.

26. For this reason, the Appeal as to findings is dismissed.

Decision

27. The Appellant indicated he did not wish to pursue the Appeal as to penalty. Therefore the Appeal as to penalty is also dismissed.

28. The Appellant has been driving under a stay. He is driving at Alexandra Park this evening 15 June 2023. Obviously he is able to honour those commitments. However a two (2) day suspension will commence at the conclusion of racing on 15 June 2023, and will be up to and including 29 June 2023. This suspension encompasses a meeting programmed at Cambridge on 22 June 2023 and 29 June 2023 at Alexandra Park.

Costs

29. The Appellant sought to recover the costs of obtaining a transcript of evidence of $250. The Tribunal was also invited to consider whether the Appeal amounted to one of convenience only, to enable the Appellant to drive at the Auckland Cup meeting.

30. The Respondent made no submissions as to costs.

31. As the Appellant has not been successful in his Appeal, he is ordered to make a contribution of $500 towards the costs of establishing the Appeals Tribunal for the hearing of this Appeal, and also to pay $250, being the costs of obtaining the transcript of evidence.