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Appeal C DeFilippi v RIU - Reserved Decision of Appeals Tribunal dated 12 December 2018 - Chair, Prof G Hall

Created on 14 December 2018

BEFORE AN APPEALS TRIBUNAL OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN

COLIN DEFILIPPI, Licensed Public Trainer/ Open Horseman

Appellant

AND

Racing Integrity Unit (RIU)

Respondent

Information: A10873

Appearing: The appellant in person, with the assistance of Mr B Negus

Mr N Ydgren, Chief Stipendiary Steward and Mr S Renault, Stipendiary Steward for the respondent

APPEALS TRIBUNAL: Prof G Hall, Chairman

Mr P Williams, Member

RESERVED DECISION OF APPEALS TRIBUNAL

[1] Mr DeFilippi has appealed against the non-raceday decision of 25 October 2018 wherein he was found to be in breach of r 868(3) of the NZ Rules of Harness Racing and was fined the sum of $450.

[2] The information alleged that Mr DeFilippi, as the driver of CLOVER LOU in Race 5, AVON CITY FORD CUP DAY BOOT PARTY - LIMITED REMAIN HANDICAP TROT, at the NZ Metropolitan TC meeting held at Addington Raceway on 28 September 2018, "failed to drive CLOVER LOU out to the end of the race when having a reasonable chance of finishing 3rd.”

[3] Mr DeFilippi appeals both the finding and the penalty.

[4] Rule 868(3) states:

Every horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth, or sixth.

[5] The matter was heard at Addington raceway on Monday 19 November.

[6] Appeals provisions are to be found in Part XII of the NZ Rules of Harness Racing (rr 1202 to 1207). The procedure for an appeal is set out in Schedule 5 of the Rules and para 44 provides that all appeals are by way of rehearing.

[7] The onus is on the appellant to persuade the Tribunal to reach a different conclusion from that of the raceday Judicial Committee. The appellant must identify the respects in which the decision appealed against is in error. The Tribunal should then exercise its own independent judgement in determining the appeal.

[8] We recount the description of the race as set out in the raceday decision:

(1) CLOVER LOU drew barrier 2. From the start CLOVER LOU began well and went to the lead. The horse remained in that position until being challenged by outside runners in the home straight.

(2) Mr DeFilippi can be seen to urge CLOVER LOU near the 200 metres by slapping the horse with the outside rein on one occasion. Approaching the 150 metres Mr DeFilippi reaches down with his left hand and activates the removable deafeners. Mr DeFilippi again slaps CLOVER LOU once with the right rein near the 120 metres, 100 metres and 80 metres. As CLOVER LOU passes the 50 metres Mr DeFilippi urges the horse for the final time, with a slap of the right rein. From this point to the finish of the race, Mr DeFilippi sits motionless in the sulky.

(3) When Mr DeFilippi urges the horse for the final time it is clear to see that CLOVER LOU is holding third position at that time. CLOVER LOU is approximately one length ahead of the horse to its outside, RACHMANINOV, and a further half length ahead of SUCH FUN, which is improving down the outside of the track.

(4) CLOVER LOU is passed by SUCH FUN just short of the finish line and finishes in 4th place, beaten by a 1/2 head.

Appellant’s case

[9] Mr DeFilippi commenced his case by stating that he has driven his share of trotters and prefers them over pacers. He had driven CLOVER LOU in most of that horse’s starts.

[10] CLOVER LOU had not raced for 8 weeks although it had been at the Motukarara workouts 6 days prior. Her trainer drove her on that occasion and she finished third out of 5 horses after leading up. She was 4 1/2 lengths behind the winner.

[11] The race in question on 28 September was the first time the mare had raced at Addington. The standard of the field was good and she was 9/9 in the betting. She finished fourth. The time was the quickest she had ever gone (3.27.5). The margins were a neck; 1 3/4L; ½ a head.

[12] Mr DeFilippi took us through CLOVER LOU’s next start. She was driven by Mr McNally. She received a good run in a lower class field. He said she was beaten 16.9 lengths.

[13] Mr DeFilippi stated the reason he could not drive CLOVER LOU out was that she was getting tired and some horses in this state do not keep a straight line. This was the case with her. He was “between a rock and hard place”. Just before the passing lane he knew there was a horse on his back looking for the lane. His obligation was to ensure he kept out of the lane. At about the 160 metres he believed there was a horse poking up on his inside.

[14] Mr DeFilippi said this was the first time the horse had been driven with the whip because the horse previously was not ready for it. He did not turn the whip around because the horse was “green”. It was a question of how the horse felt. Up until the 200 metres he thought he had a chance of winning the race. When he had pulled the plugs there had been a surge from CLOVER LOU.

[15] Only 20 metres later he knew he was in trouble. Every time he hit her with the reins she ducked into the passing lane. He believed the rear video of the run home demonstrated this. He had pulled the right rein. It was not a big or hard pull because if the rein was pulled too tightly there would be pressure on the outside shoulder and the horse could be put off balance. If he pulled hard on the right rein there was also a chance of the horse going further left rather than right. He had the horse running straight and he believed CLOVER LOU was less likely to go left if he left her alone. He had run into the passing lane and, in the interests of momentum, he had not severely pulled the right rein. He was trying to get to the line as quick as he could. He believed he could not straighten CLOVER LOU any more without causing interference in that she could have galloped as she was tired and was running in.

[16] Mr Negus appeared as a lay advocate assisting Mr DeFilippi. He believed the rear view of the horses in the home straight showed that over the length of the straight CLOVER LOU was moving into the passing lane. He said you could see the appellant glance inwards at about the 180 to 200 metres mark. He said there was barely room for a horse in the passing lane and CLOVER LOU could have been disqualified if she went into the lane and therefore Mr DeFilippi had to stop her going into the lane.

[17] Mr Negus emphasised that the appellant was straightening his horse and stopping her going into the passing lane. Up until the 50 metres he had been chasing the horse up but he then had had to stop chasing her and stop her going into the passing lane as he could not do both at the same time. A horseman’s obligation was to drive his horse in a straight line and to keep out of the line of the horse that had taken the passing lane. He believed when Mr DeFilippi had slapped CLOVER LOU with the reins she had run in. He believed when Mr DeFilippi had last glanced left to the passing lane a horse was there.

[18] Mr DeFilippi said he was “driving the horse out properly” in his view. He could not drive the horse out while stopping it going into the passing lane. Some horses respond better with no urging. Every time he was shaking the reins CLOVER LOU did not respond and other horses ran past. He believed he had run half a cart width into passing lane. He believed halfway down the straight he was a cart width out but by the winning post he was half a cart into the passing lane. He did not know he was 3 lengths in front of the horse that had taken the passing lane. He knew that the horse was still there at the 100 metres.

[19] Mr DeFilippi said CLOVER LOU had never shown a lot of fight in her races commenting “she goes rough if she gets tired.” There was a surge when the plugs were pulled for about 20 metres only. He could not get any more out of her. Over the last 50 metres he had placed more pressure on the right rein in attempting to straighten CLOVER LOU and stop her from running into the passing lane.

[20] Mr DeFilippi stated the rear film had not been available when the matter was heard at Ashburton. He did not believe “we would be here” had it been available then.

[21] Mr Negus stated that he believed the appellant’s actions stopped CLOVER LOU fully entering the passing lane. He believed Mr DeFilippi had moved his hands a little in the last 50 metres. He believed the films showed one hand was a little behind the other. There was a gentle movement of the right hand.

[22] Mr DeFilippi said CLOVER LOU had started a week later at Addington. She had raced 3 back and shifted out with one lap to go. The whip was used only once and she did not show a lot of fight. She had had one more race at Ashburton where she finished 11th. So, he believed her fourth at Addington was a good result.

[23] Mr Negus referred to public perception. He said the race caller, Mr McNamara, stated on the day that CLOVER LOU was “ducking into the passing lane badly”. And in his summation of the race had said “CLOVER LOU wanted to lug in all the way home”. The Chairman on the day had not allowed Mr McNamara to be called. He said Mr McNamara was at the course and was available to give evidence before this Tribunal.

[24] Mr Negus said Mr McNamara was an expert in these matters. When asked to clarify this statement, he said Mr McNamara was an expert in race calling and race reading.

[25] Mr Renault objected to Mr McNamara being called. Mr Renault said he was not an expert and his comments on the day were from a side-on angle.

[26] Mr Negus responded that Mr McNamara was a conduit between the industry and the public. The public relied on comments from the commentator as to whether a horse was driven on its merits.

[27] We determined that Mr McNamara was an expert in race calling and, as he had commented on CLOVER LOU’s racing tendencies on the day, it was appropriate that he be called with respect to this. This evidence had not been able to be adduced on the day and therefore it was fresh evidence.

[28] Mr McNamara said he had 25 years’ experience in race calling. He also had a stable hand’s licence and had driven in track work. He had never driven in a race.

[29] We asked him to give evidence with respect to his comments on the day on the race in question. He said he focused on the leader as they entered the home straight. CLOVER LOU was leading and still kicking. CLOVER LOU started to shift into the passing lane. He believed Mr DeFilippi straightened the horse and that it shifted in again.

[30] Mr McNamara said from the top of the passing lane CLOVER LOU started hanging and shifting into the passing lane. He believed for a distance of 55 to 75 metres it was clearly drifting into the lane and being straightened.

[31] With respect to his stating during the commentary it was “ducking in badly’ he said there was no doubt it was shifting in but he had had 14 to 15 horses to view at the time.

[32] When questioned by Mr DeFilippi as to what view he had of the race, Mr McNamara said it was a commentator’s side-on view from the box. He believed CLOVER LOU had ducked in to the passing lane after about 50 metres.

[33] When asked to comment on the back-on view, Mr McNamara said he again believed CLOVER LOU had shifted in 50 metres after the start of the lane and had been straightened up and had had to be straightened again. He said Mr Chmiel’s horse had finished outside CLOVER LOU which suggested CLOVER LOU was in the passing lane. (We note Mr Chmiel’s horse, EDEN CREEK, was the horse that had attempted a run in the passing lane but appears to have faded on its run.) After viewing the head-on video Mr McNamara believed this confirmed his comments during the race.

[34] When asked by Mr DeFilippi whether there was a run in the passing lane for Mr Chmiel’s horse, Mr McNamara said there was 80 metres into the lane but Mr DeFilippi’s horse was encroaching into the lane.

[35] Mr Renault then questioned the appellant about the run of CLOVER LOU in her subsequent race. Mr DeFilippi confirmed that Mr McNally had sat parked. Mr Renault commented that he believed CLOVER LOU had been driven like “the best horse in the race, whereas she was nowhere near the best”.

[36] Mr Renault questioned whether it was correct that a driver could not drive a horse out when straightening it. Both Mr DeFilippi and Mr Negus said that was correct. Mr DeFilippi added that he had hit CLOVER LOU 4 times with the reins and she had ducked in each time. He was losing ground by hitting her.

[37] When questioned by the Tribunal as to what steps he had taken in the final 50 metres, Mr DeFilippi replied he had kept CLOVER LOU balanced and had not broken the Rules by going into the passing lane. He had got the horse to the line as best and as quick as he could. He then accepted he had got into the passing lane. He contradicted himself on this issue.

[38] Mr Negus said Mr DeFilippi had struck the horse at the 50 metres so the distance at issue was 40 metres. This was a short time. In his view CLOVER LOU simply was not good enough. Every time Mr DeFilippi hit CLOVER LOU with the reins the horse lost ground. Mr Negus also added that CLOVER LOU ran in twice and had to be straightened and Mr DeFilippi could not drive it out while straightening it, thereby reiterating what he had said previously.

[39] The Tribunal questioned Mr DeFilippi about the distance between his horse and Mr Chmiel’s. Mr DeFilippi replied he could hear a horse breathing down his neck. He was keeping CLOVER LOU balanced and keeping her straight. He added, “Some horses go better when you don’t hit them.”

[40] Mr DeFilippi concluded by stating he had got the best out of CLOVER LOU. If there had not been the passing lane rule it would be different. He was not aware how close Mr Chmiel was to him. He had to take preventive measures to keep out of the passing lane. He could not hit CLOVER LOU with the reins because each time she had run in. This was “the guts of the matter.” By sitting still in the cart he was getting the best of his horse by keeping her balanced.

[41] When further questioned by the Tribunal, he agreed he had looked left and right. He said he was aware that Mr Chmiel was not trying to poke up on his inside. He was relieved he was not there because he was aware he was in the passing lane and was not blocking him. 

Respondent’s submissions

[42] Mr Renault made only a brief submission. He stated the Stewards were only concerned with the 50 metres to the finish of the race. Mr DeFilippi was holding third and was required to show demonstrable and discernible actions from the 50 metres. He said while Mr DeFilippi said he was keeping CLOVER LOU balanced, he was in breach of the rule that a horseman shall drive his horse out to the finish. Mr DeFilippi was not doing so. The Stipendiary Stewards believed Mr DeFilippi should have used the reins; it was not necessary to use the whip to urge the horse.

[43] Mr Renault said there was always a run for Mr Chmiel to the inside of Mr DeFilippi, had Mr Chmiel’s horse been good enough to take it. Mr Chmiel had moved up the track anyway. He observed that at the top of the straight Mr Chmiel was “breathing down Mr DeFilippi’s neck”. Mr DeFilippi looked to this inside. He should have continued driving CLOVER LOU as there was enough room for Mr Chmiel.

[44] Mr DeFilippi’s actions from the 200 metres to the 50 metres were that he was urging his horse. He should have continued to do this. Had he done so, this would have removed doubt from anyone’s mind that he had not driven his horse out.

[45] Mr Renault said that Mr DeFilippi used his reins up to the 50 metres and should have continued to do so up to the finish. He said a driver had an obligation to get the best out of his horse. Screaming at a horse, for example, was insufficient as it was not a demonstrable and discernible action.

[46] Mr Renault said this was CLOVER LOU’s ninth raceday start and she had trotted roughly before. He believed she was trotting well in this race and there was no sign of her going roughly. With respect to the gear change, he stated the trainer must have believed she could take the whip. The Stipendiary Stewards had no issue concerning the whip not being used by Mr DeFilippi.

[47] Mr Renault referred to the case law and submitted that balancing a horse was not complying with the rule. The Judicial Committee in Tomlinson (2008) had applied Greer (1998) and had stated there must be at least some urging of the reins.

[48] Mr Renault said he was Chairman of Stewards on the day and he had had no concerns with Mr DeFilippi shifting into the passing lane. There was always a run to his inside up to the winning post.

[49] Mr Renault believed the rear-end view was an optical illusion. It was not a true angle. Conversely, the head-on, which was a better angle, clearly showed there was a run to the inside of CLOVER LOU despite Mr DeFilippi drifting into the passing lane. The Stewards accepted there was an obligation under the Rules to keep the leading horse out of the passing lane. At the 100 metres Mr DeFilippi had straightened CLOVER LOU. It was no longer drifting in. And over the final 50 metres the horse was running straight and it was not unreasonable that Mr DeFilippi continued to drive his horse out.

[50] Mr Renault stated that Mr DeFilippi possibly was keeping CLOVER LOU balanced. With respect to the hold on the reins, he believed Mr DeFilippi’s hands were even. He concluded his submission by reiterating keeping a horse balanced was not complying with the rule. There was no issue with the whip not being used as long as the Stewards saw some other action to drive the horse out.

Decision

[51] The Judicial Committee referred to a number of cases. The leading case appears to be that of Greer 1998. A copy of that case was not before us and the writing of this decision was delayed for a time until this case could be located. It was found to be a decision of Judge Clapham at Alexandra Park on 21 January 1998. Judge Clapham in interpreting r 868(3) stated:

We find that the obligation that arises under this rule requires at least some action by the driver to urge his horse on ie some demonstrable or discernible movement by the driver so that the driver can be seen to be "driving his horse out".

[52] In HRNZ v Tomlinson (2008) the Judicial Committee said: “Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions — in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.”

[53] The Appeals Tribunal in DeFilippi v HRNZ (2006) said:

To a degree, compliance with the particular rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a driver in the latter stages of a race. The purpose of the rules is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing.

[54] It is a mandatory requirement of r 868(3) that a driver "shall drive his horse out to the end of the race " (see also RIU v Anderson (2016)). "Drive" is not defined in the Rules.

[55] The rule has been interpreted in Greer and in subsequent cases (eg Tomlinson) as requiring a demonstrable and discernible action from the driver.

[56] The Judicial Committee in the case before us found that Mr DeFilippi had urged his horse by several slappings of the right rein until the point 50 metres from the finishing line. The Committee had no issue with his drive to that point, stating it was “happy that Mr DeFilippi's actions were in accordance with the requirements of the rule”. Furthermore, he had maintained it was inclined to drift down into the passing lane and he was concerned about A following horse or horses, having regard to the requirement in the Regulations to not move into the passing lane and to maintain as straight a course as possible in the home straight.

[57] The Committee commented that it was significant that “neither Mr Negus nor Mr DeFilippi disputed Mr Renault's submission that Mr DeFilippi failed to drive the horse out over the final 50 metres. The Committee inferred from that that it was accepted that he had failed to do so. The defence put forward by them relied on other factors which …, it was submitted, prevented Mr DeFilippi from driving his horse out.”

[58] The Committee's view of the video replays was that they did not support Mr DeFilippi's explanation for his lack of action over the final 50 metres: viz, that CLOVER LOU had nothing more to give and had not responded to the earlier encouragement that he had given it; and the horse was inclined to drift down into the passing lane and he was concerned about a following horse or horses.

[59] The Committee concluded: “By sitting still over the last 50 metres with no actions whatsoever, either with the reins or the whip, which remained throughout tucked under his right arm, there was no "demonstrable or discernible actions" to drive his horse out to the end of the race.”

[60] We differ from the Committee in one respect. We are of the view that CLOVER LOU was wanting to drift down into the passing lane. The rear-on videos evidence this. In so finding, we have taken into account Mr Renault’s observation that it is not a true angle and that the head-on is a better angle in this regard. We note that neither the parties nor the raceday committee had the advantage of viewing the rear-on video.

[61] Significantly, however, we do not believe CLOVER LOU has “ducked into” the passing lane, as Mr McNamara has stated in his commentary on raceday. We note his evidence before us was to the effect that the horse was “shifting” into the passing lane. We are satisfied that the horse as it ran up the home straight drifted into the passing lane over a distance of about 120 metres. We believe this was because the appellant began to make less of an effort to keep the horse straight and was concentrating on getting the best out of CLOVER LOU and the best result for the punter. This strategy was working.

[62] We believe Mr DeFilippi realised no horse was attempting the passing lane run. He said he was relieved Mr Chmiel was not there. He could be said to be in breach of r 869(4) and cl 7 of the Passing Lanes, False Rails And Home Straight Regulations, in that being the leading horse into the straight he was not keeping as straight a course as possible to finish line. But no horse was being interfered with. At the 50 metres, however, Mr DeFilippi ceases to urge the horse, whether with the reins or by any other measure. He sits still in the cart and is run down by SUCH FUN for third placing. We thus find that he has failed to drive CLOVER LOU out to the finish of the race.

[63] The Committee concluded that “it is probable that even a very minimum amount of urging over the final 50 metres would have led to a different result”. We do not need to comment on this conclusion because, as the Committee correctly observed earlier, the requirement under the rule is that CLOVER LOU must have had a "reasonable chance" of running third. We are satisfied she did. Mr DeFilippi had a reasonable chance of finishing third had he simply continued using those actions that prior to the 50 metres had satisfied the requirements of r 868(3).

[64] We are aware that both Mr Negus and Mr DeFilippi strongly believe that the respondent’s actions are not in breach of r 868(3) and that Mr DeFilippi was handling as best he could a horse that was giving him some difficulty in the run to the line, in that CLOVER LOU wished to shift inwards into the passing lane. However, the crucial time with respect to the rule in this case is last 50 metres of the race. By this time Mr DeFilippi had shifted at least partially into the passing lane and was able to drive CLOVER LOU out to the line. As we have said, there was no other horse in the passing lane at this time, so there was no risk of interference. Mr DeFilippi sits still in the cart and SUCH FUN gets up to grab third placing by the narrow margin of a 1/2 head.

[65] Having regard to the concerns expressed by Mr Negus and Mr DeFilippi, it may be appropriate that the Horseman’s Association give thought to the wording of the rule and the current way in which it is being interpreted. It is evident that they believe Mr DeFilippi’s sitting still in the cart and keeping CLOVER LOU balanced is compliance with the rule in that he has driven the horse out to the end of the race. Greer, and the numerous cases that apply that decision, make it clear that something more is required. We are aware that we are an Appeals Tribunal and could revisit Greer. The Committee’s decision in that case is no longer available and the Appeals Tribunal decision lacks any reference to the facts of the matter. So it is impossible to draw any conclusions by comparing the facts of the two cases. We have not received submissions from either party on this issue and believe it is one that is best left until such time as considered submissions are before an Appeals Tribunal.

[66] The appeal against the finding of the raceday committee is dismissed.

Penalty

[67] With respect to penalty, Mr Negus said if we found the appellant to be in breach of the rule, the penalty was fair.

[68] Mr Renault submitted the penalty imposed by the Judicial Committee was appropriate.

[69] The starting point in the Penalty Guide is $500 and this figure was adopted by the Committee. After a $50 discount for good record in the past 12 months, the penalty was $450.

[70] We accept that the breach is mid-range and the appropriate starting point is a fine of $500. The Committee’s $50 discount for record is appropriate.

[71] Mr DeFilippi’s appeal against penalty is not successful.

Costs

[72] We did not receive submissions as to costs. Our preliminary view is that costs should lie where they fall despite the fact Mr DeFilippi has not been successful in his appeal. Should the RIU believe an award of costs in their favour is appropriate, they are granted leave to apply to the Tribunal within 3 working days.

Dated at Dunedin this 12th day of December 2018.

Geoff Hall, Chairman

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