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Appeal G D Smith v RIU - Decision and Reasons of Appeals Tribunal dated 8 February 2019 - Chair, Mr R G McKenzie

Created on 12 February 2019

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN GAVIN DEAN SMITH of Kaiapoi, Licensed Open Horseman

Appellant

AND RACING INTEGRITY UNIT

Respondent

Tribunal: R G McKenzie (Chair)

D J Anderson

Venue: Addington Raceway, Christchurch

Present: Mr G D Smith, the Appellant

Mr S W Wallis, Stipendiary Steward, for the Respondent

Mr N M Ydgren, Chief Stipendiary Steward, Registrar

Date of Hearing: 1 February 2019

Date of Decision: 8 February 2019

DECISION AND REASONS OF APPEALS TRIBUNAL

Background

[1] This is an appeal by Licensed Open Horseman, Mr G D Smith, against the finding of the Judicial Committee at the meeting of Nelson Harness Racing Club on 11 January 2019 in finding to be proved a charge against him that in Race 1, Insite Aluminium Windows & Doors Mobile Pace, as the driver of KHAL DROGO, he “drove in a manner capable of diminishing his chance when challenging for the lead for a considerable distance”.

[2] Mr Smith has appealed the finding of the Judicial Committee to find the charge proved and against the penalty of a 5-days suspension.

[3] The ground upon which Mr Smith appeals, as stated in his Notice of Appeal dated 14 January 2019, is that “I believe I was not guilty”. No ground is specified in respect of the appeal against penalty.

Procedure

[4] The provisions for appeals are set out in Part XII of the New Zealand Rules of Harness Racing (Rules 1202 to 1207 inclusive). The procedure for an appeal is set out in Schedule 5 of the Rules and paragraph 44 provides that all appeals are by way of rehearing. It was agreed that the procedure to be followed was that of a raceday hearing.

[5] This Tribunal must exercise its own independent judgement in deciding the outcome of the appeal.

The Rule

[6] The relevant Rule is Rule 869 which provides:

(3) No horseman in any race shall drive:-

(g) in any manner capable of diminishing the chances of his horse winning.

Evidence of the Respondent

[7] Mr Smith was the driver of the horse, KHAL DROGO, in Race 1 at the meeting of Nelson HRC on 11 January 2019. The horse is trained by Mr Paul Scott at Blenheim.

[8] Following the race, Mr Smith was charged with a breach of Rule 869 (3) (g) it being alleged that he drove in a manner capable of diminishing his chance by challenging for the lead for a considerable distance.

[9] Mr Wallis then showed a video replay of the race. He pointed out KHAL DROGO, which had drawn barrier 10 (position 1 on the second row) in the 2400 metres mobile start event (for non-winners 3-y-o and older). The horse settled 4-back in the running line, and then 5-back nearing the 1700 metres and, eventually, 6-back nearing the 1500 metres. Mr Wallis told the hearing that the track is 1432 metres in circumference. Passing the winning post, Mr Smith was positioned five places back on the markers, at which point JIMMY CANNON, driven by Mr D J Keast, took the lead with a lap to run, positioning Mr Smith six places back.

[10] Shortly thereafter, Mr Smith eased KHAL DROGO out into the one-out line and then improved it 3-wide, without cover. This was done in “a relaxed manner” until, passing the 1200 metres, Mr Smith improved to be outside the parked runner, ADJUDICATOR, and “slapped” his horse with the reins and asked it for an effort to challenge JIMMY CANNON for the lead.

[11] Passing the 1100 metres, KHAL DROGO held a neck advantage over JIMMY CANNON and Mr Smith continued to challenge “down the back straight for a considerable period of time”. The horse got to approximately one length ahead of JIMMY CANNON at the 1000 metres, despite the efforts of Mr Keast to withstand the challenge. The “initial challenge” had gone on for 100 metres at that stage. JIMMY CANNON went on to win the race.

[12] Stewards had no issue with Mr Smith’s improving his position from the 1400 metres. Mr Keast, interviewed by the Stewards on raceday, said that he called to Mr Smith that he intended to stay in front. It was alleged that, from the 1100 metres, there had been a challenge which went on down the back straight, with Mr Keast attempting to keep Mr Smith out. The challenge to the 1000 metres was acceptable practice, Mr Wallis said.

[13] A gap had opened up between the two leaders and the horse running 3rd, JAY TEE TYRON (J R Dunn). For a brief period, Mr Smith had put his whip away but did not give his horse any respite and he continued to race “as fast as he can” and challenge for the lead. He had not eased to give his horse a “breather”. Leaving the back straight, Mr Smith again asked the horse for an effort by using his whip. He continued his challenge to the 500 metres, it was alleged, at which point the horse was a spent force and commenced to tire. Mr Smith recognised this and eased the horse out of the way of following runners and finished in last placing, 64½ lengths from the winner.

[14] On the day, Stewards several times timed the sectional time from the 1000 metres to the 800 metres, and the median time arrived at was 13.0 seconds approximately (between 12.78 and 13.12 seconds). The quarter from the 800 metres to the 400 metres was run in 28.0 seconds. The official sectional times for the race were 59.2 for the last 800 metres and 31.2 for the last 400 metres.

[15] Mr Smith is an experienced driver (5,000 plus drives) and he ought to have taken into account that he had been 3-wide from the 1400 metres to get to the parked position and had then challenged for the lead – in other words, his horse had done work before getting in a position to challenge for the lead.

[16] Mr Smith had two options available to him after unsuccessfully challenging for the lead – firstly, to give his horse respite by pulling back on its mouth and easing or, secondly, to pull back and take the trail behind JIMMY CANNON. Although ceasing challenging for the lead for a distance by using his reins and whip, he has not asked his horse to ease, and it has continued to run at pace, as evidenced by the sectional times.

[17] Mr Smith questioned Mr Wallis as to the accuracy of the sectional time evidence and requested that Mr Wallis substantiate that evidence on the video replays. Mr Smith submitted that those alleged sectionals were not accurate enough to be relied on as evidence.

[18] Mr Smith then questioned Mr Wallis as to his evidence that he had not sat up and eased his horse. The video was replayed at this point. Mr Smith submitted that it could be seen from his shoulders and hands that he had gone from urging the horse to taking a hold of it. He had “significantly eased” at that point, Mr Smith submitted, after challenging for a distance of 150-200 metres.

[19] In response to a question from the Committee, Mr Wallis accepted that the sectional time from the 1400 metres to the 1200 metres when Mr Smith improved 3-wide, although it could not be timed, was nothing exceptional.

Evidence of the Appellant

[20] Mr Smith said that he had broken the horse in for Mr Scott, had given it another preparation and then sent it back to Mr Scott. He had not seen it for 18 months. Mr Scott phoned him 3-4 weeks before the race to tell him how well the horse was working. He had worked it with JENORA, a 3-win horse, over 2 miles in 4.12.0, home in 57.0, and had beaten it easily. The next week, he had worked it with MADIBA, another 3-win horse, and the pair ran 2400 metres in 3.03.0, home in 56.0. It had trialled well and Mr Scott had turned down “big money” for it. He said it would be a very good drive at Nelson for Mr Smith and he should keep himself available for it. He had driven for Mr Scott for 15 years and his judgement was always sound, Mr Smith said. This was the only prior knowledge of the horse he had on which to base his driving tactics.

[21] He said that, in the race, he drove it on how it felt. When he got up alongside Mr Keast, the horse was “travelling” and he did not turn the whip around until 50 metres into the back straight when he was almost past Mr Keast’s runner. When he sat up, the horse grabbed the bit and felt good. Mr Keast’s runner had been under the whip around the first bend and again to take the lead. As he improved, Mr Smith said, he noticed that the pace had eased considerably so he elected to challenge for the lead, based on how his horse felt and how Mr Keast’s was responding. He had originally intended to sit parked.

[22] Before the race, Mr Scott had repeated to Mr Smith his comments as to how well the horse had worked with the two 3-win horses, how he had backed the horse to win and how he felt that it would win. Mr Scott had told him that the horse was not “real fast” but it was tough and he should get it off the markers, go around and the horse would do the rest.

[23] Mr Smith pointed out that JIMMY CANNON, before this start, had raced five times and had been unplaced in all five of those starts (in fact, it was more correctly four starts). That horse had been driven with the whip 3-wide around the first bend, it was driven with the whip to find the front and was again driven with the whip when attacked.

[24] Once he realised that he was not going to get to the lead, Mr Smith said, he did not want to drop in behind it but opted to sit outside JIMMY CANNON with the thought that his horse would run away and win.

[25] Mr Smith submitted that the time for the race was not exceptional. The race was run in 2-57.9, a mile rate of 1-59.3. At last year’s summer meeting, the four maiden races were run in 2-56.7, 2-58.2, 2-58.3 and 3.00.3. The time for the race in question was in the middle of those times, he said. From the 1000 metres, when the Stewards commenced timing the sectionals, there was a “howling tail wind”. All races on the day went down the back in the back in “28 something”, except for the Cup in which it was 27.2, Mr Smith said.

[26] In the other 2400 metre maiden race on the day, the leaders went down the back in 28.2, as opposed to 28.0 in the race in question. Mr Smith asked for a replay of that part of that race to demonstrate that the field went down the back straight in 28.2 in a bunch and all under a hold, and the last quarter in 30.7, In the race in question, the leaders went down the back in 28.0 and home in 31.2 – a ½ second slower for the last quarter. The “poor C1” race went down the back in 28.3 and home in 31.4, slower than in the race in question. The horse that he drove in the other maiden race, Mr Smith said, was a “poor horse” but was not in trouble until about the 400 metres and was found, post-race, to have tied up.

[27] Mr Smith submitted that, looking at all of the races on the day, the times and sectionals in the race in question were not unusual. He added that that race looked bad because Mr Dunn pulled back. On returning to the enclosure, Mr Scott apologised to him for the horse’s poor performance. The horse walked and jogged back to the stables “really short”, not hitting out properly but was normal when the gear was removed. Mr Scott told Mr Smith him a couple of days later that the horse had suffered chafing to the hind legs in the hopple area and that was the reason for the horse not starting on the second day of the meeting.

[28] When he went to attack the leader, Mr Smith said, he was relying on what the trainer had told him, the known form of JIMMY CANNON, how much work that horse had done and how it was being driven at that point. When he could not take the lead, he felt he could sit outside that runner and run past him turning for home. His runner had done little work up to the time that it got up outside the leader, JIMMY CANNON, while other runners were being used earlier in the race and, when the pace eased, he had gone around at the right time based on what the trainer had told him. He expected the horse to “just win”. He had identified two other horses in the race as being hard to beat but they were just “handy maidens”. The rest of the field, he believed, were inferior in ability to KHAL DROGO.

[29] Mr Smith said that with the benefit of hindsight, he would have dropped in to trail the leader. With the benefit of that hindsight, he would not have gone around the field. Finally, he said, the horse that had been parked, ADJUDICATOR, dropped away. It has been unplaced in fifteen starts and is a “poor maiden”. The fact that that horse could not keep up should, therefore, not be used as an indication of how fast he and Mr Keast were travelling.

Evidence of Darren James Keast

[30] Mr Keast said that, after Mr Smith’s first attack for the lead over 150-180 metres, he had definitely noticed that Mr Smith had sat up on his horse and the pace eased. He said that his horse is lazy and very green and it eased up when Mr Smith’s horse eased. He had had to urge it with the whip to maintain the lead, as he had been instructed to do, as it eased at the same time as Mr Smith’s did and not because Mr Smith’s horse was still attacking, he said.

[31] Mr Keast confirmed that he had had to use his whip on his horse for virtually the entire race and, in fact, was using it on his horse even before Mr Smith’s runner got alongside of him. He was not aware, until that point, that Mr Smith was improving quickly.

[32] Under cross-examination by Mr Wallis, Mr Keast acknowledged that he had been charged on the day regarding his whip use when being attacked by Mr Smith. (Fined $350 for using his whip in an uninterrupted manner between the 1000 and 800 metres). During a discussion with Mr Wallis on the raceday, he recalled saying that he had been attacked by Mr Smith and would have had to “burn more fuel” if he had handed up the lead to Mr Smith and then have to go around Mr Smith’s horse when it tired.

Evidence of John Robert Dunn

[33] The video replay of the relevant part of the race was shown to Mr Dunn. Mr Dunn was the driver of JAY TEE TYRON, which was racing in the trail behind JIMMY CANNON. The pace had eased prior to Mr Smith getting outside the leader, Mr Dunn said. He felt the pace then quicken sharply for 150-180 metres. He could have kept in closer touch with Mr Keast’s and Mr Smith’s runners had he wished, but he elected not to rush his horse. He had not urged his horse to keep up at that stage. He felt it was not necessary to do so as Mr Keast had been 3-wide outside him rounding the first bend and under urging from Mr Keast to take the lead from him nearing the 1400 metres and, given those factors, he felt that Mr Keast’s runner would not “kick on”. He had considered improving onto Mr Smith’s back near the end of the back straight. He had caught the leaders at the end of the back straight without asking his horse to quicken at any stage. When asked by Mr Smith whether he considered that the pace, after the initial attack, was unreasonable for the class of horse in the conditions, Mr Dunn answered “No, not at all”.

[34] Under cross-examination by Mr Wallis, Mr Dunn confirmed that his drive in the race, JAY TEE TYRON, was a 3-year-old having its first race start. He had no concern about another runner dropping to the markers in front of him. He chose not to chase the leaders. He pointed out that he could be seen on the video to be restraining his horse quite hard. By holding back as he did, he retained options, he said.

Evidence of Paul Anthony Scott

[35] Mr Scott is the holder of a Licence to Train and a licensed Graduation Driver. He is the trainer of KHAL DROGO. He gave evidence to the hearing by telephone.

[36] Mr Scott said that he apologised to Mr Smith on his return to the enclosure and said to him that the horse “went shocking”. He said that, even with the run that the horse had, it should have raced much better than it did. He rates the horse as “not a bad horse”.

[37] He was disappointed in the horse and not the drive, he said. In relation to Mr Smith’s drive, Mr Scott said that he had got a length clear of JIMMY CANNON and could not cross. The rest of the field was beginning to close, but he expected JIMMY CANNON to stop. He would not have expected Mr Smith to drop in to trail JIMMY CANNON because it was likely to stop and cart Mr Smith back through the field. He expressed the opinion that it was JIMMY CANNON carrying on and winning the race that was the reason that Mr Smith had been charged.

[38] Mr Scott said that it was an “awful field” of maidens, which was probably the reason for the field “splitting up”.

[39] Mr Scott said that he thought the horse had broken down but he doubted that it had tied up. However, he confirmed that the veterinary inspection following the race did not reveal any abnormalities. The reason for his not starting KHAL DROGO on the second day of the meeting was that it had “skinned horrendously”, which must have had a major bearing on the horse’s performance, he said.

[40] Mr Scott confirmed that he had been very confident about the horse’s chances before the race.

[41] Mr Wallis referred Mr Scott to the discussion post-race between himself and the Stewards in which he confirmed his opinion of the horse – that it was tough and could do some work. He recalled saying to Mr Wallis at that time that Mr Smith should probably have eased back. He also recalled saying that the horse was a length clear and that it was going to be difficult to ease back from there as the field was starting to close quite quickly. He was happy for the horse to be parked, he said.

[42] Mr Wallis questioned Mr Scott as to why he had not reported the hopple chafe on the day. He pointed out the requirement to report any matter that may have had an effect on a horse’s performance. Mr Scott said that he did not realise how bad the chafing was until the next morning. Mr Wallis said that it was a concern that any such injury to the horse was not raised until the hearing of Mr Smith’s appeal.

[43] Mr Wallis was incredulous that such an injury had not been detected in the veterinary check, if it was as bad as Mr Scott claimed. Mr Smith said that the chafing was not necessarily something that the veterinarian would look for and, in any event, it was likely to have been a lot worse the next day.

Closing Submissions of the Respondent

[44] Mr Wallis made reference to “actions” and “consequences”. During the running of the race in question, the consequences of Mr Smith’s actions resulted in the chances of KHAL DROGO winning the race being diminished, he submitted.

[45] Stewards accepted that the initial challenge by Mr Smith was reasonable. It was expected of drivers that they make challenges during the course of a race. However, Mr Smith has driven in a manner capable of diminishing the chances of his horse by sustaining a challenge for, Stewards were alleging, 700 metres. Mr Smith is an experienced horseman – he has driven in 5,399 races. He knew that it was Mr Keast’s intention to hold the lead so to take the lead was always going to be difficult and, given the fact that he had made his run 3-wide from the 1400 metres, which he should also have taken into account.

[46] Mr Smith had refuted the option of taking a trail. That still left him the option of easing and there was no evidence from the video replays that he took this option., Mr Wallis submitted.

[47] The veterinary check had come back “clear” and, had the chafing to the horse been as serious as claimed, it would have been raised by Mr Scott and would not have been missed in the veterinary check.

[48] Mr Smith’s drive has fallen well short of what the Stewards and the betting public would have expected from a driver with his experience.

[49] The Judicial Committee on the day was correct in finding the charge proved and Stewards believed that the appeal should be dismissed.

Closing Submissions of the Appellant

[50] Mr Smith said that the crux of the Stewards’ case is that he had attacked for 600 metres which, simply, is not correct. It was clear from the video replay, he said, that he had not attacked for that distance and, as he eased, Mr Keast’s horse had come back with him. Mr Dunn had eased back and not gone with the leaders, that had gone down the back straight in the same time as the other maiden race on the day. He believed that he had taken one of the options available to him according to the Stewards, and that was to ease back. The sectional times were the same as the other races on the day and none were “abnormal”. His drive was reasonable, based on the information that he had available to him at the time, he submitted.

[51] In relation to his appeal against penalty, Mr Smith stated that he would like the Tribunal to consider a combined penalty of a suspension and a fine. In the event that his appeal is unsuccessful, Mr Smith said, he would wish any term suspension to commence immediately.

Reasons for Decision

[52] The charge against Mr Smith is that he drove in a manner capable of diminishing the chances of KHAL DROGO in challenging for the lead for a considerable distance. The charge does not refer to a “speed duel” or “race duel” and neither does the Judicial Committee use either of those terms in its written decision, but the JCA Penalty Guide divides the charge of diminishing chances into three categories – miscounting rounds, race duelling and incompetent driving. The only guidance that we can gain from the Judicial Committee’s decision is that, when it came to consider penalty, it must have regarded the breach as being one of “race duelling” when it referred to the Penalty Guide starting point of a 40 drives suspension or a $2,000 fine, which is the starting point in that Guide for “race duelling”. This Tribunal has treated the charge against Mr Smith as one of “race duelling”.

[53] A “duel”, by definition, requires the involvement of two horses and their drivers. Without, at this stage, categorising the tactics of the drivers in this case, there were quite clearly two horses and drivers involved in the tussle to hold or retain the lead. Mr Keast, driving JIMMY CANNON, was in the lead and had led from the 1400 metres and Mr Smith, driving KHAL DROGO, had “looped” the field from the 1400 metres to join Mr Keast in the lead at the 1200 metres.

[54] Some 100 metres later, Mr Smith had continued his run and held a neck advantage over Mr Keast, who had been urging his horse with the whip from before the 1100 metres and continued to do so for most of the back straight. Mr Keast was charged by the Stewards on the day and was fined $350 by the Judicial Committee for using his whip “close to 30 times”, according to its decision, in an uninterrupted manner over that part of the race.

[55] Mr Smith’s horse had increased its lead to approximately one length at the 1000 metres. Mr Wallis told the Tribunal that Stewards accepted the Mr Smith’s challenge to that point as “acceptable practice” and, with that, we agree.

[56] In the meantime, KHAL DROGO and JIMMY CANNON had opened up a gap, which we observed at its greatest to be no more than 5-6 lengths, on the rest of the field, headed by JAY TEE TYRON, driven by Mr Dunn. Mr Dunn gave evidence that he noticed the pace quicken sharply for 150-180 metres which we believe was the distance over which Mr Smith was challenging for the lead. The gap between the leaders and the rest of the field is explained by the fact that Mr Dunn elected not to rush his horse. He had not urged it to keep up at that stage, he told the hearing. Significantly, Mr Dunn, asked by Mr Smith, whether the pace after the initial challenge for the lead by Mr Smith was unreasonable for the class of horse in the conditions, including a “howling tail wind”, Mr Dunn replied “No, not at all”.

[57] The evidence of the Stewards, and the basis of the charge, was that Mr Smith continued to challenge for the lead for a further 500 metres, to the 500 metres, at which point KHAL DROGO began to tire and, shortly thereafter, was eased out of the race by Mr Smith.

[58] The Tribunal heard a lot of evidence relating to sectional times. This is not repeated here as it is set out at some length earlier in the decision. The Tribunal concludes, based on a consideration of that evidence, that there was nothing in those statistics to suggest that the relevant part of the race was run at a speed that was in any way exceptional. Mr Smith was able to present evidence at the hearing, favourably comparing times and sectionals with the other maiden race on the day and the four maiden races at the corresponding meeting last year.

[59] Mr Wallis submitted that Mr Smith had two options available to him when he realised that his bid to take the lead was not going to succeed – firstly, to give his horse respite by taking a hold of it and easing or, secondly, to pull back and take a trail behind JIMMY CANNON. Mr Smith, in his submissions, said that, with the benefit of hindsight, he would have adopted the second of those options but, at the time, he did not see this as being necessary as he felt that his horse was capable of sitting outside the leader and still winning, based on what he had been told by Mr Scott of the horse’s ability.

[60] Mr Smith argued that he had, in fact, adopted the first option – that is to say, to ease but remain outside the leader. He said that when he did so, Mr Keast’s horse had done likewise. Mr Keast gave evidence to the hearing to the effect that, after Mr Smith’s initial challenge for the lead for 150-180 metres, he had “definitely noticed” Mr Smith sit up on his horse. He confirmed that, at the same time, his own horse had also eased and he had to urge it with the whip to maintain the lead. Mr Smith’s horse was not attacking at that stage, Mr Keast had said.

[61] The relevant factors to be taken into account as being relevant to a race duel were considered by an Appeals Tribunal in the case of HRNZ v Jones & Cameron (2000). The Tribunal identified those factors as being:

• The distance of the race;
• The stage of the race where the duelling occurred;
• The distance over which the duelling occurred;
• The distance which the horses in question were ahead of the rest of the field;
• The speed at which the horses were travelling in order to maintain or take the lead and, in this regard, sectional times for the race are relevant; and
• The energy expended in having to maintain or reach the lead, in this regard, the relevance is did the driver have to urge the horse merely by shaking the reins or did the driver resort to use of the whip, pulling ear plugs etc.

[62] It is of assistance to apply those factors to the facts of the present case. The distance of the race (2400 metres) is relevant only to the point that, for the first half of the race, there was nothing significant as far as the pace was concerned. KHAL DROGO had enjoyed an economical run on the markers until approximately the 1400 metres when Mr Smith was able to ease it out and improve gradually around the field 3-wide, seemingly, with a minimum of effort, to improve to the parked position and then challenge JIMMY CANNON for the lead. Mr Smith had reached the parked position with momentum and, he told us, he reasoned that it would be advantageous to continue on to the lead, knowing that JIMMY CANNON had received a harder run and, even at that stage, was being driven with the whip by Mr Keast.

[63] The stage of the race where the duelling allegedly occurred was between the 1000 metres and the 500 metres. Clearly, this is the latter stages of the 2400 metre race in which a driver is expected to put his horse in the best position he can to give it the best chance of winning the race. The charge alleged that this amounted to a challenge for the lead “over a considerable distance” and was the basis of the charge. We are not satisfied that the “challenge” for the lead was for the entirety of that part of the race. Mr Smith and, more importantly, Mr Keast both gave evidence that their horses eased, after it became apparent that Mr Smith could not reach the lead.

[64] We have, earlier in this decision, dealt with the factor of the distance which the runners were ahead of the rest of the field. In this regard, the evidence of Mr Dunn is relevant. That evidence was to the effect that he could have kept in touch with the leaders had he wished but, rather, he chose not to rush his horse to keep his options, he said. The pace quickened sharply, he said, for 150-180 metres after which the pace was not unreasonable for the class of horse in the conditions. The tribunal does not attach a lot of significance to the distance ahead which, in any event, was not exceptional. As stated earlier, we observed this to be no more than 5-6 lengths.

[65] The next factor – the speed at which the horses were travelling – we have already dealt with (Clause [56] above). We repeat that the times and sectionals for the race did not suggest anything out of the ordinary to incline us to the view that the pace of the race for any significant distance was unduly excessive which, necessarily, impacted on the performance of either runner. Of course, JIMMY CANNON went on to win the race, a fact which lends support to the view that we are taking.

[66] Finally, we need to consider the energy expended in attempting to reach the lead. It was our observation that Mr Smith did urge his runner, as one would expect, at this time but, in our view, not excessively so. Mr Wallis alleged that Mr Smith initially slapped his horse with the reins and asked it for an effort. We accept that Mr Smith then used his whip, not in a vigorous manner, for a short distance before putting it away. We believe that it was, at this point, that Mr Smith desisted in his challenge and eased. He used the whip again, briefly, in an attempt to get one last effort from the horse before easing the horse out of the race. In summary, we do not consider Mr Smith’s actions to urge his runner over the relevant part of the race to be excessive, taking all factors into account.

[67] We conclude that Mr Smith has been guilty of an error of judgement or even, viewed in retrospect, a bad drive, and it becomes a question of whether or not the error falls within permissible limits associated with normal standards of driving competence or outside those limits so as to be culpable. A mere error of judgement does not breach the Rule if it is reasonable in the circumstances. In judging the reasonableness of Mr Smith’s drive, we have considered a number of factors – the relatively easy run that the horse had received prior to improving to be outside the leader, Mr Smith’s assessment of the prospects of being able to successfully challenge for the lead of the based on his belief in the horse’s ability and the fact that the leader was being driven with the whip 1200 metres from home. It is expected that drivers will from time to time make errors of judgement and an error of judgement that is completely unreasonable will be caught by the Rule. We do not believe that Mr Smith’s driving tactics over the relevant part of this race were unreasonable.

[68] The poor performance of KHAL DROGO remains unexplained, particularly in the light of the performance of the other runner involved in the alleged race duel, JIMMY CANNON, which had a manifestly tougher run in the race yet, notwithstanding, went on to hold off all challengers and win the race. It could be said that KHAL DROGO’s performance was “too bad to be true”. Mr Smith’s drive may have looked worse than it actually was because of the poor performance, for whatever reason, but he cannot be punished for that.

[69] The Tribunal has not lost sight of the fact that the Rule provides “capable of diminishing the chances of his horse”. It is fair to say that, in every race, there is a drive or drives of which it could be said that it was capable of diminishing the chances of the horse but, obviously, only the most extreme of those attract the attention of the Stewards. Nor is it necessary for the Stewards to prove that the manner of driving did, in fact, diminish the horse’s chances. Nevertheless, we believe that the standard of proof in such a charge is higher than the usual on a balance of probabilities, because of the serious nature of the charge. There is ample authority for this view. As mentioned earlier, the JCA Penalty Guide prescribes a starting point for penalty of a 40-drive suspension or a $2,000 fine. The Tribunal notes that only incompetent driving and improper driving in a major race have higher penalty starting points.

[70] This Tribunal, therefore, has to be very satisfied that Mr Smith has driven in a manner capable of diminishing the chances of his horse winning. We are not so satisfied, for the reasons given above, and we reach a different conclusion from that of the raceday Judicial Committee. That Committee had neither full details of sectional and comparative times (but, in any event, it did not attach a lot of significance to them) and nor did it have the benefit of the evidence of drivers, Messrs Keast and Dunn, which evidence was material to this Tribunal in coming to the conclusion that it has. Further, the Judicial, Committee did not have available to it the time that this Tribunal has had to consider its decision.

Decision

[71] The appeal is upheld. The decision of the raceday Judicial Committee in finding the charge proved is quashed, as is the penalty of a 5-days suspension imposed by the Committee. The stay of suspension granted by the Tribunal on 14 January 2019 is lifted.

Costs

[72] There will be no order as to costs. Notwithstanding that the appeal is successful, the fee paid by Mr Smith on the filing of the appeal is forfeited to the Judicial Control Authority.

R G McKenzie

CHAIR

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