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Appeal RIU v A G Herlihy - Written Decision of Appeals Tribunal dated 7 December 2017 - Chair, Prof G Hall

Created on 08 December 2017




AND IN THE MATTER of the New Zealand Rules of Harness Racing




Open Horseman


Information: A9137

Appeals Tribunal: Prof G Hall, Chairman

Mr R McKenzie, Member

Appearing: Mr J Muirhead and Mr S Mulcay, Stipendiary Stewards, for the Appellant

The Respondent in person

Date of oral decision: 1 December 2017

Date of written decision: 7 December 2017


[1] The RIU are appealing against the finding of a Judicial Committee of the JCA on 27 October 2017 at the meeting of the Auckland Trotting Club at Alexandra Park where it dismissed a charge of careless driving (r 869(3)(b) of the Rules of Harness Racing) that had been laid against Mr Herlihy after the running of race 8.

[2] Rule 869(7) provides: “Sub-rule (6)(b) and (c) of this Rule shall apply until 1000 metres from the finish of the race. From this point all horsemen shall be expected to make moves, with safety, to ensure the horse obtains the best possible place in the field.” (Sub-rule (6)(b) and (c) are not applicable in this case as the incident was after the 1000 metres.)

[3] Mr Muirhead produced a letter dated 2 November from Mr M Godber, General Manager of the RIU, authorising the appeal against the dismissal of the charge.

Appellant’s case

[4] The appellant submitted that the Committee on the day failed to give sufficient consideration to the abrupt manner in which Mr Herlihy, driving MR EUROMAN, completed an outwards shift at the 600 metres which resulted in interference to HUG THE WIND, driven by Mr B Mangos, which galloped losing its chance. In doing so, the appellant believed the Committee had erred in dismissing the charge.

[5] Mr Muirhead stated that the Stewards strongly disagreed with the Judicial Committee’s finding, particularly in regard to its interpretation of the video evidence. The Committee’s written decision also referred to HUG THE WIND laying in. The appellant submitted there was no evidence of this during the hearing.

[6] Mr Muirhead presented his case by referring to a number of camera angles. We number these as they appear in the appellant’s submissions.

1. Side – on Camera

[7] With 800 metres to run, the six horse field is racing in single file. MR EUROMAN is racing three back on the running line. HUG THE WIND is racing four back on the running line, trailing MR EUROMAN.

[8] Inside the 700 metres HUG THE WIND is travelling easily and is not showing any signs of steering issues.

[9] With approximately 600 metres to run, Mr Mangos shifts HUG THE WIND outwards in the two wide line and improves forward outside MR EUROMAN. Mr Mangos taps his horse with the whip to ask it to accelerate. He then, almost immediately, is required to both steer outwards and restrain HUG THE WIND in an attempt to avoid the wheel of the sulky of MR EUROMAN. Mr Herlihy has shifted his gelding out sharply from the running line, placing his sulky wheel under HUG THE WIND’s body in a position in between the horse’s offside legs with heavy contact to its offside hind leg. This results in HUG THE WIND breaking from its gait and losing its chance. The side on film, Mr Muirhead submitted, demonstrates that Mr Herlihy is in a position to make an outwards shift by holding an advantage over HUG THE WIND provided he does so with safety.

2. Back Straight Camera

[10] This camera from a head on prospective clearly demonstrates Mr Herlihy’s outward manoeuvre. It is evident that the wheel of his sulky shifts outwards underneath HUG THE WIND’s body and it shows the resultant contact. It also demonstrates Mr Mangos’ reactions in an attempt to avoid interference. He steers HUG THE WIND to the left. The horse’s head is turned out and HUG THE WIND is starting to shift out but there is not sufficient time to do so before there is contact.

[11] The outward movement of MR EUROMAN would be best described as, if not quick, then abrupt. Neither HUG THE WIND nor Mr Mangos is in a position to avoid this abrupt movement.

3. Turn Tower Camera

[12] By observing his posture in the sulky, this camera angle of the incident clearly records Mr Mangos’ reaction to Mr Herlihy’s outward manoeuvre. He applies immediate restraint on the reins as well as angling his horse to the left in an attempt to avoid contact.

[13] Mr Herlihy throughout this manoeuvre does not appear to show any concern, flinch or look back before or after contact. He takes no action to avoid contact. He makes this shift outwards without due consideration for the care of another horse. The onus is on Mr Herlihy, as the runner shifting ground, to ensure he does so in a careful manner. The Stewards submitted he did not do so on this occasion, and thus he failed to drive with sufficient care.

[14] Mr Muirhead then commented on the Judicial Committee’s “Reasons for Decision”.

[15] The Stewards agreed with the Committee in that HUG THE WIND is travelling well and not giving Mr Mangos any steering issues. The Chairman was said to make several comments that are not supported by the films.

[16] The decision states “HUG THE WIND has his head turned outwards before moving alongside MR EUROMAN”. The Stewards submitted the evidence is to the effect that the horse’s head is turned out to the left by Mr Mangos only in response to the actions of Mr Herlihy and the immediate shift from his horse.

[17] The Committee then determined that Mr Herlihy continues to drive forwards but HUG THE WIND defies the efforts of Mr Mangos because the horse is laying in. The Stewards submitted that it is not reasonable for horse or driver to react in a quick enough manner to avoid Mr Herlihy’s shift. The Committee appeared to take the vision of HUG THE WIND’s head being turned outwards to mean the horse must be laying in. The Stewards believed it is apparent from the turn for home camera that the only reason the horse’s head is turned outwards is because of the effort from Mr Mangos to avoid the sudden shift. Mr Mangos makes no attempt to maintain his position but takes immediate measures to avoid interference. Despite his best efforts this cannot be achieved.

[18] It is Mr Herlihy’s responsibility to shift outwards safely not Mr Mangos’ to get out of the way. Their argument, the Stewards said, is supported by Mr Mangos when he says, “he was travelling good” and “I don’t think it was my horse’s fault”. The Stewards believed the Committee places too much weight on Mr Mangos’ and Mr Herlihy’s opinions that Mr Herlihy is entitled to shift out in the manner he does. This, in the RIU’s opinion, jeopardises the credibility of protecting the welfare of drivers and horses, costing the owners a possible stake bearing position in the race and, most importantly, protecting the punters who made investments on HUG THE WIND.

Mr Muirhead made reference to the Easing Down Regulations. These provide in part that subject to rr 869(3) (careless driving) and 869(4) (causing interference), horsemen shall be permitted to make moves with safety, provided they are in a position to do so by having a “clear advantage” over the horse they are about to move inwards, and the horse is clear of other horses on its inside so it can be moved in and that the manoeuvre is conducted in a gradual and acceptable manner. Easing down applies during the final 1,000 metres, regardless of margin, so long as it does not cause interference. Any horseman, who fails to concede when not in a position to maintain his/her place, may be charged under r 869(3).

[19] The Stewards alleged Mr Herlihy uses r 869(7) as a defence in that he believes he can make moves to improve his position inside the final 1000 metres because he has an advantage in that MR EUROMAN is in a more forward position than HUG THE WIND. He says he can shift outward and the outside runner must give way. He also was said to state that he conducts the manoeuvre in a normal manner.

[20] The Stipendiary Stewards submitted that easing out to improve your position requires the same safety standard as that described in the Easing Down Regulations, which is that drivers conduct manoeuvres in a gradual and acceptable manner. It follows for safety reasons that drivers should exercise the same duty of care whether shifting inwards or outwards. Their responsibility is not to cause interference to another runner when carrying out such manoeuvres. In this case, the Stewards believed Mr Herlihy does not shift outwards in a gradual way but does so too quickly or abruptly for Mr Mangos to shift HUG THE WIND wider on the track.

[21] The Stewards also submitted that the respondent does not conduct the manoeuvre in an acceptable way. The wheel of his sulky is in an unsafe position when he conducts his shift, as Mr Herlihy’s sulky wheel is aligned in between HUG THE WIND’s off side legs. It is not possible to shift a sulky wheel outward towards a horse’s legs without considerable risk. A safer manoeuvre would be to shift when there is sulky wheel to sulky wheel contact.

[22] Mr Muirhead concluded his submissions by stating Mr Herlihy should have shifted MR EUROMAN out earlier in front of HUG THE WIND, or timed his shift later to apply pressure using his sulky wheel onto his opponent’s sulky wheel, or waited for that runner to go past him.

Respondent’s case

[23] Mr Herlihy submitted the Judicial Committee’s interpretation of the videos was correct and that we should uphold its decision. He said the Stipendiary Stewards were wrong, as there was nothing abrupt about the move he had made. He said Mr Mangos should have anticipated he would come out as he was three back and was not racing in the trail. (We understand that to mean that he would not be expected to sit three back as a passing lane run was unlikely to become available.)

[24] Mr Herlihy said Mr Mangos had erred by slapping up his horse. He had rushed forward and was perhaps trying to keep him in. Mr Mangos should also have come up wider on the track.

[25] Mr Herlihy demonstrated on the videos that Mr Mangos was vigorously tapping up his horse. He said MR EUROMAN’s outwards move was not abrupt but was gradual. He was aware a horse was progressing to his outside, although he did not know it was Mr Mangos. And he knew that horse was coming quickly.

[26] Mr Herlihy pointed to the evidence of Mr Mangos that his horse had not reacted the way he had expected it to when Mr Herlihy came out. The Judicial Committee had given him the benefit of the doubt and so should we.


[27] It is a six horse field. With 800 metres to run, the horses are racing in single file. MR EUROMAN, driven by the respondent, is racing three back on the running line. HUG THE WIND is four back on the running line, and is thus trailing MR EUROMAN.

[28] With approximately 600 metres to run, Mr Mangos improves HUG THE WIND outward in the two wide line and progresses to the outside of MR EUROMAN. Mr Mangos taps his horse with the whip to ask it to accelerate. Immediately afterwards he is required both to steer outwards and to grab hold of HUG THE WIND in an attempt to avoid the wheel of the sulky of MR EUROMAN.

[29] It is our view that Mr Herlihy has shifted his horse out quickly from the running line and, in so doing, has placed his sulky wheel under HUG THE WIND’s body in a position that is in between the horse’s offside legs. There is contact with its offside hind leg, which results in HUG THE WIND breaking from its gait and losing its chance in the race.

[30] Mr Herlihy has come out into the racing line of HUG THE WIND. It is only a matter of some two to three strides (the appellant believes two) from when the respondent is on the running line until contact is made with a leg of Mr Mangos’ horse. There is no evidence of HUG THE WIND hanging or laying in. The horse is travelling up two out in a satisfactory manner and it is not that horse’s fault that there is contact. HUG THE WIND’s head turns out only when Mr Mangos endeavours to take evasive action when Mr Herlihy comes out.

[31] We note the evidence of Mr Mangos that is sympathetic to Mr Herlihy and which is to the effect his horse is slow to react when Mr Herlihy comes out. It is our view the respondent at that time holds an advantage over HUG THE WIND and thus is able to shift out with safety but he gives Mr Mangos very little time to react. We emphasise it is not Mr Mangos’ responsibility to avoid Mr Herlihy or to anticipate that he may shift out. It is the respondent’s obligation to make an outwards move with safety. Mr Muirhead is right when he states that had the move been made slowly and had it been earlier — before Mr Mangos had come alongside — or had it been later — when the carts were wheel to wheel or after Mr Mangos had gone past — the move would not have been in breach of the Rules.

[32] We have not found it necessary to address the appellant’s submission with respect to the relevance of the Easing Down Regulations in determining this appeal.

[33] We find that the respondent’s outwards movement is both too swift and poorly timed. As a consequence, he interferes with HUG THE WIND and costs that horse its chance in the race. In so doing, he is in breach of r 869(3)(b), and thus has driven carelessly.

[34] We uphold the appeal against the dismissal of the charge.


[35] Mr Muirhead produced the respondent’s record. Mr Herlihy had a suspension on 31 August 2017 of one day. The breach was thus low end.

[36] The JCA Penalty Guide provides for a starting point of three days’ suspension for a second breach of the careless driving rule within four months. However, Mr Muirhead asked for a two-day suspension and a fine of $300, as he emphasised the delay in determining the matter was not the fault of the respondent and the hearing date had had the effect of the third day of a suspension being a Premier meeting.

[37] Mr Herlihy agreed that to miss a Premier day was not in his interests. He submitted a two-day suspension was appropriate and there was no need to impose an additional fine.

[38] We have had regard to the starting point in the Penalty Guide. We view this breach as towards the upper end of mid-range. The chances of HUG THE WIND were extinguished by Mr Herlihy’s actions.

[39] The first respondent’s record is very good, with just the one suspension in the last two seasons. Mr Herlihy has had some 350 drives in this time.

[40] The appropriate penalty is a suspension of three days but we accept the appellant’s submission that it would be unfair to so penalise Mr Herlihy when through no fault of his own the third day of such a suspension is now a Premier night.

[41] In these circumstances, which we regard as exceptional, we impose a penalty of two days’ suspension and a fine of $300. We emphasise were it not for the delay in the hearing of this appeal, we would have imposed three days.

[42] The suspension of Mr Herlihy’s horseman’s licence is from the end of racing on 1 December up to and including 8 December 2017. This is two meetings: Cambridge 6 December; and Auckland 8 December.

[43] The RIU have not sought an award of costs.

[44] No order as to costs is made in respect of this appeal.

Dated at Dunedin this 7th day of December 2017.

Geoff Hall, Chairman

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