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Appeal RIU v M J Anderson - Written Decision of Appeals Tribunal dated 26 February 2020 - Chair, Prof G Hall

Created on 27 February 2020

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

MATTHEW JASON ANDERSON, Open Horseman

Appellant

AND

Racing Integrity Unit (RIU)

Respondent

Information: A11244

Appearing: The Appellant in person with the assistance of Mr M Kerr

Mr S Renault, Stipendiary Steward, for the Respondent

Appeals Tribunal: Prof G Hall, Chairman

Mr P Knowles, Member

Date of oral decision: 20 February 2020

WRITTEN DECISION OF APPEALS TRIBUNAL

[1] Mr Anderson has appealed against the adjourned raceday decision of 6 February last where he was found to be in breach of r 869(3)(b) of the New Zealand Rules of Harness Racing and was suspended from driving for 3 days. The suspension related to careless driving in race 10 at the Motukarara meeting on 26 January.

[2] Mr Anderson Appeals both the finding and the penalty. An Appeal is by way of a rehearing. In undertaking a full evaluative review of the Committee’s decision we have had regard to the evidence before the Committee and have viewed various video angles of the incident and have received oral submissions from the parties. We have formed our own view as to the merits of the issue under Appeal.

Submissions

[3] The RIU presented its case first.

[4] Mr Renault played a video of the full race. He said that ALREADY GONE, driven by Mr Anderson, had run out on the first bend locking wheels briefly with another runner. He believed after this point ALREADY GONE was “racing ok”.

[5] With respect to the final 400 to 500 metres of the race, he pointed out that ALREADY GONE was racing three places back on the pylons nearing the home turn. SAGANO, driven by Ms Butt, was racing four places back, following Mr Anderson.

[6] After turning for home, Mr Anderson attempted a run in the passing lane. At that stage, JETENARA (Mr O’Reilly), who was racing ahead of him, shifted into the passing lane. Mr Anderson was blocked for a run. Mr Renault pointed out using the back-on video that Mr Anderson went inwards, driving his horse forward with the whip. In so doing he presented a run for Ms Butt. When the run was not available for him in the passing lane, Mr Anderson shifted ground outwards, again driving forward with the reins and whip, searching for clear running. Mr Renault demonstrated on the video that it was a deliberate movement with the right hand to steer ALREADY GONE outwards. He did not believe Mr Anderson had attempted to balance his horse, but when blocked for a run, he had immediately steered outwards looking for a run.

[7] In the meantime, Ms Butt had improved to his outside and the near front leg of her runner made contact with Mr Anderson’s sulky wheel, resulting in her horse breaking and galloping out of contention. Mr Renault alleged that the Appellant had not taken sufficient care. The onus on a driver shifting ground was to do so safely without causing interference.

[8] In in her evidence on raceday Ms Butt said that, turning for home, her horse was racing four places back and following Mr Anderson’s runner. Mr Anderson’s horse then went down into the passing lane. She had attempted to take a gap between Mr Anderson and IT’S A DEAL (Mr Cameron) and at some speed. As she did so, Mr Anderson came back out and his sulky wheel contacted the leg of her runner. Ms Butt said that she had believed that there was a gap available to her. Significantly, she said the pressure she received was from the inside from Mr Anderson (transcript p 5).

[9] Ms Butt did acknowledge, when questioned on the day, that the back-on video showed that Mr Cameron had shifted in slightly, but not to a sufficient degree to place any pressure on her. She was not aware of that at that time in the race. She said all of the movement had come from Mr Anderson on her inside. This had been quite quick, and she had had no time to take evasive action.

[10] Mr Kerr questioned Mr Renault as to whether there was a gap for Ms Butt to progress into. Mr Renault said the Stewards believed there was. He did not dispute there was some inwards movement from Mr Cameron, but the principal movement was by Mr Anderson, as Ms Butt had stated in her evidence. Mr Cameron had pulled the head of his horse outwards when he realised IT’S A DEAL was shifting in.

[11] Mr Anderson said ALREADY GONE had raced in full blinds, with no earplugs, and was racing erratically. He had gone to take an inside run. There was no run, so he had taken time to balance the horse up, it had overreacted and ducked out marginally. This coupled with the speed of Miss Butt’s runner and the crowding from IT’S A DEAL, led to the interference, and not any carelessness on his part. He said ALREADY GONE had shifted out quite quickly.

[12] Mr Anderson stated the horse’s racing manners were “erratic”. Ms Butt had shifted into the gap at speed and Mr Cameron’s shifting inwards had contributed to the incident. Mr Cameron and Ms Butt had locked stays briefly as a consequence of that movement.

[13] Mr Anderson said that it was possible to get a run in the passing lane at Motukarara from a 3-back position, however on this occasion there had not been a run for ALREADY GONE. He had deliberately gone looking for a run to the inside, but it was not there.

[14] Mr Kerr spoke on Mr Anderson’s behalf. In his opinion it was clear there was inwards movement from Mr Cameron. He submitted that Mr Cameron had taken Ms Butt’s gap and that there was never a run there for her. He demonstrated this on the rear-on video. He pointed to the contact between the stays of Mr Cameron and Ms Butt. This was before any interference to Ms Butt from Mr Anderson. The gap had closed for Ms Butt and he doubted that there was ever any gap for her. When Mr Anderson had shifted out because there was no room for him there was already no gap for Ms Butt. Mr Cameron coming down had closed the gap before Mr Anderson had attempted to come out.

[15] Mr Kerr believed Mr Cameron had shifted in half a cart and, in so doing, had shut the gap for Ms Butt, who should not have been where she was when Mr Anderson came out. He said it appeared Mr Cameron had thought he was entitled to the gap. Mr Cameron had shifted away from Ms Butt after the contact. She should have taken hold because there was no gap there for her.

Summing up

[16] Mr Renault disagreed with Mr Anderson that ALREADY GONE had shifted out due its racing manners and that it was over-reacting. He said the video demonstrated ALREADY GONE’s head was turned outwards and Mr Anderson had deliberately steered the horse out. It was balanced, had been steered outwards, and had responded accordingly.

[17] The Stewards accepted there had been contact between the stays of Mr Cameron and Ms Butt, as Mr Cameron had shifted downwards looking for a gap at the same time Ms Butt was improving into the gap. However, that was not the issue, but rather the movement by Mr Anderson. There was a gap and there would have been a run for Ms Butt had Mr Anderson not shifted out. Mr Cameron had shifted out once there was the contact between the stays. He had not forced Ms Butt on to Mr Anderson.

[18] Mr Anderson stated that despite Ms Butt saying there was no pressure from her outside, the videos demonstrated there was and there had been a locking of wheels before everything else had unfolded.

[19] Mr Kerr summed up by stating there was never a gap for Ms Butt, there was movement from various angles, and Mr Cameron had shut the gap by shifting in half a cart. It was unrealistic to charge Mr Anderson when the incident was the result of general race tightening. Three drivers were at fault, not just Mr Anderson.

Decision as to breach

[20] We accept there was a quite a lot happening in the race at the time of the incident. Mr Anderson has shifted outwards on the track after initially looking for an inside run that did not eventuate. We are satisfied in looking for the passing lane run he has presented a run to Ms Butt and she took it at some speed.

[21] When it became evident to Mr Anderson that he was not going to get the run, he changed his mind, shifted wider on the track, and came into contact with a leg of Ms Butt’s horse. We believe this outwards shift is deliberate. We also believe that Ms Butt was entitled to take the gap that was presented to her. Significantly, her horse does not shift ground.

[22] We agree that Mr Cameron has shifted in a little when Ms Butt was improving into the gap and, as a consequence, there is contact for a stride or two between the stays on his and Ms Butt’s carts but the videos evidence that Ms Butt’s statement to the effect that the pressure / movement was from her inside is correct.

[23] Notwithstanding the movement from Mr Cameron, the principal reason Ms Butt suffered interference was the outwards movement from Mr Anderson. Mr Cameron has not forced Ms Butt on to Mr Anderson. As we have noted, Ms Butt was entitled to be where she was positioned in the race; she was making a forward movement and was not shifting ground. It was Mr Anderson’s outwards movement that caused the contact with the leg of Ms Butt’s horse which led to it breaking and galloping out of the race. Significantly, we can see no evidence that the racing manners of ALREADY GONE contributed to the incident.

[24] In so doing shifting ground, Mr Anderson was careless, and we uphold the decision of the raceday Committee.

[25] Mr Anderson’s Appeal against the finding of careless driving is not successful.

Penalty

[26] Mr Anderson also appealed against the 3-day penalty. Mr Renault produced the Appellant’s record which was clear under this rule this season.

[27] Mr Anderson did not want a deferment. As drivers have been declared for Waikouaiti on Sunday 23 February, a suspension will commence after that.

[28] The starting point is 10 drives or a fine of $500. Mr Renault submitted that as Ms Butt’s horse had been checked and had broken, a 3-day suspension was appropriate. This was calculated on the basis that Mr Anderson has on average 3 drives at a meeting.

[29] Mr Anderson said Mr Kerr’s stable had had a virus, but the horses were now working well, and he anticipated he would drive more regularly as a consequence. He asked us to consider imposing a fine instead of one of the days of suspension.

[30] We accept that there was some general movement at the time of the breach but we reiterate Mr Anderson should not have shifted out in the manner he did. Ms Butt’s chances were affected. We view the breach as mid-range.

[31] We believe a 2-day suspension, together with a fine of $150, is sufficient to mark the gravity of the breach and, having regard to his good record, to hold Mr Anderson accountable.

[32] Mr Anderson is suspended from the end of racing on 23 February up to and including 28 February.

[33] The RIU did not seek costs other than $50 for the cost of the typing of the transcript of the raceday hearing.

[34] We order the payment of $50 to the Respondent.

[35] Mr Anderson has paid a filing fee of $250 to the JCA. That is not refunded.

Dated at Dunedin this 26th day of February 2020.

Geoff Hall, Chairman

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