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Appeal RIU v M J Williamson - Written Decision dated 7 November 2018 - Chair, Mr R G McKenzie

Created on 12 November 2018

BEFORE AN APPEALS TRIBUNAL

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT DUNEDIN

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT

Appellant

AND MATTHEW JOHN WILLIAMSON of Oamaru, Licensed Open Horseman

Respondent

Tribunal: R G McKenzie (Chair)

S C Ching

Venue: Forbury Park Raceway, Dunedin

Present: Mr V J Munro, Stipendiary Steward, for the Appellant

Mr K Coppins, Stipendiary Steward

Mr M J Williamson, the Respondent

Mr S P Renault, Registrar

Date of Hearing: 25th October 2018

Date of Oral Decision: 25th October 2018

Date of Written Decision: 7th November 2018

REASONS FOR DECISION OF APPEALS TRIBUNAL

Background

[1] This is an appeal by the Racing Integrity Unit against the finding of the Judicial Committee at the meeting of Northern Southland TC at Ascot Park, Invercargill, on 6th October 2018 in dismissing a charge against the Respondent that in Race 1, Net Ten Eom at Macca Lodge Pace, as the driver of ROCKIN ROD, he drove carelessly near the 200 metres when improving into a position where insufficient room existed, resulting in checks to SHERRY BABY and GOMEO DENARIO.

[2] Mr Munro has appealed the finding of the Judicial Committee to dismiss the charge.

[3] The ground upon which Mr Munro appeals, as stated in his Notice of Appeal dated 14th October 2018, is that “the decision is manifestly incorrect in that Mr Williamson was careless in his drive where he checked SHERRY BABY and extinguished the chances of GOMEO DENARIO at a crucial part of the race.

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.

[5] The onus is on the Appellant to persuade the Tribunal to reach a different conclusion from that of the raceday Judicial Committee and, in doing so, must identify the respects in which the decision appealed against is in error. This Tribunal must exercise its own independent judgement in deciding the outcome of the appeal.

Submissions of the Appellants

[6] Mr Munro, in a written submission, outlined to the hearing the background to the charge:

1. On Saturday 6th October 2018, Mr M J Williamson drove horse number 3 (ROCKIN ROD) to win Race 1 at the Northern Southland Trotting Club meeting, held at Ascot Park.

2. After this race, Mr M Williamson (ROCKIN ROD) and Mr B Williamson (SHERRY BABY) were questioned and shown the films, regarding an incident at the 200-metre mark.

3. Mr B Williamson (SHERRY BABY) stated that he was on a horse that was leading and then tiring in the last 300 metres. He knew that his horse had no chance and was trying to get out of everyone’s road. When doing this, he has got into trouble with Mr Barclay’s horse (GOMEO DENARIO). When further questioned by Mr Wallis as to whether he believed there was a gap for Mr M Williamson (ROCKIN ROD) Mr B Williamson (SHERRY BABY) replied that Mr M Williamson (ROCKIN ROD) had dived into an opening gap.

4. After questioning Mr M Williamson (ROCKIN ROD), an information (A10549) was filed with the Judicial Control Authority (JCA) alleging that Mr M Williamson as the driver of (ROCKIN ROD) had driven carelessly near the 200 metres by improving into a position when insufficient room existed resulting in checks to Sherry Baby and Gomeo Denario.

5. Mr M Williamson (ROCKIN ROD) denied the charge.

6. A defended hearing was conducted, with the Judicial Control Authority (JCA) Committee dismissing the charge.

The Video Evidence

[7] Mr Munro began by showing side-on and head-on video replays of the relevant part of the race – as the field approached and turned into the home straight with 200 metres to run.

[8] He identified the relevant runners. Passing the 400 metres, ROCKIN ROD, driven by Mr Williamson was racing in the trail behind the leader, SHERRY BABY, driven by Mr B J Williamson, which was weakening. Mr Williamson then eased out of the trail into the one-one, behind FLOGGING MOLLY, driven by Mr N P Williamson. Entering the home straight, GOMEO DENARIO (B G Barclay) was following SHERRY BABY.

[9] Mr Williamson, the Respondent, had anticipated that a gap would open because SHERRY BABY was weakening. Stewards were alleging that Mr Barclay had entered the passing lane and had become established for a run along the markers, inside SHERRY BABY and within a neck of ROCKIN ROD. The leader, FLOGGING MOLLY was required to maintain a straight line in the home straight. It could be seen to run in, its driver looked around and quickly straightened the horse, and maintained a straight line thereafter. There was room for two runners in the passing lane, GOMEO DENARIO and SHERRY BABY.

[10] Mr Williamson had forced his way into a gap between SHERRY BABY and FLOGGING MOLLY. The was a small gap but not sufficient for a horse to come through. As a consequence, the driver of SHERRY BABY had to take evasive action to avoid ROCKIN ROD and, in doing so, had locked wheels with GOMEO DENARIO, which was entitled to the passing lane run, and extinguished that runner’s chances.

[11] Mr Williamson had come down and exerted pressure on SHERRY BABY and checked that runner and GOMEO DENARIO on its inside. Had he waited a “smidgin” longer, a gap would most likely have been there for him. However, he had anticipated that it would come earlier, forced his way into it and checked the other two runners.

[12] Mr Williamson took the opportunity to comment on the video evidence. He submitted that FLOGGING MOLLY had moved in “half a cart” which made the run available to GOMEO DENARIO that much narrower. A gap had opened to the outside of FLOGGING MOLLY, allowing LAST HARAH a gap between MATINEE IDOL and FLOGGING MOLLY, which illustrated that FLOGGING MOLLY had moved in. That movement from the latter runner had contributed, causing him, Mr Williamson, to “pull in” which had caused the check to SHERRY BABY.

The Judicial Committee Decision

[13] Mr Munro then said that he wished to make five points in relation to the decision of the raceday Judicial Committee:

1. The decision states that GOMEO DENARIO did not have clear racing room in the passing lane. It is clear on the head on film that GOMEO DENARIO is established in the passing lane and still had room to go further down the track until interfered with.

Mr Williamson responded that at no stage did Mr Barclay get his sulky wheel inside that of SHERRY BABY.

2. The decision further stated that FLOGGING MOLLY (N Williamson) drifted in a half cart and in doing so dictated the line of ROCKIN ROD which was forced inwards. Whilst this is correct in some ways it does not say the Mr N Williamson (FLOGGING MOLLY) immediately directed horse back up the track, ensuring it was in a straight line.

3. The decision goes on to say the Mr N Williamson attempted to correct his inward shift but found Mr Larsen (LAST HARRAH) had established himself in the gap between FLOGGING MOLLY and MATINEE IDOL (P Hunter) on its outside. This is factually incorrect as there is always a gap for Mr Larsen (LAST HURRAH) which is created by Mr Hunter (MATINEE IDOL) running out in the home straight. Also, this statement has no consequence to Mr M Williamson (ROCKIN ROD) as he has already dived into his half gap looking for a run.

4. The decision then states that the shifting of more than one horse contributed to the general tightening on inside horses which led to the interference. This is incorrect as Mr M Williamson (ROCKIN ROD) has gone looking for a gap, anticipating that Mr B Williamson (SHERRY BABY) is stopping, which will create a gap for him. This was not to be, hence the interference to the two inside runners.

5. The Judicial Committee in its reasons for the decision states, “we have to be satisfied on balance of probabilities that Mr Williamson’s actions were solely at fault and interference resulted”. This statement is incorrect and misleading, as Mr Williamson’s actions do not have to be solely at fault. Other factors may be included but ultimately if Mr Williamson has driven carelessly for whatever reason then he is guilty of careless driving.

[14] Mr Williamson said that, until FLOGGING MOLLY had moved in the “half a cart” that he had alleged, it had been his intention to run his horse alongside it until SHERRY BABY had dropped away, but when it did move in, he had had to pull into SHERRY BABY, which had caused the check to that runner.

The Appellant’s Submissions in Relation to the Video Replays

[15] Mr Munro made the following submissions:

1. Mr M Williamson (ROCKIN ROD) is held up round the final turn and is looking for a clear run.

2. Mr M Williamson (ROCKIN ROD) anticipates a run to his inside as Mr B Williamson (SHERRY BABY) is weakening after a hard run.

3. Prior to this Mr B Barclay (GOMEO DENARIO) who is trailing and takes the passing lane, has established himself in the passing lane for a run which is clearly there.

4. Mr M Williamson (ROCKIN ROD) improves into a gap where insufficient room exists. which causes Mr B Williamson (SHERRY BABY) to take evasive action resulting in him locking wheels and extinguishing the chances of Mr Barclay (GOMEO DENARIO) as a consequence.

5. At no point, as described in the JCA decision, has Mr Larsen (LAST HURRAH) placed pressure on Mr M Williamson (ROCKIN ROD) from the outside. It has clearly been Mr M Williamson’s choice to go for a minimal gap on his inside, anticipating for it to open sufficiently like he stated in his evidence. With this not being the case, he then has checked the inside two runners.

6. The Stewards disagree that Mr Larsen (LAST HURRAH) was a factor in this interference as the head on films show.

7. In summary Mr M Williamson has anticipated a gap, a gap he thought was going to present itself at some stage to open sufficiently enough for him to improve through. As SHERRY BABY did not stop as quick as he hoped for, he drove ROCKIN ROD into a gap to which he was not entitled to do so. It is clear there was insufficient room at this time of the race, thus interfering with SHERRY BABY who in turn checked GOMEO DENARIO, who was a very good chance of finishing a place. As a result of Mr M Williamson’s actions we believe he has met the threshold of driving carelessly.

[16] Mr Munro then made further submissions in response to submissions made by Mr Williamson at the hearing.

1. Mr Williamson had said that, if FLOGGING MOLLY had kept a straight line, there would have been a run for him. This suggested that a gap was not there or that any gap would have been narrowing.

2. Mr Williamson admitted that he pulled in on SHERRY BABY when his original plan did not work. To do this to another runner and extinguish its chances, that must amount to careless driving, Mr Munro submitted.

3. Mr Williamson said that he had anticipated a gap. There would have been three options available to him, Mr Munro submitted – to go in, to go out or to remain where he was and await a run. Mr Williamson had opted to go in, anticipating a gap, which did not eventuate. This option involved the driver of SHERRY BABY in having to take evasive action. Had Mr Williamson not taken that gap, he would have been an unlucky runner, Mr Munro submitted.

CLOSING SUBMISSIONS OF THE RESPONDENT

[17] Mr Williamson said that he driven in a lot of races and he believed that he would have been able to take the gap had FLOGGING MOLLY not shifted in a half cart width. Once that runner straightened, there was sufficient room. In response to a question from the Tribunal, Mr Williamson stated that he agreed that he was moving into half a gap but was doing so in a safe manner. He freely acknowledged that he was anticipating a run, but he would have “got away with it” but for the inwards shift by FLOGGING MOLLY. There should have been “half a cart more room”. He was trying to win the race, he said.

REASONS FOR DECISION

[18] The Tribunal carefully listened to the evidence and submissions of both parties and we have carefully studied the video evidence.

[19] In its oral decision delivered following the hearing on raceday, the Chairman of the Judicial Committee said (addressing Mr Williamson):

“There is too much going on, you’re a victim of circumstances, you may have jumped the gun a fraction early but you can’t always predict what is going to happen after that. There are other movements in the race which attributed [sic] to it”.

[20] The Chairman has touched upon, in a roundabout way, what the Tribunal sees as being the key to this charge in saying that Mr Williamson “may have jumped the gun a fraction early”. There was, in a sense, a lot going on but, in essence, this Tribunal sees what has happened is that Mr Williamson, with his horse full of running and looking for racing room, was racing behind FLOGGING MOLLY and to the outside of SHERRY BABY, which was tiring, and Mr Barclay on GOMEO DENARIO which, we find, was established in a gap to the inside of SHERRY BABY in the passing lane.

[21] Mr Williamson then attempted to take a gap which he anticipated to the inside of FLOGGING MOLLY. We are satisfied, after a careful study of the available video replays, that there was, at no stage, a sufficient gap to improve into and, when FLOGGING MOLLY shifted in a half a cart, which all were agreed on, Mr Williamson already had his horse’s legs in the gap. That was all there was room for in the Tribunal’s view. When FLOGGING MOLLY shifted in, Mr Williamson had no option but to steer inwards to avoid that runner and, in doing so, caused the interference to SHERRY BABY and GOMEO ROMEO, extinguishing the chances of the latter which looked a threat at that stage.

[22] Mr Williamson has anticipated a sufficient gap becoming available. He has put his horse’s legs into the gap, which gap then closed. It is always a risky manoeuvre to anticipate a gap in such circumstances and, as on this occasion, when a full gap did not materialise in time as Mr Williamson had anticipated, he has had to take evasive action resulting in interference to the two runners on his inside.

[23] By way of an observation, the Tribunal had a transcript of the raceday available to it and noted that neither the Stewards nor Mr Williamson, at the raceday hearing, elected to call Mr B M Williamson, driver of SHERRY BABY, to give evidence at that hearing. The Tribunal finds this rather curious as his evidence, as the driver of the runner receiving the initial interference, would very likely have shed more light on the incident.

[24] We would further add that we have not commented on the points referred to by Mr Munro (paragraph [13] above) on the written decision of the raceday Judicial Committee, as we have formed our own view based on the evidence and submissions at the hearing, including the video evidence.

[25] The Tribunal is satisfied on a balance of probabilities that Mr Williamson has driven carelessly. The appeal is upheld and the decision of the raceday Judicial Committee to dismiss the charge is set aside and replaced with this finding.

PENALTY SUBMISSIONS

[26] Mr Munro addressed the Tribunal in relation to penalty. He said that Mr Williamson has had 6,857 lifetime drives – 895 in the 2017/2018 season and, to date, in the current season, 176. His last charge under the Rule was back in June of this year. He has had 271 drives since that breach so his record is reset for the purposes of penalty and he is deemed to have a clear record. Mr Williamson’s record is a mitigating factor, Mr Munro submitted.

[27] Mr Munro then referred to the Penalty Guide starting point of a 10-drive suspension or a $500 fine. Stewards regarded the breach as being mid-range in that two runners, one of which had a chance or running into a placing, had been checked. Stewards were seeking a 3-days’ suspension, Mr Munro said.

[28] Mr Williamson submitted that a 3-days’ suspension seemed a harsh penalty for a charge that was dismissed in the first instance which showed, he submitted, that there was a “grey area”. Mr Williamson was asked by the Tribunal for an assessment of the number of drives he would have at a meeting. He gets a lot of drives at Otago-Southland meetings – perhaps as many as eight – he said.

[29] Mr Williamson told the hearing that he had notified drives at the meeting of Invercargill HRC on 28 October and at Kaikoura TC on 29 October.

REASONS FOR PENALTY
[30] In deciding penalty, the Tribunal took, as a starting point, the penalty Guide recommendation of a 10 drives suspension. That is the starting point for a mid-range breach of the Rule. Mr Munro told us that Stewards considered this breach to be in the mid-range, and the Tribunal agrees. Mr Williamson had made a move that he considered, based on his experience which we acknowledge, could be made with safety. He had made a move that did involve an element of risk. However, when the full gap did not become available as he anticipated, the consequences resulted in the charge. It was an error of judgement on his part.

[31] Mr Williamson is a busy driver throughout the South Island. This fact renders his record a good one. We were told that he has had 271 drives since breaching the Rule most recently in June of this year. This a record that is a mitigating factor for us to consider in determining penalty. We consider that Mr Williamson’s record is worthy of a discount, which we have fixed at two drives. From the starting point of 10 drives, we have arrived at an 8-drives suspension.

[32] The Tribunal then needed to convert that penalty of eight drives to a number of racedays/meetings. In doing this exercise, the Committee noted that at the two most recent meetings in Otago/Southland, Tuapeka on 21 October last and Gore on 13 October, Mr Williamson had ten drives and six drives respectively. Significantly, at the meeting of Timaru HRC on 7 October last, Mr Williamson had eight drives. We have taken eight drives to equate to two meetings in Mr Williamson’s case. This is a very conservative approach, as the Tribunal also noted that, at the most recent meeting at Timaru (10 October last), Mr Williamson had eight drives. The term of suspension to be imposed will include a meeting at Timaru.

PENALTY

[33] Mr Williamson’s Open Horseman’s licence is suspended from after the close of racing on Monday, 29 October 2018, up to and including Saturday, 3 November 2018 – 2 days. The two meetings intended to be encompassed by that period are NZ Metropolitan TC on 2 November and Timaru HRC on 3 November 2018.

Costs

[34] There is no order as to costs.

R G McKenzie

CHAIR

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