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Appeal RIU v T Quate - Written Decision of Appeals Tribunal dated 18 September 2017 - Chair, Mr A Harper

Created on 19 September 2017

BEFORE AN APPEALS TRIBUNAL OF THE JUDICAL CONTROL AUTHORITY FOR RACING UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN THE RACING INTEGRITY UNIT (RIU)

Appellant

AND TODD QUATE

Respondent

Decision of Appeals Tribunal

Appeals Tribunal: Alan Harper (Chair)

Bryan Scott

Dave Anderson

Present: Shane Renault – Stipendiary Steward

Todd Quate – Respondent

Tim Williams – Assisting Mr Quate

Nick Ydgren – Registrar

Heard at Christchurch on 13 September 2017.

Decision given on 13 September 2017.

Written decision issued 18 September 2017.

1. Introduction

1.1 On 23 July 2017 the Rangiora Harness Racing Club conducted a meeting at the Rangiora Racecourse. Race 3 was the Kaiapoi Claimers Mobile Pace. Four Starzzz Shiraz started in the event and was driven by the Respondent Mr Quate. The horse finished third of eight.

1.2 Following this race the Racing Integrity Unit (RIU) opened an enquiry into the drive of Mr Quate and ultimately laid a charge under Rule 868(2) of the New Zealand Rules of Harness Racing. That rule reads:

“Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.”

1.3 The hearing of the charge was adjourned and ultimately heard by the Judicial Committee on 30 July 2017.

1.4 Rather unusually the Judicial Committee was unable to agree. In its decision the Chair indicated he would have found the charge proved where-as the other Member did not agree with that.

1.5 Because the Judicial Committee were unable to agree it quite properly then ruled the charge to be not proven and therefore dismissed.

1.6 The RIU appeals that finding.

2. The Appeal

2.1 The provision for Appeals is set out in Rules 1202-1207 of the Rules. Rule 1206 directs the Appeal Tribunal to schedule 5 of the Rules. Clauses 47-53 describe the procedure and in particular clause 44 which directs the Appeal to be heard by way of a rehearing unless the Tribunal directs otherwise.

2.2 Prior to commencing the Appeal Tribunal wished to be satisfied Messrs Quate and Williams properly understood how the appeal by way of rehearing was to be conducted.

2.3 We then carefully detailed the actual rehearing procedure to satisfy ourselves they were both fully conversant with the procedure.

2.4 It is necessary for the Appeal Tribunal to form its own decision on the matters placed before it and apply a standard of proof which takes into account the degree of seriousness of the charge.

3. The Position of RIU

3.1 Mr Renault on behalf of the Appellant being the RIU largely repeated the submissions which were made to the Judicial Committee at the hearing. Those submissions were in writing.

3.2 Mr Renault also added further submissions dealing particularly with comments made by the Member of the Judicial Committee who disagreed with the position of the Chair.

3.3 The race was over 2000m. Four Starzzz Shiraz drew number seven. After the start it took up a position being one out and four back. Immediately ahead of Four Starzzz Shiraz was Alexy and immediately behind Four Starzzz Shiraz was Bevans Cullen. The positions remained substantially unaltered until approximately 500m out when Bevans Cullen commenced a run to improve on the outside of Four Starzzz Shiraz. It was able to continue this run until it had moved past Four Starzzz Shiraz which was then unable to obtain clear running room from behind Alexy until well down the straight.

3.4 The concern of RIU was Mr Quate did not take steps to move Four Starzzz Shiraz from behind Alexy and into clear running once Bevans Cullen had started to make its run.

3.5 We viewed the films which had been shown to the Judicial Committee on the day. These films included a number of angles at the Rangiora Meeting and also at the previous start of Four Starzzz Shiraz which was at Forbury Park.

3.6 Mr Renault made reference to the case HRNZ V H (2005) where it was stated:

“The Rule requires both a demonstration of tactics which can by objective standards be said to be both reasonable and permissible. Those have to be tactics which can be seen not only by the Stipendiary Stewards but also those present at the race track and in particular the betting public to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The informant does not have to prove any deliberate attempt not to win the race. There may be circumstances in which a drivers manner of driving may amount merely to a permissible error of tactics but where that error of tactics amounts to bad judgement that results in disadvantage to his horse then such manner of driving falls within the terms of the Rule.”

3.7 We were also referred to comments made by Justice WR Haylen in a decision of Harness Racing Appeals Tribunal on 20 May 2009 where he stated:

“Perhaps to throw my own interpretation into the mix I might view it this way – that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness race spectator might be expected to exclaim with words to the effect “what on earth is he doing” or “my goodness look at that”.”

3.8 It was the submission of RIU that once Bevans Cullen commenced to move to the outside of Four Starzzz Shiraz then Mr Quate should have moved out to give his horse clear racing room and also to force Bevans Cullen who was a favoured runner in the race over more ground.

3.9 The RIU also emphasised this was not the matter of a split second decision but took place over a period of time. In their submission Mr Quate had driven for luck. It was a conscious decision made by Mr Quate to remain in the position he was in. The submission was made that the comments which were made by Justice WR Haylen would be applicable in this scenario. Any reasonable and knowledgeable racing spectator would have been thinking exactly along the lines of those words. In other words “what on earth is he doing and how has he ended up in that position.”

3.10 It was submitted a reasonable and knowledgeable spectator would not be able to understand how Four Starzzz Shiraz was travelling in front of Bevans Cullen and over a period of approximately 200m became not only behind that runner but also to its inside without the benefit of a clear run.

3.11 Emphasis was made that the Rule does not seek to punish mere errors of judgement during the Race but it does require a drivers conduct to be culpable if it is found to be blame worthy.

3.12 During the course of the Judicial Committee hearing Mr Quate was assisted by Mr Williamson who rather tellingly stated on two occasions if he had been driving Four Starzzz Shiraz he definitely would have moved out at the point when Bevans Cullen commenced to make its move. It has to be said these comments were somewhat unhelpful to Mr Quate.

4. The Position of the Respondent

4.1 When questioned regarding his drive Mr Quate stated “Amber instructed me to drive the horse with a sit and hold it up for as long as possible as it only has a 150m sprint.”

4.2 The reference to Amber is to Amber Hoffman who is the licensed trainer of Four Starzzz Shiraz.

4.3 It is well established that strict following of riding or driving instructions from a trainer to either a jockey or a driver does not excuse actions which would constitute a breach of the Rules.

4.4 We were referred to a decision of the Harness Racing Appeals Tribunal on 29 September 2004 where his Honour Judge Thorley stated:

“Whilst the evidence of any such driving instruction is relevant and plays an evidential part in the consideration of whatever charge is at stake the existence of any such driving instruction does not detract from the obligation which the Rule places on the driver.”

4.5 In considering those comments the RIU had viewed the race at Forbury Park which was the previous race for Four Starzzz Shiraz. The horse had commenced a run from the rear of the field from the 600m mark and had continued its run to the finish for fourth placing although well behind the third place getter.

4.6 It was the submission of Mr Williamson which had found favour with the Member of the Judicial Committee that although Four Starzzz Shiraz had been held up during the early part of the run home it would not have won the race as the horse came to the end of its run some 50-75m short of the winning post and really battled from there. There were also some comments regarding the characteristics of the horse which have little relevance as we are here to judge the actions of the driver not the racing performance of Four Starzzz Shiraz.

5. Discussion

5.1 This Appeals Tribunal had little difficulty in agreeing with the submission made by the RIU being the Appellant. We easily formed the view Mr Quate had displayed very poor judgement in not moving out from behind Alexy once Bevans Cullen commenced its run.

5.2 Despite the driving instructions to Mr Quate he could have simply moved Four Starzzz Shiraz into a position where there was a clear run to the line. He could have held the horse up until the point when he had been instructed to move. That would have been at the 150m mark.

5.3 Instead he did not assess the situation correctly and found himself held up behind Alexy until another horse to the inside commenced to give ground and gave space to Four Starzzz Shiraz.

5.4 The opportunity to shift was available for approximately 200m. He not only lost the opportunity for his own horse to have a clear run to the line but also the opportunity to shift a favoured competitor wider.

5.5 We concur with the submission the Rule does not seek to impose sanctions on someone who simply makes an error of judgement when making a split second call which inevitably arises on all race tracks.

5.6 This is a situation where there was the opportunity to make a decision over a period of time and in not taking up that opportunity Mr Quate displayed poor judgement.

5.7 All forms of racing rely on the support of the betting public. This drive would fall foul of the comments made in the two cases referred to earlier in this decision. We do not believe Mr Quate gave Four Starzzz Shiraz every chance to finish in the best possible position. That is not to say Four Starzzz Shiraz would have beaten Alexy but simply he did not give the horse the best possible opportunity he could. The Tribunal agrees with the submission made by RIU that Mr Quate simply followed his driving instructions without exercising his own judgement when circumstances required and in doing so put the chances of Four Starzzz Shiraz to luck.

5.8 That is not acceptable in terms of the Rule.

6. Decision

6.1 We therefore had little difficulty in finding the elements of the Rule to be proven and therefore the Appeal is allowed. Mr Quate is therefore guilty of the charge of a breach of Rule 868(2) with the New Zealand Rules of Harness Racing.

7. Penalty

7.1 Mr Renault addressed us on penalty. The starting point for breach of this Rule under the Penalty Guide is 15 drives or $750.00. Mr Quate had previously breached this rule on 28 March 2016 where he had been suspended for one month and fined $350.00.

7.2 However given that was in excess of a year ago we consider that to be neutral.

7.3 There were no mitigating factors and the level of breach was at the mid to high end level.

7.4 Last season Mr Quate relocated from Canterbury to Otago. Although he will primarily drive in the Otago and Southland areas from that base he has driven in the Canterbury area on three occasions during this season. However as the Otago Southland racing is really only commencing for this season he has only driven on seven occasions to date this season.

7.5 Given there is no level of mitigation and the breach is at the mid to high level we consider an uplift to 10 days suspension to be appropriate. Although based in the Otago Southland area Mr Quate has driven in the Canterbury area and therefore we apply that suspension to South Island meetings.

7.6 Mr Quate advised us he has driving commitments at the Methven meeting on 17 September 2017. We therefore agree to a deferment to allow him to take those drives and therefore he will be suspended from the conclusion of racing on 17 September 2017 up to and including Sunday 15 October 2017.

7.7 For the purposes of clarity this suspension entails:

 Saturday 23 September at Invercargill.
 Sunday 24 September at Oamaru.
 Thursday 28 September at Winton.
 Friday 29 September at Addington.
 Sunday 1 October at Motukarara.
 Saturday 7 October at Invercargill.
 Sunday 8 October at Timaru.
 Thursday 12 October at Addington.
 Saturday 14 October at Gore.
 Sunday 15 October at Methven.

8. Costs

8.1 The RIU did not make any application for costs.

8.2 In the circumstances it is inappropriate for any costs to be awarded in favour of JCA.

8.3 There is therefore no order as to costs.

Dated:  18 September 2017

Alan Harper

Chair

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