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Non Raceday Inquiry RIU v B R Shirley - Decision dated 17 April 2020 - Chair, Prof G Hall

Created on 21 April 2020

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

VINNY MUNRO, Stipendiary Steward for the Racing Integrity Unit (RIU)

Informant

BRENT ROBERT SHIRLEY, Licensed Public Trainer/ Open Horseman

Respondent

Information: No. 12718

Judicial Committee: Prof G Hall, Chairman

Mr M Conway, Member

Appearing: On the papers

DECISION OF JUDICIAL COMMITTEE

[1] Information A12718 alleges the Respondent, Mr Shirley, at the Winton Harness Racing Club workouts on 14 February 2020, when driving BATLE AXE in Race 3 “did use his whip drawn back further than the sulky seat and used undue force. He also used his whip with his foot out of the sulky footrest.”

[2] These are alleged breaches of r 869(2) of the New Zealand Rules of Harness Racing and cls (h) and (k) of the Whip Regulation.

[3] Rule 869(2) provides: “No driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.”

[4] The Use of the Whip Regulation provides in cl (h): “No driver shall allow their whip to project outside the confines of the sulky, including making contact with the sulky wheels. The whip shall also not be drawn back further than the sulky seat and used with undue force.”

[5] Clause (k) states: “No driver is permitted to use the whip when their foot is free of the sulky footrest (in conjunction with Rule 867).”

[6] Rule 867 relevantly states: “Every driver shall drive throughout the race with both feet in the rests of the sulky provided for that purpose.”

[7] Mr Munro produced authorisation to lay the Information.

[8] Mr Shirley has had the assistance of Mr G Lee, Open Horseman.

[9] Mr Shirley has admitted the charges.

[10] The matter was to be heard on a raceday with a date either in late March or early April being considered. However, the Covid-19 pandemic lockdown has put paid to that. After communication with the parties, it was agreed that the matter be heard ‘on the papers’.

[11] Mr Munro produced the summary of facts.

[12] Mr Shirley is a licenced person under HRNZ Rules and holds an Open Driver and a Public Trainer’s licence.

[13] On 14th February 2020, Mr Shirley drove a horse that he trains, BATTLE AXE, in Heat 3 at the Winton workouts.

[14] BATTLE AXE drew 2 in a field of 6, in a 2400 metre mobile pace.

[15] Mr Shirley took his charge to the lead from the mobile dispatch.

[16] From the 600 metre mark, Mr Shirley commenced to urge his drive by slapping the horse with the right rein and whip on 11 occasions.

[17] Just past the 400 metre mark, the trailing horse has commenced to challenge BATTLE AXE who in turn, briefly paces roughly.

[18] BATTLE AXE was steadied by Mr Shirley and again paced evenly as they entered the home straight.

[19] Mr Shirley then used the whip, with his right hand on 4 occasions early in the home straight, before his right foot drops from the sulky footrest.

[20] With Mr Shirley's right foot dangling from the sulky, he then used his right hand with the whip, and struck the horse with force a further 11 times.

[21] The strikes were uninterrupted until the finish line.

Respondent’s submissions as to breach

[22] Mr Lee filed a written submission on Mr Shirley’s behalf and followed this up with a brief further written submission in lieu of an oral submission.

[23] Mr Lee first drew this Committee’s attention to the disclaimer by HRNZ on their results website that “these workouts are unofficial and not usually subject to Stipendiary control.”

[24] The workouts on 14 February, he said, were not subject to Stipendiary control and the Information had been laid solely on the use of an amateur video.

[25] Mr Lee submitted that the Chairman of the Winton Workouts Committee saw the Respondent’s drive and deemed it unacceptable. The Chairman (Mr D Baynes) gave Mr Shirley a “dressing down” and warned him that a repeat of the incident would lead to Mr Shirley being banned from the workouts.

[26] Mr Lee said Mr Shirley accepted this sanction and agreed to modify his behaviour.

[27] Subsequent to this, the video alerted the RIU who decided to lay the Information. Mr Lee stated it was “uncommon” for a charge to be laid with respect to a workout and the Respondent had been unable to find a precedent.

[28] The Respondent then questioned the laying of the charges given that the driving rules were not policed by the RIU but were the responsibility of the Winton Workouts Committee. As an aside, he questioned how the RIU could sanction unlicensed persons who drove at workouts.

[29] Mr Shirley denied using his foot as a bar. (As this was not part of the RIU’s case, we take this issue no further.)

[30] Mr Shirley also denied that he had dropped his foot to garner more force. He stated the seat shifted on the right hand side thereby taking his foot away from the footrest. Mr Shirley’s right handed whip action was thus more pronounced and his arm movement longer.

Decision as to breaches

[31] As Mr Shirley has admitted two breaches of r 869(2), they are found to be proved.

Informant’s penalty submissions

[32] Mr Munro commenced his submission by stating that the demonstrated use of the whip from Mr Shirley in this race is “completely unacceptable. He is an experienced horseman who quite simply should know better. The force with which he applies his whip to his horse can be described as offensive and cruel. This cannot be tolerated.”

[33] On nine occasions over the final 250 metres, Mr Shirley has struck his runner with his foot free of the sulky footrest. A driver, through the lowering of their leg, was able to garner more force into their strike. This was quite noticeable in this case. (We note the Summary of Facts states the number was 11 times. As discussed below, we believe the number is in fact 10 but the total number from the 400 metres is correctly identified as being 15.)

[34] Mr Munro submitted there had been considerable negative commentary made on these incidents from many within the industry who felt it necessary to make their thoughts known on Mr Shirley's actions.

[35] Mr Munro described the actions of Mr Shirley as “at the top end of offending and only serve to set back the argument that animal welfare is an important consideration to all of our participants.”

[36] A suspension of Mr Shirley's licence would have no significant impact upon him due to the limited amount of race day driving that he currently had. Therefore, the RIU submitted that a fine was the appropriate penalty.

[37] Mr Munro noted that ordinarily a driving offence at the trials and/or workouts would attract a lesser fine due to there being no effect on the betting public and the likelihood of a decreased potential audience. Whilst the betting public had not been affected, the films of this race were published on the HRNZ website. Frequently these films were used to demonstrate trial and workout performances on race days through Trackside.

[38] The Stewards submitted that “a fine in line with the JCA guide of no less than $300 for each offence is appropriate. If there is to be some lessening of that amount by the Committee for mitigating circumstances, that should be at least countered by the serious nature of these breaches.”

[39] Mr Munro concluded the Informant’s penalty submission by stating that “the actions of Mr Shirley in these matters are disgraceful and in complete contrast to the image the industry is attempting to portray to outsiders.”

Respondent’s penalty submissions

[40] Mr Lee commenced the Respondent’s penalty submissions by stating Mr Shirley accepted he was in breach of both clauses of the Use of the Whip Regulation and had vowed not to repeat his actions. He acknowledged they were unacceptable.

[41] Mr Lee disputed that the strikes were “offensive and cruel” as submitted by the RIU, as this was supposition based on an amateur video. It was not clear that the strikes were to the horse. He questioned whether they were to the shaft of the sulky, the crupper or the dust sheet.

[42] Mr Shirley questioned the RIU’s submission that his actions had resulted in a negative response. (We agree no evidence of this is before us and we put this aspect of the RIU’s submission to one side.)

[43] Mr Shirley further emphasised that he had not been charged under an animal welfare rule but with a breach of the Use of the Whip Regulation. The workout video had not appeared on Trackside and any potential viewing audience should be “a limited consideration when sentencing”.

[44] The RIU’s submission that the Respondent’s actions were “disgraceful” was a matter of opinion. The use of the whip both prior to the rule changes and then subsequently in the New Zealand Trotting Cup were no worse than the actions of Mr Shirley.

[45] Mr Shirley emphasised the breach had occurred at a workout and thus the level of penalty should be less than that in the JCA and HRNZ Penalty Guide which he believed was appropriate for a totalisator race. He drew this Committee’s attention to the case of Rasmussen in January of this year where Ms Rasmussen was fined $200 for using her foot as a bar at a trial. This was 20 per cent of the $1000 starting point in the Penalty Guide, he submitted, therefore the Respondent’s penalty should be similar.

[46] Mr Lee calculated the Respondent’s penalty should thus be $120. Noting, however, that Ms Rasmussen’s penalty was at a trial where there was Stipendiary control, he submitted Mr Shirley’s total penalty should be $80. He further emphasised the Respondent had been sanctioned already by the Workouts Committee, was remorseful, and had admitted the breach.

Reasons for decision as to penalty

[47] Mr Shirley has used his whip 15 times in the last 400 metres of race 3 at the Winton workouts on 14 February last.

[48] There is one strike not long after the 400 metres and a further four strikes after the horse paced roughly on the bend. Mr Shirley’s foot has then dropped from the footrest not long after straightening for the run home and, after crossing the reins, there are 10 strikes from that time. The RIU count is 11 and this may be correct, but the horse is obscured briefly and while the frequency with which the whip was being used suggests there was a strike at that time, it is not apparent on the video. However, the strike just after the 400 metres does not figure in the RIU count, and we agree that the overall count is 15 strikes from the 400 metres. As noted previously, the Respondent has not disputed this count.

[49] We do not accept the Respondent’s submission that it is impossible to tell whether these strikes were to the horse, shaft or dust sheet. For the purpose of r 869(2) it is irrelevant as the Use of the Whip Regulation refers to strikes to horse, harness or sulky, although our view is it is clear that a large number, if not all of these strikes, were to the horse, BATTLE AXE. It is also clear these were forceful strikes. We add that the video was quite adequate for our purposes and, with the one exception that we have identified, we were able to make assessments of the number of strikes and the apparent degree of force.

[50] Mr Shirley states the seat shifted on the right hand side thereby taking his foot away from the footrest. Again, we can see no evidence on the video that this is the case. Were it to be so, it is still no reason for the repeated strikes to the horse. Once he realised his foot had slipped from the rest, Mr Shirley’s obligation was to re-settle his foot and, at the very least, to refrain from using the whip. He did neither. We note he had no difficulty in re-establishing contact with the footrest after the winning post.

[51] We are satisfied that the Respondent’s actions fall within the Rules of Harness Racing. Mr Shirley’s admission of the breaches would suggest that he accepts this too.

[52] We observe that r 714 provides:

(1) These Rules so far as they are applicable shall apply to all trials meeting and workouts.

(2) A Stipendiary Steward or Racecourse Inspector may exercise any power or duty of a Stipendiary Steward or Racecourse Inspector in respect of any matter arising at or in connection with a workout.

[53] We do not accept the Respondent’s submission that the penalty should be reduced because of the occasion of the race. In this regard, the Respondent highlights that the breach was at a workout, and not a trial, or a race at a meeting where there was TAB betting. The impact to BATTLE AXE of the Respondent’s actions was not the lesser because it occurred at a workout rather than at a race meeting.

[54] We accept the Respondent’s submission that publicity was lessened by the fact the breaches were not featured on Trackside, as would have been the case, were this at a race meeting. Nonetheless, it would be evident to those industry participants on the day and to those racing enthusiasts who viewed the video of the workouts on the HRNZ site on the web that the Respondent’s actions were both unacceptable and in breach of the Rules. Two consequences which Mr Shirley accepts.

[55] In assessing penalty, the Committee places some weight on the interaction between Mr Baynes and Mr Shirley that, we are told, took place after the workout. The Respondent's submission stated that he received “a dressing down” from Mr Baynes and was told that any repeat of his actions would result in him being banned from the workouts. Mr Shirley accepted this sanction and agreed to modify his behaviour. Denunciation by and acceptance of criticism from one’s peers in the industry is not without significance.

[56] The issue of animal welfare is clearly to the fore with respect to the breaches of r 869(2), and we were surprised to receive the Respondent’s submission to the contrary. The number of strikes in the last 400 metres is 15, and a number are with considerable force. The dropping of the foot from the sulky enabled more force to be used than had the Respondent’s foot remained in the footrest. There were at least 10 strikes in this manner.

[57] The Use of the Whip Regulation provides a penalty of $300 for each of the two breaches of r 869(2) that are before us.

[58] Significantly, the regulation lists the penalties in tabular form under the heading “Penalty Guide”. The use of the word “guide” makes it clear these are not fixed penalties and we note, for example, there is no provision in the regulation, other than in cl (b), for the circumstance of where there is a repeated breach. This issue is simply not addressed in the other clauses where a fine is prescribed, notwithstanding the fact that this is clearly relevant to the determination of the appropriate penalty.

[59] With respect to cl (b), the penalty under this clause is differentiated by the number of strikes and whether it is a repeated breach. The count for the Respondent is 15 and in those circumstances the penalty listed is a fine of $300. However, Mr Shirley has not been charged under this provision and we take this matter no further.

[60] We take the figure of $300 in the regulation as a starting point, as is the case with the JCA Penalty Guide with respect to breaches of the Rules, generally. In total then for Mr Shirley’s two breaches, this is $600. The Informant submits that the penalty should be no less than this amount. The Respondent, however, submits that we should take into account that this was a workout and thus this figure is not appropriate. We have already addressed this submission and have rejected it. The Rasmussen case (31 January 2020) that the Respondent highlights simply identified the fact that using the foot as a bar at trials meetings had consistently been dealt with by way of a fine of $200, and this was the penalty that that Committee imposed. There was no associated whip charge.

[61] The two breaches the Respondent has admitted are an affront to the integrity of Harness Racing. Over the past few years HRNZ, the RIU and the JCA have taken measures to ensure horse welfare. The reduction in the number of allowable strikes with the whip in the last 400 metres of the race is an example of this. The actions of the Respondent run roughshod over these industry initiatives and must be denounced. In addition to accountability, there is a need for personal and general deterrence.

[62] We take into account the fact that both charges arose out of the same set of circumstances, with the dropping of the foot not only being a breach of cl (k) of the Use of the Whip Regulation but also a breach of the Rules in its own right (r 867), and it enabled the Respondent, as we have noted, to be more forceful with his use of the whip, and thus to be in breach of cl (h) of the Use of the Whip Regulation.

[63] The egregious nature of the Respondent’s actions as emphasised in the Informant’s submission, with respect to both the frequency of the strikes and the degree of force that is apparent from the video, leads us to uplift the starting point for the breach of cl (h) and r 869(2) to a fine of $600 in the interests of denunciation. The fact it is an “amateur video” of a workout, as Mr Lee highlights, does not lessen the magnitude of the breaches. The video was the record of the workout and was placed on the official HRNZ website for all those interested in the performances of the horses on the day to view. The integrity of the industry was clearly put into question by Mr Shirley’s actions.

[64] We impose penalty on the understanding that this is the first breach of cl (h), as the Respondent’s record has not been placed before us. We proceed on the basis that were this not the case, the Informant would have produced evidence to the contrary. This, and the admission of the breach, leads us to impose a fine on this charge of $500.

[65] With respect to the second r 869(2) admitted breach, cl (k) (the dropping of the foot), the aggravated circumstances of its commission lead us to adopt an uplifted starting point of $400. Having regard to the matters previously highlighted and the totality of the penalty imposed upon Mr Shirley, we believe this breach can be met with a fine of $250 and reduce the starting point accordingly.

Decision as to penalty

[66] The penalty is thus a fine of $500 on the first breach, cl (h), and a fine of $250 on the second, cl (k). The total penalty is $750. The serious nature of the Respondent’s actions and the interests of animal welfare simply cannot be met with a lesser penalty.

[67] However, the world has changed since the Winton workouts. There has been significant industry upheaval as a consequence of Covid-19. This matter is raised in the Respondent’s further submission on 7 April that asks that we consider its impact upon the financial circumstances of the Respondent. There is merit in this submission.

[68] We have regard to the clear financial impact of Covid-19 upon the industry and, while we have no specific evidence as to its effect upon Mr Shirley, we factor this into our determination by reducing the penalty by $200. We believe this to be an appropriate response in what are undoubtedly unprecedented times.

[69] We order Mr Shirley pay a fine in the sum of $550.

Costs

[70] The matter has been heard on the papers. There is no award of costs in favour of the RIU or the JCA.

Dated at Dunedin this 17th day of April 2020.

Geoff Hall, Chairman

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