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Non Raceday Inquiry RIU v B R Shirley - Reasons for Decision Delivered at Hearing on 15 September 2020 - Chair, Hon J W Gendall QC

Created on 18 September 2020

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY

IN THE MATTER of the Rules of Harness Racing

BETWEEN The Racing Integrity Unit (RIU)

Mr V Munro (Stipendiary Steward)

Informant

AND

BRENT R SHIRLEY, Licensed Open Driver

Respondent

Information Number: A 12734

Judicial Committee: Hon J W Gendall QC (Chair)

Mr S Ching (Member)

Parties: Mr V Munro of RIU represented by Mr C Lange as Counsel

Mr B R Shirley represented by Ms M J Thomas as Counsel

REASONS FOR DECISION DELIVERED AT HEARING ON 15 SEPTEMBER 2020

EVIDENCE

1. Mr Shirley is a licensed trainer and Open Driver Reinsman under the Rule of Harness Racing NZ. He was charged by the RIU under Rule 869(3)(g) which provides that

“No driver in any race shall drive ….in any manner capable of diminishing the chances of his horse winning”.

The penalty provision for such an offence is up to a 60-drive suspension or a fine of up to $3,000.

2. The Informant alleged that Mr Shirley

“as the driver of KIWI JEWEL in Race 3 at the Invercargill HRC’s meeting held [on] 13 June 2020, drove in a manner capable of diminishing his horse’s chances of winning by failing to ease his drive during the middle stages when racing outside the leader JAWBREAKER (AUS) so as to give KIWI JEWEL some respite which would thereby enable the mare to finish the race off in the most competitive manner possible”

3. Mr Shirley initially contested the charge and maintained a “not guilty” stance up until the afternoon of Sunday 13 September. His counsel then advised the Executive Officer of the JCA that he would now plead guilty and admit the charge if submissions as to penalty could be dealt with by a mechanism (telephone link or ZOOM connection) on 15 September 2020. This was she said, so as to lessen travel costs of RIU Counsel and witnesses, and of the JCA Committee, which might fall upon Mr Shirley if the charge was found to be established.

The Committee advised Counsel that the matter could be dealt with by ZOOM connection, which has occurred. But we make it clear to Ms Thomas and her client that an admission of a charge could, and should, only be made if there was a genuine acceptance of liability and is not “hedged” as appeared to be the case. But Mr Shirley has maintained that he did “nothing wrong” and only has pleaded guilty so as to “avoid the risk” of having to pay increased costs after a defended hearing in Invercargill.

We add that having had the benefit of considering the race film, statement of facts, transcripts of statements of Mr Shirley , the material presented as to “Time comparisons for Ascot Park” on dates 6, 13, 20, 27 June 2020 (see attached) as well as opinions of some others as submitted by Ms Thomas, we are comfortably satisfied that a finding that the charge was proven outcome was inevitable.

4. The essential facts established to our satisfaction, are as follows.

The race was a non winners’ race over 2200 metres. Mr Shirley, an Open Driver, was driving KIWI JEWEL which drew barrier 4 in a mobile start with 14 starters. Outside him the horse JAWBREAKER began quickly to find the lead with a horse DREAM OF GLORY, (which had drawn in barrier 2) taking the trail. After approximately 200 metres from the start, the Respondent drove his horse forward towards a position “parked” outside the leader. Three-wide, on his outside was the runner WECANDREAM. At that point, the Respondent had the option of easing his horse to take the 1x1 position. But he elected to press forward to pressure the leader which enabled WECANDREAM to take the desired 1x1 position. He sat outside the leader (NOT outside the trailing horse so as to be “parked” there) but was not able to get to the front, and after about 500 metres he had sat parked outside the leader not closer than about a neck. We are satisfied that pressure placed on the leader by the Respondent resulted in the pace being especially strong – the lead time (from the start to the 1600 point) was considerably faster than in any other 18 races over 2200 metres at Ascot Park between 6 and 27 June 2020 despite 14 of those Races being for higher category horses. To illustrate that we annex the written schedule proved to us by the Informant. Thereafter the trailing horse, DREAM OF GLORY, had dropped off the leader’s back with about 4 lengths back to the remainder of the field. The pace was such that they could not keep in touch, and by about 800 metres from the start the gap to the chasing remainder had increased to a wide 18-20 lengths. After a further 300 metres the Respondent slapped KIWI JEWEL with his right rein to maintain its position outside the leader, which he repeated after a further 200 metres. The driver of DREAM TO GLORY, in the trail, had to urge his horse to remain in contact in the trail whilst Mr Shirley continued to sit outside of and press the leader. He is seen to slap KIWI JEWEL with his right rein at the 1100 metre point to maintain his position outside the leader and again at the 800 metre mark. At that stage one horse from the distant bunch has closed the big gap and the remainder of the chasing body of the field made contact by the 750 metre point. By this time the Respondent’s horse began to weaken at the 700 metre point, giving ground abruptly and very quickly. During this process of “stopping” quickly, it was involved in an incident near the 400 metre point of locking wheels with another beaten runner, IDLE ROBYN and KIWI JEWEL finished a very long last, or near to it.

5. As we have mentioned, the sectional times for this race illustrate that for a non winner’s race it was run the early stages at a fast rate. In our judgment this was because of the manner of driving by the Respondent, and pressure put on the leader, that extinguished the chances of KIWI JEWEL. The document produced in evidence by the RIU illustrates the pace over the 1st half of the final mile and that the “Lead time” for the first 600 metres was faster than any other lead time in any of 18 races at that venue in June 2020 over that distance (including ratings as high as 54-63). We draw the compelling inference from that and the other evidence, that that was because of the tactics of the Respondent. And despite the last 400 metres being a tad slower (unsurprisingly given the hectic earlier stages) the end time of this race was the fastest of all but one (a rating 54-63 rating class) of the compared 18 races - many being of significantly higher classes.

6. The essence of the RIU’s case was that there was ample opportunity for Mr Shirley to ease his horse out of what was a suicidal position outside the leader by easing back to the trail (behind the second horse, or even outside of it but not pressing forward), given that the rest of the field were nowhere near, and 18-20 lengths away. The excuse later presented by the Respondent to the Stipendiary Steward, that the horse did not like to race amongst the field has a hollow ring given that the option that he could have taken would have left him many metres in front of the rest of the field.

7. The Rule relates to the MANNER of driving, not to the reasons why a driver might choose certain “tactics” so as to drive in such a manner if, in doing so, he diminishes the chance of the horse. In this case this manner of driving in our view extinguished the chances of winning or finishing closer.

PENALTY

8. Mr Lange referred us to the remarks made by an Appeals Tribunal in RIU v Lawson 13 May 2019, which are well known to Counsel for the Respondent (she having been Counsel in that case) namely that the design of the Rules of Harness Racing, and other disciplinary rules in professions is not primarily to punish (although that may be a result) but to protect the profession, public and industry, so as to promote and enforce a high standard of professional conduct and proper behaviour within that calling. He referred us to well-known New Zealand Supreme Court and English authority to that effect. He pointed to the existing Penalty Guide which has a starting point of 60 drives and a fine of $3000. He advised us that the Respondent has held a licence since 1989 (as a junior horseman) and since 1996 as an Open Driver. He is an experienced driver but in recent years has had a very limited number of drives (in 2020 - 10, in 2019 - 9, in 2018 - 1, in 2017 – 4, in 2016 – 13) although over his lifetime he has had many drives, so that he is not an inexperienced or novice driver. This year (in April and June) he had been fined $550 and $200 for breaches of the whip rules. He said that credit might be given for “costs savings by the guilty plea” but such credit is encompassed in there being no order for costs to the RIU and a modest order only to the JCA. Mr Lange sought in this case a suspension for a period of 6 months together with a fine of $1,500.

Ms Thomas has presented what she said were “briefs of evidence” from several persons, 3 drivers and a journalist (the 4th brief related only to a factual not disputed issue), which it seems were prepared in advance to be submitted by them in person (by telephone link) at the defended hearing. This would have involved cross-examination and questioning by the Committee. They appear to express opinions as to the ultimate outcome of the charge, namely, whether the Respondent was culpable for the manner of his drive, yet they are barely permissible in a penalty hearing, where the Respondent has admitted the charge, yet they purport to express opinions that he is “not guilty”. Such statements might, naturally, be admissible and relevant in a defended hearing but we were sceptical of their being presented on a penalty hearing, unless aimed at mitigation matters. The Respondent says he does not accept “guilt” and clearly sought to adduce those opinion statements to support his view.

9. It is necessary to make clear to the Respondent, and others, of what we believe to be the proper process. It is sometimes the case where after a defended hearing – whether before a Judge alone, Jury, or Tribunal - a Respondent/Defendant may still dispute the verdict and maintain his/her innocence. But where, as here, the Respondent:

• admits the charge
• did not seek a disputed fact hearing
• does not adduce evidence that can be subject to cross examination or questioning
• has had the benefit of legal counsel for some time

the process he has sought to adopt by introducing briefs prepared for a defended hearing, and challenging the very basis of the charge, is problematical. Naturally, statements, material, references, may always be presented to a Tribunal on the real issue of mitigation of sentence, but these were not obtained, and were not presented on that basis.

10. The Respondent’s efforts to negate his admission of the charge by claiming innocence, and presenting opinions of some others, does not reflect credit, or insight and remorse, on him.

11. In most circumstances the approach now adopted by the Respondent – to advance the defence that he chose to abandon, would be viewed with disquiet. But we were prepared to receive the statements of his defence witnesses:

(a) To illustrate that there is room for, and often will be, differing opinions by many in a case involving manner of driving and probable consequences.

(b) Such difference is apparent from the fact – as we were told by Counsel, that whilst the charge remained defended, and such a hearing was awaited – Counsel for the Respondent submitted those statements to the RIU so that it, and its expert(s), could make a decision whether or not to proceed. Such a process was perhaps unusual. But the opinions of the RIU was to proceed. It clearly held different opinions. It was later that the Respondent changed his plea.

(c) The statements might have been considered relevant to mitigation of penalty.

12. Judicial and professional disciplinary decisions or conclusions are always the prerogative of the Tribunal and, although views as to the outcome might be advanced, the outcome is never to be determined by “referendum” or “votes” on opposite views as to the ultimate outcome.

13. As we have said the statements were made when the makers believed the charge was being defended and without the knowledge that the Respondent has now pleaded guilty. And we are disposed to regard them for sentencing purposes as relating to the seriousness of the offence. The present stance of the Respondent illustrates that he has no genuine acceptance or insight as to his wrongdoing, which cannot be advanced as a mitigating factor.

14. Ms Thomas’ contentions ranged across a wide range. They include, she said, that “this prosecution is unfathomable to anyone involved in the industry”; the RIU are to blame for delays and not proceeding on raceday (which tends to overlook the fact that Mr Shirley was to defend the charge so that it would inevitably have been adjourned to a non raceday hearing) the RIU has chosen to ignore evidence of other’s opinions: the Respondent has personal, financial, and family matters which are mitigating; he had been open and honest about his drive; many good Reinsman had to make instant decisions in the course of a race; this was not a “duelling “case; although he had had very few drives over recent times, he had intended (post Covid) to try to earn more income from driving (he said to us that he intended to “hand in his Licence” although it was not clear to us that this was just his trainer’s licence) which would be affected, and any suspension from driving would be financially devastating”; and that the penalties sought by the RIU were manifestly excessive.

15. Penalties for infringement against Rule 869(3)(g) since 2012 have ranged from suspensions for 4 days to 10 months with fines up to $750. A number of those cases related to duelling for the lead over an extended period with some involving inexperienced drivers, but not all. The decisions have little precedent value as every case depends on its unique facts , and the aggravating and mitigating circumstances of the offending and the driver. In reaching our decision on penalty we were satisfied that this was not a minor offence of its type and that the Respondent is a senior and experienced Open Driver. In fixing a term of suspension, we have taken into account that he has driven on very few occasions over recent years. Whilst he has had no sanctions for similar offending in the past, he received warnings and small fines on 6 occasions during his early days as a Driver in the 1990’s for his manner of driving, and as already mentioned he has disciplinary sanctions and a not entirely clean record for other driving matters earlier this year . So he cannot point to a totally blameless record.

16. The Penalty Guide is no more than that, and obviously not a Rule. But we are satisfied that the breach of the Rule was deliberate, and in breach of his obligation not to drive in a manner that was capable of (and we find, did) diminish the horse’s chances. It was deliberate in the sense that the Respondent, as he said to Mr Munro, chose to drive as he did because it was a “tactic” he wanted to adopt. It was not mistaken, careless, or inadvertent. But the tactical aim resulted in the manner of driving being in breach of the Rule. If the employed “tactic” leads to a breach of the Rule then it is impermissible. We consider the sanctions sought by the RIU (6 months suspension and $1500 fine) to be too high. We adopt a starting point sanctions of suspension for 6 months and a fine of $1,200. There are no separate aggravating features. He is allowed a generous discount for his generally good (but not entirely clean) record in recent times. He is not entitled to a further discount for the late admission of the charge. That is because it has come so late (less than 2 days before the hearing and 3 months since charged with the offence) and was so framed to us, without any genuine remorse or insight into his actions. That is highlighted by his continued claim that he did nothing wrong. His stance conveyed to us by Counsel was that if he ran the risk of having a costs order made against him, after the defended hearing in Invercargill, then he would be maintaining his “not guilty plea”. That does not seem to accord with contrition but rather a “plea of expedience”. In line with the proper approach outlined by the Supreme Court in Hessell v. R SC 102/2009, [2010] NZSC 135, remorse has to be genuine and a guilty plea does not always provide a case for mitigation, with any allowance to vary from case to case – including the time of the plea. We do not afford the Respondent a concession for his last second acceptance of guilt. Because of other mitigating personal factors including his lengthy time in the profession, we allow him concessions from our above starting points a margin of a 2 month deduction in suspension, and approximately 15% reduction in the fine. That is, to 4 months suspension and a fine of $1,000.

17. As to costs. The RIU does not seek an order in its favour. The JCA has and will incur costs which would not have eventuated if, 3 months ago, the Respondent had admitted the charge. We do not accept the delay and cost are the “fault” of the RIU. But of course, considerable further expenses have been now avoided by his plea of guilty. But we do not consider that the costs that the JCA has had to incur to date because of the stance adopted by the Respondent should totally fall on the JCA. He should make a contribution to these costs. We fix that at $400.

18. ACCORDINGLY, THE PENALTIES IMPOSED ARE:

(a) The Respondent’s Open Driver’s licence is suspended for 4 months to commence at the conclusion of racing on 18 September 2020.

(b) The Respondent is fined $1,000.

(c) The Respondent is to pay $400 to the JCA being a portion of its actual incurred costs.

Dated at Wellington this 17th day of September 2020

Hon J W Gendall QC (Chair)

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TIME COMPARISONS FOR ASCOT PARK 2200 Metres.
DATE             WEATHER   TRACK   RATING      LEAD  1st HALF   LAST 800   LAST 400 OVERALL
6/06/2020
    Fine            Easy     46 - 51       44.9      61.7         59.5          29.6            2.45.3
                                                    40 - 45       46.4       63.7         58.1          28.6            2.47.5
                                                    52 - 55       46.3       62.3         58.3          28.5            2.46.0
                                                    Non Win      47.3       62.7         57.2          27.8            2.46.4

13/06/2020  Overcast     Easy     Non Win     42.6       60.1         60.7          29.5           2.42.9   Drive in question.


20/06/2020  Overcast     Easy    40 - 45       45.5       61.7         58.6          28.5            2.44.6
                                                    Non Win      46.5       61.9         58.6          29.2            2.46.2
                                                    Non Win      45.5       63.7         57.8          28.4            2.46.2
                                                   48 - 59        44.2       62.3         58.6          29.1            2.44.3
                                                   46 - 51        43.9       62.1         58.9          28.9            2.44.2
                                                   58 - 68        44.4       60.7         58.9         29.3             2.43.5
                                                   52 - 57        45.6       63.4         57.5         28.7             2.45.5

27/06/2020  Overcast    Good   40 - 44        46.5       62.2         58.2         28.7             2.46.1
                                                   MR 40 - 46   45.5      62.5         56.8         27.4             2.44.0
                                                   45 - 47         44.9      63.4         58.2         28.7             2.46.0
                                                   48 - 51         44.6      62.3         58.2         28.8             2.44.3
                                                   52 - 53         45.7      60.3         57.8         28.4             2.43.0
                                                   54 - 63         43.3      60.8         58.8         29.5             2.42.1
                                                   Non Win        44.7      61.4         58.4         28.9             2.43.7

 

                                                                       
                                                   Lead =          2200 Start to1600.
                                                   1st Half =    Of final mile.

 

                                          

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