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Non Raceday Inquiry RIU v G Lee - Reserved Decision dated 13 February 2018 - Chair, Prof G Hall

Created on 14 February 2018




AND IN THE MATTER of the New Zealand Rules of Harness Racing




Open Horseman/Licensed Trainer


Information: A10401

Judicial Committee: Prof G Hall, Chairman

Mr M Conway, Committee Member

Appearing: Mr L Tidmarsh, Stipendiary Steward, for the Informant

The Respondent in person

Date of hearing: 4 February 2018

Date of decision: 13 February 2018


[1] The informant, the RIU, has laid an information with respect to the respondent, Mr G Lee, the driver of the horse MAGNATE MARA in Race 10, the FULTON HOGAN/WEDDERBURN TAVERN MOBILE PACE, at the Central Otago Trotting Club meeting held at Omakau on 2 January 2018.

[2] The information alleges a breach of r 869(3)(b) in that “Mr Lee drove carelessly near the 650 metres when he failed to concede his position to Mr McIlwrick resulting in his runner contacting the sulky of that runner, pacing roughly and breaking in consequence”.

[3] Rule 869(3)(b) provides: “No horseman in any race shall drive carelessly”.

[4] Mr Tidmarsh also referred to the Easing Down Regulations, which state relevantly:

“Horsemen shall be permitted to make moves with safety, provided they are in a position to do so by having a clear advantage over the horse they are about to move inwards, and the horse is clear of other horses on its inside so it can be moved in and that the movement is conducted in a gradual and acceptable manner”.

“Any horseman who fails to concede when not in a position to maintain his/her place may be charged under r 869(3)(b), Careless Driving”.

[5] We also note that r 869(7) provides: “From this point [1000 metres] all horsemen shall be expected to make moves, with safety, to ensure the horse obtains the best possible place in the field.”

[6] Mr Tidmarsh produced a letter dated 11 January from Mr M Godber, General manager of the RIU, authorising pursuant to r 1108(2) the laying of the charge under r 869(3)(b).

[7] MAGNATE MARA is co-trained by Mr Lee and in the race finished 12th of 12, beaten 90.4 lengths by the eventual winner MAIDONTHEBEACH.

[8] Following the race, the Stewards questioned Mr Lee and Mr R McIlwrick, driver of SENORITA MARGARITA, with regard to an incident nearing the 650 metres which resulted in MAGNATE MARA breaking from its gait for a considerable distance, and losing its chance in the event. After hearing their explanations, the Stewards elected to adjourn the matter to give it further consideration.

Informant’s submissions

[9] Mr Tidmarsh demonstrated on the videos that MAGNATE MARA from its 1 draw on the second-line followed out SENORITA MARGARITA from the mobile barrier in the early stages until being shifted outwards rounding the first bend. Mr Lee eventually obtained the 1-out 1-back position near the 1400 metres. SENORITA MARGARITA at this stage of the race was in a trailing position.

[10] As the field entered the back straight near the 850 metres, the complexion of the race had not altered, with the positioning of both MAGNATE MARA and SENORITA MARGARITA remaining unchanged.

[11] Nearing the 700 metres, SENORITA MARGARITA was directed outwards by Mr McIlwrick whilst having a neck advantage over MAGNATE MARA. SENORITA MARGARITA then attempted to shift MAGNATE MARA wider on the track despite Mr Lee’s actions to hold that runner in. Mr Tidmarsh submitted that Mr Lee was not entitled to do this, as Mr McIlwrick was shifting outwards in a gradual and acceptable manner.

[12] Mr Tidmarsh submitted it was clearly evident that MAGNATE MARA’s head was turned inwards. He alleged that Mr Lee attempted to hold his position and prevent SENORITA MARGARITA from shifting outwards for a period of some 50 metres during which time contact was made between MAGNATE MARA’s hind-leg and SENORITA MARGARITA’s sulky wheel. MAGNATE MARA then paced roughly, broke from its gait and galloped for a distance, losing its chance in the event, with several trailing runners being inconvenienced.

[13] Mr Tidmarsh stated that it was evident that there was contact between the runners through the action of MAGNATE MARA’s hindquarters, as the horse appeared to prop at this stage of the event. Both drivers also confirmed contact between both runners during the preliminary hearing on the day of the event. Mr Tidmarsh said this had not been contested.

[14] Mr Tidmarsh emphasised that during the period in which Mr McIlwrick attempted to shift MAGNATE MARA wider on the track, Mr Lee did not have a runner established to his outside and he was thus able to shift his runner wider on the track, which would have been the appropriate action under the Rules and Regulations. FRANKIE JONES, driven by Mr R Holmes, did eventually establish itself to the outside of MAGNATE MARA, however Mr Tidmarsh submitted the damage had occurred prior to this and, had Mr Lee conceded his position when required to do so, in the Stewards’ opinion the incident would not have occurred. At the time Mr McIlwrick had attempted to shift Mr Lee wider on the track, Mr Holmes was several lengths behind.

[15] The Stewards assessed the manner in which Mr McIlwrick had shifted outwards as “acceptable”. He reiterated that Mr McIlwrick had shifted outwards in a slow and gradual manner in an attempt to shift MAGNATE MARA wider on the track, however Mr Lee had attempted to hold that runner in. Given the fact that MAGNATE MARA’s head was inwards, Mr Tidmarsh submitted this would suggest that Mr Lee had realised that SENORITA MARGARITA was making an outward movement and had thus been able to react to that shift.

[16] When questioned by the Committee, Mr Tidmarsh stated that he believed the distance that Mr McIlwrick had endeavoured to push Mr Lee wider on the track was over some 50 metres. He said the fact that Mr Lee had been able to turn his horse’s head in suggested that the movement was not abrupt and that the shift was made with safety.

Respondent’s submissions

[17] Mr Lee commenced his submissions by stating that he was sitting in the one / one and had received “a good old-fashioned shunt”.

[18] Mr Lee questioned why Mr McIlwrick had moved out. He said Mr McIlwrick was following a good horse, which could have taken him to the top of the straight. And thus he had not expected to be pushed out.

[19] Mr Lee said he believed “the shunt days are gone”. He elaborated by describing the change in design of modern day carts. He said the speed carts were a lot higher and wider and the horse was now more vulnerable, as a consequence. There was less tolerance. He believed that the wheels of the two carts had “locked up” and the last thing he wanted to do in these circumstances was to pull away, as he risked being tipped out of his cart. He said the locking was only for a split second but he had to stay there. He said he believed he had conceded his position when he could do so with safety. He believed the only direction he could go was backwards, which he had done. He said he wanted to keep his horse in its gait and had not had enough time to do anything else, such as shifting out. There was also another horse coming around to his outside.

[20] Mr Lee commented that he accepted it was his responsibility to shift when Mr McIlwrick came out, but he said it was like “dodging a bullet”. It had all happened so fast. He said Mr McIlwrick “came out at such speed that his hind legs were clattering on the hind legs of my horse.” He added it was the natural reaction for a driver to hold his position. He said he did his level best in the space given to him.

[21] Mr Lee stated that many overseas harness countries do not have push out rules because, with the new design in carts, this cannot be done in a safe manner. He believed New Zealand was the only country with the rule.

[22] Mr Lee reiterated he accepted Mr McIlwrick was entitled to come out and emphasised that he had not tried to push him back in or to jostle with him for position.

[23] Mr B Barclay gave evidence on behalf of Mr Lee. In response to a question from Mr Lee, he said Mr McIlwrick came out fast. He was surprised that he came out. He said he (Mr Barclay) had ended up taking Mr McIlwrick’s position in the field.

[24] Mr Barclay said Mr Lee could not go anywhere when Mr McIlwrick shifted out. He believed Mr McIlwrick’s wheel had been put under Mr Lee’s horse’s leg. He added that in his view the wrong person had been charged, as he did not believe Mr McIlwrick had come out with safety.

[25] When questioned by Mr Tidmarsh, Mr Barclay agreed that Mr McIlwrick had a slender advantage over Mr Lee when he came out. He believed Mr Lee and Mr McIlwrick were racing wheel to wheel for a time. Mr Tidmarsh demonstrated on the videos to Mr Barclay that there was room for Mr Lee to shift wider on the track.

[26] Mr Lee stated that the whole incident was a “split second thing.” It was over a distance of some 30 metres, perhaps. He did not believe Mr McIlwrick had kept him safe and, when the hearing recommenced after an adjournment, he stated that he thought the first contact was Mr McIlwrick’s wheel and fork with his hind legs.

[27] Mr Lee disputed the assertion that he had turned the head of MAGNATE MARA inwards to Mr McIlwrick. He believed the horse had been racing with its head turned prior to this. He said he had not created the situation, Mr McIlwrick had, as Mr McIlwrick had come into contact with him.

[28] Mr Lee agreed the fact that he was surprised by Mr McIlwrick’s move had affected his reaction time. He also referred to the speed of the move having affected this.

Summing up

[29] Mr Tidmarsh stated the requirement placed against any driver under the Easing Down Regulations of the Rules of Racing was to concede their position when being shifted by another runner, which has an advantage inside the final 1000 metres. In this instance, Mr McIlwrick’s horse SENORITA MARGARITA had had a clear and undoubtable advantage over MAGNATE MARA and when shifting outwards had done so in the Stewards’ opinion, in a gradual manner. Mr Lee, however, had attempted to hold that runner in when not entitled to do so, which had resulted in his runner contacting the cart of SENORITA MARGARITA, pacing roughly and breaking as a result. Contact was made between Mr McIlwrick’s sulky wheel and Mr Lee’s hind leg. The Stewards believed that had Mr Lee conceded his position when required to do so, the incident would not have occurred and Mr Lee would have remained in his rightful gait.

[30] Mr Lee said succinctly that Mr McIlwrick had made contact with his horse not vice versa.


[31] Mr Lee is an experienced horseman. He is well aware of his obligations under the Rules. That said, we can understand his surprise at Mr McIlwrick deciding to come out when he did. Nonetheless, his obligation when Mr McIlwrick commenced to shift was to permit him to move, provided Mr McIlwrick was shifting him with safety.

[32] We have studied the outwards move of Mr McIlwrick carefully. Significantly, while it is deliberate it is not abrupt. There is no evidence, for example, that Mr McIlwrick shifted out suddenly and into the path of the legs of MAGNATE MARA. Mr Lee has not alleged that Mr McIlwrick took the legs of MAGNATE MARA out from under him but rather that he was shunted outwards by Mr McIlwrick, although, when later developing his defence, he did state he thought the first point of contact was with the legs of his horse. Mr Lee’s evidence, however, was not consistent on this point.

[33] There is no doubt Mr Lee’s horse, MAGNATE MARA, paces roughly when contact is made. The sequence of events is: Mr Lee’s horse props with its hindquarters; paces roughly; and then goes into a gallop losing its chance in the event. However, MAGNATE MARA does not gallop until quite some time after Mr McIlwrick had shifted out.

[34] The videos clearly evidence that when Mr McIlwrick commenced to shift there was no horse to Mr Lee’s outside. He was thus able to shift wider on the track and permit Mr McIlwrick to shift outwards.

[35] Significantly, it is evident from the videos that when Mr McIlwrick pushes out, Mr Lee has angled the head of MAGNATE MARA inwards. There was thus time for him to resist the move and this clearly suggests that he also had time to shift his horse outwards and avoid contact with Mr McIlwrick had he chosen to do so. It is pertinent to note that MAGNATE MARA was travelling well at this stage of the race and Mr Lee has said to us that he was confident the horse was going to run into the finish.

[36] Mr Tidmarsh has made reference to the Easing Down Regulations in the course of his submissions. Mr McIlwrick was easing Mr Lee out, not down, but we acknowledge that these Regulations are not uncommonly used with reference to both outwards and inwards movements on the track. However, we believe it is more helpful in the circumstances of this case to observe that r 869(7) permits a horseman to make an outwards movement with safety. This places a concomitant obligation upon a horseman affected by this outwards movement to permit the move if he can do so with safety. If there is a horse to the outside of the driver who is being pushed wider, then clearly the move is not one made with safety unless it is evident that the driver to the outside is also able and willing to shift out. As we have previously noted, there was no horse to Mr Lee’s outside at the relevant time (and we note that, at least when he first commenced to give evidence, Mr Barclay thought there was, and his evidence needs to be viewed in that light) and thus Mr Lee should have shifted out to allow Mr McIlwrick to shift, no matter how annoyed Mr Lee was at losing his preferred position or how surprised he was by Mr McIlwrick’s move.

[37] It is not clear on the videos or on the evidence before us what was the first point of contact between Mr McIlwrick and Mr Lee. Mr McIlwrick was never called as a witness by either party and the videos are not conclusive on this point. Mr Lee refers to his being shunted. The first point of contact appears to us to be cart upon cart and Mr Lee’s reference to hearing “clattering” would lend support to this. We view the initial contact as being between the carts and, ultimately, there was contact with the cart of Mr McIlwrick and MAGNATE MARA’s hind legs. Mr Tidmarsh did not fully address this issue. He acknowledged there was contact between Mr McIlwrick’s outside wheel and Mr Lee’s inside wheel before Mr McIlwrick’s wheel moved inside Mr Lee’s wheel and ultimately struck MAGNATE MARA’s hind legs.

[38] Our hearing from Mr McIlwrick would have assisted with this issue. During the time at issue, as we have noted, MAGNATE MARA’s head is turned. We do not accept Mr Lee’s contention that he had not turned the horse’s head inwards to Mr McIlwrick. There is no video evidence that the horse had been racing with his head turned inwards towards Mr McIlwrick prior to this.

[39] Mr Tidmarsh has estimated that Mr McIlwrick has endeavoured to push Mr Lee wider on the track over a distance of some 50 metres. We find it difficult to estimate the distance from the videos but would conclude it was a distance of at least 30 metres.

[40] Mr Lee has submitted that it was impossible for him to shift wider on the track because the wheels of the carts had become locked for a period of time. We take this to mean the outside wheel of the cart of Mr McIlwrick was outside the inside wheel of Mr Lee. We accept Mr Tidmarsh’s submission that if the wheels had locked, this was “not for too long”, given that Mr McIlwrick was shifting outwards and Mr Lee was attempting to hold that runner in. There is certainly no evidence of the carts becoming intertwined and the carts being dragged across the track.

[41] Significantly, we believe that there was sufficient time for Mr Lee to cede his position to Mr McIlwrick, as required by the Rules, before the wheel of Mr McIlwrick’s cart protruded outside that of Mr Lee’s. We accept Mr Lee’s statement that the wheels did end up in this position. Although the videos do not conclusively support this finding, they do suggest it is likely. We believe Mr Lee’s comment that he could not do anything other than shift backwards at that time is correct but it is his actions before then, and before his horse broke, that we believe have resulted in him being in breach of the Rules.

[42] We note the respondent’s submissions with respect to the “speed carts” (also referred to sometimes as “American carts”) and that it is appropriate that the push out rule be reconsidered in light of the fact there is a likelihood of contact with the shafts and frame of the carts. Both carts on this occasion were speed carts but Mr Lee tells us his cart was shorter than that of Mr McIlwrick’s. Any review of the Rules with a view to reflecting technological advances, is to be welcomed, of course. But we emphasise a raceday Committee, with limited evidence before it, is not the appropriate forum in which to proffer any recommendation as to possible rule changes.

[43] On the video evidence, we are satisfied to the necessary standard of the balance of probabilities that Mr McIlwrick pushed out gradually and safely as required by r 869(7). We accept there was not much time for Mr Lee to react, but the head of MAGNATE MARA being turned inwards strongly suggests he did react and momentarily fought to maintain his position.

[44] Mr Lee has held his position in the field when he should have permitted Mr McIlwrick to come out. There is contact with the hind legs of his horse and, as a consequence, MAGNATE MARA has galloped and lost its chance in the race. This could have been avoided had Mr Lee made room for Mr McIlwrick. He did not. In so doing, we believe he drove carelessly and we thus find the charge proved.

[45] We require the RIU to provide submissions as to penalty within 5 working days of the receipt of this decision and we give Mr Lee a further 5 days in which to respond.

Dated at Wellington this 13th day of February 2018.

Geoff Hall, Chairman

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