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Non Raceday Inquiry RIU v G Lee - Reserved Decision dated 18 June 2018 - Chair, Prof G Hall

Created on 20 June 2018

BEFORE A JUDICIAL COMMITTEE OF

THE JCA AT INVERCARGILL

UNDER THE RACING ACT 2003

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

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND MR GORDON LEE

Open Horseman/ Licensed Trainer

Respondent

Information: A10186

Judicial Committee: Prof G Hall, Chairman

Mr M Conway, Committee Member

Appearing: Mr S Renault, Stipendiary Steward, for the Informant

The Respondent in person

Date of hearing and oral decision: 9 June 2018

Date of written decision: 18 June 2018

RESERVED DECISION OF JUDICIAL COMMITTEE

[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 2, the BEACH ROAD HOLIDAY PARK MOBILE PACE, at the Ascot Park racecourse on Saturday 21 April 2018. The information alleges a breach of r 868(3) in that he "failed to drive MAGNATE MARA out to the end of the race when he had a reasonable chance of finishing 4th".

[2] MAGNATE MARA is trained in partnership by G & C Lee and finished in 5th place in this race.

[3] Rule 868(3) provides: “Every horseman shall drive his horse out to the end of the race if he has any reasonable chance of finishing first, second, third, fourth, fifth or sixth.”

[4] Mr Renault tabled a letter from Mr M Godber, the General Manager of the RIU, dated 15 May 2018 which authorises him pursuant to r 1108(2) to lay the charge alleging a breach of r 868(3).

Informant’s submissions

[5] Mr Renault demonstrated on the videos of the race that MAGNATE MARA improved forward from barrier 5 to obtain the lead near the 1650 metres. From there MAGNATE MARA continued to lead before being run down in the home straight to finish 5th. It was evident that the track was slushy.

[6] Approaching the 400 metres Mr Lee commenced to drive his horse out with the whip. He continued to strike the horse with the whip until the 50 metres. At this stage of the race MAGNATE MARA was clearly in 4th place. From this point on Mr Lee ceased to drive MAGNATE MARA out and was beaten by a nose for 4th place by NIGHTMARCH.

[7] When questioned regarding the reason why he stopped driving MAGNATE MARA out, Mr Lee's explanation was that he thought he was getting close to being in excess of 10 strikes with the whip and felt the horse had given its best and was tiring. When asked why he did not employ alternative actions on the horse to the end of the race, Mr Lee stated that his horse was tired and had nothing left to offer. Mr Lee also said that he did not see the eventual 4th placed NIGHTMARCH finishing on down the outside.

[8] We counted the number of strikes with the parties. There was agreement that there were 10 strikes in the final 400 metres. Mr Renault emphasised that the head-on video showed that the respondent was just sitting in the cart for the final 50 metres. He said there was some movement of the left hand with the reins at the 50 metres, then nothing.

[9] Mr Renault drew this Committee’s attention to HRNZ v Tomlinson (2008) where the Committee said:

Driving out is not defined in the Rules but it is recognised that this must involve demonstrable or discernible actions - in other words, it must be apparent to an observer that the driver has taken some action to get the best from a horse. Those actions should, as a minimum, involve some urging with the reins or using the whip on the horse, harness or sulky. Punters who invest money on horse races are entitled to expect this of a driver with a chance of running in the first six placings.

[10] The RIU thus submitted that Mr Lee's obligations under r 868(3) were to ensure he drove his horse out to the end of the race. He had to display actions that were both demonstrable and discernible. Stewards were not suggesting that he had to continue to drive the horse solely by striking it with the whip. Mr Lee had alternative actions that he could have employed. These actions are stated in the Use of Whip Regulations to be: running the reins over the horse's rump; using the whip in a pushing motion through the horse's tail; holding the whip on the horse’s tail or rump.

[11] The Judicial Committee in RIU v Anderson (2016) said:

It is a mandatory requirement of r 868 (3) that a driver "shall drive his horse out". "Drive" is not defined in the Rules. The most authoritative statement of the obligation placed on a driver under the Rule was made in the decision of the Appeals Tribunal in the 1998 case of Greer in which the Tribunal stated as follows: “We find that the obligation that arises under [r 868(3)] requires at least some action by the driver to urge his horse on: that is, some demonstrable or discernible movement by the driver so that the driver can be seen to be "driving his horse out". This had been the test applied by Judicial Committees and Appeals Tribunals since that time in cases involving a breach of r 868(3).

[12] Passing the 50 metres MAGNATE MARA was clearly holding 4th position. Mr Renault believed it was entirely reasonable to suggest that had Mr Lee continued to drive his horse out to the end of the race MAGNATE MARA might have held 4th placing.

[13] Mr Lee had stated, when questioned by the Stewards, that MAGNATE MARA was tired and had nothing left to give. This did not relieve Mr Lee of his obligations to drive the horse out to the end of the race. Any person who had invested money on MAGNATE MARA had every right to feel aggrieved that the horse was not given full opportunity to finish in 4th placing. All drivers were expected to display a concerted effort when they had a reasonable chance of finishing in the first six placings.

[14] The appeals tribunal in DeFilippi v HRNZ (2006) said:

To a degree, compliance with the particular rule is a matter of perception because the drive must be viewed objectively and members of the public watching the race should not be dissatisfied or disaffected by the lack of vigour and action of a driver in the latter stages of a race. The purpose of the rules is to ensure that horses with a prospect of finishing in the money are given their best chance of so doing.

[15] The RIU submitted that there were two matters to be considered under this rule: whether Mr Lee had driven his horse out to the end of the race; and did he have a reasonable chance of running 4th.

[16] The RIU submitted there was no discernible reason for Mr Lee to stop driving MAGNATE MARA out from the 50 metres. Mr Lee's only explanation was that the horse was tired. The Appeal Tribunal in RIU v Patterson (2011) said: "In our view the point of the Rule is not about the horse but about the actions of the Horseman. The Rule in fact starts "Every Horseman shall …".

[17] The second element of this rule was whether MAGNATE MARA had a reasonable chance of finishing in 4th place. Mr Renault emphasised that near the 100 metres MAGNATE MARA was holding 3rd place after being passed by two other runners, namely JACKS N JAZZ and EASTWOOD CHIEFTAIN. Approaching the 50 metres MAGNATE MARA was then passed by MR HANDLEMAN. From this point MAGNATE MARA was holding 4th place. It was only until the last stride before the finish of the race that it was passed by NIGHTMARCH. To be beaten on the line after not having been driven out for the final 50 metres strongly suggested that MAGNATE MARA did have a reasonable chance of finishing 4th.

[18] Mr Renault acknowledged that it could only be speculation to say what the outcome of the race would have been had Mr Lee showed any vigour over the concluding stages of the race. However, the Stewards alleged that Mr Lee’s lack of vigour was unacceptable. There was an obligation on every driver to leave no doubt in the mind of anyone viewing the race that the horse was driven out to obtain the best possible placing and the Stewards believed that in this case Mr Lee had failed to fulfil those obligations.

Respondent’s submissions

[19] Mr Lee commenced his defence by stating that the Appeal Tribunal in the Patterson case was wrong when it said the rule is not about the horse, as in his view, it is. He said he had never said MAGNATE MARA was tiring. The horse was holding its own at the end of the race. It was not tiring and going backwards.

[20] Mr Lee believed it was entirely reasonable that the horse would not have finished 4th. It was a 50/50 call and, in his view, he was always going to finish 5th as the horse, NIGHTMARCH, on the outside of the track was finishing at a much faster rate than MAGNATE MARA.

[21] Mr Lee stated that he had driven MAGNATE MARA aggressively the whole race and had used alternative actions in last 50 metres. He was using his voice and there were subtle actions, which he agreed he had difficulty showing us on the videos, such as his twisting his wrist when holding the reins, and he was working the horse’s mouth. He thought he had struck the horse 11 times and was expecting to be in breach of the “excessive use” rule and to be fined $200. He said the horse had stopped responding to the whip from 150 metres out.

[22] Mr Lee explained he had been taught to sit still in the cart, as a driver can unbalance a horse by jerking around. Neither body nor hand movement had to be great to get the best from a horse. Nudges were sufficient. He believed the video showed that his hand was slightly turned. He said MAGNATE MARA was inclined to hang in under pressure and he had to have a firm hold on the right rein, otherwise the horse would have run in.

[23] Mr Lee said he had dropped the whip onto the dust sheet so the end of the whip was on the tail of the horse over the last 30 metres. We asked him to point this out to us on the various video angles, but it was not possible for us to determine whether this was so.

[24] Mr Lee said the horse had given its all in the race. It had been driven hard out of the gate and had been attacked twice in the race. He reiterated it is all about the horse and MAGNATE MARA had given everything it had to him. It had just been beaten for 4th by a fast finishing horse.

[25] Mr Lee explained that at the top of the straight the horses to his inside were coming fast. One horse went past and he thought the other horse would too, but it had not, as MAGNATE MARA was able to hold its own. He thought he would hold 4th.

[26] When questioned by this Committee as to why he had not used the reins to encourage the horse over the final 50 metres, Mr Lee said that as the horse had stopped responding to the whip, he did not believe it would respond to the reins. He was trying “to kid the horse to the line with his voice”.

[27] Mr Lee reiterated he had driven MAGNATE MARA aggressively throughout the race and had given the horse the best opportunity to win. There was no proof he had not driven his horse out. He now believed he would have been better off hitting the horse one more time and copping the fine.

[28] Mr Lee expressed his concern that media reports of the charge identified it as being one of his not taking all reasonable and permissible measures. He said the HRNZ website had a link to an article with the headline “Lee under Microscope”. We understand this article also appeared in the publication, The Informant. Mr Lee said he felt he had been unfairly labelled a cheat.

[29] Mr Lee further said that the article had been published prior to his being informed he would be charged. The JCA Executive Officer had also apologised for unwittingly attempting to organise a hearing date before the papers had been served on him. The Executive Officer had understood that the RIU had informed him that he would be charged. This was not correct. He accepted this apology and believed the blame lay with the RIU and not the JCA.

Summing up

[30] Mr Renault in summing up went back to the videos. He said these demonstrated that the whip was down to the side of the shaft and so it was not being used as an alternative action. He agreed not every horse would respond to a shaking of the reins. However, some form of action by Mr Lee was required, and nothing was discernible.

[31] Mr Lee replied Mr Renault was right in saying every horse is different and MAGNATE MARA had given its best for the full 2200 metres of the race. In the last 50 metres he had combined wrist action with roars, whistles and clicks and had the tip of the whip by the horse’s tail.

Decision

[32] Mr Lee is an experienced horseman and we do not dispute his assertion that MAGNATE MARA was driven aggressively but we are of the view that this was for only 2150 metres of the 2200 metre race.

[33] We also note that the horse was attacked two times in the race and had been both one out without cover and had led for a significant portion of the race. However, it is the last 50 metres that are of concern to the Stewards and which forms the basis of the charge.

[34] At approximately the 50 metre mark MAGNATE MARA is passed by Mr HANDLEMAN and is running 4th. The last use of the whip is just before the 50 metres. Mr Lee then sits still in the cart and there is no discernible use of the reins or whip from that time. Mr Lee has asserted there was a small twist of the wrist before the 40 metres. We would describe it, at best, as a slight forward movement of the right hand and a downward movement of the left hand. And it is only barely discernible on the side-on and back straight videos.

[35] NIGHTMARCH comes down the outside of the track at speed and in the last stride MAGNATE MARA is beaten for 4th, with the margin being a nose. As Mr Lee has said, MAGNATE MARA was holding its own and he was satisfied that he had one of the horses to his inside, which had made up ground quickly early in the straight, covered. It may be that this led Mr Lee into a false sense of security that the horse, which had been giving of its best until this time, had done enough to finish 4th. As Mr Lee has said, NIGHTMARCH was finishing off the race very quickly. He may or may not be correct when he states that that horse would have finished 4th no matter what he did. That does not form part of the case against Mr Lee. The horse only has to have a reasonable chance of finishing 4th for that element of the charge to be proved. MAGNATE MARA had that chance.

[36] Mr Lee has described his verbally encouraging the horse, the twist of his wrist, and his dropping of the end of the whip onto the tail of the horse. We do not have audio to confirm the first matter, but we take Mr Lee at his word with respect to this. We discern, as we have said, an ever so slight movement of both hands, but we are not able to tell from the videos where the whip finally rests.

[37] Mr Lee has admitted that he thought he had used the 10 strikes allowed by the Rules. In fact, he thought at the time that he had given MAGNATE MARA 11 strikes. This is a reason why he would not continue to use the whip. Significantly, running the reins over the rump of MAGNATE MARA or pushing the whip through the horse’s tail were actions that were open to the respondent at this time. He did not adopt these.

[38] Mr Lee in his submissions questioned the wisdom of the Rules being written for the punter sitting in the pub in South Auckland. No matter to whom the Rules are directed, and we would assume it is all industry participants, the obligation on horsemen is to take demonstrable and discernible actions to the finish of the race to drive the horse out whenever there is a reasonable chance of finishing in a dividend bearing position.

[39] We are not satisfied to the standard of on the balance of probabilities that on this occasion, when Mr Lee had a reasonable chance of finishing 4th, that he has done so, and thus we find the charge proved.

Penalty submissions

[40] Mr Renault put Mr Lee’s record before us. He has had 2462 lifetime drives. He has had 31 drives this season and 85 last. His record is clear under this rule.

[41] Mr Renault submitted a fine of $300 to $400 was appropriate.

[42] Mr Lee responded that this was a harsh penalty. This was twice as much as a driver would get for breaching the excessive use rule. He questioned whether he might be better to take the $200 next time, although he noted this would not be in the interests of the welfare of the horse. He stated he would prefer a suspension to a fine.

[43] The starting point in the Penalty Guide is a fine of $400 or an eight drive suspension. We see no need to uplift the starting point. There is certainly nothing egregious with respect to the respondent’s breach of the rule.

[44] Mitigating factors are that Mr Lee has an excellent record and that this case has attracted adverse publicity through the media erroneously identifying the charge that had been laid as being a more serious one than it was. We accept that this has had an impact upon Mr Lee who rightly believes his integrity has been questioned unfairly.

[45] These two factors merit a reduction in the starting point. We believe on average Mr Lee has two drives per meeting. Racing in Southland has finished for the season. We suspend Mr Lee for three days. These being the next three days at Forbury Park on 15, 21 and 28 June.

Dated at Dunedin this 18th day of June 2018.

Geoff Hall, Chairman

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