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Non Raceday Inquiry RIU v J C Morrison - Reserved Penalty Decision dated 17 December 2020 - Chair, Mr R G McKenzie

Created on 18 December 2020

BEFORE A JUDICIAL COMMITTEE

OF THE JUDICIAL CONTROL AUTHORITY

HELD AT CHRISTCHURCH

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A09849

BETWEEN V G MUNRO, Stipendiary Steward for the Racing Integrity Unit

Informant

AND JOHN CHARLES MORRISON of West Melton, Licensed Junior Driver

Respondent

Judicial Committee: Mr R G McKenzie (Chair)

Ms H C Weston

Venue: Addington Raceway, Christchurch

Present: Mr P Williams, Stipendiary Steward, for the Informant

Mr N G McIntyre, Manager of Stewards, Racing Integrity Unit

Mr J C Morrison, the Respondent

Mr K M Barron, Licensed Open Driver (assisting Mr Morrison)

Date of Hearing: 11 December 2020

Date of Oral Decision: 11 December 2020

Date of Written Decision: 17 December 2020

RESERVED PENALTY DECISION OF JUDICIAL COMMITTEE

The Charge

[1] Information No. A09849 alleges that, at a race meeting conducted by Invercargill Harness Racing Club at Ascot Park Raceway, Invercargill, on Wednesday, 25 November 2020, the Respondent, Mr Morrison, as the driver of DANGEROUS in Race 7, Pastor Stephen Mobile Pace, “used his whip after the finishing post” in breach of Rule 869(2) of the New Zealand Rules of Harness Racing and the Whip and Rein Regulations.

[2] Mr Williams produced a letter (Exhibit “A”) signed by Mr M R Godber, General Manager of the Racing Integrity Unit, authorising the filing of the Information pursuant to Rule 1108 (2).

[3] The Information was subsequently served on the Respondent, who was present at the hearing. The charge and Rule were both read to the Respondent who confirmed that he understood both and that he admitted the charge.

[4] The Respondent having admitted the charge, it was found proved.

The Rules

[5] Rule 869 of the Rules of Harness Racing provides as follows:

(2) 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.

The Use of the Whip Regulations were replaced by the Whip and Rein Regulations as from 1 October 2020. Those Regulations provide as follows:

3. USE OF THE WHIP

3.3 A driver shall not use a whip in an unapproved manner.

3.4 For the purposes of clause 3.3 a driver shall be deemed to have used the whip in an unapproved manner in the following circumstances which are not exclusive:

3.4.3 If the whip is used when the horse:

3.4.3.5 has passed the winning post at the finish of a race.

Summary of Facts

[6] Mr Williams presented the following Summary of Facts:

1. On 25th November 2020, Mr Morrison drove the horse DANGEROUS in Race 7 at the Invercargill Harness Racing Club’s meeting.

2. This race was for invited drivers, where the horses and drivers were selected at random. This was the second time in the horse’s 30 starts that Mr Morrison had driven it on race day.

3. The race was a 2200 metres mobile start where DANGEROUS drew barrier 11, this was 3 on the second line.

4. As the start was effected, Mr Morrison took up the position of 1 out and 3 back in the running line, to maintain this position racing in to the first bend, Mr Morrison has used both reins to urge the horse forward. Shortly after, then being 1 out and 4 back in the running line.

5. Near the winning post, Mr Morrison has again used the reins to urge his horse forward then, just after the 1000 metres, he has pushed a runner wider on the track.

6. Then prior to the 800-metre mark, Mr Morrison has been pushed 4-wide on the track.

7. From the 700 metres through to the finish line, Mr Morrison has urged his horse with the reins and, the odd time, with the whip, which were compliant under the Rules as a wrist flicking motion.

8. After the race, Stewards received some information that the horse, DANGEROUS, had a number of welts present on its rump after the race. (two photographs presented as Exhibits “B” and “C”).

9. The photos show a number of welts, with one in particular showing signs of slight bleeding.

10. Mr Morrison was interviewed in the presence of senior driver, Mr K M Barron, at the Orari Racecourse on 28th November 2020.

11. Mr Morrison was vague in his recollection but admitted to striking the horse with his whip on one occasion on the back path from the track to the stabling area. He further added that the horse had “dogged up”, so he used his whip to control the horse.

12. After considering the matter, permission was sought and obtained from General Manager, Mr M R Godber, pursuant to Rule 1108(2) to charge Mr Morrison under Rule 869(2) & Clause 3.4 of the Whip and Rein Regulations on the grounds that he used his whip in an unapproved manner after the winning post at the finish of the race. Mr Morrison subsequently admitted the charge.

[7] The Committee enquired as to who had taken the photographs. Mr Williams said that he believed that it had been Mr Munro, but Mr Barron said that it was his understanding that the welts had been brought to the attention of the trainer, Mrs McGrannachan, who took the photos and then made a complaint to the Stewards.

[8] Mr Morrison maintained that he had only used the whip once on the horse post-race. The hearing was then shown the race videos to view Mr Morrison’s use of the whip during the race. Mr Morrison said that he had urged the horse mainly down the back straight to get it to pick up the bit, and this was how the horse sustained the marks. By the home turn, the horse was tiring. There was little or no whip use in the final straight.

[9] The photographs were examined closely. Mr Barron submitted that the telling welt that had broken the skin, the one that Mr Morrison has admitted to, had been inflicted on top of one that had been sustained during the race. Mr Barron conceded that there were, probably, seven welts in all – two at the top were very visible as were the two at the bottom there was the one on top of another referred to and two smaller ones at the bottom. Mr Williams, asked by the Committee, was not aware that a veterinarian’s report was obtained. Mr Williams stressed that any whip use during the running was compliant, in the Stewards’ view.

[10] Mr N G McIntyre, Manager of Stewards, in response to a question from the Committee said that, in his view, the top two welts shown in the photographs would not be consistent with having been sustained as a result of Mr Morrison’s whip use during the running.

[11] The Committee requested that the race videos should be shown to the hearing. This was duly done, but they could only be viewed on a laptop screen, which was not entirely satisfactory. Mr Morrison said that he had “urged” the horse with his whip 7 or 8 times down the back straight as it was being pushed out.

[12] Mr Barron produced the whip that had been used by Mr Morrison. It had since been confiscated, he said. He showed that it was flayed at the end and Mr Morrison had been told by the Stewards to tape it up. The whip had “broken down”, was very old and tired and was more flexible than it should be, Mr Barron said. He demonstrated this to the hearing and said that the condition of the whip had been highlighted by this incident.

[13] Mr Barron also pointed out that, on the day, it was very hot, and horses will tend to show marks in the heat, he said.

[14] Mr Williams submitted that, while the evidence of what happened during the race should not be ignored, he referred to the wording of the charge that Mr Morrison had struck the horse with the whip after the race.

Penalty Submissions

[15] Mr Williams presented the following penalty submissions:

1. The Racing Industry Act 2020 creates the Racing Integrity Board. One of that Board’s objectives specified in the Act (section 43) is to “promote, and ensure compliance with, high standards of animal welfare . . .”.

2. The new Whip and Rein Regulations came into force on 1 October 2020. During October and November, Stewards spoke to drivers who breached the new Regulations, highlighting where they needed to improve or change their whip action. Depending on the severity of the breach and any repetitive behaviour, drivers were either warned, spoken to advisedly, in either of which cases it was noted on the driver’s record or Stewards had “a quiet word”. A small number of charges were laid.

3. Adapting to the new Regulations has been difficult for some drivers and almost impossible for others. Stewards had been disappointed at the number of conversations it was necessary for them to have on raceday.

4. Mr Morrison is one who has adapted quickly and, since 1 October, has been spoken to only once for using his whip in other that a wrist flicking motion.

5. This month (December), Stewards are continuing to speak to drivers about their whip use. However, there now needs to be deterrent penalties for breaches of the Regulations. This breach is the first breach of clause 3.4.3.5.

6. Stewards assess the level of offending as being in the medium range. The penalty starting point for a medium level breach is a fine of $500 or a two-meetings suspension. Mr Morrison has been a very busy and successful junior driver. To date, he has had over 2400 lifetime drives and 279 this season. This equates to approximately five drives per raceday on average.

7. However, Mr Morrison has shown disregard for the Regulations and, in the current environment in which animal welfare is a priority, his actions on this occasion are totally unacceptable. A penalty needs to be a specific and general deterrent.

8. In this case, Stewards are seeking a fine of $500 and, in addition and to show to all drivers that breaches of the Regulations cannot be tolerated, Stewards are also seeking the imposition of a period of suspension of 6 days, but to be suspended for the next 4 months. If Mr Morrison has not further breached the regulations at the end of that period, the suspended sentence will be removed from his penalty record. Failing that, the suspended sentence will be activated and added to any penalty imposed for the subsequent breach.

Penalty Submissions of the Respondent

[16] Mr Barron submitted that it is harsh to categorise this as a mid-level breach for one strike after the line, when Mr Morrison had been concerned that the horse was going to do something wrong. He also pointed out that, if Mr Morrison breaches the regulations within the 4-months period suggested by Mr Williams, he will likely incur a suspension in any event.

[17] Mr Barron stressed the mitigating factors of the condition of the whip, his very good record and his compliant use of the whip during the race. Effectively, the charge relates to one strike on one horse which Mr Morrison was fearful might kick him, he said.

[18] Mr Morrison added that he had never committed any similar act at any time during his driving career. He had used the whip, he said to prevent the horse doing any injury to itself, himself or any other person. That one strike achieved the effect of calming the horse, he said. 

[19] The upcoming meetings likely to be relevant to any term of suspension that the Committee might impose were looked at. After a discussion, Mr Morrison elected not to request a deferment of suspension beyond the meeting of Methven TC on Sunday, 13 December.

Reasons for Penalty

[20] It has been said that horse racing has a “social licence” to operate and, in fact, the term has now well and truly entered the domain of the global horse racing industry. A “social licence” has been described as “an intangible, unwritten and non-legally binding social contract whereby the community gives an industry the right to conduct its business” or “the public acceptance of the sport or business to undertake its activity”. Horse racing needs to jealously protect its social licence, under increasing pressure from animal welfare groups opposed to the use of the whip and other aspects of animal welfare.

[21] The following statement, issued by New Zealand Thoroughbred Racing, can equally be applied to Harness Racing, because animal welfare concerns over whip use apply to both Codes:

New Zealand Thoroughbred Racing recognises that animal welfare perception concerning whip use is creating on-going debate internationally. The call for a ban on whip use in racing is gaining momentum with many within the industry agreeing it is not a matter of whether this will occur, rather when. Until that time NZTR will continue to ensure that the provisions and guidelines around whip use are enforced.

[22] Mr Williams, in his penalty submissions, referred to one of the objectives of the newly-created Racing Industry Board – “to promote, and ensure compliance with, high standards of animal welfare”.

[23] Clause 3.4.3.5 of the Whip & Rein Regulations is a new provision and this charge is the first under the new provision. The fact situation is unusual, and we doubt that there will be a lot of charges under it in the future. We have not been able to find a charge, with similar facts, under the old Rule 869(2) which prohibited use of the whip in an “unnecessary, excessive or improper manner”. This charge would, presumably, have been brought alleging use of the whip in an “improper manner”.

[24] The horse, DANGEROUS, that Mr Morrison had driven in the race, clearly displayed a number of welts following the race. Mr Barron expressed the view that there were as many as seven on the rump of the horse. There is little doubt that welts are painful. Mr Morrison has admitted to striking the horse once, after leaving the track and on the way back to the box. It is likely, and it was conceded, that the most prominent welt was the result of that strike, and its prominence, and the presence of some blood, can be explained by the likelihood that that strike was inflicted on top of a welt sustained earlier, possibly during the race.

[25] On a scale of degrees of animal welfare, this breach is at the low end, if we accept Mr Morrison’s evidence. Unfortunately, although it is likely that some one or more persons had witnessed the incident, but no one has come forward, there is no direct evidence available to the Committee. The only evidence that we have is Mr Morrison’s own admission and the photographs. It was unfortunate that the raceday veterinarian was not asked to inspect the horse. This may have been helpful to the Committee in assessing the seriousness of the breach. We have been asked to accept that there had been only a single strike with the whip, and, in the absence of any eyewitness evidence, we have to accept that. In any event, we are satisfied that, at the end of the day, animal welfare was seriously compromised, and it is one of this Committee’s functions, especially in the current climate, to uphold proper standards of animal welfare.

[26] In determining penalty, it is well-established that this Committee must have regard to a number of principles. These include to hold Mr Morrison accountable for harm done to the horse and the racing community, to promote in him a sense of responsibility for and an acknowledgement of that harm, to denounce the conduct and to deter him and other persons from committing the same or a similar offence. We have had regard to those principles in this case. We have also had regard, as always to the need to maintain integrity and public confidence in Harness Racing.

[27] The HRNZ Whip Penalty Guideline (effective 1 October 2020) requires a breach of the Regulations to be assessed as high, medium or low. Mr Williams has suggested that this breach is a medium-level breach with a starting point of a $500 fine. The definition of a mid-level breach in the penalty guidelines does not really cover the circumstances of this case. However, we have assessed the breach as being mid-level for the purposes of determining penalty in this case and, accordingly, we have taken that starting point. We do not see any relevant mitigating factors. While we concede and accept that Mr Morrison has a good record and has admitted the breach, it is not common for Judicial Committees to allow a discount from any starting point for a breach of the whip Rule.

[28] However, we take the view that Mr Morrison’s use of the whip in this instance raises significant animal welfare issues. We regard this as an aggravating factor that can be best dealt with by way of a term of suspension of Mr Morrison’s licence, in addition to any fine. [29]

The Whip and Rein Regulations make it an offence for a driver to “use the whip in an unapproved manner”. Mr Morrison’s use of the whip in this case was used in such a manner and, indeed, was totally unacceptable and cannot be condoned.

[30] The Committee is satisfied that the penalty arrived at will satisfy the principles set out in para [26] above and, hopefully, demonstrate that Harness Racing and the Bodies that protect its integrity are taking steps to punish any conduct that compromises animal welfare and, thereby, jeopardises Harness Racing’s important “social licence” (see para [20] above).

Penalty

[31] Mr Morrison is fined the sum of $500. In addition to that fine, Mr Morrison’s Junior Driver’s licence is suspended from 14 December 2020 to 19 December 2020, both dates inclusive – 3 days. The 3 days intended to be encompassed by that period of suspension are Forbury Park TC on 16 December, NZ Metropolitan TC on 18 December and Wairio TC on 19 December 2020.

Costs

[32] The hearing was held on a raceday and there will be no order for costs in favour of the Racing Integrity Unit or the Judicial Control Authority.

R G McKENZIE (Chair)

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