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Non Raceday Inquiry RIU v K Marshall - Written Reserved Decision dated 4 December 2018 - Chair, Mr A Smith

Created on 05 December 2018

NON RACEDAY INQUIRY

Informant: Mr J Muirhead - Senior Stipendiary Steward

Respondent: Mr K Marshall - Open Horseman

Information No: A10255

Hearing Date: 30 November 2018

Hearing Venue: Alexandra Park

Judicial Committee: A Smith (Chair) – A Godsalve (Committee Member)

Rule No: 869(3)(g)

Also Present: Mr S Mulcay, Stipendiary Steward

Mr N McIntyre, General Manager of Stewards

Charge: Diminishing Chances

Plea: Denied

WRITTEN RESERVED DECISION DATED 4 DECEMBER 2018

This Non Raceday Inquiry relates to a race (Race 2) at the Auckland Trotting Club race meeting at Alexandra Park on 16 November 2018.

Following the running of race 2 “E & M Hopkins Who Dared To Dream MBL Pace 2200m”, an Information was filed pursuant to rule 868(2). 

The informant, Senior Stipendiary Steward J Muirhead, alleged that Mr K Marshall ‘failed to take all reasonable and permissible measures to ensure his horse (CRACKARED) was given full opportunity to win the race or obtain the best possible position and/or finishing place during the middle stages by electing to challenge the leader which resulted in CRACKARED tiring to finish in 10th place beaten 28.6 lengths.’

Rule 868(2) provides; Every horseman should take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race and or to obtain the best possible position and/or finishing place.

Mr Marshall signed the Information A10315 indicating he did not admit the breach and wished to defend the charge.

Due to the serious nature of the breach Mr Marshall was advised of his rights to seek an adjournment to take advice and/or prepare submissions if required. Further to this it was established that Mr Marshall wished to call a witness, Ms Cheree Wigg, the trainer of CRACKARED, but she had left the racecourse for the evening.

The JCA Committee adjourned the hearing to be re-heard at a date and time confirmed by the JCA Executive Officer. The adjourned date for the hearing was determined to be Friday 30 November 2018 at 4.00pm.

Prior to the reconvened hearing, advice was received via a letter from M Godber, General Manager, RIU to Mr J Muirhead that pursuant to rule 1108 (2) Mr K Marshall was to be served with a further charge in relation to his drive on CRACKARED on 16 November. The new charge was a breach of Rule 869(3)(g).

The Hearing was reconvened at Auckland on Friday 30 November 2018.

The hearing commenced with the Committee confirming with Mr Marshall that he was in receipt of the new Information A10255 and confirming that he had signed the information on the 22 November 2018. Mr Marshall endorsed the Information indicating that he did not admit the breach and wished to defend the charge.

Information A10255 alleged that Mr Marshall drove CRACKARED in the middle stages of the race in a manner capable of diminishing the chances of his mare winning.

Rule 869(3)(g) provides; No Horseman in any race shall drive in any manner capable of diminishing the chances of his horse winning

Senior Stipendiary Steward, J Muirhead sought permission from the Committee to withdraw Information A10135 under rule 1105.

The Committee hearing this Non Raceday Inquiry is the same Committee as the Raceday Committee. The Committee viewed the subject race 'live' and heard some submissions on that night when these matters were put before it.

It was therefore our decision to leave both Informations 'in situ' until a time in the hearing had been reached when we believed we could properly decide if we could proceed with Mr Muirhead’s request and withdraw one of them.

Mr Muirhead produced a detailed summary of the RIU’s submissions,

The following Documents were furnished with the Committee and entered as Evidence. Mr Marshall also received the same documents.

• A copy of RIU submissions
• A copy of information A10255
• A letter to Mr Muirhead from M. Godber (General Manager RIU) authorising Mr Muirhead to charge K Marshall with a breach of Rule 869(3)(g)
• A copy of the race result along with sectional times
• A copy of previous race results of CRACKARED
• A copy of the Veterinary Surgeons report on CRACKARED
• A copy of CRACKARED’s race performances

SUBMISSIONS (Informant)

1 Background

1. Stipendiary Stewards conducted an investigation into the driving tactics adopted by Mr Kyle Marshall, licensed horseman, the driver of CRACKARED in Race 2, the Eddie & Marge Hopkins “Who Dared To Dream” Mobile Pace, 2200m at the Auckland TC’s meeting on the 16 November 2018.

2 The video coverage of the race was interpreted as follows.

2.1 CRACKARED drew barrier draw 2 behind the mobile gate outside MISTY MEMORY (Junior Horseman L Whittaker) which drew barrier 1. Both horses showed high gate speed and contested the lead.

2.2 Mr Marshall desisted from his challenge for the lead with CRACKARED about 400m after the start allowing MISTY MEMORY to ease the pace in the lead on the running line. The first sectional (591 metres after the start) known as the “lead time” was an extraordinary 40.1 sec.

2.3 The next sectional between the mile (1609m) and the 1200m was run in 32.3 sec with the lead horse MISTY MEMORY reducing the pace.

2.4 From inside the 1400 CRACKARED was allowed to be improved forward by Mr Marshall and at about the 1300 metres was racing on par with MISTY MEMORY and again Mr Marshall challenged for the lead. His mare is unable to complete the challenge but despite this Mr Marshall encourages his charge with the whip and reins and continues to attempt to improve forward placing his mare under extreme pressure, beyond its capability, from the 1200 metres until well inside the final 1000 metres, approximately 950 metres.

2.5 CRACKARED was inclined to lay in under pressure passing the 900 metres losing some momentum. This sectional between the 1200m and 800m (3rd quarter of the last mile) was run in a quick 28.9 secs. From inside the 1200 metres WHITEHAVEN BEACH (C Smith) improved 3 wide to Mr Marshall’s outside. This horse was travelling more easily improving forward at a rate with which he could not compete with. But despite this, Mr Marshall, continued to pressure his mare instead of giving it some respite. CRACKARED after rounding the bend balanced up improving marginally inside the 800 metres racing one out without cover.

2.6 Approaching the 500 metres the mare had had enough and was weakening and was no longer competitive. The Stewards say Mr Marshall had set his mare a task beyond its capabilities leading up to this point of the race. This he has done through displaying bad judgement driving in a manner capable of diminishing the chances of his mare winning.

2.7 Of particular concern was his decision making process between the 1300 metres until approximately the 950 metres considering the exceptionally fast “lead in time” for this race.

2.8 CRACKARED from inside the final 400m was quickly drifting back through the field, momentarily placed in tight quarters at approximately the 300 metres by improving runners, before continuing to drift back finishing in 10th placing 28.6 lengths in arrears of the winner. (appendix 1)

2.9 CRACKARED was vetted following the race in question. The duty vet found no abnormality which could have contributed to the mare’s lack of performance other than it was still blowing hard on examination 15 minutes after the race which Stewards suggest is consistent with being over exerted during the running.

3. Race Sectionals for Race 2, ATC 16/11/18

• 3.1 Lead Time 40.1 (fastest leadtime recorded this season to date)
• 3.2 1st 400m last mile 32.3
• 3.3 2nd 400m last mile 28.9
• 3.4 3rd 400m last mile 30.2
• 3.5 last 400m last 29.7

4. Lead Times for 2200m mobile races at Alexandra Park.

32 Mobile 2200m races this season 2018/19 to date with the average Lead Time being 42.6sec, the fastest being 40.1 sec and the slowest 45.6 sec.

5. Race 2 class rating of R42 to R49.

6. CRACKARED’s Race Performances attached.

7. Rule 869(3)(g)

“No Horseman in any race shall drive in a manner capable of diminishing the chances of his horse winning”

Further to these submissions Mr. Muirhead advised the following;

CRACKARED was subject to a Horse Incident/Examination Report at the request of Stewards. This came about due to concern around Mr Marshall’s drive, the fact that the horse stopped quickly and it was the win favourite for the race. The vet advised the Stewards there were no abnormalities with the horse, and during her examination 15 minutes after the race it was noted that the horse was still blowing hard. The Stewards believe that this was due to the exertion that the horse was put under during the race.

Mr Mulcay submitted evidence by way of a written summary of the films, these details are recorded below.

Mr Mulcay took the opportunity to exhibit the alleged breach via the films. He identified the horses MISTY MEMORY driven by L Whittaker and CRACKARED driven by Mr Marshall.

1. The event was over 2200m from a mobile start

2. MISTY MEMORY (L Whittaker) drew barrier 1 and CRACKARED (K Marshall) drew barrier 2.

3. Both runners showed gate speed with CRACKARED being driven along but was unable to cross MISTY MEMORY, which was not placed under any discernible pressure to hold the lead.

4. K Marshall persisted with the challenge for the first 400 metres before relenting and easing to sit back off MISTY MEMORY racing down the back straight however the lead time was run in an extremely fast 40.1 seconds.

5. K Marshall then allowed CRACKARED to roll forward approaching the 1400 metres to race on terms with the leader entering the front straight to receive the bell with the first quarter of the last mile being run in 32.3 seconds.

6. Driver C Smith then shifts WHITEHAVEN BEACH out off the back of CRACKARED passing the 1200 metres and improves forward to the outside of the two leaders with K Marshall then commencing to urge CRACKARED forward in an attempt to again wrest the lead from MISTY MEMORY and continued applying pressure until entering the turn near the 950 metres where WHITEHAVEN BEACH was able to cross CRACKARED before then improving to the lead. It is this section of the race that the Stewards take issue with Mr Marshall’s drive which has resulted in the amended charge under rule 869(3)(g) being laid.

7. The 2nd quarter was completed in a fast 28.9 seconds – primarily due to Mr Marshall’s decision to drive CRACKARED forward to attempt to wrest the lead and Stewards submit that driving in this manner was not only capable of diminishing CRACKARED’s chances of winning but in fact did diminish the mare’s chances of winning given that it was clearly under pressure near the 500 metres before commencing to give ground.

8. CRACKARED was then inconvenienced briefly when BANNER OF ART (J Abernethey) shifted ground to its inside near the 400 metres but was clearly a spent force before weakening further to finish in 10th place beaten 28.6 lengths in an overall time of 2.47.0 which was approx. 6 seconds slower than the winner.

9. CRACKARED subsequently underwent a post race Veterinary examination which revealed no clinical abnormality

Mr Mulcay also had the following to add.

The decision of Mr Marshall to drive forward at the1200 metres in combination of the early exertion of CRACKARED when challenging for the lead over the first 400m resulting in an exceptionally fast lead time of 40.1 seconds, was not only capable of diminishing the chances of his mare winning, but it did diminish the chances of his horse winning.

Mr Mulcay said that Mr Marshall had other options available to him at this stage of the race. He stated one option was to allow WHITEHAVEN BEACH to improve around him without trying to again take the lead off MISTY MEMORY. Mr Mulcay’s opinion was that this was a far better option however Mr Marshall elected to drive forward.

Mr Mulcay identified that at approximately the 950m CRACKARED commenced to lay in and lost some momentum, as WHITEHAVEN BEACH crossed to the lead. Mr Mulcay showed that as the field passed the 800 metre point Mr Marshall sits back for a brief period before again attempting to drive forward. Mr Mulcay said CRACKARED is a spent force approaching the 500m and starts to give ground.

Mr Mulcay made comment and provided a summary of CRACKARED’s recent racing history. The detail provided analysis of CRACKARED’s previous position in running, with some lead up times and sectionals.

Mr Mulcay made particular reference to a previous performance by CRACKARED, when driven by Mr Marshall, with CRACKARED winning on the 14 September 2018. Mr Mulcay explained the race was conducted at Auckland, was over 2200m and CRACKARED drew barrier 2, the same as the race in question. Mr Mulcay listed and advised the leadtime that particular night was 43 seconds. The first quarter 32.0 sec, 2nd quarter 31.2 sec, 3rd quarter 28.2 sec,4th quarter 28.1 sec.

Mr Mulcay submitted that in this particular race on 14 September Mr Marshall was able to get an uncontested lead on CRACKARED and record a comfortable lead time of 43 seconds which is almost 3 seconds slower than the night in question. He said that the 2nd quarter which was the section of the race of concern to the Stewards, which had resulted in the charge being laid was a further 2.3 seconds slower than the night in question. Following the comfortable tempo in the race on the 14th of September, CRACKARED was able to sprint home to win the race.

Mr Mulcay advised that these race comparisons highlighted the difference in drives by Mr Marshall on the horse CRACKARED and that this was taken into consideration by the Stewards when determining to proceed with the charge under 869(3)(g)

During cross examination Mr Marshall queried the Stipendiary Stewards as to whether CRACKARED had been vet checked after her previous races given her performances and beaten margins. In response Mr Mulcay advised the vet checks were discretionary and it was unlikely that CRACKARED had been vetted in her previous starts.

Mr Muirhead added that Stewards were drawn to CRACKARED’s performance as she was the win favourite and due to the manner in which she was driven, which was seen as not appropriate. He also stated that when the Stipendiary Stewards look to consider serious charges, they will vet check a horse to eliminate any potential health issues.

In response to a question from the Committee Mr Muirhead confirmed that a driver could request a vet check on the horse they were driving if they were concerned with its performance.

SUBMISSIONS - (Respondent)

Mr Marshall confirmed to the Committee that he had decided not to call any evidence or witnesses on his behalf.

Mr Marshall confirmed that he had previously driven CRACKARED in its performance on 14 September and it won easily.

Mr Marshall queried the relevance of the evidence in relation to the early stages of his drive, with regard to the fact that the Information stated that the charge related to his drive on CRACKARED in the middle stages of the race. It was suggested to Mr Marshall by the Committee that what may transpire in the early stages of a race could have a bearing on what occurs later in a race and all evidence could be considered.

Mr Marshall advised that he had recently had CRACKARED in work at his stables and had driven her in work so “knew what she was like and she could be a hard horse to drive”

Mr Marshall advised that the plan was to lead, as the horse was a better leader than it was a chaser which was exhibited when he had won previously on CRACKARED and he said that CRACKARED felt good during the warm up. Mr Marshall said he had done the form for the race and the horse drawn inside him, MISTY MEMORY (L Whittaker), had shown no previous speed in any of its races. On this basis Mr Marshall said that he thought his best chance to win the race was to lead.

Mr Marshall explained that as he left the gate, he got CRACKARED going to try and cross MISTY MEMORY and got half a length ahead of MISTY MEMORY, however half way around the bend he realised he wasn’t going to get the front, so he pulled back. Mr Marshall acknowledged they did go a quick lead time but suggested that was the lead horse, not CRACKARED which was a length off MISTY MEMORY as the lead time was recorded.

Mr Marshall said that they then eased the pace to run 32.3 for the next quarter. AS the field raced past the 1200m Mr Marshall identified WHITEHAVEN BEACH “Pull out” in attempt to move forward to the lead. Mr Marshall reiterated his early comments that he thought CRACKARED was a better leader than a chaser. Mr Marshall said he did not want to hand up to WHITEHAVEN BEACH and wanted to stay parked. He also said that he realised that he couldn’t hold the lead which was his intention, so eased back.

At this stage in the race Mr Marshall thought CRACKARED was going easily but suggested that with WHITEHAVEN BEACH going past CRACKARED, that “her mindset may have changed” which had happened in previous races.

Mr Marshall said he tried to get her back on the bit for a few strides but she did not do this and commenced to give ground. He said that the general rule is that you should not drive your horse out unless you are going to finish in the top 5 and he had horses outside him, so stopped driving and persuading his horse. Mr Marshall also commented that he had locked wheels and was trying to get out of people’s way by pulling his horse back.

In cross examination Mr Muirhead referred to Mr Marshall’s comments in regard to CRACKARED being a better leader than a chaser. Mr Muirhead said that the trainer of CRACKARED, Ms C Wigg, when questioned on 28 November regarding CRACKARED’s performance stated on record (recorded in the Stipes report) that CRACKARED performed best when surrounded by other runners.

Mr Muirhead asked Mr Marshall whether instead of going forward at the 1200m given the fast 40.1 lead time whether he had a plan “B”. Mr Marshall said that he felt he was only running for 100m of the 400m and his plan “B” was to sit parked. In this regard Mr Marshall said he felt that he had done less work than both the horse inside him (MISTY MEMORY) and the horse outside him (WHITEHAVEN BEACH) at the 1200m and felt that he had not diminished the chances of his horse during this stage of the race. Mr Marshall contested that he had not run the 40.1 sec. lead time, as he was not the leader when the lead time was taken. Mr Muirhead conceded that CRACKARED may have been a length off MISTY MEMORY, when the lead time was taken but this still attributed to a time of 40.3 secs which is still very fast.

In response to a question from the Committee in regard to the early stages of the race, Mr Marshall confirmed that he was aware that he was going a lot quicker than he would normally have driven early, on a horse of CRAKARED’s class.

SUMMARY - Mr Muirhead

Mr Muirhead put to the Committee that CRACKARED had used all of its reserves early and as a result it could not be competitive in the later stages of the race. He also said that by not taking into consideration the extraordinary fast lead time of the race, Mr Marshall showed bad judgement by attacking MISTY MEMORY again for the lead between the 1200m and the 950m. In the opinion of the Stipendiary Stewards Mr Marshall did not show good judgement and exercise a plan “B”, which should have been to take a more conservative and less aggressive approach in the middle stages, to give his mare every opportunity of winning given the early lead time. Mr Muirhead said that Mr Marshall persisted with his tactics when he should not have, it was apparent a long way from home that CRACKARED was struggling and that this was a result of Mr Marshall’s driving not the horse’s performance. Mr Muirhead said that Mr Marshall made a bad decision to continue on, when he knew or should have known that he could not reach the lead and he should have restrained his horse.

Mr Muirhead submitted that based on the balance of probabilities Mr Marshall had over driven and over competed with his horse in the middle stages of the race and therefore has diminished his mare’s chances of winning the race. Mr Muirhead said that the view of the Stipendiary Stewards is that the charge should be upheld under rule 869(3)(g) which states No Horseman in any race shall drive in any manner capable of diminishing the chances of his horse winning.

Summary - Mr Marshall

Mr Marshall said that at no stage during the race did he believe he diminished his horse’s chance of winning and generally if the race was considered a speed duel two drivers would be charged. Mr Marshall said that when he won on CRACKARED the winner’s time was a length slower than this race. Mr Marshall stated that when he left the gate he did a bit of work, restrained his horse and then went to plan “B”, realising they had gone quickly he buttoned off to a slow quarter, which evened things up and gave his horse a breather. Mr Marshall said that when WHITEHAVEN BEACH came alongside him he wanted to maintain his position to give his horse the best chance during the last 1000m. Mr Marshall said he did not believe he diminished his horse’s chances at this stage of the race and at the 600m his horse knocked off, with Mr Marshall choosing not to continue driving it out. Mr Marshall said the type of horse CRACKARED was meant that when it was beaten it was beaten and in the last 400m he locked wheels and tried to get out of people’s way.

After hearing all evidence, the Judicial Committee granted permission to the Stipendiary Stewards under rule 1105 to withdraw information A10135.

Reasons for Decision

The Committee identified that from the mobile arm Mr Marshall drove his horse CRACKARED forward with the intention of leading. Sitting on Mr Marshall’s inside was MISTY MEMORY driven by L Whittaker who was clearly not going to relinquish the lead. CRACKARED got approximately 1 length ahead of MISTY MEMORY but was unable to cross to the lead. The early tactics adopted by both drivers resulted in the field being strung out very quickly and resulted in a very fast lead time of 40.1 seconds. (the fastest recorded at Alexandra Park this season).

After easing through the next quarter we observed again Mr Marshall pushing forward at the 1300m in an attempt to take the lead. As CRACKARED drew alongside the leader MISTY Memory, the horse on CRACKARED’s back, WHITEHAVEN BEACH, came forward into a 3 wide position and put more pressure on the leading horses, eventually crossing them and getting down to the markers. During this part of the race we observe Mr Marshall driving his horse aggressively in a manner intent on holding or crossing to the lead. The quarter was again run a quick 28.9 seconds.

It is of concern to the Committee that after sitting parked in a very quick lead time that Mr Marshall did not attempt to gain cover or provide his drive with a more economical run with the intention of being competitive at the finish of the race. Instead Mr Marshall seemed determined to continue to push forward despite other options being available to him.

After considering all of the evidence and examining the films of the race it is the Committee’s decision that Mr Marshall’s drive fell well below the level expected from a senior driver and that in doing so he did diminish the chances of his horse winning and therefore was in breach of rule 869(3)(g)

Penalty Submissions

Mr Muirhead asked that the Committee have regard for the gravity of the offence, including the charge, the importance and outcome of the race and whether race goers were affected by the offence.

He said CRACKARED finished 10th, 28.6 lengths from the winner. CRACKARED was the win favourite and clearly Mr Marshall’s drive affected the outcome of the race. Mr Muirhead said it was a low grade race and this could be considered when assessing penalty.

In relation to Mr Marshall defending the charge, Mr Muirhead said that no discount could be given in mitigation.

Mr Muirhead produced Mr Marshall’s record which showed no previous breaches of this rule in 1500 drives in New Zealand and as such Mr Marshall is an experienced horseman. Mr Muirhead said that the Stipendiary Stewards viewed this as a negative when assessing penalty as an experienced horseman should be less likely to make a mistake of this nature.

Mr Muirhead made reference to the requirement to maintain the Integrity and public confidence in Harness Racing. He suggested that drivers’ decisions need to be made in a manner so as not to diminish their horses’ chances of being competitive.

Mr Muirhead submitted that in this instance the Stipendiary Stewards would suggest that a starting point of 15-20 drives be applied due to a driver breaching rule 869(3)(g) and displaying bad judgement. He also said that the Stipendiary Stewards would ask that a suspension is imposed.

Mr Muirhead referred to the JCA guidelines in relation to a breach of rule 869(3)(g) the guidelines are as follows;

869(3)(g) – Diminishing Chances

• Miscounting Rounds                  15 Drives or $750 fine
• Race Duelling                            40 Drives or $2000 fine
• Incompetent Driving                  60 Drives or $3000 fine

Mr Muirhead put it that the Stewards’ view was that it was a low end breach in terms of the offence and that Mr Marshall had displayed bad judgement in the wrong part of the race. In the Stipendiary Stewards’ opinion a bad judgement offence should have a similar starting point to that of miscounting rounds.

Mr Marshall said that he would prefer a fine and agreed with Mr Muirhead that it was a low level breach. Mr Marshall said that if a suspension was to be imposed he would prefer to take any suspension immediately.

The Committee also clarified with Mr Marshall that it was his right if he chose to defend a charge and would not be penalised for doing so. 

Reasons for Penalty

The JCA penalty guideline in relation to a breach of Rule 869(3)(g) provide the following;

869(3)(g) – Diminishing Chances

• Miscounting Rounds                15 Drives or $750 fine
• Race Duelling                           40 Drives or $2000 fine
• Incompetent Driving                 60 Drives or $3000 fine

In this particular case the Committee had to determine where the starting point should commence based on the specific circumstances of the breach. The Committee felt that on this occasion the incident could not be compared to race duelling despite Mr Marshall showing poor judgement. As such the committee has set a starting point accordingly.

The committee set the starting point at 17 drives.

There were no aggravating factors.

The Committee sees the level of the offence at a low level and has regard for Mr Marshall’s overall good driving record.

In determining how many drives would equate to a 1 day suspension, the committee viewed and analysed Mr Marshall’s recent driving record, where it was apparent the Mr Marshall was averaging 2-3 drives in Auckland and 5-6 Drives in the Central Districts.

Having taken all factors into consideration the committee determines that an appropriate penalty to be that of 3 days. In addition to this Mr Marshall is fined $250.

Penalty

Mr Marshall had his Open Horseman licence suspended after the completion of racing on the 30 November until after racing on 11 December. In addition to this a fine of $250 is imposed.

Costs

There was no application for costs submitted by the RIU.

As this matter was heard on Raceday there will be no order for costs from the JCA.

A Smith

Chair

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