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Non Raceday Inquiry RIU v N Chalmers - Written Decision dated 12 July 2019 - Chair, Prof G Hall

Created on 16 July 2019

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

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 NIGEL CHALMERS

Amateur Horseman

Respondent

Information: A11414

Judicial Committee: Prof G Hall, Chairman

Mr P Knowles, Member

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

The Respondent in person

Date of hearing: 4 July 2019

Date of oral decision: 4 July 2019

Date of written decision: 12 July 2019

DECISION OF JUDICIAL COMMITTEE

[1] An Information was filed by Stipendiary Steward, Mr Renault, against amateur driver, Mr Chalmers, alleging a breach of r 868(2) in that on 24 April 2019 in Race 1 at the Timaru HRC meeting when driving OPAWA MACH he failed to take an available inside run when it was both reasonable and permissible to do so and therefore failed to ensure his horse finished in the highest possible placing. This is an alleged breach of r 868(2).

[2] Rule 868(2) reads:

Every horseman shall 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 or to obtain the best possible position and/or finishing place.

[3] The charge was heard as a non-race day hearing at the Forbury Park Raceway on 4 July 2019.

[4] The head-on video, which is the best angle, is unfortunately affected by sunstrike at a key point. This has made the visual assessment of the incident more difficult than it would otherwise have been.

Informant’s case

[5] On 24 April 2019 the respondent, Mr Chalmers, was the driver of the horse OPAWA MACH in Race 1 at the Timaru HRC meeting held at Phar Lap Raceway.

[6] OPAWA MACH is trained by Kyle Cameron and the horse finished in 4th placing, a margin of 0.5L behind the winner.

[7] Following the race, Mr Chalmers was questioned by Stewards in relation to his drive in the home straight regarding his decision not to shift ground inwards in the early stages of the run home and utilise the available passing lane but instead to look for a run to the outside where he was held up and locked wheels with ALLANDALE, which was racing to his inside near the 180 metres.

[8] After considering Mr Chalmers’ explanation on the day, Stewards lodged a charge under r 868(2) alleging Mr Chalmers failed to take an available inside run when it was both reasonable and permissible to do so and therefore failed to ensure his horse finished in the best possible placing.

[9] OPAWA MACH drew barrier 2. The distance of the race was 2600 metres. Mr Chalmers shifted his horse inwards shortly after the start and was able to gain a position three back on the marker line for the majority of the race.

[10] Near the 600 metres the horse EJA PATRON which had raced in the trail throughout and was immediately ahead of OPAWA MACH commences to weaken, which results in OPAWA MACH behind held up for clear racing room.

[11] Mr Chalmers is able to shift OPAWA MACH around the tiring EJA PATRON near the 400 metres and his horse begins to improve its position and make up the ground it lost when held up.

[12] As a result of EJA PATRON tiring on the bend, the horse which had been in the parked position throughout, ALLANDALE, is able to shift inwards near the 450 metres and obtain cover behind the leader, DEN’S LEGACY.

[13] As the field turns for home, ALLANDALE shifts to the outside of DEN’S LEGACY with its driver electing not to take the passing lane. This shift by ALLANDALE leaves the passing lane free for trailing runners to use.

[14] OPAWA MACH is behind ALLANDALE and is in a position to shift inwards and utilise the passing lane. However, Mr Chalmers elects to shift outwards and attempts to improve his position between ALLANDALE and HIGHLAND REIGN, which is to the outside of OPAWA MACH.

[15] Mr Renault submitted that the head on film clearly shows that there is never a run available between ALLANDALE and HIGHLAND REIGN. This is evidenced by the fact OPAWA MACH locks wheels with ALLANDALE shortly after passing the 200 metres and, as a result, loses momentum when having to be restrained by Mr Chalmers.

[16] Mr Renault stated that Mr Chalmers had an opportunity to shift inwards as the field straightened for the run to the finish line. Mr Chalmers should have been aware that the passing lane became available when the trailing ALLANDALE shifted outwards.

[17] The Stewards believed the decision made by Mr Chalmers to attempt to improve his position between runners where insufficient room existed was unreasonable. This option required complete luck, which as borne out on the video, resulted in OPAWA MACH being held up at a crucial stage of the race while the passing lane remains unused.

[18] When questioned by Stewards on the day, Mr Chalmers admitted he had not thought of taking the lane and that it had never come into consideration. He also said that he looked for a run to the outer because he had momentum up.

[19] Mr Renault said looking at the film as ALLANDALE shifts outwards, OPAWA MACH is at least a length behind ALLANDALE. He estimated it to be a length and a quarter to a length and a half behind ALLANDALE. He then demonstrated that the passing lane is clear the entire length of the home straight.

[20] Mr Renault said OPAWA MACH is not established to the outside of ALLANDALE (We take this to mean when the passing lane becomes available.) The horse is only established there once Mr Chalmers drives his horse forward after activating his removable gear, by using his whip. There is no run there. The run is to the inside of ALLANDALE.

[21] Mr Renault said he believed the film shows that the option of shifting inwards at the top of the straight was completely reasonable as OPAWA MACH was some distance behind ALLANDALE. He demonstrated that the run was available for Mr Chalmers for some 60 to 70 metres. (Estimated, when summing up, to be 50 to 60 metres). At this time the respondent decides to take a minimal gap to the outside of ALLANDALE and to the inside of HIGHLAND REIGN. There was never a clear run. He locked wheels at the 180 metres and after getting clearance Mr Chalmers drives his horse out in a tight finish.

[22] When questioned as to whether the leading horse, DEN’S LEGACY, and ALLANDALE had shifted out half a cart, Mr Renault said ALLANDALE was hanging outwards but there was never a run to its outside. He agreed DEN’S LEGACY had shifted out in the last 50 metres.

[23] Mr Renault concluded the informant’s case by stating that the Stewards believed Mr Chalmers failure to identify that a run in the passing lane was available to him was unreasonable and that he had failed to take all reasonable and permissible measures to ensure OPAWA MACH was given full opportunity to win or obtain the best possible finishing place.

Respondent’s case

[24] Mr Chalmers stated that just before rounding the bend he had been held up. After he had made a run around EJA PATRON he thought to himself that he had to make a decision and he committed himself to a run on the outside.

[25] Mr Chalmers said taking a passing lane run was not an advantage because he would have had to change his bearings. He did not believe had he taken a passing lane run that he would have finished any closer. He believed the run was through the middle. He had not anticipated that ALLANDALE would come out.

[26] Mr Chalmers said he had made a call after eyeing up the situation. He did not believe there was clear air for him to take the passing lane. He would have had to take hold of his horse to take it. He had already lost momentum once. (We take this to refer to his taking time to pass the tiring EJA PATRON.) He reiterated he was not aware at the time that the passing lane run was there, however.

[27] Mr Chalmers emphasised that he always believed there was a gap to the outside of ALLANDALE. There would have been room had ALLANDALE not run out. He believed he had locked wheels because the inside horse had run out on to him.

[28] Mr Chalmers then said there may not have been a run for him to the outside of ALLANDALE but that was not the charge he was facing.

[29] In reply to Mr Chalmers, Mr Renault said the stewards had given thought to a charge of careless driving but were of the view that Mr Chalmers should not have been in the position he was in, in the first place, with the passing lane run being available.

Summing up

[30] Mr Renault summed up by stating that the respondent had the option to take the passing lane run once ALLANDALE had shifted outwards. For some 50 to 60 metres and when a length to a length and a quarter behind ALLANDALE, there was a full and unobstructed run for OPAWA MACH in the passing lane. There was thus time for Mr Chalmers to assess the situation. Instead, Mr Chalmers had gone out looking for a run, had improved when there was insufficient room and had locked wheels. It was unreasonable for Mr Chalmers not to shift inwards and not to take the passing lane run when it was available. Mr Chalmers had acknowledged when questioned on the day that he had never thought about taking the passing lane run.

[31] Mr Renault stated the Stewards believed Mr Chalmers had two options: to drive forward into a gap; or to pull down on the left rein and take an inside run. There was no need to pull back because OPAWA MACH was still behind ALLANDALE. He emphasised also that the Stewards never believed there was a gap to the outside of ALLANDALE for Mr Chalmers unless HIGHLAND REIGN was to move 4 wide. That horse did not do so, and as a consequence there was never a full run for OPAWA MACH.

[32] Mr Renault agreed that OPAWA MACH had momentum. The horse was clearly making up ground. It was not a split second decision that Mr Chalmers had to make. He had had time to activate the gear and drive OPAWA MACH forward with two strikes of the whip. By shifting inwards at the top of the passing lane the respondent would have been giving his horse every possible chance. There would have been no loss of momentum had Mr Chalmers taken the run when it should have been obvious to him that it was available. He did not have to pull across a number of horses, for example.

[33] Mr Chalmers said OPAWA MACH was being treated by the Stipendiary Stewards as if it was a $1.60 favourite. It was a 50 to one chance and had subsequently raced accordingly, being beaten by two or three lengths. He said OPAWA MACH was never going to win the race.

[34] Mr Chalmers reiterated he did have momentum up and he believed that at the top of the passing lane ALLANDALE was not fully off the fence and there was no passing lane run for him at that time.

[35] When questioned by the Committee, Mr Chalmers said he was aware there was no horse to his inside as he had passed the tiring runner earlier and knew it had stopped.

Decision

[36] OPAWA MACH had a good run in the race, having raced three back on the pylons for most of the journey. It was racing in that position leading into the final bend. Entering the home bend OPAWA MACH moved out to pass the tiring EJA PATRON, after being held up briefly. At this time DEN’S LEGACY was the leading horse and ALLANDALE, which had been racing one out, dropped into the trail. As the field entered the home straight ALLANDALE shifted outwards to take a run to the outside of DEN’S LEGACY. By the start of the passing lane ALLANDALE was fully out and the passing lane run was available for Mr Chalmers.

[37] The opportunity to shift inwards on the track was clearly presented to the respondent over a distance of approximately 60 metres after the field straightened for the run home and at the commencement of the passing lane. Mr Chalmers made no effort to shift inwards on the track at this time but rather continued to shift OPAWA MACH outwards. The respondent has acknowledged his plan was to shift outwards.

[38] Significantly, had the respondent shifted inwards he would have received an uninterrupted run in the passing lane.

[39] We do not believe that Mr Chalmers was faced with a split-second decision, which we accept happens frequently in a race, as to what run to take. In this case it was whether to go inside ALLANDALE or outside that horse. To the inside was an available run in the passing lane, to the outside was a questionable gap in which Mr Chalmers might be able to find a run.

[40] Mr Chalmers, as we know, chose the latter alternative. We do not believe that he even weighed up the two possibilities but rather he had decided in his mind once past the tiring horse, EJA PATRON, and rounding the turn, that the run was to the outside of ALLANDALE and he stuck with this decision. He had locked in his mind the decision to take that run. There was time, as we have said, for Mr Chalmers to assess the situation and to re-think his option taking, should he have decided to do so. It was not a momentary opportunity.

[41] In our view there was never a big enough gap outside ALLANDALE into which horse and cart could improve. Despite this, Mr Chalmers kept pushing his horse forward and the inevitable happened, in that he ran out of room and locked wheels briefly. It may be that there was some slight movement from the horses to his inside and outside which accentuated this situation, but the key point is there was never enough room for Mr Chalmers to improve in the first place. Mr Chalmers acknowledged this in his submission when he stated he thought he was being questioned by the Stewards about the locking of wheels and that he might be facing a charge of careless driving.

[42] The back straight video shows the margin between ALLANDALE and OPAWA MACH. We believe for some 60 metres there was run to the inside of ALLANDALE, which was both reasonable and permissible for him to take. Mr Chalmers did not give any thought to this. Mr Chalmers was a length to a length and a quarter, perhaps a length and a half, behind ALLANDALE at this time. He certainly was not hard up behind ALLANDALE looking for a run. Significantly, we are satisfied that Mr Chalmers had the opportunity to take the passing lane run without losing any momentum. We do not accept his submission in this regard.

[43] We accept that r 868(2) does not seek to punish mere errors of judgement during the running of a race but rather it requires that the driver’s conduct is culpable in the sense that, objectively judged, it is found on the balance of probabilities to be in breach of the rule. This is more than simply a bad judgement call by Mr Chalmers in the heat of the race. It is telling that the opportunity to shift inwards was present for some 60 metres and was spurned by Mr Chalmers, indeed he says he gave it no thought at all. We reiterate this was not a split-second decision.

[44] The question is whether or not the respondent took “all reasonable and permissible measures” after rounding the home turn “to ensure that his horse was given full opportunity to win the race or to obtain the best possible position and/or finishing place”. We find that the respondent in failing to shift inwards on the track and take an unimpeded run to the winning post is in breach of r 868(2), and in those circumstances, we find the charge proved.

Result

[45] The charge under r 868(2) is proved.

Penalty

[46] We inquired of the parties whether they wished to make oral or written submissions as to penalty. Both parties indicated that they wished to make oral submissions.

Informant’s penalty submissions

[47] Mr Renault produced the respondent’s record which evidenced 7 drives this season and 3 the last season. He referred to the JCA Penalty Guide. The starting point for a breach of r 868(2) is a 20-drive suspension or a fine of $1,000. He said the fact that amateur driver races are only programmed twice a month made the setting of a penalty difficult.

[48] Mr Renault referred us to the Appeals Tribunal decision in Kriechbaumer 28 January 2019, which he believed was a helpful precedent. The charge was also one under r 868(2); the appellant was an amateur driver and their records were similar.

Respondent’s penalty submission

[49] Mr Chalmers’ penalty submission was brief and to the point. He stated that a penalty of seven months’ disqualification was “ridiculous”. He said he was intending to drive more frequently, and a penalty of that length would have a significant impact on his ability to do so. He did not wish to seek a deferral of the penalty.

[50] Mr Chalmers then raised matters of a personal nature with us, which indicated that he might not be driving over the next few months whatever the penalty that was imposed.

[51] Mr Renault questioned whether, that being the case, the penalty of a suspension would have any impact upon Mr Chalmers. After hearing further from Mr Chalmers, it was agreed that a suspension was the appropriate penalty and that the personal matters raised by Mr Chalmers were merely speculative at this time.

Decision as to penalty

[52] We adopt the starting point in the Penalty Guide and find Kriechbaumer to be of assistance.

[53] We believe the breach before us to at the lower end of mid-range. The Committee in Kriechbaumer viewed the breach in that case as being “above mid-range” but refrained from increasing the starting point. Mr Kriechbaumer admitted the breach. This is a mitigating factor absent in the case before us.

[54] We see no reason to increase the starting point. From the 20 days we factor in the respondent’s good record, in that he has never been charged previously under this or, as we understand it, under any rule. We afford a 25% discount for this factor.

[55] On the basis of 2 drives a month, there are 24 drives available to Mr Chalmers in a season. He clearly does not drive this often, but the potential to so drive is there, should he so wish. The suspension will be an inordinately long one if we factor in the actual number of drives Mr Chalmers has in a season. As we say, he drives only infrequently, although we note his expressed intent to take more drives. In what is a difficult exercise in this context, we equate the penalty to one of seven and half months (15 drives).

[56] We round this out at seven months, which is the penalty imposed in Kriechbaumer. As a result, there is a degree of consistency in the penalties imposed.

[57] Mr Chalmers is suspended from the end of the meeting on 4 July up to and including 31 January.

[58] The RIU do not seek costs. The matter has been heard on raceday before the commencement of the meeting. There is no order in favour of the JCA.

Dated at Dunedin this 12th day of July 2019.

Geoff Hall, Chairman

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