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Non Raceday Inquiry RIU v S McNally - Decision dated 24 July 2018 - Chair Mr RG McKenzie

Created on 26 July 2018

BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH

IN THE MATTER of Information No.
A10235

BETWEEN N M YDGREN, Chief Stipendiary Steward for the Racing Integrity Unit

Informant

AND STEPHEN RONALD McNALLY of Motukarara, Licensed Open Horseman
Respondent

Date of Hearing: Friday, 20 July 2018

Venue: Addington Raceway, Christchurch

Judicial Committee: Mr RG McKenzie (Chairman), Mr SC Ching (Member)

Present: Mr NM Ydgren (the Informant), The Respondent, in person

Date of Oral Decision: 20 July 2018

Date of Written Decision: 24 July 2018

DECISION OF JUDICIAL COMMITTEE

THE CHARGE
[1] Information No. A10235 alleged that Mr McNally, as the driver of STAR PRIDE in Race 7, Yaldhurst Hotel Mobile Trot, at the meeting of New Zealand Metropolitan Trotting Club held at Addington Raceway, Christchurch, on 14th June 2018, committed a breach of Rule 869 (3) (f) in that “on the final bend [he] drove improperly by directing [his] horse STAR PRIDE outwards which allowed the following horse HEAVENLY LOVE an unobstructed passage”.

[2] Mr Ydgren produced a letter 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 served on Mr McNally on 15 July 2018. He signed the Statement by the Respondent on the information form indicating that he did not admit the breach.

[4] Mr McNally was present at the hearing of the information. The charge was read to him, together with the relevant Rule, and he confirmed that he denied the charge.

THE RULE
[5] The relevant Rule is as follows:
869 (3) No horseman in any race shall drive:-
(f) improperly.

EVIDENCE AND SUBMISSIONS OF THE INFORMANT
Background
[6] Mr Ydgren said that Mr McNally in this race drove the horse STAR PRIDE, trained by Mr M P Edmonds. Stewards were alleging that Mr Edmonds was also the “benefactor” of Mr McNally’s improper driving in this race.

[7] The horse drew barrier two from the 1950 metres mobile start point. The horse began moderately well and took a position in the trail behind another Edmonds runner, SPURRED BY SUCCESS (J F Curtin). Mr Ydgren said that, of interest to the Committee, will be the fact that, when in the act of improving near the start or just after, Mr McNally actually assumed the lead from Mr Edmonds, who was driving another horse he trains, HEAVENLY LOVE.

[8] Mr Ydgren said that he would show that, near the 550 metres, STAR PRIDE appears to be under some pressure and, from that point onwards, does commence to weaken. The horse is not responsive to the urgings of the driver and begins to lose its position. The trailing runner HEAVENLY LOVE is badly held up. Near the 300 metres, STAR PRIDE shifts outwards from the inside running to the two-wide line. The following horse, HEAVENLY LOVE, gains a largely unobstructed run through to the finish line instead of being further held up for a considerable distance.

The Video Evidence
[9] Mr Ydgren showed that SPURRED BY SUCCESS, driven by Mr Curtin, was taken forward to the lead. HEAVENLY LOVE had drawn 1 and STAR PRIDE had drawn 2. Mr Ydgren alleged that Mr McNally was aware that he was outside Mr Edmonds. He passed that runner and settled in front of it. Those positions did not change until the relevant part of the race, Mr Ydgren said.

[10] Mr Ydgren then demonstrated on a video replay that, in an incident near the 900 metres, HEAVENLY LOVE struck “a bit of bother” when a following runner made contact with its wheel. Mr Edmonds lost the back of Mr McNally for a very short distance at that stage, he said.

[11] Mr McIntyre, Manager of Stewards, showed on the video replay that Mr McNally was positioned three places back on the markers approaching the 600 metres. At that stage his horse was under pressure, losing the back of SPURRED BY SUCCESS, and was being urged on by Mr McNally, Mr McIntyre said.

[12] Shortly thereafter, Mr McIntyre said, it could be seen that STAR PRIDE’s head could be seen turned outwards. That horse was still on the marker line just prior to that, with Mr Edmonds behind it being badly held up. Mr Edmonds was then able to obtain a clear and unobstructed run to the inside of Mr McNally. Mr McNally is a very experienced driver who was well capable of holding his position on the markers, but he had directed his horse outwards onto the back of ONE YANKEE GINGA (R D Holmes).

[13] Mr McIntyre then said that, on the apex of the turn, Mr McNally’s runner laid inwards and Mr McNally had to shift his cart outwards, enabling a full run for Mr Edmonds. Had Mr McNally remained in the position he was in and where he was required to stay, Mr McIntyre said, Mr Edmonds would have been held up right to the start of the passing lane. Mr Edmonds gained an advantage of at least one length through gaining the unobstructed run, Mr McIntyre said.

[14] In response to a question from Mr Ydgren, Mr McIntyre said that, at no stage, did he see Mr McNally’s horse racing roughly. He added that at no stage while the horse was shifting up the track was there any attempt to shift it back down. Neither did the horse hang outwards and shifted in only “marginally” on the point of the turn, as most horses tend to do.

[15] Mr McNally did not wish to cross-examine Mr McIntyre. The Committee asked Mr McIntyre to clarify his statement that Mr McNally was required to maintain his position. Mr McIntyre replied that a driver is required to maintain his position when his horse is under pressure and not move out to give to another runner a position that that other runner is not entitled to.

Submissions
[16] Mr Ydgren said that the Stewards’ position in relation to this charge is that Mr McNally has directed his runner outwards, when weakening, to allow the stablemate clear passage to his inside, or in the very least, allowed it to shift outwards with the consequential effects being exactly the same. What Stewards were alleging here is that Mr McNally has driven his runner to assist a stablemate. The definition of improper is “not in accordance with accepted standards”. It cannot be accepted that, when on a weakening runner, a driver is able to simply shift ground outwards to assist another stable runner.

[17] It was mentioned, prior to showing the films, that Mr McNally had taken the lead from Mr Edmonds. This is important for the fact that Mr McNally would have been acutely aware of Mr Edmonds’ racing position directly behind him. In regards to this, Mr Ydgren said, the Committee will have noted a slight melee near the 1000m back in the field. When questioned on the day, Mr McNally advised he was aware of this and that it might have involved Mr Edmonds, so he was no longer sure who was following him. Stewards say that, from the films, it is apparent that Mr Edmonds only ever loses minimal ground at this time and Mr McNally would have been more than aware that Mr Edmonds had held his position.

[18] When we get to the incident where STAR PRIDE moves outwards and focus solely on the turn-camera, it is glaringly apparent that the horse’s head is slightly turned outwards. This would give the impression that one of two things is occurring. Either the horse is hanging inwards, or the horse is being shifted outwards. If it was to be a case of the former, then it is highly implausible that a horse which is hanging inwards would move one position wider of its own volition – no matter the degree of “hanging”. Obviously, an inwards-hanging horse is wanting to shift down the track, not the polar opposite and run outwards. Therefore, Stewards have taken the view that the horse has been directed outwards by its driver to make that shift outwards. The horse is not racing ungenerously. Despite an inclination to shift inwards, it is not giving Mr McNally any difficulty. Regarding its position in the running line, it appears to be racing in a true position until the point at which it is moved out one position. Under questioning on racenight, Mr McNally said he had simply allowed the horse to run outwards to keep it in its correct gait. He was concerned the horse may break, so to keep it in its correct gait he had let it shift up the track.

There are three aspects of that submission that Stewards do not accept which have led to the laying of this information:

1. The horse was not wanting to shift outwards. As alleged, the horse, if anything, was laying inwards – not outwards. It was showing no sign of trying to shift up the track.
2. The horse at this time was not racing roughly. It was giving no sign that it may break. It appeared to be fluent in its gait and showed no sign of a horse that was likely to burst into a gallop.
3. Mr McNally was not entitled to just shift up the track. There are other horses outside and behind him and, to shift up the track with a supposed “nearly galloping” horse devoid of any caution for those runners, is reckless by definition.

[19] As the field enters the final straight, Mr McNally could be seen to shuffle his sulky outwards to ensure that Mr Edmonds was afforded a full run to his inside. Stewards see this incident as particularly damning. If Mr McNally’s horse is so poorly gaited at this time and unable to be steered, why would he make such an effort to physically shift his sulky outwards and wider? He has created a run for HEAVENLY LOVE and, then, when his horse continues to lay inwards, as it had been doing so prior, Mr McNally has made a further endeavour to afford the trailing runner ample racing room. HEAVENLY LOVE has ended up running 5th, which carries a greater stake than sixth place. Would it have run that place if Mr McNally did not shift outwards at this time, approximately 90 metres before the passing lane? Stewards say the answer is no.

EVIDENCE AND SUBMISSIONS OF THE RESPONDENT

[20] Mr McNally began by referring to the incident at the 900 metres. He said that a trailing runner had hit a wheel disc which broke and made a “significant noise”, as well as there being noise from other drivers. At the time, he said, Mr Edmonds had lost his back and he did not know whether it was still Mr Edmonds trailing him. After that, when his horse started to tire, he had just “gone with it”. The horse is prone to running out – it has done so all of its career, he said. At that stage of the race, he said, there was no point in giving Mr Edmonds a run as the leaders were “off and gone” and his, Mr McNally’s, runner was tiring.

[21] Mr McNally then made reference to the horse’s following start (at Ashburton on 15th July). It had been in a trailing position and its driver attempted to shift it into the passing lane. It broke free of interference, Mr McNally said.

Evidence of Mr Edmonds
[22] Mr Edmonds said that STAR PRIDE had always run out badly when she got tired. As soon as it was given its head, it would go straight out every time. Various types of gear and treatment had been tried, he said.

[23] The video replay was shown to Mr Edmonds. He observed that Mr McNally had asked the mare to go and she had turned her head out and ran straight out. He had not called to Mr McNally for a run at any stage – Mr McNally had just run off the markers.

[24] Mr McNally then wished to comment on the Stewards’ reference to his shifting in the sulky, which he accepted he had done. At that point, he said, he was going to lock wheels with Mr Edmonds which would have been “borderline dangerous”. His movement was just enough to avoid locking wheels, he submitted.

[25] The Committee made the observation to Mr McNally that, when the horse’s head did turn out, it was quite a sharp movement for a stride or two before straightening again. It appeared that the horse’s head had been steered out. Mr McNally responded that to pull its head straight generally helps rather than fighting the horse. Mr Edmonds said that it was preferable to keep a horse’s head straight if possible and let it drift out but if a driver tried to keep its head in it would most likely break. Mr Edmonds added that if a horse was trotting roughly, the best precaution was to keep its head straight. If a horse is running out and its head is pulled to get it to go straight, the horse is going to come out, he said.

[26] It was put to Mr Edmonds by the Committee that the Stewards were alleging that Mr McNally had directed the horse’s head outwards. Mr Edmonds said that that appeared to be the case from the video replay but, if this particular horse’s head were to be let go, it would do the same thing and run out.

[27] Mr McNally requested that a video replay be shown of the Ashburton race on 15th July. Mr McNally pointed out on that video STAR PRIDE racing 3-back on the inner approaching the home turn. The driver, Mr Curtin, had since told Mr McNally that the mare had reached the passing lane and had been travelling well. When he attempted to bring the horse down, she had fought the driver, ran out and galloped. Mr Ydgren, asked for his comment, said that it appeared to a case of a horse shifting down into the passing lane and galloping for no reason and not giving Mr Curtin any difficulty at all.

[28] Mr Edmonds was cross-examined by Mr Ydgren. Mr Edmonds had spoken about the horse hanging outwards in the race in question. Mr Ydgren asked Mr Edmonds to point out on a video replay where the horse was hanging outwards. It had been running out most of the way, Mr Edmonds said, and he knew that, if he waited, he was always going to get a run to the inside of it. Asked by the Committee, Mr Edmonds agreed that it did appear that the horse had been steered out but, knowing the horse he said, that would not have been the case.

[29] Mr Ydgren put it to Mr Edmonds that HEAVENLY LOVE, which he had driven, had earned the 5th placed stake of $350 through having secured a run 90 metres before the passing lane. The video replay of the run home was scrutinised. The Committee pointed out that the official result of the race showed the margin between 5th and 6th as being 0.4 length and between 5th and 8th as 0.9 length. Mr Edmonds did not accept that his horse had gained any advantage.

THE INFORMANT’S SUMMING UP
[30] Rule 1008A does not require Stewards to prove intent. In this instance, there may not have been any pre-conceived plan to drive in this manner. However, Mr McNally’s decision to drive in this manner at this time had been intended to serve or assist his stable runner. Directing a horse to run outwards to stay out of the path of, or to avoid further inconveniencing, a stablemate does constitute a breach of this Rule. Stewards say that this is what has occurred in this instance. The horse is showing a favour to run down the track, not up it, and so must have been directed outwards to suddenly shift outwards a full position. Stewards also say that, simply letting a horse drift up the track for no apparent reason, which benefits the stablemate, also in this situation does amount to a breach of this Rule. A driver creating a gap for a stablemate to drive through is always going to create conversation and speculation as to whether or not the race is a fair contest. Non-competitive conduct only serves to lessen the image of racing and the actions of Mr McNally in this instance have certainly done that.

THE RESPONDENT’S SUMMING UP
[31] Mr McNally, in conclusion, said that he “strongly disagreed” with the Stewards’ allegation that he had driven to help a stablemate. He is a competitive driver and he had done his best to keep the horse trotting. The race was over at the time, he submitted. His horse was tiring and the leaders had “well and truly got away” and there was no benefit to him in helping out a stablemate.

REASONS FOR DECISION
[32] Mr McNally has been charged with improper driving in Race 7 at the meeting of NZ Metropolitan TC held at Addington Raceway on 14th June 2018, in which he was the driver of STAR PRIDE, in that he directed his horse outward allowing stablemate, HEAVENLY LOVE, an unobstructed passage.

[33] Mr McNally denied the charge.

[34] Mr Ydgren presented written submissions and then, together with Manager of Stewards, Mr McIntyre, spoke to the video replays in support of the allegation that Mr McNally had driven improperly. The Committee viewed the various video replays carefully.

[35] The essence of the evidence given by Mr McNally and his witness, Mr Edmonds, who had driven HEAVENLY LOVE, was that STAR PRIDE has a tendency to shift or hang out under pressure and that, quite simply, is what they contended had happened on this occasion.

[36] Mr McNally strongly denied that he had either directed STAR PRIDE or allowed it to shift outwards as alleged. Evidence was given by both Mr McNally and Mr Edmonds that the horse has a propensity to shift out under pressure in its races, but they did not present any independent evidence in support of this. We do not believe that the video of the Ashburton race was of any assistance to Mr McNally.

[37] The Stewards placed considerable emphasis on the fact that the horse that benefitted from what happened was a stablemate of the horse that Mr McNally was driving and that Mr McNally knew or must have known that it was Mr Edmonds who was trailing him.

[38] Mr McNally’s evidence was that, because of an earlier incident at the 900 metres, in which HEAVENLY LOVE’s wheel had been struck by a trailing runner, he was from that point unaware as to whether Mr Edmonds was still following him. The Committee was not persuaded by that argument.

[39] Mr Ydgren, in his closing submissions, submitted that Rule 1008A does not require the Informant to prove intent. That Rule provides that the standard of proof in charges such as this is the balance of probabilities. Something is proved on the balance of probabilities, simply, if it is more probable than not. We do not agree, however, that intent is not a necessary element in improper driving. In the Committee’s view, it is a requirement in a charge of improper driving that the Informant needs to prove a mental element of a deliberate and intentional act.

[40] Having said that, the Committee is satisfied that Mr McNally has, on this occasion, been guilty of a deliberate and intentional act. The video evidence, in the Committee’s view, clearly supports the contention of the Stewards that Mr McNally did direct his horse’s head outwards in what we find was an attempt to shift it outwards to make room on his inside for Mr Edmonds to progress. We also noted that, as pointed out by Mr McIntyre, that Mr McNally had then shifted his sulky outwards, enabling a full run for Mr Edmonds. We preferred Mr McIntyre’s evidence in this respect to Mr McNally’s explanation that he was attempting to shift his sulky outwards to avoid locking wheels with Mr Edmonds. Such actions by Mr McNally constitute improper driving

[41] Mr Ydgren described such actions by Mr McNally as “non-competitive conduct”. The Committee agrees and sees such conduct as eliminating an important aspect of a fair contest in which all runners are driven competitively by their drivers to ensure that their horse finishes in the highest possible finishing position and without assisting or giving any advantage to any other runner.

[42] “Improper driving” in the Penalty Guide is defined as “not in accordance with accepted rules of behavior”. Another way of putting it, in a harness racing context, is driving in a manner which is inappropriate or incorrect.

[43] For the reasons given, the Committee is satisfied that Mr McNally’s actions on this occasion were inappropriate and not in accordance with accepted rules of behavior and, accordingly, we find the charge of improper driving to be proved.

DECISION
[44] The charge was found proved.

PENALTY SUBMISSIONS
[45] Mr Ydgren said that, to date this season, Mr McNally has had 241 drives and last season he drove on 356 occasions. He is a “fairly busy driver”. He would drive, on average, 3-4 drives per meeting in the Canterbury region, but this can range from between two and seven. He has six drives at tonight’s (20th July) meeting and had seven drives at a recent Forbury Park meeting.

[46] In the past several months, Mr McNally has made trips several to Otago / Southland and, while not a regular in that area, this should be taken into account by the Committee, Mr Ydgren said.

[47] Mr McNally has a clear record under the Rule. Stewards saw this breach as being at least mid-range. Lesser offences, such as driving inside pylons to gain an advantage, can be charged under improper driving but the present breach is more serious than those. Mr Ydgren conceded that there could also be worse cases amounting to improper driving.

[48] Mr Ydgren referred to the Penalty Guide starting point of a 25-drives suspension for a mid-range case of improper driving and Stewards were submitting that that was an appropriate starting point for penalty in this case. This was the first charge under this Rule since the starting point was increased from 20 to 25 drives in 2017. Mr McNally should be given some credit for his clear record and his cooperation and professional manner dealing with the Stewards and at the hearing, Mr Ydgren said. The submission of the Stewards was for a suspension for five meetings.

[49] Mr McNally had no submissions to make in relation to penalty. However, when it was pointed out to him that, if he wished, he could seek a deferment of a suspension for a period of up to 7 days if he had any driving engagements within that period, he indicated that he did seek such a deferment.

[50] The hearing then looked at upcoming meetings at which Mr McNally would be likely to drive.

REASONS FOR PENALTY
[51] In determining penalty, the Committee took the Penalty Guide starting point of a 25-drives suspension. In the Committee’s view, there were no aggravating factors that required an uplift to that starting point. We agreed that the degree of seriousness was mid-range. The consequences of Mr McNally’s actions did not have the effect of making any significant difference to the result of the race. HEAVENLY LOVE finished in 5th placing, earning a stake $150 greater than that for a placing 6th to last, which stake was not really significant, and no betting pool was affected.

[52] Mitigating factors were as referred to by Mr Ydgren. The Committee considered that those factors warranted a discount of five drives from the starting point. We were prepared to convert the result of twenty drives on the basis, in Mr McNally’s case, to four drives per meeting, or five driving days noting that he had six drives on this night and had recently had seven drives at a Forbury Park meeting. Four drives per meeting was at the top of the range submitted by Mr Ydgren.

[53] Mr McNally’s Open Horseman’s licence was suspended from after the close of racing on Friday, 27th July next for a period up to and including Sunday, 12th August 2018. The race meetings intended to be encompassed by the period of suspension are Oamaru HRC on 29th July, NZ Metropolitan TC on 3rd August, Forbury Park TC on 5th August, Gore HRC on 11th August and Rangiora HRC on 12th August 2018. Mr Ydgren invited the Committee to include the Forbury Park and Gore meetings and we agreed that they ought properly to be included having regard to his submissions.
 

R G McKenzie
CHAIR

 

 

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