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Auckland TC 7 May 2021 - R 2 (heard 13 May 2021 at Alexandra Park) - Chair, Mr G R Jones



869(3)(b) and (f)

BEFORE A JUDICIAL COMMITTEE

AT AUCKLAND

IN THE MATTER of the New Zealand Rules of Harness Racing

IN THE MATTER of Information No. A12993

BETWEEN Mr Steve Mulcay Senior Stipendiary Steward for the Racing Integrity Unit

Informant

AND Mr Tate Hopkins Licensed Amateur Driver

Respondent

Judicial Committee: Mr GR Jones, Chair - Mr B Scott, Member

Date of Hearing: 13 May 2021

Present: Mr Mulcay for the Informant and Mr Hopkins representing himself

Date of Oral Decision: 13 May 2021

Date of Written Decision: 15 May 2021

REASONS FOR DECISION OF JUDICIAL COMMITTEE

The Charge:

[1] This is a defended hearing arising from the running of Race 2, a 1700 metre mobile pace for Amateur Drivers which was run at Alexandra Park on 7 May 2021. The charge was adjourned on the night of 7 May 2021 and heard at the same venue prior to the commencement of racing on 13 May 2021.

[2] The Informant Senior Stipendiary Steward Mr S Mulcay, filed an Information alleging that Amateur Driver Mr T Hopkins drove either improperly or (in the alternative) carelessly.

[3] The Particulars of the charge(s) set out in Information No. A12993 are that:

Improper driving charge

Mr Hopkins drove improperly rounding the final turn by shifting his mare outwards which presented a run to the trailing PRODIGAL PETE (S Wigg); or alternatively.

Careless driving charge

Mr Hopkins drove carelessly rounding the final turn by shifting his mare outwards which presented an inside run to the trailing PRODIGAL PETE (S Wigg).

The Rules

[4] Rules 869 (3)(b) and (f) provide that:

No Horseman in any race shall drive:

(b) Carelessly

(f) Improper

The Plea

[5] The Respondent has noted on the Information “I do not admit the breach of the rule(s)” and at the commencement of the hearing he confirmed this to the panel.

The Penalty

[6] The penalty for Improper and Careless Driving is covered by the General Penalty provisions contained within Rule 1003(1).

[7] The JCA Penalty Guide recommends the following starting points:

(a) The Careless Driving r (869(3)(b) penalty is – 10 drive suspension or $500 fine.

(b) The Improper Driving r (869(3)(f) penalty is – 25 drive suspension.

(c) Improper driving is defined as “not in accordance with accepted rules of behaviour”.

General Information

Disclosure

[8] The Respondent has acknowledged he has been provided with all the relevant (disclosure) documents including a copy of Information Number A12993 and a copy of the decision RIU v S R McNally (24 July 2018) which Mr Mulcahy indicated prior to the hearing that he intended to refer to during his submissions.

The Standard of Proof

[9] In accordance with Rule 1008A “Where in any proceeding, any matter is required to be proved by an informant or defendant, the standard of proof shall be the balance of probabilities”.

[10] This simply means that the standard is met when the Judicial Committee (“the Committee”), having heard the evidence, is satisfied it is more probable than not the alleged breach occurred (or did not occur), and therefore charge is found to be proved (or not proved) on that basis.

Evidence and Submissions for Decision

[11] When the Information was filed on 7 May 2021 it was intended that the charge be heard on the night, however due to a combination of technical impediments and other issues, by agreement of all parties the charge was opened and adjourned.

Evidence of Miss S Wigg

[12] Prior to the adjournment of the hearing Mr Hopkins indicated that he wished to call evidence from Licensed Trainer Miss S Wigg, the trainer of the horse MIGHTY MONICA. The Committee on the night was advised that Miss Wigg had horses on a float waiting to be transported home and it was agreed that she could provide an oral statement to the Committee concerning the horse’s gear and its racing manners.

[13] It was Miss Wiggs’ evidence that MIGHTY MONICA normally wears a “murphy” on the inside but on this occasion, she forgot to put it on because she was busy tending to the 3 horses she had in the race. She said that is possibly a reason why she (MIGHTY MONICA) has laid in.

[14] In addition, the Committee was advised that Miss Wigg did not provide Mr Hopkins with any driving instructions.

[15] Miss Wigg’s evidence was not contested by Mr Mulcay, nor did he wish to cross examine her on any aspect of her evidence. He therefore agreed that her evidence could be formally admitted as evidence at the subsequent defended hearing.

[16] On that basis the Committee dispensed with any further proof of the fact that the horse normally wears a ‘murphy’ which we understand to be a blind fitted over the eye to restrict vision. The Committee also clarified that such a blind is not required to be notified under the Notifiable Gear Regulations. Therefore, Miss Wigg was under no obligation to notify the change of gear.

Evidence of Mr Mulcay

[17] Mr Mulcay provided the Committee with his written evidential statement which he referred to when using the race films as an aide to demonstrate the alleged breach.

[18] It was Mr Mulcay’s evidence that Mr Hopkins was the driver of MIGHTY MONICA in Race 2 the “Bus to the Jewels from Alexandra Park Mobile Pace” – an Amateur Drivers event for horses rated at up to and including R52. The race was run over 1700 metres from the mobile. MIGHTY MONICA drew barrier 6 off the front and was driven forward early to cross stablemate PRODIGAL PETE (S Wigg) to lead near the 1300m.

[19] At this point Mr Mulcay produced that race sectionals with the first quarter being run in 28.8 seconds and the second quarter in 28.5 seconds. He said that MIGHTY MONICA was tractable in its racing action and was not an unduly difficult drive for Mr Hopkins.

[20] He stated that MIGHTY MONICA continued in the lead and received some midrace pressure from EYECON (N Munro). MIGHTY MONICA then shifted outwards away from the marker line inside the 300m with a clear run being presented to the trailing PRODIGAL PETE on straightening for the run home approximately 20 metres prior to the commencement of the passing lane.

[21] Mr Mulcay said that nearing the 400 metres Mr Hopkins activated the mare’s deafeners and applied pressure to the left rein. Using the films, he showed several angles where Mr Hopkins turned MIGHTY MONICA’S head to the outside about 20 metres prior to the passing lane. Mr Mulcay said that MIGHTY MONICA raced off the pegs for some considerable distance and when questioned about this Mr Hopkins told race night Stewards that he was taking pre-emptive action to prevent his horse from shifting inwards due to the fact it was not wearing a ‘murphy blind’. On this point Mr Mulchy demonstrated that MIGHTY MONICA raced “a good cart width” off the pegs for some distance and then when rounding the bend into the home straight shifted even wider.

[22] Using the head on films Mr Mulcay showed that the run became available to Miss Wigg about 20 metres prior to the passing lane.

[23] Using the back straight film Mr Mulcay demonstrated that when the run became available Miss Wigg seized on it. He said that this was more than reasonable to expect because she knew the mare was not wearing a ‘murphy blind’ and Mr Hopkins expected his drive to possibly run in – not out. He added that Miss Wigg is the leading Amateur Driver, and she has observed MIGHTY MONICA’S shift out and she has taken advantage of the run that was presented to her.

[24] Mr Mulcay said that it is quite evident Mr Hopkins turned his horse’s head out and has used his left hand to “work the rein and place constant pressure on it”. He said that the outward movement of MIGHTY MONICA also resulted in EYECON and M T POCKETS being inconvenienced when carried wider.

[25] MIGHTY MONICA has then weakened in the run home to finish in 7th place beaten 5.7 lengths while PRODIGAL PETE was run down late to finish in 2nd place beaten a ½ head.

[26] Mr Hopkins was then interviewed by Stewards with Trainer S Wigg giving preliminary evidence in relation to the gear previously worn by MIGHTY MONICA along with the mare’s racing manners (refer paragraphs 12 to 16).

[27] Mr Mulcay referred the Committee to Rule 1008 which provides that:

In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:

(a) It shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule; and

(b) Any breach of a Rule shall be considered as an offence of strict liability.

[28] Mr Mulcay then referred to the decision RIU V S McNally (24 July 2018), an Improper Driving charge which he submitted was similar in its circumstances to the present charge. He pointed out that in McNally Stewards summed up under point [30] as follows:

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.”

[29] Mr Mulcay said that the Committee hearing the McNally case provided the following comments concerning strict liability and intent.

“[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.

Stewards do not support this finding though and prefer the opinion arrived at by the Judicial Committee in the NRI RIU V B Shirley 13 May 2013 whereby the following finding was arrived at in point (112) "A further issue raised by counsel was whether R869 (3)(f) requires proof of mens rea (intention) or was a breach of strict liability. As this was an issue of some importance, we requested that counsel provide written submissions, and the delivery of this decision was delayed whilst these submissions were received. We thank counsel for their comprehensive submissions. Because of our findings on the evidence, it is not necessary for us to determine this matter. However, having had the benefit of considering counsel's submissions we would have held, had it been necessary, that neither the wording, the context nor the purpose of the provision would lead us to conclude that the presumption in R 1008 was displaced in this instance, and consequently that R 869(3)(f) should be construed as a breach of strict liability”.

[30] Mr Mulcay alluded to other commentary in the McNally case concerning “deliberate and intentional act”, “non-competitive conduct” and the definition of “Improper driving” as set out in the Penalty Guide. He asked the Committee to consider those comments insofar as they applied to this case.

[31] With reference to this issue the Respondent confirmed to us that he had the opportunity to read the McNally decision prior to the hearing.

[32] In addition to the McNally case, Mr Mulcay referred the Committee to another improper driving decision namely RIU V N R McGrath (10 February 2020) – where the Committee Chair his Hon J W Gendall QC, said:

(19) We have to ask ourselves why would Mr McGrath drive his horse in an improper manner in breach of the rules? He is an experienced trainer and driver (although has less drive (sic) now than in the past) and cannot be regarded as a learner, or incompetent, or careless. Mr Hall QC in his submissions on penalty said he changed his plea to guilty because the offence of improper driving was one of “Strict Liability” so as not to require any intention on the driver’s part. We do not accept that as correct. There does not have to be corrupt intent but if the improper driving is not deliberate or intentional, or just mistaken, then it is incompetent driving. “Improper” means incorrect and not in accordance with accepted norms of behaviour and established recognised expectations of how a person should act in like circumstances. An act of driving becomes improper (rather can (sic) negligent, incompetent, careless) when the act of driving is intentional, and all the evidence and his plea satisfies us that the cumulative and total circumstances of all his actions comprised improper driving.

(21) We can attribute the actions of improper driving on this occasion to complete stupidity and very unwise actions as the admitted charge does not involve deliberate dishonesty. But if there is driving in races, where a stable or trainer has more than one horse, and the true competition required of each horse is SEEN to be compromised by the manner of driving to secure or result (in) an advantage to another, then the integrity of the sport is harmed, and it is detrimental to its image and confidence the community ought to have in the code.

Cross Examination

[33] The Committee asked the Respondent whether he had any questions of Mr Mulcay in cross examination. In response he told the Committee that he had no questions. The Committee impressed upon Mr Hopkins to reconsider whether there was any aspect or matters arising from Mr Mulcay’s evidence that he wished to test or challenge, and he reassured us that he did not wish to raise any matters.

Evidence of Mr Hopkins

[34] In his evidence the Respondent said that “I accept that I drove carelessly” and “yes, I was working on the reins”.

[35] He said that it was only after watching the race films that he realised that he was racing “off the pegs” and that he was working the reins because he didn’t want his drive to run in, but he said, “I used a bit more force than I should have”.

[36] The Respondent further stated that rounding the bend into the home straight he overreacted when the inside runner (PRODIGAL PETE) touched his sulky wheel. He said that the “touch was hard to see on the films” and that is why he pulled hard on the reins. The Committee invited the Respondent, using the race films (in slow motion), to demonstrate at what point his wheel was touched, but he was unable to do so. When asked by the Committee why he did not look around when this occurred, he responded “I panicked, I didn’t want to cause an accident”. He went on to state that he pulled the horse’s head with more force than intended and shifted out further on the track.

Cross examination

[37] Under cross examination Mr Mucay asked the Respondent several questions concerning the horses running gear, in particular the ‘burrs’ MIGHTY MONICA was wearing. He said that she had two burrs on the inside to keep her head straight and also a wrap-around burr. He said that he was tugging on the rein around the bend into the straight so that the “burrs would wake her up” (and ensure she ran straight).

[38] The Respondent was further questioned as to why, during the post-race Stewards investigation on the night, he never raised the fact that his sulky wheel had been contacted by PRODIGAL PETE. He said that he did not raise it because he was “flustered”, and it did not cross his mind to raise it.

[39] In concluding his evidence, the Respondent stated that he received no driving instructions as the mare had been going good in her recent races, despite having had bad draws and he wanted to take up a forward position.

Summing up – Informant

In summing up the case for the Informant, Mr Mulcay submitted:

[40] That Stewards submit Mr Hopkins was aware PRODIGAL PETE was on his back rounding the final turn and as such should have been more vigilant in maintaining his true running line given the likely consequences and adverse public perception that would result if PRODIGAL PETE gained an inside run prior to the passing lane.

[41] That at no stage has MIGHTY MONICA proved to be unduly difficult in the way it was driving and at no stage has given any indication of wanting to shift up the track.

[42] That the situation of a stablemate being provided with an unfair inside run is totally unacceptable to Stewards and strikes at the heart of the Industry’s integrity given that the Industry is driven by the gambling dollar and maintaining public confidence in that integrity is paramount.

[43] That although there is no clear proof as to Mr Hopkins’ intent, it is plainly evident that his actions from inside the 300m to near the 200m have resulted in MIGHTY MONICA shifting up the track which provided PRODIGAL PETE with an inside run earlier than to which it was entitled.

[44] That in considering whether the charge under Rule 869 (3)(f) has been proved it is essential that the Committee settle upon whether Rule 1008 is applicable or that intent must be established.

[45] That Stewards maintain Mr Hopkins’ actions rounding the final turn in shifting MIGHTY MONICA outwards were improper by clearly being inappropriate and not in accordance with accepted rules of behaviour and as such we submit that the charge under Rule 869 (3)(f) should be upheld.

[46] That should the Committee find the charge of Improper Driving under Rule 869 (3)(f) not proved; the lesser charge of Careless Driving under 869 (3)(b) lodged in the alternative should then be upheld as Mr Hopkins has clearly failed to display all due care and attention in relation to where MIGHTY MONICA was positioned relative to the marker line on the final turn and early stages of the run home which resulted in PRODIGAL PETE being presented with the inside run.

[47] In concluding his submission, Mr Mulcay said that the Respondent was previously licensed as a Junior Driver in New Zealand for 7 years and licensed as a Junior in Australia for 1 year. During that 8-year period he had a total of 28 drives. Furthermore, he has been licensed as an Amateur for less than 2 years and in the 2019/2020 season had a total of 7 drivers and so far, this season has had 8 drives. On that basis, Mr Mulcay submitted that it is fair to say Mr Hopkins is a relatively inexperienced driver.

Summing up – Respondent

In summing up his case, the Respondent submitted:

[48] That he is an inexperienced driver.

[49] That after watching the race films and replay of the incident he accepts that there are several things he could have done differently.

[50] That he did not intend to pull out to enable or help the stablemate to get a clear run and by nature he submitted he is a competitive person/driver.

Reasons for Decision

[51] After reviewing the race films (several times) and considering the submissions we found the charge of improper driving proved to the requisite standard.

[52] We were asked to consider whether the shift outward by MIGHTY MONICA was an intentional act to enable the stablemate, PRODIGAL PETE, early access to the passing lane, thus giving that runner an advantage over other horses; or whether the shift was simply the result of a mistake, or an error of judgement or lack of care, on the part of the Respondent.

[53] Our interpretation of the films, particularly the head-on, leaves us in no doubt that the Respondent pulled the left rein and turned MIGHTY MONICA’S head in an exaggerated and deliberate manner. The act in our opinion was not a mistake, nor was it the result of bad judgement, or was it attributable to the horse’s racing manners. We thus concluded that there was an element of recklessness, and therefore intent, about the manoeuvre because the Respondent must have had some foreseeable knowledge or insight that by turning MIGHTY MONICA’S head out, as he did, a gap would have emerged for the stablemate as a direct consequence of that action. It was also noteworthy that once the stablemate took the gap, MIGHTY MONICA showed no fight and drifted back to finish in the second to last place.

[54] In his defence the Respondent stated that a reason for his outward shift was that PRODIGAL PETE got up on his inside and touched his sulky wheel. We looked very carefully at this and found that it could not be corroborated. The films simply do not support this. Furthermore, it was not raised by either the Respondent or Miss Wigg in their post-race interviews with Stewards; nor did Miss Wigg raise it in her evidence. Given its significance we would have expected it to have been raised so that the necessary enquiries could have been undertaken on the night.

[55] We did consider the evidence of Miss Wigg concerning the MIGHTY MONICA’S tendency to lay in due to not having a murphy blind fitted. And when viewing the films, we did notice that the horse layed in ever so slightly (marginally at best) rounding the turn but after straightening, Mr Hopkins directed his drive out free of interference and free of any difficulties relating to his horse’s racing manners.

[56] The Committee noted that improper driving has a wide meaning, and its application covers a range of behaviours including (a) not in accordance with the rules; (b) abnormal; (c) incorrect; or (d) wrong [reference Victorian Harness Racing v Harnett (18 December 1989)]. In the RIU v N R McGrath (2020) decision – the Committee Chair Hon J W Gendall QC, succinctly couched ‘improper’ in the following terms:

“Improper” means incorrect and not in accordance with accepted norms of behaviour and established recognised expectations of how a person should act in like circumstances. An act of driving becomes improper (rather can (sic) negligent, incompetent, careless) when the act of driving is intentional, and all the evidence and his plea satisfies us that the cumulative and total circumstances of all his actions comprised improper driving.

[57] Using the McGrath characterisation of ‘improper’ as a guide for assessing the Respondent’s liability we conclude that his actions were clearly not correct or in accordance with the Rules, and we therefore find that his actions were abnormal and incorrect as per the definition. This is not a case of simply bad judgement or a mistake as we believe there was an element of intent on the Respondent’s part and for that reason the improper driving charge is upheld, and the charge of careless driving is dismissed.

Decision

[58] As indicated in the above paragraph we find that the charge of improper driving is upheld.

Submissions as to Penalty (RIU)

In his penalty submissions Mr Mulcay submitted that:

[59] The JCA Penalty Guide establishes a 25-drive suspension as the starting point.

[60] In assessing penalty, the RIU submit that the charge is serious, and the public’s perception of the drive is an important consideration.

[61] The Respondent has been an Amateur Driver for 2 seasons and has had no previous charges or breaches of this nature.

[62] The Amateur Driver programme has not been published for either the remainder of this season (2020/21) or for the start of next racing season (2021/22), therefore it is difficult to affix race dates to meetings or provide any indicative dates with any accuracy.

[63] This dilemma led to some discussion upon which we agreed that the Respondent would likely be available to drive in at least 2 Northern Amateur races per month in the immediate future and penalty calculations could be determined on that basis.

Conclusion

[64] Mr Mulcay concluded that the inside run was presented to the stablemate within 20 metres of the passing lane who upon taking the run, came to the end of its run and was beaten into second place; therefore, the breach is, in the Stewards’ view, at the lower end of the scale.

[65] Mr Mulcay submitted that based on the Stewards’ assessment of improper driving a suspension that encompassed the remainder of this season and the first 3 months of next season would be an appropriate penalty. He added that in addition Stewards would not oppose a modest fine in lieu of some of the suspension period.

Submissions as to Penalty (Respondent)

In relation to penalty Mr Hopkins submitted:

[66] That he fully agrees that he only has 2 driving opportunities per month.

[67] That if the full 25 drive starting point (as set out in the Guide) was applied it would result in a 12-month suspension which he submitted would be excessive and unduly harsh.

[68] That as an Amateur Driver he does not receive any remuneration from driving in races.

[69] That although he is employed full-time, he may struggle to pay a fine as he has a young family (including a recent baby).

Reasons for Penalty

[70] In terms of penalty the Committee has considered the facts and submissions lodged by the Informant and the Respondent. As we have already highlighted (under the sub-heading Reasons for Decision) we have found the improper driving charge proved and we have assessed the Respondent’s culpability to be in the low to mid-range.

[71] Although the Penalty Guide has a 25-drive starting point, we have noted that penalties for previous breaches of the Improper Driving Rule have tendered to be fact dependent, thus providing scope for a wide range of penalties to be imposed.

[72] Foremost in our thinking is that any penalty we impose must ensure that the integrity and public trust and confidence in Harness Racing is maintained. We must also impose a penalty that deters others from driving in a manner that may or has the potential to erode public confidence.

[73] We have also had regard for the Respondent’s Amateur Driver status which among other things means that he does not derive any remuneration from his drives.

[74] Furthermore, the Respondent only took out an Amateur Driver’s Licence at the beginning of this (2020/2021) season and so far, he has had 8 drives. He is therefore an inexperienced driver even though previously over a period of 8 years he had 28 drives as a Junior Driver.

[75] We are also mindful that the long-term programme for Amateur Driver races has not been promulgated, but we understand that it can be anticipated there will be 2 Amateur Driver races scheduled per month at meetings in each of the North and South Islands. Therefore, if the Respondent were to have a drive in each of the 2 North Island meetings per month, we can comfortably assess his proposed penalty on that basis.

[76] An undeniable aggravating factor is that the horse that benefitted from having early access to the passing lane, PRODIGAL PETE, did gain some advantage and went on and finished in second place. We do not know if PRODIGAL PETE would have finished in second place in any event had it waited for the passing lane and we do not have to decide on that point at this juncture. However, from an integrity standpoint the optics of the stablemate seemingly gaining an advantage is not a good look and does nothing to enhance public confidence in the Industry.

[77] In the final result after weighing the various factors we determined that a 13-drive suspension is an appropriate penalty. This equates to 6 months and 2 weeks.

Penalty and Costs:

[78] Mr Hopkins’ Amateur Horseman’s Licence is suspended, commencing on 13 May 2021, and concluding on 30 November 2021 (inclusive). Although this is 6 months and 2 weeks it equates to 13 drives based on 2 drives per month.

[79] In addition, we dismiss the (alternative) careless driving charge.

Costs

[80] Although this matter was heard on a raceday it was conducted as a Non-Raceday hearing. No costs have been sought by the RIU. Similarly, the JCA do not seek recovery of costs incurred. On that basis we make no order for costs.

G R Jones (Chair)

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