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Appeal NZGRA - S Gommans - 14 July 2010 - Decision

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BEFORE AN APPEALS TRIBUNAL

HELD AT PALMERSTON NORTH

 

IN THE MATTER    of the Rules of Racing of New Zealand Greyhound Racing Association (Incorporated)

 

BETWEEN                 S D GOMMANS of Palmerston North, Licensed Trainer

 

                                         Appellant

 

AND                         NEW ZEALAND GREYHOUND RACING ASSOCIATION (INCORPORATED)

 

                                Respondent

 

Tribunal:                 R G McKenzie (Chairman)

                                       N Moffatt (Panellist)

 

Date of Hearing:   Tuesday, 29 June 2010                                                   

 

Present:                  Mrs S D Gommans (the Appellant)

                              Mr G Whiterod Stipendiary Steward (representing New Zealand

                                       Greyhound Racing Association (Inc)

                                       Mr J P Gommans

                                       Mr P Williams (Registrar)

 

Date of Decision: 14 July 2010

RESERVED REASONS OF APPEALS TRIBUNAL

 

Background

Mrs Gommans, the Appellant, is the trainer of the greyhound, MAN OH MAN (Sep 2007 BE dog by Winsome Man-Gunnadoo Lass).

 

On 9 June 2010, MAN OH MAN started in Race 3, Broad Roofing Services Wanganui, at the meeting of Wanganui Greyhound Racing Club held at Hatrick Raceway, a race for C0 greyhounds over a distance of 305 metres. MAN OH MAN finished 3rd in the race, 2.10 metres from the winner.

 

Following the race, the Stipendiary Steward, Mr Whiterod, investigated the run of MAN OH MAN. The Incident Report for Race 3 states:

 

MAN OH MAN turned its head towards ALL ABOUT LOUD in the home straight and he was examined by the Vet and found to have a deltoid injury requiring a 7 day standown. However, he was stood down for 3 months for a 2nd offence under Rule 80.1.b and is required to complete a satisfactory trial.

 

Mrs Gommans has appealed against the finding of the Stewards and the penalty. The ground of appeal is stated to be:

 

After watching the race several times and the opinions of respected trainers the dog did not turn his head or fail to pursue the lure.

 

The relevant Rule is Rule 80.1 which provides as follows:

 

Where a Greyhound, in the opinion of the Stewards:

b.      fails to pursue the Lure in a Race;

the Stewards may impose the following periods of suspension.

ii.  in the case of a second similar offence, three (3) months and until the  completion of a Satisfactory Trial.

 

Procedure

Rule 97.4 of the Greyhound Racing New Zealand Rules of Racing provides that:

 

All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.

 

There was no hearing, as such, by the Stewards whose decision is appealed against. That being the case, the Tribunal decided that the procedure appropriate to this appeal was to hear all of the evidence of the parties and then look at the decision made by the Stewards in the light of that evidence.

 

Evidence/Submissions of Mr Whiterod

Mr Whiterod stated that MAN OH MAN was one of the favourites for the race and raced in a prominent position. He observed that, as the field came to the home turn, MAN OH MAN was racing outside ALL ABOUT LOUD and, soon after straightening, he observed MAN OH MAN turn its head in towards that other dog. That dog moved in slightly, away from MAN OH MAN and moved ahead because MAN OH MAN was concentrating on racing ALL ABOUT LOUD instead of chasing the lure. He suspected that the dog may not have been pursuing the lure as required. Mr Whiterod said that he then went to the video replay which, he said, confirmed his earlier observation that MAN OH MAN had not pursued the lure during the race.

 

The dog was then vetted in accordance with the usual practice. The veterinary surgeon found that the dog had a slight injury requiring a 7-days’ stand down. Under the Rules, had the vet found an injury requiring a stand down of 21 days or more, the dog would not have been charged with failing to pursue the lure.

 

The matter was then discussed with the Judicial Steward of the day. Mr Whiterod said that he told the Judicial Steward that he believed that MAN OH MAN had not pursued the lure. The Stewards decided that this was the case and that the dog had not pursued the lure. Mrs Gommans later attended the Judicial Room and was shown the video replay a number of times. The matter was discussed at length with Mrs Gommans who did not agree with the Stewards’ finding.

 

Mrs Gommans had not availed herself of the right to have the dog re-examined by the vet or examined by another vet within 72 hours of the meeting, Mr Whiterod said. The relevant Rule was Rule 80.4. (Mrs Gommans later stated that she was not aware that she had the right to do so).

 

It was agreed by the parties, and the Tribunal permitted, that the video replay of the race at Manawatu on 8 March 2010, after which MAN OH MAN had been stood down on the first occasion, would be shown to the hearing.  Mrs Gommans said that she did not disagree with the decision to stand the dog down after that race.

 

Mr Whiterod then showed the video replay of the race in question to the hearing. He said that MAN OH MAN had joined ALL ABOUT LOUD on the outside, quite easily, and was “level pegging” with it and, at one stage, ahead of it. He alleged that MAN OH MAN then looked in at the dog on its inside, chasing that dog rather than the lure. ALL ABOUT LOUD moved away from MAN OH MAN and “for a split second”, for two strides, MAN OH MAN had been concentrating on chasing it rather than on pursuing the lure. ALL ABOUT LOUD had gained a slight advantage which it held to the end of the race. Prior to that, he alleged, MAN OH MAN held an advantage or was disputing the lead.

 

It was not alleged that MAN OH MAN had made contact with ALL ABOUT LOUD. Had it done so, a different Rule would have applied, Mr Whiterod said

 

Mr Whiterod explained that a head-on video replay was not available but that that situation is soon to be rectified by Greyhound Racing New Zealand.  

 

In response to a question from Mr Gommans, Mr Whiterod said that the first occasion on which MAN OH MAN had been stood down was much clearer. The incidents were similar. Mr Gommans suggested to Mr Whiterod that, in the race in question, the other dogs that finished ahead of it had been superior in ability to MAN OH MAN.

 

Evidence/Submissions of Mrs Gommans

Mrs Gommans used the video replay of the race. She submitted that, just prior to the home turn, ALL ABOUT LOUD clearly came off the rail into the line of and made contact with MAN OH MAN. That dog attempted to hold its line by leaning on ALL ABOUT LOUD until ALL ABOUT LOUD moved back down to the rail. She submitted that MAN OH MAN had become unbalanced.

 

Mrs Gommans stated that MAN OH MAN had, according to the veterinary surgeon,   sustained a shoulder injury in an incident just after leaving the boxes. That injury could possibly have been a reason for the dog not running on, Mrs Gommans submitted. She said that it could not be seen on the video that MAN OH MAN had turned its head in towards ALL ABOUT LOUD to “have a go” at or fight that dog.

 

A discussion followed in which Mr Whiterod was asked by the Chairman whether the injury sustained by MAN OH MAN could conceivably have affected the dog. He answered that a dog is given a “concession” for failing to pursue only when the injury is deemed serious enough by the vet to warrant a stand down of at least 21 days. He said that, given the dog’s history, he could not concede that the injury may have been a contributing factor. He did, however, concede that this alleged breach was at the lower end of the scale – it did not go on for long because ALL ABOUT LOUD moved away and established a margin.

 

Mr Whiterod refuted Mrs Gommans’ submission that ALL ABOUT LOUD had moved out and was taking the line of MAN OH MAN. All that the dog had done wrong was to turn its head for two strides in the home straight. He acknowledged that, after that, the dog concentrated on the lure again and raced and did not do a thing wrong. However, if a dog of its own volition turns its head, it is deemed to be not pursuing the lure, Mr Whiterod said. There was no more than a “brush” between the two dogs on this occasion.

 

Referring to the video replay, Mrs Gommans submitted that ALL ABOUT LOUD had come off the rail and hit MAN OH MAN and the two dogs were “shoulder to shoulder”. It was when the former moved back down and away, that MAN OH MAN had moved its head. He became unbalanced when the other dog moved away.

 

Mrs Gommans submitted that MAN OH MAN had done nothing to deserve being stood down for failing to pursue the lure. She did not believe that the dog had done anything wrong. In the 12 years that she has been training greyhounds, she has had four “fighters” put down – she does not persevere with dogs that are not honest. The dog deserved the benefit of the doubt. She referred again to the shoulder injury. She also said that she believed that ALL ABOUT LOUD was the better dog on the day – it had won its next start by 5 lengths.

 

Mr Whiterod’s Summation

The video replay clearly showed that MAN OH MAN, only for two strides, had turned his head in towards ALL ABOUT LOUD. Therefore, in his opinion, the dog had breached the Rule relating to pursuing the lure throughout a race and, by its actions for those two strides, it had affected its chances of finishing in a higher placing. He referred to the relative positions of the two dogs prior to the incident, the fact that the other dog got a slight advantage over MAN OH MAN during the incident and held that advantage right to the line. He believed that the decision to stand the dog down was justified, based on the evidence.

 

Mr Whiterod explained the raceday procedure at the request of the Tribunal. He said that he is the Stipendiary Steward. There is a Judicial Steward, who is his assistant. Any charges on the day, not serious, are discussed with the Judicial Steward and a determination made between them. The Judicial Steward would have viewed the video replay prior to discussing the matter with Mr Whiterod. Mrs Gommans would have been given the opportunity to view the video and discuss it with Mr Whiterod. Mrs Gommans would not have spoken to the Judicial Steward about the matter.

 

Mrs Gommans’ Summation

Mrs Gommans did not wish to avail herself of the opportunity to sum up or make any closing submissions.

 

Decision of Tribunal

The Tribunal had carefully listened to the evidence and submissions of both parties and viewed the video replays.

 

The relevant Rule, Rule 80.1.b, is one which depends on the opinion of the Stewards. We believe that this means that we have to be satisfied, having heard all of the evidence, that no reasonable Stewards could reasonably have formed the opinion, which the Stewards did on this occasion, in all of the circumstances.

 

The issue to be determined then by this Tribunal is whether the Stewards had reasonable grounds for their opinion that MAN OH MAN did not pursue the lure with due commitment in the running of the race, after it turned into the home straight. The Tribunal acknowledges that it is a difficult matter for an Appellant to succeed and discharge the onus of proof in respect of an appeal under a Rule which is expressed in terms of “in the opinion of the Stewards”.

 

In arriving at its decision, the Tribunal had regard, principally, to the following matters:

1.     The video evidence in this case was unsatisfactory to say the least. In particular, the lack of a head-on video replay was regrettable. Mr Whiterod may well have been assisted in his case by a head-on video replay – he was certainly not assisted by the lack of one. The Tribunal examined the video evidence very carefully and it was difficult to clearly determine that MAN OH MAN had turned its head, as alleged by the Stewards. 

 

2.      Mrs Gommans submitted to the Tribunal, and it was apparent to the Tribunal, that ALL ABOUT LOUD did appear to move outwards approaching the home turn and, in doing so, made contact with MAN OH MAN which appeared to be endeavouring to hold its line. The Tribunal is of the view, having made that finding, that ALL ABOUT LOUD contributed, or may have contributed, to the incident to a significant degree.

 

3.      Although Mr Whiterod made the position of Greyhound Racing New Zealand very clear, in relation to injuries sustained by greyhounds during a race, the Tribunal is reluctant to find that the deltoid injury sustained by MAN OH MAN during the running did not contribute in any way to the racing manners of that greyhound.

 

The effect of the above matters is to raise appreciable doubt that MAN OH MAN has failed to pursue the lure on this occasion.

 

With regard to the standard of proof, the Tribunal takes the view that, in this instance, it is higher than a balance of probabilities. The consequences to MAN OH MAN, should it be stood down for a second offence, are quite serious as far as its racing future is concerned, requiring proof to a higher standard.

 

Taking all of the above matters into account, the Tribunal is not satisfied, to the required standard, that MAN OH MAN failed to pursue the lure in breach of Rule 80.1.b on this occasion. Clearly, uncertainty does exist in this particular case. The Tribunal is satisfied that MAN OH MAN should be entitled to receive the benefit of the doubt. In view of that uncertainty, we find the Stewards were in error in forming their opinion.

 

The Tribunal upholds Mrs Gommans’ appeal and, as a consequence, the finding of the Judicial Steward at the meeting of Wanganui Greyhound Racing Club at Hatrick Raceway on 9 June 2010, in terms of which MAN OH MAN was stood down for a period of 3 months, is quashed and it follows that the stand down of 3 months imposed on MAN OH MAN is lifted from 29 June 2010.

 

Costs

Mrs Gommans did not seek an order for costs and no order was made.

 

 

R G McKenzie                          N Moffatt

CHAIRMAN                     PANELLIST

 

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