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Appeal - SP Clark V NZGRA - 21 September 2010 - Decision

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AN APPEALS TRIBUNAL

 

HELD AT AUCKLAND

 

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

 

BETWEEN     STEPHEN PAUL CLARK of Dairy Flat, Albany, Licensed Trainer

 

                        Appellant

 

AND           NEW ZEALAND GREYHOUND RACING ASSOCIATION (INCORPORATED)

 

                  Respondent

 

Appeals Tribunal:    BJ Scott (Chairman)

                             AJ Dooley (Panellist)

 

Date of Hearing:      Tuesday 21st September 2010

 

Present:    Mr SP Clark (the Appellant)

               Mr G Whiterod Stipendiary Steward (representing New Zealand Greyhound Racing Association (Inc)

                   Ms K Wilson (in support of Mr Clark)

 

Date of Decision:    21 September 2010

 

 

 

DECISION OF APPEALS TRIBUNAL

 

 

Background

 

1.1     Mr Clark, the Appellant, is the Trainer of the Greyhound Snowblind.

 

1.2     On the 9th of August 2010 Snowblind started in Race 2 at the Palmerston North Racing Club’s Meeting held at Manawatu Raceway.   Snowblind finished 2nd in the race.

 

1.3     Following the race the Stipendiary Steward Mr Whiterod investigated the run of Snowblind.

 

The Stipendiary Steward’s report for the race states:

 

“Snowblind led to the first corner but then eased losing several lengths before running on again to finish in 2nd place.   Snowblind was examined by the vet and found to be suffering from a minor gracilus muscle injury with a seven day stand down but was then charged with failing to pursue the lure and after hearing relevant evidence and submissions from the Kennel Representatives and viewing video films at length the charge was proven and as it was the second offence Snowblind was stood down for three months and is required to complete a satisfactory trial under Rule 80.1.”

 

1.4     Mr Clark appealed against the finding of the Stewards and the penalty.   The grounds of appeal were stated to be:

 

(i)       Snowblind suffered an injury during the race as per the Veterinary Certificate provided on the day.

 

(ii)      The nature of the track.

 

(iii)      Inconsistency of Stewards’ decisions.

 

Mr Clark, as Appellant, also in his notice asserted:

 

          “At no stage did Snowblind ever fail to pursue the lure;  her eyes never deviated from the lure.”

 

1.5     The relevant Rule is 80.1.b(ii) 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.

 

The Rule was read to Mr Clark and he acknowledged that he understood it.

 

 

Procedure

 

2.1     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.”

 

2.2     There was no recording or transcript of the Hearing 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

 

3.1     Mr Whiterod stated that Snowblind started in Race 2 at the Palmerston North Greyhound Club Meeting on the 9th of August 2010.   Snowblind drew box 1 and jumped well and lead and near the first corner it eased for a few strides and lost several lengths.

 

3.2     Mr Whiterod said that after that it then pursued the lure and chased hard right to the finish.

 

3.3     He said that the easing by Snowblind was such that in his opinion it failed to pursue the lure and it breached Rule 80.1.b.

 

3.4     Mr Whiterod at the meeting commenced a Hearing into the performance of Snowblind and Mr M Austin, the Assistant Stipendary Steward on the day became the Adjudicating Steward in terms of the procedure under the NZGRA (Inc) Rules.   Mr Whiterod said that the Hearing had to be adjourned during the Meeting so that a veterinary inspection of Snowblind could be undertaken.   The result of the veterinary inspection was that Snowblind was found to have a gracilus muscle injury and the vet Certificate provided for a seven day stand down.   Mr Whiterod produced the Certificate at the Hearing.   Under the Rules, had the vet found an injury requiring a stand down of 21 days or more then Snowblind would not have been charged with failing to pursue the lure.

 

3.5     Mr Whiterod said that during the Hearing on the day he told the Adjudicating Steward that he (Mr Whiterod) believed that Snowblind had failed to pursue the lure.   Ms Wilson as Kennel Representative was present at the Hearing and the video film of the race was shown a number of times.   The Stewards decided that Snowblind had not pursued the lure and this was the finding on Raceday.   Ms Wilson did not agree with the Stewards’ finding on Raceday.

 

3.6     Mr Whiterod referred the Tribunal to Rules 80.2 and 80.3 which deal with the veterinary inspection if a greyhound fails to pursue the lure.   He further drew the Tribunals attention to Rule 80.4 which gives the owner or trainer of a greyhound the right for a further veterinary examination within 72 hours after the completion of the Meeting at which the greyhound failed to pursue the lure.   He said that the purpose of this Rule was to allow for the greyhound to be re-examined once it had cooled down and after Raceday.   Mr Whiterod said that if the greyhound had have suffered a serious injury then it would be picked up once the greyhound underwent the further veterinary examination as provided for in the Rules.

 

3.7     Mr Whiterod advised the Tribunal that in this instance neither Mr Clark nor Ms Wilson had applied for a veterinary re-examination.

 

3.8     Mr Whiterod advised that following the seven day stand down and on the basis that this was a second occasion for Snowblind then it was suspended from racing for three months and until it completed a satisfactory trial.

 

3.9     Mr Whiterod used the video films of the race to show the incident.   He confirmed that Snowblind drew the 1 box and it was up with the leaders and he showed where dogs 6 and 7 were alongside it but wider on the track.   He pointed out that there was some pressure between dogs at 6 and 7 but there was a wide gap between the number 6 dog and Snowblind.

 

3.10    Mr Whiterod pointed out where Snowblind eased just prior to the first bend and he said that as far as he was concerned Snowblind eased for no apparent reason.   He told the Tribunal that Snowblind prejudiced its chances by easing and failing to pursue and then running on.

 

3.11    Mr Whiterod also showed us a head on view of the first part of the race and he showed that there was plenty of room between Snowblind and the dogs on the outside of it and there was no pressure on Snowblind at all.   He said that after Snowblind had eased it then began to race again and in his opinion raced hard to the finish and raced like a dog that was fit to run.

 

3.12    Mr Whiterod said that as far as he was concerned the actions of Snowblind meant that it failed to pursue the lure and was therefore subject to the penalties under Rule 80.1.

 

3.13    Mr Clark was then given the opportunity to question Mr Whiterod on his evidence.   He asked Mr Whiterod if he believed that Snowblind could have won the race and Mr Whiterod said that he doesn’t know because as a result of Snowblind easing at the first bend it prejudiced its chances of winning.

 

3.14    Mr Clark also asked if the head on film showed whether Snowblind eased or pulled up and Mr Whiterod said that it did not pull up but the dog was charged with failing to pursue the lure.

 

3.15    Mr Clark asked Mr Whiterod what was the test for failing to pursue and Mr Whiterod said “a dog easing at a critical point in the race and not pursuing the lure throughout the race.”

 

 

Evidence/Submission of Mr Clark

 

4.1     Mr Clark said that in his opinion Snowblind was charged under the wrong Rule and as far as he was concerned there was no evidence whatsoever of Snowblind failing to pursue the lure.   He spoke of Snowblind’s previous racing history and the fact that it had been stood down previously in Australia and he said that after that it was out of racing for eight months because of injury.   He had spent a considerable amount of time and money on Snowblind getting it back into racing condition.   Mr Clark produced to the Tribunal an account from his Veterinarian outlining the charges for treatment to Snowblind.

 

4.2     Mr Clark then went on to say that there are two types of tracks in New Zealand being the standard race tracks at Auckland and Cambridge and transitional tracks such as Palmerston North and Christchurch.   He said that what he meant by transitional tracks was that they have transitional bends and that because of the particular camber on the bends dogs change feet when racing into the bend.   He said that Snowblind had not ever raced on this track before and that was a problem because when dogs go into the transitional bend they not only change feet but have to rebalance.

 

4.3     Mr Clark said that a number of dogs run off on the transitional bends if they have not raced on them before.

 

4.4     Mr Clark also said that he believed that when Snowblind checked when going into the bend that that was when it injured the gracilus muscle and as a result the dog hesitated and took itself off stride.

 

4.5     Mr Clark however by using the films strongly pointed out that Snowblind never took its eye off the lure, always kept on its line and apart for the stride or two at the first bend it raced strongly right to the finish.

 

4.6     Mr Clark demonstrated to the Tribunal by using the film the actions of greyhounds running into a bend and that they lead out from the boxes with their right leg and then swap to the left leg on the bend.

 

4.7     Mr Clark also said that if this was an ordinary dog then it would have been given a warning and he believed that Snowblind should have been given the benefit of the doubt on this occasion.

 

4.8     Mr Clark also said that the Stipendary Stewards were inconsistent with their decisions and he requested that he be able to show a video of race 3 at the same Meeting and in particular an incident involving the greyhound Great Aunty Min in that race.   He believed that that greyhound was guilty of the offence of “Marring the running of another greyhound in the race” but that nothing was done about it.   The film was shown at the Hearing although in our view it did not advance matters greatly.   Mr Clark also provided to the Tribunal a copy of the Stipendiary Steward’s report from the Meeting and in particular pointed to the report on race 3.

 

4.9     Ms Wilson in assisting Mr Clark pointed out that Snowblind’s race was the fastest race of the day and it was won in 25.91 seconds by a very good dog.

 

4.10    Mr Clark pointed to the gracilus injury, to the fact that Snowblind was racing on a strange track and he said that at no stage did Snowblind fail to pursue the lure.   He also said that Mr Whiterod had acknowledged that after Snowblind eased for a stride or two it then ran on strongly to the finish.   Mr Clark also said that he didn’t believe that the previous charge against Snowblind should have applied.

 

4.11    Mr Whiterod then asked Mr Clark if he understood the Rules in the book and did he believe that Mr Whiterod was applying those Rules.   Mr Clark acknowledged that he understood the Rules.

 

4.12    Mr Whiterod then asked him if he was aware that a greyhound has to have 10 clear runs before the prior offence could be disregarded.   Mr Clark is aware of this.

 

 

G Whiterod’s Summary

 

5.1     Mr Whiterod summarised by traversing his evidence that he had previously given.   He did say that this was the first time that he had dealt with Snowblind and that he had no knowledge of its prior history at the time that he was dealing with it and therefore had no preconceived thoughts about its qualities.

 

5.2     Mr Whiterod said that Snowblind was leading at the first corner and then eased for no apparent reason and allowed the 7 dog to run around it and go to the lead.   He acknowledged that Snowblind was last to jump but by getting to the lead before the first bend he said that this showed that it was clearly a quick dog.   It had gifted the lead to the 7 dog when it eased and pulled back.

 

5.3     Mr Whiterod said that if Snowblind had have raced consistently and honestly then there wouldn’t have been a problem but he said that that wasn’t demonstrated to the Stewards.   He said that as far as he was concerned there were no mitigating circumstances and that because of the way Snowblind raced for the latter part of the race it showed that it was not being affected by the injury and this could not be used as an excuse.

 

5.4     Mr Whiterod also said that the run of Great Aunty Min in race 3 was totally different to Snowblind because although in that case the dog had turned its head it had not given ground.

 

5.5     Mr Whiterod said that he had been a greyhound Steward for 12 years and that as far as he was concerned Snowblind giving ground for no apparent reason was clearly a breach of the Rules.   He was satisfied that Snowblind had breached Rule 80.1.b.

 

 

S Clark’s Summary

 

6.1     Mr Clark referred to Mr Whiterod’s definition of failing to pursue.   He also said that the Rule uses the words “failing to pursue” but that at all times at the Hearing today Mr Whiterod had used the words “easing up” or “eased up”.   Mr Clark again stated that after jumping slowly Snowblind ran up to the point where, in his opinion, it hesitated for a few strides and then pursued the lure hard to the finish.   Mr Clark said that at no stage did Snowblind take its eye off the lure.   He pointed out that Snowblind suffered an injury in the race and that this would have caused it to ease up for a stride or two but based on the evidence, particularly from the film, he said that Snowblind should have been given the benefit of the doubt.   He said that the charge was wrong.

 

 

Tribunal Questions of Messrs Whiterod and Clark

 

7.1      Mr Clark was asked how many starts had Snowblind had since it had previously been suspended and he said four or five.   He understood that there had to be 10 clear runs before the previous suspension could be deleted from the record.

 

7.2      Mr Clark was also asked to estimate the number of strides that Snowblind eased or hesitated prior to the first bend and he thought one stride.

 

7.3      Mr Clark was asked why he or Ms Wilson had not arranged for the further veterinary examination within the seventy-two hour period allowed by the Rules.   Mr Clark said that Snowblind was in the care of Ms Wilson following the race meeting and she went on to stay with family in Wellington and that there was not a suitably qualified vet available.   He said that in order to arrange a further veterinarian examination Ms Wilson would have had to travel several hours with Snowblind to the vet.   Mr Whiterod thought that a suitably qualified vet would have been available.

 

7.4      Mr Whiterod was asked if this was Snowblind’s first start at the Manawatu Raceway and he said that it was and that it was its first start in the Central Districts.

 

7.5      Mr Whiterod was also asked if there are occasions when other dogs ease up when racing on a new track for the first time.   He confirmed that it does happen on occasions and did acknowledge that some dogs do experience difficulties when racing on a new track for the first time   Notwithstanding this he said however that there was no reason for Snowblind not doing so on this occasion.

 

7.6      Mr Whiterod was also asked how many strides did he believe Snowblind had eased up for and he said he believed that it was four or five strides.   When it was pointed out to him that Mr Clark thought one stride Mr Whiterod believed it was four or five strides and that showed that Snowblind did not pursue.

 

7.7      Mr Whiterod was also asked if Manawatu Raceway was a transitional track as mentioned by Mr Clark and Mr Whiterod acknowledged that it was.   He said that he was not aware of the status of the Auckland and Cambridge tracks but he did confirm that Manawatu was a transitional track and also the Christchurch track.

 

 

Standard of Proof

 

8.1     This is an Appeal under the Rules against a decision made by the Adjudicating Steward on the 9th of August 2010.   The Hearing has proceeded as a de novo Hearing because of the lack of either a recording or transcript of the Raceday Hearing.   We have also not heard from Mr Austin the Adjudicating Steward on the day and accordingly have no evidence of the reasons for his finding.   The most appropriate way to deal with this Appeal has been to listen to and receive the evidence from the parties and to reach our own independent conclusion as to whether or not the charge has been proved on that evidence put before us.

 

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

 

8.3     The Tribunal has to decide whether the Stewards had reasonable grounds for their opinion that Snowblind did not pursue the lure as provided in Rule 80.1.b.   The Tribunal acknowledges that it is difficult for an Appellant to succeed in this instance 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”.   The Tribunal also takes the view that the standard of proof is higher than the balance of probabilities.   This is because if Snowblind should be stood down for a second offence then the consequences are quite serious as far as its racing future is concerned.   The Tribunal believes therefore that there should be proof to a higher standard.

 

 

Decision and Reasons

 

9.1     Mr Whiterod has presented his evidence to us which he tells us shows Snowblind eased up for four or five strides prior to the first bend and after that continued to pursue hard and ran 2nd.   He did not believe that the injury to Snowblind affected it because of the way that it raced in the latter part of the race.

 

9.2     Mr Whiterod’s opinion was that the action of Snowblind easing up for no apparent reason prejudiced it chances of winning and it therefore failed to pursue and thus the penalty provisions in Rule 80.1 should apply.

 

9.3     Mr Whiterod had told us that his definition of failing to pursue was “a dog easing up at a critical point in a race and not pursuing throughout the race.”   He said that this applied to Snowblind.

 

9.4     Mr Clark has told us:

 

(i)       That Snowblind did not take its eyes off the lure at any stage in the race (this was not challenged by Mr Whiterod);

 

(ii)      That it continued on its line throughout the race (this was not challenged by Mr Whiterod);

 

(iii)      That it hesitated for one stride when it was injured and;

 

(iv)     That it was racing on a transitional track for the first time and was not used to the transitional bend.   Mr Whiterod acknowledged that Manawatu Raceway is a transitional track.

 

9.5     Mr Clark said that Mr Whiterod at today’s Hearing had used the words “eased up” at all times and had not used the words “failing to pursue”.   He was firmly of the view that the charge had not been proven although we must say that Mr Whiterod was firmly of the view that the charge had been proven even though he had used the words “eased” or “eased up” at the Hearing.

 

9.6     The Tribunal has viewed the films of the race a number of times and finds the following as matters of fact:

 

(a)      Snowblind drew the 1 box and was one of the last dogs out of the boxes.

 

(b)      Snowblind showed speed to rail up into a leading position prior to the home bend.

 

(c)      Entering into the first bend Snowblind faltered, in our opinion, for two or possibly three strides.

 

(d)      Snowblind then pursued the lure strongly to the finish as Mr Whiterod had said and finished 2nd.

 

(e)      Snowblind did not take its eyes off the lure at any stage in the race.

 

(f)      Snowblind maintained its line throughout the race.

 

(g)      The race was won easily by dog number 7 (the name of that dog was not provided to us) and at the time Snowblind faltered dog number 7 was racing strongly to the lead and this accentuated what appeared to be a widening gap at that stage between the two dogs.   The impression of the widening gap might have resulted from the speed of dog number 7 at that stage rather than Snowblind slowing up.

 

(h)      Snowblind finished strongly on the lure at the end of the race.  

 

9.7     Mr Whiterod has clearly explained to us the position relating to injuries to dogs in races and he said that this was not a serious injury as evidenced by the veterinarians report.   It would seem logical to us that the injury occurred at the time Snowblind faltered prior to the first bend and we are reluctant to find that the gracilus muscle injury sustained by Snowblind did not contribute in any way to the racing manners of that greyhound.   It is also important, in our view, that despite the injury Snowblind never took its eyes off the lure and finished the race strongly.

 

9.8     We also have some difficulty with Mr Whiterod’s definition of “failing to pursue the lure” when it is applied to the racing manners of Snowblind in this race.   Mr Whiterod told us that his definition of “failing to pursue” was “a dog eased at a critical point in the race and did not pursue throughout the race.”   Clearly after Snowblind faltered it did finish the race strongly and this was acknowledged by Mr Whiterod in part of his evidence.   We do not believe therefore that Mr Whiterod’s test of “failing to pursue” has been satisfied.

 

9.9     The effect of all of the evidence is to persuade us that there is serious doubt that Snowblind has failed to pursue the lure on this occasion.   There is clear evidence before us and numerous reasons as set out in our decision why Snowblind should not have been charged with “failing to pursue the lure” on Raceday.

 

9.10    Taking all matters into account this Tribunal is not satisfied to the required standard that Snowblind failed to pursue the lure in breach of Rule 80.1.b on this occasion.   The evidence in our view clearly shows that Snowblind did pursue at all times and only hesitated for a brief part of the race.   This could have been a result of the injury and also could have been contributed to by the transitional bend but in any event, based on the evidence presented to us there is considerable doubt in this particular case.   Snowblind should be entitled to receive the benefit of that doubt and as such we find the Stewards were in error in forming their opinion.

 

9.11    The Tribunal therefore upholds Mr Clark’s Appeal and as a consequence the finding of the Judicial Steward at the Palmerston North Meeting on the 9th of August 2010 is quashed and it follows from that that the stand down suspension of three months imposed on Snowblind at that Meeting is also quashed.

 

 

Costs

 

10.1    Mr Clark did not seek an Order for Costs and no Order was made.  

 

 

 

 

 

BJ Scott                                     AJ Dooley

Chairman                                 Committee Member

 

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