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Appeal C DeFilippi v RIU - Reserved Decision dated 10 May - Chair, Prof G Hall

Created on 11 May 2021

BEFORE AN APPEALS TRIBUNAL
OF THE JUDICIAL CONTROL AUTHORITY
AT CHRISTCHURCH

UNDER THE RACING ACT 2003
AND IN THE MATTER
of the New Zealand Rules of Harness Racing

BETWEEN COLIN DEFILIPPI, Licensed Public Trainer/ Open Horseman
Appellant

AND RACING INTEGRITY UNIT (RIU)
Respondent

Information No: A13299

Appearing: The Appellant in person, with the assistance of Mr B Negus
                  Mr P Williams, Stipendiary Steward for the Respondent

Appeals Tribunal: Prof G Hall, Chairman - Mr N McCutcheon, Member

RESERVED DECISION OF APPEALS TRIBUNAL

[1] Mr DeFilippi has appealed against the raceday decision of 22 April 2021 whereby he was found to be in breach of r 869(2) of the NZ Rules of Harness Racing and the Whip and Rein Regulations of HRNZ in Race 7 of the NZ Metropolitan TC meeting and was suspended for 6 days.

[2] Mr DeFilippi appeals both the finding and the penalty. The matter was heard at Addington Raceway on 5 May. Mr DeFilippi was assisted by Mr Negus.

[3] Rule 869(2) provides: “No driver shall during any race use a whip in a manner in contravention of the Use of the Whip Regulations made by the Board.”

[4] The Whip and Rein Regulations provide as follows:
“3.1 A driver may only apply the whip in a wrist only flicking motion whilst holding a rein in each hand with the tip of the whip pointed forward in an action which does not engage the shoulder.
3.2 For the purposes of clause 3.1, “wrist only flicking motion” means:
3.2.1 Ensuring no force is generated by the use of the elbow or shoulder when applying the whip.
3.2.2 The forearm is not raised beyond forty-five degrees relative to the racing surface.
3.2.3 Not applying the whip with overt force.
3.3 A driver shall not use a whip in an unapproved manner.
3.4 For the purposes of Clause 3.3 a driver shall be deemed to have used the whip in an unapproved manner in the following circumstances which are not exclusive:
3.4.1 If the whip is applied other than as permitted in clause 3.1.”

Appellant’s Submissions
[5] Mr DeFilippi opened his case by stating a number of Senior Drivers were having difficulty adjusting to the “new” whip Rule and he was one of them.

[6] As of 22 April 2021, Mr DeFilippi had had 17,381 lifetime drives. He had driven 2,041 winners. Mr DeFilippi stated when trials and workouts were considered, he would have had over 34,000 drives.

[7] Mr DeFilippi stated he had no issue with the whip Rule being “toughened”. He accepted this was correct. He said he was not known to be a hard driver with the whip, and he believed the use of the whip was overdone on occasions. But he questioned the wisdom, for example, of charging a Junior Driver when there had been 11 strikes instead of the permitted 10 under the previous version of the Rule.

[8] Mr DeFilippi then addressed the current whip Rule, which came into force on 1 October 2020. He said every aspect of the whip Rule had been changed. The main difficulty he faced was not being able to take one hand off the rein and then use the whip; something he had done all his career. He would cross the reins, remove the deafeners and pull the stick. He never used overt force. He said he had tried using a rubber hand tie on the rein to stop him taking his hand off the rein. However, he then had difficulty in pulling the shorteners and ear plugs.

[9] Mr DeFilippi said he was now “sitting on the whip” and not using it until after he had pulled the plugs. And he was using backhanders to stop his going over 45 degrees. He had also tried at home using his left rather than his right hand, but this had not worked as he was unable to get his head around that.

[10] Mr DeFilippi said earlier charges had related to his crossing the reins and going over 45 degrees. He had received warnings, fines, and suspensions. In that regard, the Stewards had been fair.

[11] Mr DeFilippi’s main concern was with the wording of the Regulation in that he did not believe it was possible to use the wrist in a flicking motion and not go over 45 degrees with forearm. He believed “not enough thought had gone into the Rule and it needed to be changed”.

[12] With respect to this particular breach, he believed his forearm had not come back more than 45 degrees.

[13] Mr Negus then addressed us on Mr DeFilippi’s behalf. He said he had expected the new whip Regulations to be reasonably clear; in fact, it was quite the opposite.

[14] Mr Negus said the public perception would be that Mr DeFilippi was hard on animals due to the number of recent whip charges he had faced, whereas the opposite was true. Mr DeFilippi was not tough on horses. Mr Negus said he was an animal lover, as was Mr DeFilippi, and he would not let Mr DeFilippi drive his horses if he was not. He had sacked drivers in the past for breaching the whip rules when driving his horses.

[15] Mr Negus further commented that many horses went worse if they received the stick after they had given of their best. The whip was best used judiciously. He contrasted the need for a driver to show vigour in driving a horse out to the line and the wording of the new whip Regulation.

[16] Mr Negus believed the raceday Committee’s finding that Mr DeFilippi was in breach of the whip Rule was a mistake. He believed Mr DeFilippi was using no more than a wrist action. He emphasised Mr DeFilippi’s use of the whip had been broken up. He questioned the consistency of the RIU and the JCA in this regard. He pointed to a Driver in the race whom he believed had struck his horse more than 10 times and had not broken up his use of the whip.

[17] Mr Negus concluded his comments by stating Mr DeFilippi respects the horses he drives, and he believed punters would be aware of this.

[18] Mr DeFilippi commented on a feature of his style of using the whip. He said he would give the horse three quick strikes, not forceful, with the whip and, if the horse did not respond, he would put the whip away. On this occasion BELMONT MAJOR had responded to its use. It had never stopped trying. He said it was the first time he had driven the horse. He had not received driving instructions and it was the horse’s first start for a new Trainer. The horse had since been sold to the USA. He said the horse was an ART MAJOR, which was known for speed rather than stamina, but this horse was an exception, as it showed toughness rather than speed.

[19] Mr DeFilippi said BELMONT MAJOR finished second. He was giving the horse every chance of winning, and it had hit the line better than anything else in the race. He said the horse had had about 20 starts and its form before this race was “only fair”. (We note the horse had won 6 of its 25 starts.)

[20] Mr Negus spoke again and commented on the “political jazz” surrounding the Rule and the 98% success rate of RIU charges before the JCA under this Rule, as noted in the Burgess Report. He said the JCA “rubber stamped” the RIU.

[21] Mr Negus said Mr DeFilippi felt that he was being picked on by the RIU and he was adamant that there were not 8 strikes by Mr DeFilippi with the use of his shoulder. He emphasised Mr DeFilippi had modified his action. The charge was excessive; a warning would have been enough. The penalty equated to a $4,000 loss of income for Mr DeFilippi, which was incredibly harsh. He showed a race at Alexandra Park on 9 April where he believed the drive was similar to that of Mr DeFilippi’s, and the experienced driver on that occasion, Mr Mangos, was only warned. He believed a discussion with Mr DeFilippi as had occurred with Mr Mangos was warranted.

[22] Mr Negus said it was difficult for experienced Drivers to break early habits. Mr DeFilippi was struggling with the whip Rule, and consistency in its application by the RIU was a concern. He understood the Horsemen’s Association was aware of this issue, but its membership was voluntary, and it was not a force at present.

Respondent’s submissions
[23] Mr Williams commented that there had been consultation by HRNZ with Drivers’ and Trainers’ associations before the 1 October 2020 regulations were promulgated.

[24] The Stewards did not allege Mr DeFilippi’s strikes were continuous but that the nature of the strikes as he exited the turn were of concern. The Driver referred to by Mr Negus had also been identified by the Stewards when they had reviewed the race footage the next day, and he would be spoken to concerning his use of the whip. The outcome of that meeting was still to be determined.

[25] Mr Williams said the RIU remained of the view there were 8 strikes in breach of the Rule in that Mr DeFilippi was using his shoulder and elbow and not a wrist flicking action. He believed the height to which the whip was raised between strikes demonstrated that the tip of the whip was more than pointed forward and reinforced the nature of the arm movement, ie that elbow and shoulder were used.

[26] Mr Williams emphasised there was no suggestion that Mr DeFilippi was abusing the horse or that he had intentionally thrashed it. Mr DeFilippi by his own admission was having trouble in adjusting to the new Rule as were other mature drivers.

[27] Mr Williams stated the Stewards continued to believe that the films were conclusive. The reference by Mr DeFilippi and Mr Negus to other runners in the race was not relevant to this breach.

[28] Mr Williams said the number of times Mr DeFilippi had been spoken to by the Stewards was taken into account in determining whether to charge him. It was clear to the Stewards that he was having significant trouble in adjusting to the new rule. However, Drivers at all levels were being spoken to advisedly and the Stewards believed some improvement was evident.

[29] Mr DeFilippi replied by reiterating it was impossible to use the wrist only and not to raise the forearm beyond 45 degrees. The Rule needed to be re-examined.

Decision as to breach
[30] We view Mr DeFilippi’s concern with the Whip and Rein Regulation, as it is currently written, as being the basis of this Appeal. Indeed, at no time did Mr DeFilippi expressly state to us that he believed he was not using his shoulder or elbow in respect of the strikes of the whip that are in question. Mr Negus did so submit on several occasions, but Mr DeFilippi concentrated on the issue of his not using the forearm above 45 degrees. We note that at one point during the raceday hearing Mr DeFilippi said, “ok I’ll admit that I’ve used more than my wrist.”

[31] That concession was appropriate. We are satisfied that there are 8 strikes with the whip by Mr DeFilippi where he uses his elbow and shoulder. The strike immediately before the line is with a wrist only action.

[32] To turn to the wording of the Rule. Rule 869(2) states that “no driver shall use a whip in a manner in contravention of the Use of the Whip Regulations….” The key regulation is 3.1 which provides: “A driver may only apply the whip in a wrist only flicking motion whilst holding a rein in each hand with the tip of the whip pointed forward in an action which does not engage the shoulder.” Regulation 3.2 defines “wrist only flicking motion” and thus describes situations in which reg 3.1 will be breached. Regulation 3.2.1 states that “no force is generated by the use of the elbow or shoulder when applying the whip.”

[33] We accept that Mr DeFilippi is doing his utmost to abide by the Rule, but there is no doubt in our mind that whilst he is attempting not to raise his forearm above 45 degrees there is still the use of his elbow and, more particularly, his shoulder in the strikes in question. This is clearly evidenced in the first 3 or 4 strikes but the repeated strikes before the last strike near the line are of this ilk as well.

[34] We further accept that some Drivers are having difficulty with adjusting to the new rule and that habits of a lifetime are difficult to change as both Mr Negus and Mr DeFilippi have said.

[35] The function of an Appeals Tribunal is not to determine whether a Rule should be worded differently, but to apply it by examining the facts of the case and determining whether the person charged is in breach of it. There has been no argument that the Rule or the Regulation is ultra vires. In the circumstances of this case, we are clearly of the view that Mr DeFilippi is in breach of reg 3.1 and thus r 869(2). We uphold the decision of the raceday Committee.

Penalty Submissions
[36] Mr DeFilippi said he had no issue with being penalised if he broke the Rule but estimated this breach could cost him up to $4,500 in lost earnings. This penalty was “way out of line”. He would miss a Premier meeting at Addington where he had his two best horses starting.

[37] The last day of the suspension encompasses this Premier meeting. Mr DeFilippi said he would prefer a fine in lieu of one day’s suspension if the Committee thought that was appropriate. He restated that he believed the penalty was out of proportion.

[38] Mr Negus said he believed 6 days was manifestly excessive. Mr DeFilippi had clearly improved his style. A warning or a small fine would have sufficed.

[39] Mr DeFilippi said once a Driver loses a drive it was often hard to get it back.

[40] Mr Williams referred to Mr DeFilippi’s record. He said he had had 153 drives this season and averaged 16 drives a month. Since 1 December Mr DeFilippi had been spoken to once, warned three times, and suspended four times. He had had four suspensions over a total of 54 drives.

[41] The Stewards believed the severity of the breach was above mid-range. Under the previous iteration of the Rule, the penalty for a mid-range breach was 3-5 days. There was no guidance in the Penalty Guide for repeated breaches.

[42] Mr Williams submitted the Stewards continued to believe an 8-day suspension was appropriate and that the 6-day suspension should be upheld in the interests of both specific and general deterrence. Animal welfare concerns were addressed by the new Rule and the forthcoming Racing Act further emphasised this.

[43] Mr Williams drew the Committee’s attention to the fact it was a close finish and Mr DeFilippi had said to the raceday Committee that to use the whip wrist only would be a waste of time in these circumstances. Mr DeFilippi had clearly used his elbow and shoulder.

[44] With reference to Mr DeFilippi’s loss of income, Mr Williams referred to the High Court decision in Bosson v RIU [2021] NZHC 23. We have read that case and observe that Walker J was satisfied that the Appeals Tribunal had considered the consequences of suspension for Mr Bosson (which were principally financial — potentially up to $80,000) and had concluded that consistency, transparency and meaningful deterrence outweighed those consequences. Her Honour was not persuaded that the approach by the Appeals Tribunal contained any reviewable error.

[45] Mr Williams said there was less emphasis now on imposing a fine in lieu of a Premier day and he submitted it was not appropriate in Mr DeFilippi’s case, notwithstanding there would on occasion be the exceptional case. Mr DeFilippi’s previous breaches of the Rule could not be ignored. Deterrence required an uplift. The Rules of Harness Racing had to be upheld.

Decision as to penalty
[46] The penalty in question is the Appellant’s fourth suspension for a breach of the whip Rule since 10 January last. He has been progressively suspended for 3, 4, 5 and 6 days on these occasions.

[47] Mr DeFilippi has submitted that 6 days is excessive and has by way of mathematical calculations estimated that the period of suspension equates to a loss of income in the vicinity of $3,000 to $4,500. Mr Williams has submitted the suspension imposed is less than that that was sought by the RIU on the day and should be upheld in the interests of both specific and general deterrence.

[48] The integrity of the Harness Racing Industry is engaged where there are repeated breaches of any Rule, not the less so where it is the use of the whip. Animal welfare concerns are at the forefront of the change to the whip Regulations. We accept the comments by Mr Negus and Mr DeFilippi that the Appellant is a very experienced Driver and is not hard on his drives. This does not alter the fact that he has been repeatedly in breach of the current version of the whip Rule since it came into effect on 1 October 2020.

[49] The Penalty Guide offers little guidance although a previous version did provide a 3 to 5-day suspension for a second breach.

[50] We are required to approach a hearing of this kind as a rehearing but nevertheless we must have regard to what was said by the raceday Committee. That decision is detailed and considered.

[51] We note that the RIU submitted an 8-day penalty was appropriate. The raceday Committee considered this to be excessive and, after observing that the penalty could not be “mercifully weak”, imposed a 6-day suspension. The raceday Committee noted that the penalty must not be disproportionate and that simply to increase the period of suspension could create a perception that Mr DeFilippi is being punished for previous breaches for which he has already paid the penalty.

[52] The matters Mr DeFilippi raised before us concerning the financial implications of the penalty were considered by the raceday Committee. That Committee was clearly very conscious of the consequences for Mr DeFilippi of the suspension that it imposed and that it would mean Mr DeFilippi would be being unable to drive at the Premier meeting. It stated: “When one stands back and looks at what might be an appropriate penalty, it must be considered that a further suspension is going to cost Mr DeFilippi dearly in terms of income and opportunities. Included in the period of suspension, which the Committee intends to impose, is a premier meeting with a Group 1 race for a stake of $120,000.”

[53] We have carefully considered the decision of the raceday Committee and cannot detect any error in the penalty reasoning. As observed, it was clearly alert to the financial impact of the penalty imposed. In addition, the Committee had regard, as do we, to the fact that Mr DeFilippi is taking every step he can to modify his whip action. Rehabilitation (ie, taking remedial steps) is a relevant factor. The need for specific deterrence is evidenced by Mr DeFilippi commenting to the raceday Committee that to use the wrist would be a waste of time in a close finish.

[54] This 6-day penalty will have a significant impact on the Appellant’s income. We note his reference to the fact he will have his two best horses ready for the meeting on 14 May. The penalty imposed upon Mr DeFilippi will prevent him driving those horses, but other drivers with perhaps similar experience will be available. We accept this may well result in his losing a winning driving fee. But Mr DeFilippi has to be held accountable and his whip action needs to be altered.

[55] A 6-day suspension for a fourth breach in the space of 54 drives, where the previous penalty was a 5-day suspension, is within range. We accept Mr DeFilippi is acutely aware of the need to change his whip action and remove the use of his shoulder and elbow. We fully support him in this regard and can only add that “the ball is firmly in his court”.

[56] The penalty of 6 days’ suspension is not manifestly excessive. The Appeal against penalty is not successful.

[57] The RIU has made no application for costs. Mr DeFilippi has paid a filing fee. There is no order for costs in favour of the RIU or the JCA.

Dated at Dunedin this 10th day of May 2021.

 

Geoff Hall, Chairman

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