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Appeal - B Crowley v HRNZ 05 Mar 09



868.2

1.            NATURE OF APPEAL

1.1          This is an appeal by Mr Brendan Crowley a graduation horseman from a penalty imposed at the Kapiti Coast Harness Racing Club meeting at the Manawatu Raceway on Friday 30th January 2009.

1.2          Mr Crowley was found guilty of a breach of Rule 868(2). That rule states, in substance, that he failed to take all reasonable and permissible measures to ensure that his horse was given full opportunity to win the race or obtain the best possible finishing position.



BEFORE AN APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY

                                                    IN THE MATTER       of the New Zealand Rules of Racing

                                                    BETWEEN                BRENDAN CROWLEY, Graduation Horseman

                                                                                                                      Appellant

                                                    AND                         HARNESS RACING NEW ZEALAND

                                                                                                                      Respondent

Date of hearing                          Thursday 05 March 2009

Venue                                         Cambridge Raceway, Cambridge

Appeals Tribunal                       Mr M S McKechnie, Chairman

                                                    Mr B Rowe

Present                                       Mr Brendan Crowley

                                                    Mr Rob Lawson advocate for Mr Crowley

                                                    Mr Tom Taumanu, Stipendiary Steward, Harness Racing NZ

 

DECISION OF THE APPEALS TRIBUNAL

1.            NATURE OF APPEAL

1.1          This is an appeal by Mr Brendan Crowley a graduation horseman from a penalty imposed at the Kapiti Coast Harness Racing Club meeting at the Manawatu Raceway on Friday 30th January 2009.

1.2          Mr Crowley was found guilty of a breach of Rule 868(2). That rule states, in substance, that he failed to take all reasonable and permissible measures to ensure that his horse was given full opportunity to win the race or obtain the best possible finishing position.

1.3          On the night in question Mr Taumanu appeared for Harness Racing NZ and Mr Crowley who denied the charge on the night gave his explanation to the Judicial Committee.

2.            PROCEDURE

2.1          Mr Crowley is represented today by Mr Rob Lawson. Mr Lawson draws our attention to the fact that on the night in question Mr Crowley was not given the opportunity to seek an adjournment. We are told and it is agreed by Harness Racing NZ that the accepted practice is for Judicial Committees when considering charges of this nature or certain other serious charges to offer the licence holder an adjournment in order to prepare his or her defence to the charge. The obligation to offer that opportunity is with the Judicial Committee and not with the stewards. For some reason not explained it seems to have been completely overlooked on 30th January. This is most regrettable.

2.2          Further Mr Lawson says that Mr Crowley was not given adequate opportunity to assemble witnesses who may have been able to assist him.

3.            THE CASE FOR MR CROWLEY

3.1          Mr Lawson emphasises the serious nature of the charge. He gave an outline of Mr Crowley’s experience. That is relatively limited but Mr Crowley is well acquainted with the horse Speedstar which was driven on the night.

3.2          Mr Lawson disputes the account of the drive which was given to the Judicial Committee by Mr Taumanu. He does not accept that the position one out and one back is necessarily the preferred position. There was much discussion (further reference to follow) as to what might in certain circumstances be the best place in the field for a particular horse. It was Mr Lawson’s contention that Mr Crowley was entitled to move out of the one out and one back position and go forward to press the leader. The more so said Mr Lawson when Mr Crowley considered that the pace was too slow. He emphasised that Speedstar was not a sit and sprint horse and needed to be running along. The horse has had thirty one (31) starts for one win, one second and seven thirds. The race in question was its seventh start for the season and the best result thus far this season has been a third placing. The horse finished fourth in the subject race, half a head from the third horse.

3.3          The Tribunal has looked at the film of the race very closely and has had a commentary on the film from both Messrs Lawson and Taumanu. The camera position is not ideal particularly when trying to assess the relative positions of horses when they are in the back straight at the Manawatu Raceway.

3.4          Mr Lawson said that Mr Crowley had in fact put pressure on the leading horse, that the field had run at a mile rate of 2.1 minutes and ran the last half in 58.2. This we were told was the second fastest time on that evening. Mr Lawson also pointed out that the horse in the one out and one back position after that was vacated by Speedstar was a horse called Thats Gold which finished behind Speedstar. For what it is worth the horse Thats Gold won its next race on a grass track at Foxton.

3.5          Mr Lawson indicated that Mr Crowley would not himself be giving evidence before the Tribunal but that he wished to call Mr David Butcher and Mr Peter Ferguson both senior drivers.

3.6          In a ruling earlier today the Tribunal indicated that it would not accept a written statement from the well known Canterbury horseman Mr David Butt.

3.7          Mr Ferguson was driving the horse Platinum Rule. He said there was little pace on early, that Mr Crowley came around and increased the tempo. He said this was just past the winning post with just on a round to run. Mr Ferguson was in the trailing position and in the straight got the passing lane and won the race. Mr Ferguson disputed that the one back and one out position was necessarily the best place to be but he did acknowledge that it was a good place in many instances. He told the Tribunal that he could see no fault with Mr Crowley’s drive. When asked further about the pace in the race Mr Ferguson said that it was going at half pace then three quarter pace and ninety percent from the 600 or 700 metre mark.

3.8          Mr David Butcher has driven the horse Speedstar. It happens that he had driven the horse on the occasion immediately before the race in question and the race immediately after. He told the Tribunal that the horse was not a good gaited horse. He said that it needed the pace on and could not quicken readily. He has driven Speedstar on four occasions. Mr Butcher could find no fault with Mr Crowley’s drive and indicated that he thought that leaving the one back and one out position when there was so little pace on was legitimate.

4.            THE CASE FOR HARNESS RACING NZ

4.1          Mr Taumanu began by pointing out the horse’s race record. He observed that it was curious that a horse which was said to have so little pace had started twenty six (26) times over sprint distances. In the great majority of the races Mr Crowley had been the driver. Mr Taumanu had two concerns, the first – to which reference has already been made – was the leaving of the position one out and one back as the horses came into the front straight with more than a round to go and not pressing the leader and the second concern had to do with the lack of vigour in the run home. The second of these matters is not considered by the Tribunal to be of any real significance. It was Mr Taumanu’s proposition that Mr Crowley should have gone for the whip earlier. He contrasted the drive on the 30th January with the drive on a previous occasion at Cambridge when Mr Crowley was driving.

4.2          We turn to the real substance of the case for Harness Racing NZ. Mr Taumanu contended that it was wrong to leave an advantageous position and go forward without seriously challenging for the lead. This Mr Taumanu said was the proper interpretation of what had happened. There was a difference of opinion amongst the witnesses as to when the pace of the race significantly quickened.  From the Tribunal’s own observation it is clear that there was very little pace on early and that it did increase once Mr Crowley moved forward. Mr Taumanu took the view that there was no significant increase in the pace until about 400metres from home. From the film it is difficult to know the exact position of Mr Butt’s horse which was leading and Speedstar driven by Mr Crowley but as best the Tribunal can see it Speedstar seems to have drawn alongside and may have even got slightly ahead of Mr Butt’s drive Boss Murphy. It is difficult to know if Speedstar could at that time between the 600metres and the 400metres have gone any faster. As the Tribunal understands the case for Harness Racing NZ it is Mr Taumanu’s proposition that Mr Crowley should have been challenging for the lead a good deal earlier. At the hearing on the 30th January Mr Taumanu characterised it as not attacking the leader. It was further Mr Taumanu’s case both on the night and today that Mr Crowley did not take sufficient steps to improve his horse’s position and that is really bound up with the criticism of failing to attack the leader.

5.            DECISION

5.1          We have carefully considered the transcript and the decision of the committee. This is a rehearing : more significant by reason of the events recorded in Ph2. The submissions made today for Harness Racing NZ are essentially the same as those made on the 30th January. The Tribunal’s considered view is that Mr Crowley was legitimately entitled to move out from his position one out and one back and take his horse forward. We do not accept that one out and one back is always the preferred position. It may be in some (perhaps many races) but not in all. The pace was very slow at that point. This does not seem to be seriously in dispute. It was the case for Harness Racing NZ that having taken the horse forward Mr Crowley simply sat there – and we quote from Mr Taumanu’s evidence at the hearing “swinging it for home and then he tried to improve his horse”.

5.2          In our view the film demonstrates that the position was that Mr Crowley was in fact challenging the leader at a much earlier stage perhaps from 600metres onwards and that at the 400metres or thereabouts his horse may have drawn level or even got slightly ahead of Boss Murphy driven by Mr Butt. We do not think that the committee’s assessment of the position adequately recognises that. The committee records that Mr Crowley did not go to challenge for the lead. This is in the third paragraph on the third page of the committee’s decision. The next sentence also contains a reference to not challenging. We do not accept that the characterisation of the Judicial Committee was correct. In our view Mr Crowley did go forward and from somewhere about the 600 or 700metre mark was challenging the horse Boss Murphy. Whether or not he should have challenged that horse at an earlier stage is problematical but the failure to challenge before that time is not seen by the Tribunal as meriting criticism. It follows in summary that we take the view that Mr Crowley was entitled to leave the position in the one one sit, move forward and that he did make a genuine effort to challenge.

5.3          The view we take is substantially different from that of the Judicial Committee. That difference is material to the outcome. We believe that the committee was in error and that the correct interpretation of the position is as we have set it out in the Ph5.2. The appeal is allowed, the disqualification is quashed and Mr Crowley the fine is cancelled.

6.            COSTS

6.1          Mr Lawson seeks costs for Mr Crowley and points to his having served one day of the suspension. He also points to the procedural error of the Judicial Committee in not proposing an adjournment. Neither of those matters can appropriately be held in a costs award against Harness Racing NZ. What this Tribunal can do is award some costs with reference to the trouble and expense that the parties have been put to in respect of this hearing today. There will be an order that the filing fee on Mr Crowley’s appeal be refunded to him and he will be awarded costs in the sum of $300.00, payable by Harness Racing NZ.

 

 

 

Murray McKechnie

Chairman

 

6th March 2009
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