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Appeal - D Dunn




This is an appeal against a finding of careless driving against Mr Dunn in respect of his drive in Race 2 at the N Z Metropolitan Trotting Club's meeting on the 29th January 2008.  The Judicial Committee found the charge proved and a fine of $400 was imposed and it is from that, that Mr Dunn appeals

This is an appeal against a finding of careless driving against Mr Dunn in respect of his drive in Race 2 at the N Z Metropolitan Trotting Club's meeting on the 29th January 2008.  The Judicial Committee found the charge proved and a fine of $400 was imposed and it is from that, that Mr Dunn appeals.  We have read the Judicial Committee's decision and also read the transcript and today we have heard from both the Informant and Mr Dunn's father, Robert Dunn, and we have of course seen videos and been taken through them at some length by both sides.  We have also had a look at the videos on our own.  As this is a re-hearing we must come to our own decision albeit helped by what happened before the Judicial Committee  but there's no presumption in favour of the Judicial Committee's decision.  We have to come to our own decision.   We do not propose to go into the background because we have been over it a number of times and everybody knows what basically happened here.  The real issue is, was Mr Dunn guilty of careless driving and of course the Informant has to satisfy us of that. 

 

Now, briefly, the Informant's contention is that Mr Dunn was behind Mr Cameron's horse around the final bend in the race at the home turn and Mr Cameron's horse was tiring, Mr Dunn in effect was initially in the 1:1 position.  Mr Cameron's horse was tiring and the Informant contends that Mr Dunn has attempted to move into the gap outside Mr Cameron's horse, (GIMME THE BALL) and the horse outside of Mr Dunn at that stage again was one driven by Mr David Butt.  Mr Dunn continued down the straight for about 50 metres and just after the passing lane he positioned behind the outside wheel of Mr Cameron's sulky. The Informant further contends that Mr Cameron's horse continued to tire and that Mr Dunn's horse struck the outside wheel of Mr Cameron's sulky and that the leg rode up the wheel, the horse broke and almost immediately fell.

 

Mr Dunn's contention, briefly, on the other hand, is that a gap did appear and that he attempted to move into it at which time Mr Cameron's horse came out suddenly and the gap closed, and Mr Dunn's horse struck the sulky wheel of Mr Cameron's sulky.  Mr Dunn contends that Mr Cameron was double slapping his horse at that time and that was at least partly responsible for Mr Cameron's horse ducking out.  Accordingly,  Mr Dunn's contention as we understand it, is that Mr Cameron is responsible for the incident, not Mr Dunn. 

 

Now, having heard all the submissions and seen the videos, and read the transcript, we find that prior to the home turn Mr Dunn was in this 1 out, 1:1 position behind Mr Cameron's horse.  That horse was tiring and we accept, as Mr Dunn said, that he was on one rein at this stage.  On entering the home straight Mr Dunn, anticipating a gap appearing outside him, took his horse slightly back and out into a position behind the outside wheel of Mr Cameron's sulky and of course inside the horse on Mr Dunn's outer.  This position of Mr Dunn continued for about 50 metres with Mr Cameron's horse continuing to tire and we find that Mr Dunn in positioning his horse in this way was undertaking a risky manoeuvre.  Mr Dunn's horse then struck, first the back of Mr Cameron's sulky. and then the outside sulky wheel itself.  This caused Mr Cameron to look down - that's shown on the video - at the same time there was a slight modest movement out by Mr Cameron's horse and he (Mr Cameron) then immediately moved the horse back down. 

 

Now we find that the substantial, if not sole cause of the incident, was Mr Dunn's actions in positioning his horse behind the outside wheel of Mr Cameron's sulky and then failing to restrain his horse and striking Mr Cameron's sulky wheel.  We further find that Mr Cameron's movement, if any, was after Mr Dunn’s horse had already struck Mr Cameron's sulky.  So in those circumstances we find that the substantial if not sole cause was Mr Dunn's careless driving that caused his horse to break and almost immediately fall.

 

It follows then that the appeal is dismissed.

 

We were not greatly addressed on penalty.  We propose to resolve that issue.  We have concluded that the penalty of $400 is probably in the upper range of fines that could be imposed for this sort of offending but it's not outside the range that was available to the Judicial Committee, bearing in mind that the maximum penalty is $5,000.  So the appeal against the penalty is also dismissed.

 

Costs will lie where they fall.  The $250 filing fee will go towards any JCA costs.

 

 

 

JS Bisphan

Chairman

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