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Appeal NA Chilcott v HRNZ - Decision 22 March 2010



869.3.g
1205.3
860.3.g
868.2
1114.2.c

BEFORE AN APPEALS TRIBUNAL
HELD AT AUCKLAND

IN THE MATTER  of the New Zealand Rules of Harness Racing

BETWEEN NICOLA ANN CHILCOTT of Cambridge, Licensed Open Driver
      Appellant 

AND  HARNESS RACING NEW ZEALAND
      Respondent

Appeals Tribunal: G G Hall (Chairman),   R G McKenzie

Hearing date: 10 March 2010

Appearing: Mr M Branch for the appellant
                     Mr J Muirhead for the respondent

Date of decision:  22 March 2010

DECISION OF APPEALS TRIBUNAL

[1] Ms Nicola Chilcott, licensed Open Horsewoman, has appealed against the decision of a raceday Judicial Committee of the Judicial Control Authority, delivered on 5 February last, that she was in breach of R 869(3)(g) of the Rules of Harness Racing in that she drove in a manner capable of diminishing the chances of her horse, ANVIL JUSTICE, winning Race 9, the Sign Service Group Mobile Pace, at the Kumeu District Trotting Club’s meeting held at Alexandra Park on that night.  Her Horsewoman’s licence was suspended from 12 February 2010 up to and including the 26 February 2010 (6 racing days).  Ms Chilcott sought and was granted a stay of this penalty by this Tribunal pending the further order of the Tribunal.

[2] Specifically, information No 68499, that was lodged on the night by the stipendiary steward, Mr Muirhead, alleged Ms Chilcott was in breach of Rule 869(3)(g) in that she “drove ANVIL JUSTICE in a manner which diminished its chance of winning when race duelling for the lead from the mile marker to approximately 700 metres to run.”



BEFORE AN APPEALS TRIBUNAL
HELD AT AUCKLAND

IN THE MATTER  of the New Zealand Rules of Harness Racing

BETWEEN NICOLA ANN CHILCOTT of Cambridge, Licensed Open Driver
      Appellant 

AND  HARNESS RACING NEW ZEALAND
      Respondent

Appeals Tribunal: G G Hall (Chairman),   R G McKenzie

Hearing date: 10 March 2010

Appearing: Mr M Branch for the appellant
                     Mr J Muirhead for the respondent

Date of decision:  22 March 2010

DECISION OF APPEALS TRIBUNAL

[1] Ms Nicola Chilcott, licensed Open Horsewoman, has appealed against the decision of a raceday Judicial Committee of the Judicial Control Authority, delivered on 5 February last, that she was in breach of R 869(3)(g) of the Rules of Harness Racing in that she drove in a manner capable of diminishing the chances of her horse, ANVIL JUSTICE, winning Race 9, the Sign Service Group Mobile Pace, at the Kumeu District Trotting Club’s meeting held at Alexandra Park on that night.  Her Horsewoman’s licence was suspended from 12 February 2010 up to and including the 26 February 2010 (6 racing days).  Ms Chilcott sought and was granted a stay of this penalty by this Tribunal pending the further order of the Tribunal.

[2] Specifically, information No 68499, that was lodged on the night by the stipendiary steward, Mr Muirhead, alleged Ms Chilcott was in breach of Rule 869(3)(g) in that she “drove ANVIL JUSTICE in a manner which diminished its chance of winning when race duelling for the lead from the mile marker to approximately 700 metres to run.”

[3] Rule 869(3)(g) provides:

(3) No horseman in any race shall drive:-
(g) in any manner capable of diminishing the chances of his horse winning.

[4] In accordance with R 1008A the standard of proof is on the balance of probabilities.  The burden of so proving is of course upon HRNZ, the respondent in this matter. 

[5] The appellant sought and was granted leave of this Tribunal pursuant to R 1205(3) to call Mr P Ferguson to give expert evidence. 

[6] The appeal was conducted by way of rehearing based on the evidence adduced before the Judicial Committee, with the addition of Mr Ferguson's evidence. 

The race

[7] The race in question, race 9, was started from behind the mobile gate and run over the distance of 2200 metres, for a stake of $7550, and it was a condition of this race that only non-winning horses that had had two or more starts for their lifetime and had been unplaced (4th or lower) in their last two starts were eligible.

[8] The race attracted a 10 horse field and was won by WON’T BE DENIED.  ANVIL JUSTICE, was placed 7th, 9.5 lengths behind the winner.  CURLYS COUSIN, driven by Mr McKendry finished last, 28.4 lengths behind the winner.

[9] ANVIL JUSTICE was a 4 year-old gelding trained by Mr A McCollum.  Prior to this race it had recorded 15 lifetime starts for no wins and one third placing.  Its form-line read 34804 and it was 4/3 in betting favouritism.

[10] The race sectionals were: lead in time 43.2; 1st ¼ - 29.4; 2nd ¼, 29.9; 3rd ¼, 31.2; 4th ¼, 29.8; last mile 2.00.4; gross time 2.43.6; mile rate 1.59.7.  The last two 400 metre sectionals for ANVIL JUSTICE were 31.2 and 31.7.

Evidence before the Judicial Committee

[11] Mr Taumanu, stipendiary steward, in his evidence to the Judicial Committee, stated in his 33 years in the industry he could not think of a worse display of horsemanship by both parties (the appellant and Mr McKendry).  He described the appellant’s driving tactics as “totally unacceptable” and to be “a very very poor advert for harness racing on a Metropolitan track”.  He added the duelling had gone on for far too long and concluded by stating:  “They [the appellant and Mr McKendry] could have tucked in and got the trail, the pace would have eased up, and they could have been in the finish….”

[12] Ms Chilcott’s evidence to the Judicial Committee included the following initial comments:
I was intending to lead which has been made perfectly clear at the gate; I had the stick out and worked to get to the lead.  Mr Mangos has relented on the inside and I have made my intentions very clear, I am in front, I have got the stick out, and running along at good speed.  Mr McKendry has come at me, which is normal racing, I agree that you have a go for the front, so he has had a go, I have said ‘Maurice I am staying’.  He has kept going; I said ‘Maurice, I am staying’.  I made it perfectly clear that I was staying in front.  Now I have worked to get there, I don’t believe that, I have worked to lead, so that is my spot.  I don’t believe I should have to relinquish it.  I have worked to get to the front therefore it is my spot; I made it perfectly clear to him that I am staying there. 

So we ran from when he came out, which was approximately the mile or just after, just after the mile.  So we got round to the home straight and as I have said probably two or three times, like ‘Maurice I am staying’.  He then, I am actually under a hold and my horse is doing it quite comfortably in front.  Mr McKendry is whipping his horse to try and get it past me which, I mean he couldn’t do, he is flat there and I am holding my spot easy.  He then, when we got to the winning post, said to me ‘Righto then I will just run you’.

[13] Later she said:

[T]hey [the stipendiary stewards] are saying okay one of us should have handed.  Now that is my spot.  At what point do you become dictated to by the Stipendiary Stewards or the powers to be, of how you have got to drive?  So if Mr McKendry comes and he comes hard, I want to lead, why should I have to let him go?  Like, that is my spot, I am there, I worked to get there, he couldn’t take it off me, so in my opinion, he has to relinquish.  I don’t have to, that is where I worked to, it is different if I am like didn’t say anything or I am flat, if he has got half a length on me and I just keep whipping and I am chasing to be there, but I am holding him easily and he just continued to chase.

I won’t be intimidated.  Now he can’t sit outside me and say ‘right, I am going to run you’.  I am not being intimidated.  It is not easy for me out there and you guys know that, I am not here to put on a sad act, but it is not and I am not putting up with that.  He can’t just come up and go ‘Righto, well I am going to say I am going to run you, so therefore you have to hand out [sic]’.  That is not the way it should be.

[14] Finally, and in response to questioning by Mr Muirhead as to whether she had the option to have grabbed hold of her horse, she said, “I had an option to stay in front too and that is what I chose to do….  Because that is what I said I would do.”

[15] The Judicial Committee’s written decision describes the appellant’s actions in the following terms:
From the barrier and drawn at 5, Miss CHILCOTT driving ANVIL JUSTICE took an early lead followed by Woodlea BB (B Mangos) with Curlys Cousin (M McKendry) out parked.
Near the mile point Mr McKendry had come up and challenged Miss Chilcott for the lead which she resisted.  The two horses had increased their pace and shortly after had put 60 to 70 metres on the following field with both drivers challenging for the lead.  Neither driver was prepared to hand the lead up and the result was clearly what is described as a speed duel. 
Both drivers had exhibited determination and bloody mindedness and continued in a style of driving that undoubtedly diminished their chances and clearly breached the provisions of Rule 869(3)(g).  Both drivers evidenced by their actions showed a wilful disregard of this breach [sic].
Their horses having been driven in such a manner for the majority of the race began to wilt in the later stages and were overtaken by the field near the 600 metre mark with Miss Chilcott’s horse finishing in 7th place under a hard drive.
Miss Chilcott’s strategy for the race was to retain the lead from Mr McKendry at all costs and the result clearly had a disastrous effect on her horse and the expectations of its connections and the backing punters.
Grounds of appeal

[16] The appellant’s grounds of appeal provided on 10 February 2010 were:
1.  The panel failed to take into account the extent of the actions of the other driver and/or that Ms Chilcott was holding the lead.
2.  Took undue notice of the gap between the first two horses and remainder of the field; or
3.  That the penalty was manifestly excessive when taking the above matters in to account and/or having regard to the penalty imposed on the other driver.

[17] On 16 February 2010 an additional ground of appeal was provided:
4. The Tribunal had undue regard as to where the horses finished rather than concentrating on the actual circumstances of the incident.
Mr Ferguson’s evidence

[18]  Mr Ferguson stated that he was the President of the North Island branch of the Trainers and Drivers Association.  He said he had been a member of that Association for 20 years, Vice President for ten, and President for three.  He stated that the view of that body was that not each driver was equally culpable under R 860(3)(g) where a speed duel formed the basis for the charge.  When questioned by this Tribunal as to the basis on which he had ascertained the views of the Association, he said he had simply informally contacted other members of the Committee of the Association.  However, he said he believed there would be a formal resolution of the Association to this effect at a meeting the week after the hearing of this appeal.

[19] Given the informal nature of his consultation with members of the Trainers and Drivers Association, we informed Mr Ferguson, that we would regard his evidence as that of an experienced horseman (he estimated he had driven over 1500 winners), but we would not regard the evidence that he gave as necessarily representing the views of that Association.

[20] Mr Ferguson stated that each driver’s conduct should be considered having regard to all the circumstances that had unfolded during the race.  He said each driver’s judgment would vary and, accordingly, so would their decision-making. 

[21] Mr Ferguson said he believed, with respect to speed duels generally, that both drivers were not equally culpable.  The driver on the outside was usually more culpable than the driver on the inner.  He explained that the level of responsibility differed in that the driver on the outside had made the initial decision to go up and attack for the lead.  He said if the outside horse could not get past or could not obtain a significant advantage, which he described as being a ½ to ¾ of a length ahead of the inside horse, then the driver of the horse on the outside should ease back.  He said there should be no onus on the driver of the inside horse to ease back where the driver on the outer could not obtain an advantage.  He added he believed R 869(3)(g), as he understood it was currently being interpreted, with both drivers being regarded as equally culpable, stifled competitive racing. 

[22] Mr Ferguson said he believed with respect to this particular “speed duel” that both drivers were not equally culpable.  He expressed the view that the principal reason a charge had been filed was that it looked bad with the two horses being clearly in front of the rest of the field.  He questioned whether the charges would have been laid had Mr Mangos kept in touch with the two leading horses.  He said the charges were the result of the perception by the stipendiary stewards that if it looks bad, it is deemed to be bad.  Mr Mangos may have been in error in not keeping up.  He pointed out Mr Mangos’s horse had performed poorly anyway, finishing third last, and behind Ms Chilcott. 

[23] Significantly, Mr Ferguson stated that he believed only one driver was at fault, and that person was Mr McKendry.  He said the appellant had done very little wrong and Mr McKendry had shown poor judgment.  With respect to the speed of the race, he said a lead time of 43.2 was not excessively quick, even for a maiden race, nor was 63 for the last 800 metres unduly slow.  He added that Mr McKendry had instigated the event; he had made the appellant run these times because he had attacked for the lead.  He said Mr McKendry’s horse dictated the speed not Ms Chilcott.  Her decision-making had been forced upon her by Mr McKendry.  The appellant had done very little wrong.

[24] In response to a question from this Tribunal, Mr Ferguson said that had he been in the appellant’s position, he would not have handed up the lead.  He explained he believed Mr McKendry had had every opportunity to “hop in behind” the appellant, who had made her intention very clear that she was not going to hand up the lead.  Had the appellant handed up the lead, it was his view that Mr McKendry would not have let her come around and take the lead again.  She would have had to trail a very poorly performed horse.  Later in his evidence Mr Ferguson said that had Mr McKendry obtained a ¾ length advantage over him, were he driving in these circumstances, then he would have pulled back.  He added that had Mr McKendry indicated he would have handed up the lead, his (Mr Ferguson’s) response would have been different, in that again, he would have pulled back.

[25] When re-examined, Mr Ferguson affirmed it was his view that both drivers were equally culpable.  He said with respect to next 1/4 after the 1200, which appeared to be the most contentious period of the race, Ms Chilcott was sitting motionless with her hands while Mr McKendry was tapping his horse to keep up.  He pointed out at one point Mr McKendry was back ½ a length and he was starting to stop around the 900 metres.  At that point, he said, the appellant had then been able to ease the pace. 
Appellant’s submissions

[26] The appellant submitted that before there was a breach of R 869(3)(g) the conduct in question had to be to a standard where “very poor judgment” or a “significant error of judgment” was established.  It had to be something more than mere poor judgment or decision-making, or carelessness.

[27] The appellant emphasised that the proper approach was that the focus had to be on the decisions made by the driver during the race, at the relevant time and on an objective basis.  This objective test was to be applied in the circumstances with which the driver was faced.  The actions of each driver had to be considered independently of the actions of the other.

[28] In determining whether one driver had “superior rights” to the other, he said if the inside driver had not been headed to a significant degree; the outside driver should recognise this and pull back.  He stated that the ability of the driver on the inside to retain the lead without expending undue energy was likely to be less than that of the driver on the outside.  It followed that it was possible the fact that two horses were racing head to head did not necessarily mean that both drivers were guilty of very poor judgment and therefore were in breach of R 869(3)(g).

[29] Mr Branch asked us to give significant weight to Mr Ferguson’s evidence to the effect that his actions would have been no different to those of Ms Chilcott had he been driving ANVIL JUSTICE.  He said it was reasonable in the circumstances for the appellant not to have handed up the lead to Mr McKendry.  He said it was a perception issue, and emphasised that the 60 metre gap to the trailing horse should not have influenced the Judicial Committee’s findings.  He disputed the finding of the Judicial Committee that the appellant had been “bloody-minded”.  He said Mr McKendry had been, whereas the appellant was endeavouring to do the best by her horse.

[30] Mr Branch further submitted that were this Tribunal to hold that the appellant was required to re-evaluate her desire to lead, the decision not to restrain ANVIL JUSTICE had to be considered in the light of the two options he identified as being available to her: restraining her horse and remaining in the trail; restraining her horse, and then endeavouring to re-gain the lead.  He submitted neither choice should be regarded favourably.  He said CURLYS COUSIN was a very poor horse and was likely to stop before the passing lane with the consequence that ANVIL JUSTICE would be pushed back through the field.  Secondly, Mr McKendry had given no assurance to the appellant that he would ease back and let her move round and re-take the lead.  Indeed, he submitted “Mr McKendry had made it clear that his intent was just to destroy the chances of Ms Chilcott’s horse.” He said there was a real likelihood the appellant would have been left parked out and thus expending more energy than she had by remaining in the lead. 

[31] Mr Branch concluded his submission by stating: “Faced with only those other two options, remaining in the lead could not be said to be even poor judgment let alone very poor judgment.” Accordingly, he said the charge was not made out on the balance of probabilities.

[32] With respect to penalty, Mr Branch referred to the recommended starting point in the Penalty Guide of two weeks suspension or $500.  (We interpolate by stating that this is in fact the recommended penalty for a major race.) Mr Branch also referred to the recent decision in the PB case (December 2009) and the penalty there, which he said was effectively six days for an extreme example of a breach of R 869(3)(g).  He also emphasised Mr McKendry had only received six days when “his statement and subsequent intention to run Ms Chilcott’s horse into the ground elevated his offending to a level far greater than that of Ms Chilcott’s, yet the penalties were the same.”  He submitted a fine of $500 was appropriate in this instance.

[33] Mr Branch stated that the reference by the Judicial Committee in its oral decision as to penalty to the fact that the race was being broadcast in Australia was irrelevant to penalty (as well as to liability).  It was a minor maiden race no matter where it was broadcast.
The respondent’s submissions

[34] The respondent submitted in reply that the appellant’s driving was “a plain case of a driver going all out for the lead, and then, when that lead is challenged, insisting on maintaining that lead.  It is this course of conduct, which has diminished the horse’s chances in the race.  The run clearly took a toll on the horse, not to mention the challenging horse.”

[35] The respondent further submitted that it was not necessary for this Tribunal to take into consideration the actions of the other driver involved in this incident of speed duelling but it should consider whether Ms Chilcott’s actions (showing bad judgment and driving her horse at too great a rate over the initial stages of the race) or lack of them (not slowing that rate by restraining her horse) was driving that was in a manner that was capable (by reducing the energy reserves of her horse so the horse did not race competitively over the concluding stages) of diminishing the chances of her horse winning. 

[36] Mr Muirhead’s submissions continued by stating that there is no Rule governing a driver’s right to hold the lead or for that matter a Rule prohibiting a driver’s right to challenge for the lead.  He said “any suggestion that one horseman has greater rights to a position would be farcical and against the highly competitive nature of horse racing”.

[37] The respondent submitted the Judicial Committee was correct to take notice of the increasing gap between the two speed duelling horses and the remainder of the field as this was an obvious indication that the two leading horses were travelling at a much greater rate than the following eight horses.  He said the other eight horsemen in the race wisely elected not to chase them preferring to save their horses’ energy reserves for the final stages of the race.  Ms Chilcott and Mr McKendry, in his view, were running their own race.

[38] Mr Muirhead commented that challenges for the lead occurred in every race and whether R 869(3)(g) was breached depended on the period of time the challenge continued and the speed of the horses involved. 

[39] The respondent regarded the appellant and Mr McKendry as being equally culpable, and asked this Tribunal to uphold the penalty imposed upon Ms Chilcott.
Discussion

[40] We believe the concentration by both parties on the issue of whether one driver has superior rights to the other, or whether there is equal culpability, has served only to mask the key issue in this case, which is, of course, whether the appellant was correctly found to be in breach of R 869(3)(g). 

[41] Rule 869(3)(g) prohibits a horseman or horsewoman from driving in a manner which has the ability or capability to diminish the possibility of his or her horse winning.  The informant is not required to prove that the appellant’s driving did in fact diminish the possibility or chances of ANVIL JUSTICE, just that her actions were capable of so doing.

[42] Mr Ferguson’s evidence is that he would have adopted the same course of action as the appellant had, had he been driving ANVIL JUSTICE and that, in his opinion, Ms Chilcott was not in breach of the Rule.  He would sheet home the blame for the speed duel solely to Mr McKendry.  This is not the view of this Tribunal.  Mr McKendry has been found to be in breach of R 869(3)(g), as a consequence of his admitting the breach, and we believe the appellant is similarly in breach of this Rule.

[43] We do not accept the appellant’s submission that the Judicial Committee failed to consider the fact that the appellant was holding the lead and that Mr McKendry was challenging her for it, nor did the Committee have undue regard to the gap between the two horses and to where the horses finished. These were all relevant considerations, which were rightly considered by the Committee, together with other relevant factors.

[44] With respect to the two courses of action that Mr Branch in his submissions has acknowledged were available to Ms Chilcott (see [30]), we believe the adoption of either tactic soon after it became evident to her that Mr McKendry was not going to cease his challenge for the lead would have prevented the appellant from falling foul of R 869(3)(g).  She may not have desired to follow what she identified to be a lesser-performed horse but, nonetheless, that driving tactic was preferable to her continuing to duel for the lead with Mr McKendry at a speed and over a distance that was inevitably going to exhaust the reserves of her horse.  Similarly, she could have attempted to progress around Mr McKendry after he had obtained the lead. Whether or not he would have allowed her to do so is of course not known.  He may not have been prepared to do so, as Mr Ferguson suggested, considering the effort he had made to wrest the lead from Ms Chilcott.  If that was the case, the appellant could have pulled back and again taken the trail.  The body of the field was trailing at a sufficient distance to allow of that possibility.  It is the appellant’s failure to adopt either of these tactics that we hold brings her actions within the purview of R 869(3)(g).

[45] As the Appeals Tribunal in J & C (Christchurch, 19 October 2000) emphasised, each race will depend on its own particular circumstances, especially as they unfold during the race.  The obligation to drive within the Rules of Harness Racing, exhibiting skill and utilising experience, rests with the driver for the duration of that race.

[46] We have found the decision in J & C to be of particular assistance.  Factors identified in that case as being relevant to a determination of a charge under R 868(2) were:
 The distance of the race;
 The stage of the race where duelling occurred;
 The distance over which the duelling occurred;
 The extent to which the horses in question were ahead of the rest of the field;
 The speed at which the horses were travelling in order to maintain or take the lead, in this regard of relevance are the sectional times for the race;
 The energy expended in having to maintain or reach the lead, in this regard of relevance is did the driver have to urge the horse merely by shaking the reins or did the driver have to resort to use of whip, pulling ear plugs etc;
 The availability to the drivers of options other than those that were adopted.

[47]  We believe that reference to these factors assists in the determination of this appeal, despite the charge being laid under R 869(3)(g).  The distance of the race was 2200 metres, which is at the outer range of a “sprint distance”.  The duelling for the lead occurred for some 900 metres from the 1600 to the 700 metre mark.  For much of this time the horses ANVIL JUSTICE and CURLYS COUSIN were some 60 metres clear of the rest of the field.  As to the speed at which the horses were travelling in order to maintain or take the lead, of relevance are the sectional times for the race.  An opening 1000 metres of the race in 72.6 seconds (lead time – 43.2 and 1st ¼ 29.4) then the next ¼ in 29.9 followed by another quick 400 metres sectional of 29.9 seconds.  With some 700 metres to travel the respective horses were tiring considerably and by the time the horses came to the 400 metre mark they had run their race, that is, they had no reserves for the final stages of the race.  With respect to the energy expended in the appellant maintaining the lead, we observe Ms Chilcott pulled the earplugs with 500 metres to run, then encouraged her horse vigorously with the reins at the 400 metres as it was tiring.  Finally, with respect to the availability to the drivers of options other than those which were adopted, we note Ms Chilcott could have restrained ANVIL JUSTICE at any time during the lengthy duelling period.  Ms Chilcott’s evidence on the night was that she had said to Mr McKendry on two or three occasions that she was going to hold on to the lead.  His response was, “right, then I will run you”.  Ms Chilcott had advised the stewards, when they had questioned her after the race, that these words had been exchanged early in the duelling phase (transcript p 3).  In her evidence to the Committee, she says words were exchanged with a lap to run.  She also said in her evidence to the Committee that she believed the lead was her “spot” as she had “worked to get there”.

[48] We find that the conclusion of the Judicial Committee that “Ms Chilcott’s strategy for the race was to retain the lead from Mr McKendry at all costs and the result clearly had a disastrous effect on her horse and the expectations of its connections and the backing punters” is supported by the video evidence, and that of the stipendiary stewards on the night, Mr Muirhead and Mr Taumanu.

[49] It is apparent to this Tribunal that it must have been obvious to both the appellant and Mr McKendry that each was intent on leading at all costs.  The obligation upon the appellant under the Rules was to exercise her knowledge of the horse ANVIL JUSTICE and to apply her experience in determining the extent to which heavy pressure on that horse would reduce the horse’s capacity to finish with the energy required of it.  In the circumstances of this race, that required the appellant to adopt tactics that involved her taking hold of her horse and to abandon what was otherwise her preferred option of leading the field.  Considering matters objectively, the appellant in continuing doggedly to seek the hold the lead was an action that was capable of diminishing the chances of ANVIL JUSTICE winning the race.

[50] We observe that the Appeals Tribunal in J & C stated it would not necessarily distinguish in terms of culpability between the driver in the lead and the driver challenging for it.  That Tribunal observed that the submission in Belford (Qld, 23 October 1992) that the inside driver was less blameworthy, because, having the preferred position, he was entitled to drive as he did, had been rejected in that case.  The Tribunal in J & C was of a similar view with respect to the facts in the case before it.  It is an error to read either or both of these cases as supporting a proposition that drivers duelling for the lead are always equally culpable.  They may frequently be so; but the circumstances of each case, and in particular the circumstances that were peculiar to each driver, and to the application of R 869(3)(g), must be considered.

[51] With respect to this appeal, having regard to the peculiar facts, we believe it is appropriate, indeed necessary, to differentiate between the actions of the two drivers involved in the “speed duel” when making an assessment as to culpability.  While both drivers continued to drive in a fashion that totally disregarded the best interests of their horses, and they each continued for a significant distance to pursue a tactic that was capable of diminishing the chances of their respective horses, we believe Mr McKendry was significantly more at fault, particularly with respect to his actions prior to the 1200 metre mark.  This is evidenced by his comment to the appellant when she indicated that she would not hand up the lead, that he would “run” her.  In addition, CURLYS COUSIN can be seen to be working harder than ANVIL JUSTICE as the duel progresses. 

[52] However, at a point in the race between the 1600 and 1200 metre mark, it should have been clearly evident to the appellant that Mr McKendry was not going to refrain from pressing for the lead, a conclusion which the appellant would have found to be supported by his statements to her that he was going to “run [her] to the ground.”  We are of the view that by the 1200 mark in the race each driver had become bloody-minded and had determined to hold or take the lead, as the case may be, at all cost.  In other words the appellant at this point became as bloody-minded as Mr McKendry and decided that come what may she was not going to hand up the lead.  She thus continued to prevent Mr McKendry from being able to cross her.  We believe this was clearly to the detriment of ANVIL JUSTICE and as such constituted driving in a manner “capable of diminishing the chances of her horse winning”. 

[53] The appellant’s evidence indicates that she had the belief she was entitled to the lead.  This belief is erroneous.  Ms Chilcott may have worked hard initially to take the lead off Mr Mangos, but this did not give her any greater entitlement to the lead than had any other runner, including of course, CURLYS COUSIN.  A race by its very nature is a competition between horses, no one horse has any greater right to the lead than has any other.
Conclusion

[54] It is accepted by both parties that the appellant’s decision-making has to be considered throughout the race.  We agree.  It is a driver’s responsibility to adapt his or her tactics to the ever-changing circumstances of a competitive race.  As noted in the NSW Appeals Tribunal decision in Carlisle (26 March 1996), “When the error of tactics amounts to bad judgment with the effects of disadvantage to the horse, then such manner of driving falls within the terms of the Rule and is deserving of penalty”.  We do not overlook the fact that this observation is made with reference to the Australian equivalent to our R 868(2).  However, we believe this statement is equally applicable to R 869(3)(g).

[55] We are satisfied that the manner of the appellant’s driving and her repulsing of the challenge by Mr McKendry for the lead at the speed and over the distance she did with the effect that ANVIL JUSTICE did not have the ability or stamina to complete the race, was driving in a manner that was capable (ie had the ability) of diminishing the chance of that horse winning.  We thus dismiss the appeal.
Penalty

[56] We turn to consider penalty.  This has given us more difficulty.  We observe that the Appeals Tribunal in J & C expressly refrained from establishing a tariff for a breach of R 869(3)(g) (and also R 868(2), which was considered in that case).  Each case has to depend on its own facts, but that Tribunal identified as a particularly relevant factor, the extent to which the chances of the horse were diminished by the particular driving tactics adopted.  Also of relevance to penalty, was the degree of experience of the drivers involved.  Ready admission of fault and any previous breach of the Rule were also to be weighed. 

[57]  We consider these factors in turn.  We have previously made reference to the fact that by the 400 metre mark ANVIL JUSTICE had commenced to tire markedly.  The horse finished 4th last, with CURLYS COUSIN, which was also involved in the duel, being one of the horses to finish behind it.  Ms Chilcott is a very experienced driver with just under 5,000 drives.  Her record indicates that she has a previous breach of this Rule in 1999 when she was fined $500.  Mr Muirhead indicated, due to the historical nature of this breach and that the circumstances of the breach were very different to those before us, he did not place any great weight on this fact in his penalty submissions.  The appellant’s failure to admit the breach is of course not an aggravating factor but, in contrast, is the absence of a mitigating one.

[58] We also have regard to R 1114(2)(c) and note that a consequential effect of the breach of the Rule was that the betting public never got a competitive run for their investments on ANVIL JUSTICE and that para (d) of that Rule requires us to have regard to the need to maintain integrity and public confidence in Harness Racing.  The fact that this negative image was portrayed to the public by live coverage in Australia as well as New Zealand is of little relevance to penalty, although we appreciate that harness racing has become an international product.

[59] As did both the Judicial Committee in the initial hearing of this matter, and the Committee in PB, we find the recommended penalty in the Penalty Guide of one week’s suspension or a fine of $250 for a breach of R 869(3)(g) to be on the low side.  We recognise there will be a wide variety of circumstances in which a breach of this Rule can be committed, and the circumstances of this particular breach are in our opinion towards the higher end of the range.

[60] We are in no doubt that Ms Chilcott and Mr McKendry, in the circumstances of this case, are not equally culpable.  The actions of Mr McKendry, a very experienced horseman, are difficult to fathom.  When Ms Chilcott took the lead, Mr McKendry was racing three back behind Mr Mangos.  The three horses were in “indian file” and were not trailing up immediately behind each other.  Shortly afterwards Mr McKendry moved out from that position to outside Ms Chilcott in an attempt to take the lead.  He then continued to place pressure on her when it must have been evident to him that she was not going to hand up the lead to him.  The reason why he did not choose to take a trail, when there was a distance of some 60 metres to the body of the field is of course not known to this Tribunal.  However, in contrast to the appellant, he acknowledged his breach of the Rule by entering an immediate admission on raceday.  This Tribunal’s view is that the actions of the appellant were less culpable than those of Mr McKendry. 

[61]  This conclusion as to culpability has to be reflected in the penalties imposed upon the two drivers.  HRNZ has chosen not to appeal the penalty imposed upon Mr McKendry.  In their written submissions they suggest his penalty to be the equivalent of nine days.  Mr McKendry had informed the Committee on the night which meetings he would and would not be attending.  The Committee states the penalty is six days.  And that is how we regard the penalty.  We can only assume that the respondent accepts the penalty imposed upon Mr McKendry is at an appropriate level.  For the guidance of future Committees, we believe we should state that we believe Mr McKendry has been very fortunate in the penalty that has been imposed upon him by the Judicial Committee. 

[62] The penalty that has been imposed upon the appellant is in effect the same penalty that has been imposed upon Mr McKendry.  However, as noted, the appellant did not admit the breach.  We do not believe the penalty imposed upon the appellant, if viewed without reference to the penalty imposed upon Mr McKendry, is manifestly excessive.  Indeed, it is well within range.  However, the difficulty that confronts this Tribunal is that when viewed alongside the penalty imposed upon Mr McKendry, we believe it is disparate.  It fails to reflect the fact that, in this Tribunal’s view, the culpability of Ms Chilcott is less than that of Mr McKendry.  While we are naturally reluctant merely to tamper with a penalty imposed by a Judicial Committee, especially one that otherwise is within range, we believe that a fair-minded observer looking objectively at the actions of the two drivers, and the penalties imposed, would conclude that the penalty imposed upon Ms Chilcott is unjustifiably disparate with that imposed upon Mr McKendry, despite making an allowance for his guilty plea.  We thus believe a small reduction in penalty to reflect this fact is appropriate.

[63] Ms Chilcott is a regular driver at North Island harness meetings and often has close to a full book of drives when driving in the central districts.  When consenting to a deferment of the hearing of this appeal due to the non-availability of the respondent, the appellant submitted that she had given undertakings to connections that she would drive at the two-day Easter meeting at Hawera.  This Tribunal indicated it would take this matter into account when the issue of penalty was considered and that the appellant would not be disadvantaged by her agreeing to the deferral of the hearing of the appeal.  Accordingly, we suspend Ms Chilcott from 24 March up to and including 1 April (this is three North Island days) and fine her the sum of $600. 

[64] Neither party addressed the issue of costs.  We invite them to file written memoranda with the Executive Officer of the Judicial Control Authority within seven working days. 

 

Geoff Hall, CHAIRMAN,       Russell McKenzie, MEMBER
22 March 2010

 

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