NON RACEDAY INQUIRY RIU V J COX – DECISION DATED 6 MARCH 2015
BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY UNDER THE RACING ACT 2003 AND IN THE MATTER of the New Zealand Rules of Harness Racing.
BETWEEN RACING INTEGRITY UNIT (RIU) – Informant
AND JOHNNY COX, Open Horseman – Respondent
Information: A1407
Judicial Committee: Prof G Hall, Chairman – Mr P Knowles, Committee Member
Appearing: Mr C Allison, for the Informant
The Respondent in person
Date of hearing: 19 February 2015
DECISION OF JUDICIAL COMMITTEE
[1] Mr J Cox is the holder of an Open Horseman’s licence, which was issued under the New Zealand Rules of Harness Racing.
He is charged with a breach of r 869(3)(g) in that when driving CERATO in race 8 at the Central Otago TC meeting at Omakau on 2 January last he drove in a manner capable of diminishing the chances of that horse winning by vying for the lead at an excessive pace over the opening 800 metres of the race.
[2] Rule 869 states:
(3) No horseman in any race shall drive: …
(g) in any manner capable of diminishing the chances of his horse winning.
[3] Mr Allison provided written authorisation for the charge to be laid in a letter signed by Mr M Godber General Manager of the RIU, dated 16 January 2015.
[4] Mr Allison stated that the crux of the informant’s case was that the respondent had vied for the lead with Mr Williamson at an excessive pace when there were other options available to him.
Informant’s case
[5] Mr Allison called Mr N McIntyre to give evidence.
[6] Mr McIntyre stated he is employed by the RIU and his current position is Co-Chief Stipendiary Steward. He said he has had 11 years’ experience as a stipendiary steward.
[7] Mr McIntyre stated that Mr Cox had been licensed as a horseman since 2002 when initially licensed as a Trials Horseman before obtaining a Junior Horseman’s licence in 2003. Mr Cox had held an Open Horseman's licence since 2008. During this period Mr Cox has had in excess of 4000 race-day drives.
[8] Mr McIntyre played and commented on a video of the race in question. He explained it was a mobile pace over 2000 metres for Class 1 horses and that Mr Cox was the driver of CERATO.
[9] CERATO, which was 3/3 in the betting, drew 2 on the front line in a full field of 14 horses.
[10] Immediately after the start CERATO was driven forward by Mr Cox and after crossing Mr Dunn, he reached the lead. THE SHAKEY MISTRESS driven by Mr M Williamson challenged him for the lead. THE SHAKEY MISTRESS ended up in the parked position on the outside of CERATO. These two horses then began to draw clear of the remaining horses in the race rounding the first bend.
[11] The initial 400 metres of the race was run in 26.4 seconds.
[12] As the field travelled around the first bend some 200 metres after the start THE SHAKEY MISTRESS almost cleared CERATO on her inside. However, Mr Cox continued to keep his horse’s legs inside THE SHAKEY MISTRESS and Mr Williamson was unable to shift inwards to the lead. He said Mr Cox was flicking the reins and tapping the horse up in order to keep himself in position and to prevent Mr Williamson crossing him.
[13] Upon straightening into the home straight on the first occasion CERATO had improved back inside THE SHAKEY MISTRESS. At this stage Mr Williamson reined up THE SHAKEY MISTRESS in another attempt to gain the lead, which was unsuccessful, as Mr Cox had again tapped up CERATO.
[14] Near the 1300 metres mark (about 100 metres before the winning post) Mr Williamson finally restrained THE SHAKEY MISTRESS to take a trail behind CERATO. At this point Mr Cox eased the speed but Mr McIntyre believed the damage had been done to the chances of CERATO by the time that horse reached the winning post for the first time.
[15] Mr McIntyre said Mr Cox had the option of letting Mr Williamson go past and to drop into the trail. If he had wanted to, Mr Cox could then have come back out. He said at no point in the first 800 metres had Mr Cox taken hold of his horse or eased back.
[16] When CERATO reached the winning post after 800 metres CERATO and THE SHAKEY MISTRESS were in excess of 20 metres clear of the chasing bunch. This margin equates to approximately 8-9 lengths. The field was spread out over approximately 80 metres. Mr McIntyre said this highlighted the fact the two horses were going too quickly. The other drivers, a number of whom were also very experienced, were not chasing their horses up to get behind the two leaders at this stage of the race because they would be aware the speed was simply too quick.
[17] The time for the opening 800 metres was 54.8 seconds. At this stage of the race the field still had 1200 metres to run. The pace then eased for the next 400 metres, which was run in 31.3 seconds. This enabled the field to catch the two tearaway early leaders.
[18] Shortly after passing the 1300 metres mark CERATO was challenged for the lead. CERATO fought off the challenge for the lead again briefly, however the horse was retreating prior to the 1600 metres. CERATO eventually finished in 12th placing in excess of 23 lengths from the winner in a time of 2.30.6.
[19] The overall time for the race was a new track record of 2.25.89. The previous track record set in 2014 was 2.27.8. The leaders ran the last 800 metres in 59.7 with the last 400 metres in 29.9.
[20] The 400 metres splits for the race were:
1st 400 metres – 26.4 2nd 400 metres – 28.4 1st 800 metres – 54.8
3rd 400 metres – 31.3 4th 400 metres – 29.8 2nd 800 metres – 61.1
Last 400 metres – 29.9
[21] The times for the other 2000 metre races on the day were also produced. These demonstrated that the only race with a slower last 800 metres was a C0 trot. The times for the first 800 metres were all slower.
[22] Mr McIntyre produced sectional times from the Harness Jewels meeting at Cambridge Raceway in 2014. These demonstrated that the 1st 800 metres of the race at issue was run in a quicker time than the adjusted times for the 1st 809 metres in any of the Jewels races despite those being higher quality horses. Weather conditions were similar and each track was hard and fast.
[23] CERATO was only having its second raceday start. After comparing the Jewels times, he said that by the end of the first 800 metres CERATO’s chances in a 2000 metre C1 pace at Omakau were effectively over.
[24] CERATO was the subject of a post-race veterinary examination by Dr P Gillespie, with no abnormalities detected.
[25] Mr McIntyre concluded his evidence by responding to a question from the Committee. He stated that he was not concerned with the first 100 metres of the race as horses would position themselves at this time. However, if they had “burned” over the first 100 metres they would then ease but this was not what happened on this occasion. In his opinion, there were other options available to both Mr Cox and Mr Williamson.
26] Mr Allison cited the decisions in Chilcott v HRNZ (22 March 2010) and J & C (19 October 2000). These were both Appeals Tribunal decisions.
[27] Mr Allison pointed out on the video that at one point CERATO was having trouble holding its gait. This was further evidence, he said, of CERATO racing at excessive speed.
Respondent’s case
[28] Mr Cox stated that it was a question of tactics versus options. He said he was “not overly driving” CERATO. There were a few flicks with the whip; that was all. In contrast, Mr Williamson had to slap his horse to keep up. It was Mr Williamson who dictated the speed, not him. Mr Williamson was chasing his horse up harder than he was.
[29] Mr Cox said he was happy with CERATO and was confident it would perform well. It had won its only previous start.
[30] Mr Cox said CERATO liked to lead and if he had pulled back and then gone round, the horse would have worked harder and expended more energy. In his opinion, it was not an option to pull back. He added though, that it had gone through his mind to pull back at one point but he decided to go with his original decision not to hand up and to keep the lead.
[31] Mr Cox commented on the video. He said he was happy to roll out to the lead. He flicked his horse twice with the stick. He said at the mile marker Mr Williamson yelled, “I’ll stay there”. He said he answered, “No.” He explained he took Mr Williamson to be saying if he got the lead he would not hand up. By answering, “No”, he was telling Mr Williamson he would not trail. There was no other talking.
[32] Mr Cox said he did not believe he had had to urge his horse to any great extent but he emphasised he had decided to keep the lead. He said Mr Williamson had had two goes for the lead despite the fact he believed he had made it clear to Mr Williamson that he was not going to hand up the lead to him. He said Mr Williamson’s horse was not a favoured runner and he was not going to hand up to her. He said the horse had led at her previous start and had been flat 500 or 600 metres from home. He said there were some horses he would have handed up to but not to THE SHAKEY MISTRESS.
[33] Mr Cox demonstrated Mr Williamson slapping his horse up in the straight before taking hold about 100 metres before the winning post. He said by the time he reached the winning post the first time he was aware they had been going quick. However, he had only had to tap CERATO two or three times. He was not aware how far the other horses were behind him and Mr Williamson. He accepted 26.4 was a very quick first 400 metres for this class of horse. He had not realised it was that fast at the time but the time was explained by the fact both he and Mr Williamson were intent on the lead. If he had wanted to trail, he would have handed up straight away.
[34] Mr Cox acknowledged that CERATO had taken a few rough steps and he had had to take a hold. This was just because of the speed. He had not previously required a horse to run a first half in 54.8 and on reflection it was unlikely a horse having done so would be competitive at the end of the race.
Summing up
[35] Mr Allison stated the rule was one of strict liability and that the informant only had to establish that Mr Cox had driven in a manner capable of diminishing the chances of CERATO. Although on this occasion CERATO did lose its chance. He said the case was not one about tactics but the actual speed at which the two horses had raced for some 700 metres when each was vying for the lead. This speed was excessive, as was demonstrated by the sectional times, which spoke for themselves. CERATO was having only its second start and after the first 800 metres its chances were gone. It could not be competitive over the concluding stages because of the energy expended over the first 800 metres.
[36] Mr Cox replied he wanted the lead and he was not going to hand up to Mr Williamson because of the ability of Mr Williamson’s horse.
Decision
[37] As the Appeals Tribunal in J & C 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.
[38] We have found 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 earplugs etc;
• The availability to the drivers of options other than those that were adopted.
[39] As did the Appeals Tribunal in Chilcott, we believe that a consideration of these factors will assist in the determination of this charge, despite the charge being laid under r 869(3)(g).
[40] CERATO was having its 2nd start. Mr Cox has stated that he rated the horse after its first up win at Forbury Park. On that occasion the horse had a trail and finished best. He also believed that the horse was capable of holding off an early challenge and running on. The horse had form, obvious ability, and Mr Cox drove it with confidence expecting it to run on and win.
[41] The concern of the stipendiary stewards is with the manner in which Mr Cox drove over the first 800 metres of the race and, more particularly, the speed at which this distance was run.
[42] The race was run over the sprint distance of 2000 metres. CERATO and THE SHAKEY MISTRESS ran the opening 400 metres in 26.4 and the first 800 metres in 54.8. The second opening 400 metres was slower, so at some point they eased off the pace a little. We accept it would have taken 100 to 150 metres for the field to settle. The damage with respect to pace occurred between the 300 metres to the 700 metres. This latter mark was the point where the two drivers opted for different tactics with Mr Williamson finally sitting up on his horse and going for cover and Mr Cox then commencing to slow the pace. The duelling thus continued for some 400 metres. Mr Cox acknowledged the opening times were fast for the class of horse.
[43] The field had formed 100 to 150 metres after the start. Mr Cox took CERATO to the lead. Mr Williamson ended up sitting outside him. He persisted for the next 500 metres to endeavour to wrest the lead off Mr Cox. He was unsuccessful in his endeavours as he was never sufficiently clear of Mr Cox, who urged his horse forward to keep his position to the inside of Mr Williamson. By the time Mr Williamson restrained THE SHAKEY MISTRESS and took a trail behind CERATO, there was some 20 to 30 metres back to the head of the rest of the field. Mr Cox then, as we have noted, proceeded to slow the pace, but driving in a manner capable of diminishing the winning chances of CERATO had in our view already occurred.
[44] That both Mr Cox and Mr Williamson were intent on leading is evidenced by the vigorous manner in which Mr Williamson reined up his horse and Mr Cox’s response each time he did, which was to urge CERATO forward. Its clear from the videos that Mr Cox was trying to hold the lead and by doing so was going to make THE SHAKEY MISTRESS work hard to get there. He had an opportunity to let her take the lead but chose to maintain his position despite running a very quick 400 metres.
[45] We are of the view that 400 metres was plenty of ground for the two horsemen to sort themselves out. Mr Cox’s determined denial of the lead to Mr Williamson simply continued for too long. At the 600 metres point of the race, Mr Williamson chased his horse up to again try to cross. Mr Cox again responded to keep him out. Of concern to us is the fact that after having been successful in seeing off Mr Williamson’s first attempt to take the lead, Mr Cox did not consider a change in tactics. He persisted in reining up CERATO whenever Mr Williamson attempted to cross him. There was ample opportunity before and at the 600 metres for Mr Cox to ease CERATO and to trail THE SHAKEY MISTRESS and, if he so wished, to come out again.
[46] We believe the adoption of either of these tactics soon after it became evident to him that Mr Williamson was not going to cease his challenge for the lead would have prevented Mr Cox from falling foul of r 869(3)(g). He may not have desired to follow what he believed to be a lesser-performed horse, as he has described THE SHAKEY MISTRESS to us, but, nonetheless, that driving tactic was preferable to his continuing to duel for the lead with Mr Williamson at a speed and over a distance that was inevitably going to exhaust the reserves of his horse. Similarly, he could have attempted to progress around Mr Williamson after Mr Williamson had obtained the lead. Whether or not Mr Williamson would have allowed him to do so is of course not known. Mr Williamson may not have been prepared to do so considering the effort he had made to wrest the lead from Mr Cox. If that was the case, Mr Cox 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 his failure to adopt either of these tactics that we hold brings Mr Cox’s actions within the purview of r 869(3)(g).
[47] Mr Cox says he yelled out to Mr Williamson that he was not going to hand up the lead and that Mr Williamson said he would not hand up if Mr Cox gave the lead to him. Mr Cox did not tell the Committee whether he believed this included handing the lead back to CERATO or was directed more particularly to other horses in the race. This notwithstanding, Mr Williamson by his continuing to rein up THE SHAKEY MISTRESS, sitting outside Mr Cox, and attempting to cross should have made it clear to Mr Cox that continuing to press forward at speed was capable of diminishing the winning chances of CERATO.
[48] Mr Cox clearly had a game plan in mind; this was to keep the lead unless it was a favoured runner that wanted to cross him. THE SHAKEY MISTRESS in Mr Cox’s mind was not such a horse (it was 7/9 in the betting) and he was concerned she would stop as she had done at her previous start. Mr Cox never changed his tactics; Mr Williamson did by grabbing hold of THE SHAKEY MISTRESS and eventually dropping in to trail CERATO just before the winning post the first time.
[49] We note that the sectional times are very quick for this grade of horse, indeed for any grade of horse. While we are reluctant to place any great weight on the Harness Jewels times due to the distance and track being different, they do support this conclusion. With the 54.8 for the first 800 metres it was inevitable by the time Mr Cox had prevented Mr Williamson crossing for a second time and Mr Williamson dropped back to trail, CERATO would fade before the end of the race. Mr Cox has acknowledged the opening times were fast for the class of horse. We note the last 800 metres of this race was slower than the other 2000 metre races on the day by a significant margin.
[50] It is our view that Mr Cox should have desisted in his determination to prevent THE SHAKEY MISTRESS from obtaining the lead a long time before the 700 metres point. Indeed, he only slowed the pace of the race once CERATO ceased to challenge for the lead. He had the option to ease CERATO, hand up the lead, and take a breather behind THE SHAKEY MISTRESS. There was the further option, as we have noted, of coming out later and taking the lead back, should he have so wished. It should have been evident to Mr Cox from the manner in which Mr Williamson was chasing his horse up and trying to cross that he was determined to get the lead off Mr Cox. We believe Mr Cox was equally fixed in his determination not to hand up, despite the speed at which he was required to travel to prevent Mr Williamson from crossing. Mr Williamson had made his intentions abundantly clear. Mr Cox simply chose to ignore this fact.
[51] Having regard to the sectional times for the first 800 metres, we are of the view that the chances of CERATO winning the race were diminished by Mr Cox’s actions from the 300 metres to the 700 metres in his urging CERATO forward to keep the lead whenever Mr Williamson looked likely to cross him.
[52] We thus find that Mr Cox drove in a manner that was not only capable of diminishing the chances of CERATO winning but did in fact diminish that horse’s chances of so doing. The charge under r 869(3)(g) is proved.
[53] We require written submissions as to penalty and costs.
[54] Mr Allison is to file his submissions within seven working days of receipt of this decision.
[55] Mr Cox is to file his submissions within seven working days of receipt of the informant’s submissions.
Dated at Dunedin this 6th day of March 2015.
Geoff Hall Chairman
Paul Knowles Committee Member