Day At The Track

Judicial Committee gets it wrong

01:32 PM 26 Jun 2015 NZST
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Terry Chmiel
Terry Chmiel - Won his appeal against careless driving charge

Here at Harnesslink we are regularly amazed at some of the charges leveled against harness racing drivers and how there seems to be a disconnect between the reality of race driving and the perfect world that the Racing Integrity Unit and the JCA live in.

A good example in our view is the recent appeal brought by Terry Chmiel against a JCA decision that he had driven carelessly.

The transcript below had us here at Harnesslink just shaking our heads.

Date of Hearing: 10 June 2015

Venue: Stewards’ Room, Addington Raceway, Christchurch

Tribunal: R G McKenzie, Chairman - K G Hales, Panelist

Present: Mr T S Chmiel (the Appellant)

Mr S P Renault, Stipendiary Steward (representing the Respondent)

Mr N M Ydgren (Registrar)

Date of Decision: 22 June 2015

RESERVED DECISION OF APPEALS TRIBUNAL

Background

[1] Following the running of Race 10, Changeover Mobile Pace, at the meeting of Oamaru Harness Racing Club at Oamaru Racecourse on 17 May 2015, the Appellant was charged with careless driving in that, as the driver of PARRAMATTA in the race, he “drove carelessly with 400 metres to run when shifting inwards crowding ON THE TOWN (D J Dunn) with this horse locking wheels with HERETIC FRANCO (J R Dunn)”.

[2] Mr Chmiel defended the charge and, following a quite lengthy hearing held after the last race on that day, Race 11, the Judicial Committee found the charge of careless driving to be proved. After hearing penalty submissions, the Judicial Committee imposed a fine of $450.

[3] Mr Chmiel now appeals both the finding of the Judicial Committee that he drove carelessly and the penalty imposed. Mr Chmiel’s Notice of Appeal states that the grounds for his disagreeing with the finding and penalty are “inconclusive video evidence and also not guilty of the penalty”.

Procedure

[4] Rule 1205 (2) of the New Zealand Rules of Harness Racing provides:

All appeals shall, except when and to the extent that the Appeals Tribunal otherwise directs, be by way of rehearing based on the evidence adduced at the hearing conducted by the persons or body whose decision is appealed against.

[5] This Tribunal must carry out its own assessment of the facts, and it should not hesitate to substitute its own findings of fact where it is appropriate to do so. While this Tribunal must apply an independent judgment to the conclusions reached by the Judicial Committee, the onus is still on the Applicant to show that the Judicial Committee was wrong.

[6] The standard of proof is the balance of probabilities (Rule 1008A). This is widely understood to mean that facts are required to be proved as being more probable than not.

[7] At the outset of the appeal hearing, it was agreed by the parties, at the Tribunal’s suggestion, that the “raceday” procedure for the hearing of charges be adopted – that is to say, the Stewards (in this case the Respondent) present their case showing what they are alleging with the assistance of video replays, after which the Appellant is to present his case in support of his appeal.

Submissions of the Respondent

[8] Mr Renault began by showing side-on and head-on video replays of the relevant part of the race – approximately 400 metres from the finish as the field was leaving the back straight. He pointed out HERETIC FRANCO (J R Dunn) leading the field at that point, with ON THE TOWN (D J Dunn) outside the leader and Mr Chmiel, driving PARRAMATTA, improving 3-wide.

[9] Mr Chmiel had been racing in second-to-last position before commencing to improve 3-wide with cover, and then 4-wide past the tiring CHIEF KAPAI. He got up alongside ON THE TOWN. HERETIC FRANCO and ON THE TOWN then locked wheels and drifted back through the field, Mr Renault said.

[10] At the hearing before the Judicial Committee, Mr John Dunn said that his horse’s head was turned outwards but round the bend, he said, he was holding his line rather than running outwards and going wider. Mr Dunn had said that his horse had “run out quite bad down the back” but on the bend he was not having any difficulty with the horse and it was “settled”. Mr Renault submitted that Mr John Dunn’s horse had not contributed to the incident which followed.

[11] Mr Dexter Dunn, driving ON THE TOWN, had been parked for some distance and he was having no difficulty with that horse. The following evidence was given by Mr Dexter Dunn at the raceday hearing:

DD Yeah just on the video there obviously I was sitting parked and half way round the bend I’ve run out of room and because my wheel is behind John Dunn on the inside. I’ve ended up running out of room and locking wheels with John. Basically, just had no room.

SR So was the pressure from the outside here Mr Dunn?

DD Yeah it got pretty tight. Yeah at the time it felt like it was from the outside yeah.

SR And did you call to Mr Chmiel?

DD I just yelled out for a bit of room. Probably a bit before, yeah it just sort of happened really. It happened pretty quick, it just sort of, we were racing there and then all of a sudden it happened you know, right at full speed. When I was out there anyway it felt pretty quick.

SR You weren’t having any difficulty with your horse?

DD No she was

SR Travelling fine

DD Yeap

SR So there was contact, wheel on wheel, before?

DD Just um, yeah, just our stays, obviously we’re touching.

SR And he was tight to you, he was hard on your wheel before there, have you got any option to come outwards, can you relieve the pressure, with him to your outside there? Are you able to come any wider if he’s putting pressure on you?

DD Yeah, it sort of happened that quick I probably, by the time, I did I’d already locked wheels when it happened

SR So did you feel there was any movement from the inside?

DD I couldn’t tell at the time, didn’t even look at the horse on the inside, I didn’t even

SR So out there live, you felt it was from the outside, when you were out there?

DD Yeah probably because I was behind John Dunn, it was mainly me and Mr Chmiel that were um. Obviously you can feel the pressure when you are cart on cart but, maybe if I was up level with John as well I would have felt if there was pressure from the inside but I couldn’t really tell when I was out there.

[12] Mr Renault referred again to the video replays. He submitted that Mr Dexter Dunn was clear of Mr John Dunn and there was a clear gap between them. Mr Chmiel then came across and levelled up to Mr Dunn. The locking of wheels had not yet taken place, he submitted. Mr Dunn then looked to his outside and had called to Mr Chmiel and then he locked wheels with Mr John Dunn.

[13] The stays of the sulkies of Mr Dexter Dunn and Mr Chmiel had touched, Mr Renault submitted. He pointed out on the video replay that the outside sulky wheel of Mr Chmiel could be seen to be throwing up grit from the track. This was where the “touching” took place, Mr Renault submitted, and this was prior to Mr Dunn locking wheels with the sulky of the horse on his inner. Mr Renault accepted, in response to a question from the Committee, that grit from the track had also been thrown up by the wheel of Dexter Dunn’s sulky.

[14] Mr Chmiel had shifted down from a 4-wide position and placed pressure on Dexter Dunn. The onus is on the driver shifting ground, Mr Chmiel in this case, Mr Renault said. Mr Dexter Dunn could be seen to be “wiggling” in the sulky, as he was about to lock wheels. Mr Dunn had nowhere to go to relieve the pressure – he could not come wider. No driver had been in difficulty until Mr Chmiel had come around, Mr Renault submitted.

[15] Mr Renault referred to the transcript of the raceday hearing and pointed out that Mr Chmiel had declined the opportunity given to him by the Chairman to ask questions of either Mr Dexter Dunn or Mr John Dunn. He submitted that Mr Chmiel had accepted the evidence given by those witnesses.

[16] This was a clear case of careless driving in that Mr Chmiel had placed obvious pressure on Dexter Dunn who, in turn, has been forced onto John Dunn, Mr Renault submitted.

[17] Mr Renault submitted that Mr Chmiel had not been in a true 3-wide position but, rather, 2½ carts wide. He pointed out the position of the horse, CHIEF KAPAI, which was in a true 3-wide position, he submitted.

[18] Mr Renault then showed the video replay of the race from the point of the alleged interference to the finish. He said that, once Mr Chmiel came around 3-wide and the two inside runners locked wheels, Mr Chmiel continued to the lead and put a break of 2-3 lengths on the field. With the two horses locking wheels, the majority of the field behind them had been inconvenienced.

[19] Mr Renault submitted that a reasonable and prudent driver would not have put himself in the position that Mr Chmiel had. His drive fell well short of the standard of that expected of a driver. He had failed to take due care.

Submissions of the Appellant

[20] Mr Chmiel first addressed the submission by Mr Renault that CHIEF KAPAI had been in a true 3-wide position prior to the incident. He submitted that this was not the case as SECRETS’ OUT (R T May), on the inside of CHIEF KAPAI, had commenced an outwards movement to get on his, Mr Chmiel’s, back and had forced CHIEF KAPAI wider.

[21] Mr Chmiel then referred to the head-on video replay of that part the race as the field raced down the back straight. He submitted that, as the field approached the bend out of the back straight, the sulky wheel of ON THE TOWN, which wore a boring pole on its near side, was already inside the sulky wheel of the inside runner, driven by John Dunn, long before any contact was made from his outside. Dexter Dunn had put himself in that situation, he submitted. The pressure came when Dexter Dunn had “panicked” and tried to come out. Mr Chmiel submitted that Dexter Dunn had called for room after he had locked wheels. He referred to the evidence of Mr John Dunn who had said that his horse “did run out quite bad down the back”. It was possible that it had also run out around the bend but the video was not helpful in resolving this. Only a small amount of movement was required to have contributed to the locking of wheels, Mr Chmiel submitted. His own horse’s head was “as straight as a die”, Mr Chmiel submitted, and the horse was in a true 3-wide position. He was unaware that Dexter Dunn was not in a true 2-wide position.

[22] Mr Chmiel said that the raceday hearing had commenced some 30 minutes after the last race on the day. This had upset him because he had his horses loaded ready to travel home. He did not have the opportunity to carefully view the videos of the incident until he had got home and was able to study them. He has appealed the raceday finding as he believes that he had done nothing wrong. He had placed no downwards pressure on Dexter Dunn, he said.

Further Submissions of the Respondent

[23] Mr Renault refuted the submission of Mr Chmiel that Dexter Dunn was inside John Dunn’s wheel prior to being joined by Mr Chmiel. Mr Dunn had not referred to having any difficulty or that he was getting close to John Dunn.

[24] The allegation of the Stewards is that Mr Chmiel had driven carelessly by crowding Dexter Dunn. There was clear contact between the stays of the sulkies of Dexter Dunn and Mr Chmiel – this was prior to the former “wiggling” in the sulky and the locking of wheels.

Further Submissions of the Appellant

[25] Dexter Dunn had plenty of time to get his wheel out before Mr Chmiel got to him. However, he had allowed his horse to run in and, in doing so, had put himself in that situation. He was not just “a little bit inside” John Dunn’s wheel, he was well inside, he submitted, at least 15 to 20 centimetres. Dexter Dunn had called late and Mr Chmiel had given him room and come out. He would have given more room had he realised that Dexter Dunn was inside the wheel of John Dunn’s sulky.

[26] His horse wears a rein pricker on the inside and never runs in but runs out, Mr Chmiel said. His horse’s head had not been turned in at any relevant time, he submitted.

27] Tight racing is common and carts touch in every race and that is “just racing”, Mr Chmiel said. He did not believe that he had driven carelessly. He was not aware of any respect in which he had been careless as alleged.

Comments on the Video of the Whole Race

[28] At the request of the Tribunal, a video replay of the entire race, a mobile start event over 2000 metres, was shown to the hearing. It was shown that HERETIC FRANCO (J R Dunn) took the lead from the start, and the lead time was 26.3 seconds. At the winning post with a lap (1200 metres) to run, ON THE TOWN (D J Dunn) challenged for the lead and took a lead of approximately 1 length without being able to cross the leader, before HERETIC FRANCO was urged along to hold the lead. As the field entered the back straight, PARRAMATTA, driven by Mr Chmiel, was racing in 2nd to last position in the 11-horse field. It then improved quickly 3-wide and then 4-wide to go up alongside ON THE TOWN which was racing on the outside of HERETIC FRANCO. When those two runners locked wheels, there was some disruption to the field and PARRAMATTA established a break of several lengths over the field. It was run down in the straight and finished in 6th placing, 2.7 lengths from the winner. ON THE TOWN finished in 9th placing and HERETIC FRANCO finished in last placing.

Appeal Against Penalty

[29] Mr Chmiel confirmed that his appeal was also against the level of fine ($450) imposed by the raceday Judicial Committee. The reasons given by that Committee, either at the conclusion of the hearing or in its subsequent written decision, were read to Mr Chmiel. The Stewards had submitted for a fine of between $450 and $500. The Committee took a starting point of a fine of $500 as suggested in the Penalty Guide. The Committee identified that an aggravating factor was the disruption to the majority of the field, making the level of carelessness, in the Committee’s view, at the higher end of the scale. The Committee also referred to Mr Chmiel’s “clean record”.

[30] Mr Chmiel submitted that a fine of $450 was excessive.

Reasons for Decision

[31] Mr Chmiel has appealed against the finding of the raceday Judicial Committee that he drove carelessly when shifting inwards crowding ON THE TOWN with that horse locking wheels with HERETIC FRANCO.

[32] This Tribunal has had the benefit of being able to view the various video replays of the incident, and to consider the evidence and submissions without the pressure that is inevitably on a raceday Judicial Committee.

[33] We think that it is relevant, in the case of this appeal, for this Tribunal to have regard to the fact, as we were told, that the hearing commenced some 30 minutes after the running of the last race. This means that the hearing of the charge would have commenced at approximately 5.00pm. This, no doubt, placed pressure on all participants including Mr Chmiel and the Judicial Committee. Mr Chmiel told us that he had his horses loaded on his truck awaiting transport home to Leeston.

[34] The grounds of Mr Chmiel’s appeal, as set out in his Notice of Appeal, are “inconclusive video evidence and not guilty of penalty”. It was not helpful to the Respondent or, indeed, this Tribunal that the grounds were not spelt out in greater detail. The Tribunal is aware of the provision in Rule 1205 (3) where it states:

Except by special leave of the Appeals Tribunal no appellant shall argue or be permitted to argue any ground of appeal not set out in the notice of appeal.

[35] In the circumstances, the Tribunal was prepared to allow Mr Chmiel some latitude in this regard. His reference to the “inconclusive video evidence” we took as a reference to the fact that there was no true head-on video of the precise point of the race when the sulky wheels of the two Messrs Dunn locked. This is not a slight on the video coverage, as it is just not possible to have perfect video coverage of every point in a race.

[36] Of course, a Judicial Committee and, if appropriate, an Appeals Tribunal has regard to not only the video evidence but also the evidence of the parties to the proceedings and their witnesses. In this case, we had available to us a full transcript of the raceday hearing. We were able to read what Mr Renault and Mr Chmiel had said in their evidence to the Committee and, also, what the drivers of the other two runners involved had to say.

[37] The Tribunal is aware that issues of credibility of witnesses arise and concedes that the Judicial Committee had the advantage of seeing the witnesses. However, no deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage.

[38] Having said that, the Tribunal did not find the video evidence entirely inconclusive but, rather, found it to be of considerable assistance. So, our finding has relied on both the video evidence and the evidence given by the parties and witnesses at the raceday hearing.

[39] The Tribunal allowed Mr Chmiel to make points in his submissions before us that he did not make before the raceday Committee and did not specify in his Notice of Appeal. We allowed him to do so because we felt that Mr Chmiel was placed in a position, on the raceday, in which he was not able to properly consider the video evidence prior to the hearing and to mount a full and proper defence to the charge of careless driving against him. We do not say this by way of criticism of the raceday process, other than to say that it may well have been appropriate for Mr Chmiel to have been offered the option of having the hearing of the charge adjourned in the circumstances - see paragraph [33] above. It is not ideal, and may even be prejudicial to a Respondent, for the hearing of a charge to be proceeded with in such circumstances.

[40] In his submissions before this Tribunal, Mr Chmiel relied quite heavily on a video replay that, he submitted, clearly showed the line of Mr Dexter Dunn’s inside sulky wheel inside the line of the sulky wheel of the horse on his inside, HERETIC FRANCO, driven by Mr John Dunn, prior to his placing the alleged pressure on Mr Dexter Dunn. This was not something raised by Mr Chmiel before the raceday Committee. We feel sure that this was because he had not had the opportunity to properly study the video replays at that time.

[41] The Tribunal is of the view that there is more than a little merit in that submission. From our own observation of the video evidence available, it did appear to be the case that Dexter Dunn’s inside sulky wheel was tracking inside the sulky wheel of John Dunn prior to the locking of wheels. In fact, we note that Dexter Dunn told the Judicial Committee: “Yeah, it sort of happened that quick I probably, by the time I did I’d already locked wheels when it happened”.

[42] We do not consider the parol evidence of Dexter and John Dunn, as set out in the transcript, to be overly convincing. The former, in response to being asked if there was any movement from the inside, said “I couldn’t tell at the time, didn’t even look at the horse on the inside at the time”. He went on to say that the pressure was “probably” from the outside. Then, asked if there was any pressure from the inside prior to locking wheels, Mr Dexter Dunn stated: “I actually couldn’t actually tell you at the time yeah”.

[43] Mr John Dunn, when asked whether his horse had contributed by hanging out or running out slightly responded: “Yeah running out slightly”. Later, when asked whether he was running outwards or holding his line he replied: “Probably yeah probably more holding my line”. Earlier, he had said: “My horse has run out down the back straight, he’s run off a good cart and back. Also, it had its head round a fraction round the bend. So it sort of runs out the whole way but”.

[44] This Tribunal also noted that the two witnesses for the Stewards, Messrs Dexter and John Dunn, were each present at the hearing while the other gave evidence. In that situation, there is a very real danger that the evidence given by one witness will be coloured by the evidence given by the other. This should be avoided wherever possible.

[45] The Tribunal’s conclusion, from studying the transcript and carefully viewing the available video replays, is that what happened was, simply, a racing incident. It is clear that the three horses concerned were racing tightly and at speed as a result of which ON THE TOWN and HERETIC FRANCO locked wheels. Any inwards movement by Mr Chmiel was not great. Mr Chmiel did not deny that the sulky stays of his and Mr Dexter Dunn’s horse had touched which, he told us and we accept, was not an uncommon happening in a race situation. That they touched was illustrated by the fact that, as shown on the video, track grit was thrown up by the sulky wheels of both of those runners. We especially note that the word “touched” was used in the raceday hearing to describe the degree of contact between the two sulkies. It appeared to be no more than a touch.

[46] Mr Renault told the Tribunal that the onus is on the driver shifting ground to leave sufficient room. It does not necessarily follow, however, that any incident as on this occasion must be the result of and the fault of that driver shifting ground.

[47] The Tribunal believes that the locking of wheels of the two runners was most likely the result of a number of factors. It is undeniable that the three runners were racing tightly. The possibility that HERETIC FRANCO, which had been running out prior to the incident, had contributed by hanging out on the bend cannot be dismissed. Even more cogent is the fact, which we find, that Mr Dexter Dunn’s inside wheel was tracking a path inside the wheel of HERETIC FRANCO, prior to being joined by Mr Chmiel. Mr Chmiel could not have been aware of this at the time and his submission was that he had heard a call for room from Mr Dunn as Mr Dunn was about to lock wheels, to which he immediately responded by giving room, but only after their stays had briefly contacted, or “touched”. Mr Chmiel correctly pointed out that his horse had its head straight at all material times.

[48] The Rules of Harness Racing do not require a horseman to achieve standards of perfection. A horseman must drive to the standard of a reasonable, competent and prudent driver. This Tribunal is not satisfied that Mr Chmiel’s driving fell below that standard on this occasion.

[49] The Tribunal finds that the locking of wheels of HERETIC FRANCO and ON THE TOWN was what is commonly referred to as a “racing incident”, which is an occurrence in a race which is not attributable to the actions of any one horse or driver but which occurs, usually, as a result of a combination of factors and as a result of the speed and very competitive nature of a harness race, and was not the result of Mr Chmiel driving carelessly. It was, we believe, the result of a combination of factors with each of the three horses involved contributing to a greater or lesser extent. We are not satisfied, to the required standard of the balance of probabilities, that Mr Chmiel drove in a manner that was careless.

Decision

[50] The appeal is upheld. The decision of the raceday Judicial Committee at the meeting of Oamaru Harness Racing Club on 17 May 2015 is therefore set aside and the penalty imposed of a fine of $450 is quashed.

Costs

[51] No order is made as to costs. The fee paid to the Judicial Control Authority on the filing of the appeal shall be forfeited to that body.

R G McKenzie        K G Hales

Chair                     Panelist

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