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Non Raceday Inquiry RIU v D O'Connell - Written Decision dated 2 November 2020 - Chair, Prof G Hall

Created on 03 November 2020

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 MR DENIS O’CONNELL

Horseman

Respondent

Information: A13219

Judicial Committee: Prof G Hall, Chairman

Appearing: Mr S Renault, Stipendiary Steward, for the Informant

The Respondent in person, with the assistance of Mr G Anderson, Licensed Trainer

Date of hearing/oral decision: 25 October 2020

Date of written decision: 2 November 2020

WRITTEN DECISION OF JUDICIAL COMMITTEE

[1] An Information was filed by Stipendiary Steward, Mr Renault, against Driver, Mr D O’Connell, alleging a breach of r 868(2) in that Mr O’Connell as the driver of PETE’S DASH in Race 10, IRT. #1 AIRFREIGHT COMPANY FOR STANDARDBREDS MOBILE PACE at the NZ Metropolitan Trotting Club meeting held at Addington Raceway on 6 September 2020 failed to take all reasonable and permissible measures to ensure PETE’S DASH was given full opportunity to win or obtain the best possible placing by failing to attempt to obtain cover and allow his runner respite when the opportunities to do so were presented but instead elected to hold the parked position.

[2] PETE’S DASH is trained by Mr O’Connell and finished 6th of 11, beaten 8.9 lengths from the winner MINNELLI SMILE.

[3] Rule 868(2) reads: “Every horseman shall take all reasonable and permissible measures at all times during the race to ensure that his horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place.”

[4] The Charge was heard as a Non Raceday hearing at the Forbury Park Trotting Club’s meeting at Dunedin on 25 October 2020.

[5] Mr O’Connell indicated on the signed Information that he admitted the breach. At the hearing he requested that he be able to change his plea to one of “Not admitted”. After hearing from the parties, Mr O’Connell was permitted to change his plea.

Informant’s case

[6] With reference to the video, Mr Renault provided the following written summary of the race:

1) This race was run over 2600 metres. PETE’S DASH drew 2 on the front line. PETE’S DASH showed gate speed at the start and immediately challenged for the lead with MUSTANG GT which had drawn 1 and also PAUL’S VERDICT which had drawn 4. Mr O’Connell urged his runner forward with the reins and whip after 100 metres in an attempt to clear MUSTANG GT however once being unable to do so he ceases in that challenge shortly after. By this time PAUL’S VERDICT had been able to muster enough speed to cross both PETE’S DASH and MUSTANG GT and assume the lead.

2) Rounding the first bend PETE’S DASH hangs inwards and Mr O’Connell tries to shift into a position behind the leader PAUL’S VERDICT however is unable to again fully clear MUSTANG GT and is left to race in the parked position.

3) From this point around the 2100 metres PETE’S DASH races outside the leader PAUL’S VERDICT.

4) Near the 1600 metres TIGER MOTH improves three wide from towards the rear of the field and progresses forward in an attempt to gain the parked position.

5) Mr O’Connell looks to his outside passing the 1400 metres and observes TIGER MOTH improving three wide and immediately urges his horse to hold its position. TIGER MOTH’S driver continues to urge his horse on until shortly after the 1200 metres before being taken hold of.

6) During this period where Mr O’Connell urged his runner forward the pace of the race increased noticeably and the front four horses break away from the remainder of the field.

7) Passing the 1100 metres there is ample opportunity for Mr O’Connell to ease his runner to gain some respite which would enable him to shift inwards and take up the vacant trail behind PAUL’S VERDICT as MUSTANG GT had lost ground and was under pressure from its driver to maintain its position. This opportunity was available to Mr O’Connell until near the 900 metres.

8) Mr O’Connell chose not to restrain his runner which allowed the horse following PETE’S DASH in the 1x1 position MINNELLI SMILE to shift inwards and take the trail.

9) As the field turned into the back straight near the 800 metres Mr O’Connell again places his runner under significant pressure to challenge x and the pace of the race increases.

10) PETE’S DASH is under pressure on the final bend and is forced wider on the track by the trailing MINNELLI SMILE.

11) The concern for Stewards is that Mr O’Connell had options presented to him to enable his horse an opportunity to gain some respite. 

12) Passing the 1400 metres he could have taken hold of his horse to obtain the 1x1 position by handing up to the improving TIGER MOTH. Mr O’Connell should have been aware that there was no other horse following TIGER MOTH at that stage of the race however he was intent on remaining parked and had to increase the speed of the race to hold that position.

13) Further on as the field raced towards the 1100 metres, Mr O’Connell had a period of 200 metres available to him to shift inwards and obtain the trail. This is a significant amount of time during which he elected not to offer his runner any respite.

14) From the 800 metres when Mr O’Connell should have been looking to take hold of his horse to allow his runner respite, he again placed the horse under significant pressure until near the 600 metres.

15) When questioned by Stewards immediately following the race, Mr O’Connell’s explanation was that he had been told by the horse’s previous trainer that it races best parked, so he had been intent on staying in that position regardless of what happened in the race.

16) Stewards reviewed previous wins of PETE’S DASH. On the first occasion at Invercargill, the horse settled back with cover, before improving around the field near the 1400 metres to race parked for the final lap. For the horse’s second win, the gelding raced over 2600 metres at Oamaru and was parked from the 2200 metres until the 1200 metres. From there the horse was able to gain cover from a horse improving 3 wide and raced in the 1x1 thereafter.

17) Mr O’Connell’s tactics were unreasonable in the circumstances which amounted to bad judgement and as such he failed to take all reasonable and permissible measures to ensure PETE’S DASH was given full opportunity to win or finish in the best possible finishing position.

[7] Mr Renault summarised the Informant’s case orally. He said there was no issue with Mr O’Connell’s early drive. He had tried to get in but could not do so.

[8] Mr Renault accepted that not all drivers challenged in the fashion that Mr O’Connell had been would hand up and drop back into the one out one back position. But Mr O’Connell had been sat parked for some 700 to 800 metres and should have done so. Instead, Mr O’Connell kept urging PETE’S DASH forward in order to hold his position and to prevent TIGER MOTH from crossing him. Mr Renault believed Mr O’Connell should have been aware that no other horse was coming around following TIGER MOTH.

[9] The Stewards’ biggest concern related to Mr O’Connell’s failure to take the trail when that opportunity was presented to him for a period of time, and by so doing, to give some respite to PETE’S DASH. MUSTANG GT had dropped off the leader and Mr O’Connell could have taken hold of PETE’S DASH and eased into the trailing position behind the leader. He was racing outside the wheel of the leading horse, PAUL’S VERDICT (Mr Morrison), at the time and he could have taken the position that Ms Ottley (MINNELLI SMILE), who went on to win the race, had taken. It had been there for Mr O’Connell for some time, approximately 200 metres. Mr Renault said Mr O’Connell had simply been intent on sitting parked and Mr O’Connell should have at least looked to trail.

[10] Mr Renault also stated that from the 800 to the 600 metres the Respondent was urging PETE’S DASH. Before the final bend the horse was under significant pressure and was tiring.

Respondent’s case

[11] Mr O’Connell commenced his defence by questioning why he would take his horse away from the parked position when it was racing “nice and relaxed”. He said if he had dropped into the trail, he would have lost momentum. He could not understand why he should have done this. If he had got behind PAUL’S VERDICT, it “might not have carried on with the job”. He had been behind this horse before and it did not take him to the passing lane. He said it had not taken the trailing horse into the lane on this occasion either. (Mr Renault disputed this, commenting that this was because Ms Ottley had elected to come out.)

[12] Mr Anderson assisted the Respondent. He said that TIGER MOTH had a reputation as a rough going horse and he could understand why Mr O’Connell did not want to sit behind it. TIGER MOTH had dropped out, beaten 27 lengths. TIGER MOTH had done nothing in its next start. It was not the best horse to follow. He said Mr O’Connell was driving his own race and had decided to deny TIGER MOTH the one out position as he was not sure it was the right horse to hand up to.

[13] Mr Anderson said it had been easier for Ms Ottley to take the trail than it would have been for the Respondent. Mr O’Connell would have had to pull right back when Ms Ottley was racing close behind him, and check his horse. That would have been difficult, and he disputed that there had been an opportunity to do so for over 200 metres.

[14] Mr O’Connell stated that he believed if he had handed up to TIGER MOTH, he would have been questioned by the Stewards as to why he had done so.

[15] Mr O’Connell said there had been rain shortly before the start of the race. He had grit on his glasses. He had tried to remove them but had been unable do so as PETE’S DASH had ducked in at that time. He said he was concentrating on driving the horse. He thought it was wise to stay out of trouble, so he had sat parked.

[16] In response to a question from the Committee, Mr O’Connell said he was aware the trailing horse had dropped off and there was space to his inside, but he had decided he was better to sit parked. He reiterated his horse was relaxed and travelling well at that time. He did not want to lose momentum by easing PETE’S DASH. He also did not want to follow PAUL’S VERDICT as he believed that horse would weaken under pressure as it had done so previously.

[17] Mr Renault responded that PAUL’S VERDICT was a noted leader and was 2/3 in the betting on the day.

[18] Mr O’Connell stated he had had difficulty in releasing the ear plugs when he was trying to put pressure on PAUL’S VERDICT. He had only recently purchased PETE’S DASH and it was the first time he had driven the horse on raceday. It had only battled since that start. He had thought that the horse was better than he actually was and had also thought that the horse raced better when parked. He thought it had sat parked and just got collared in the last 50 metres when so doing. Mr Renault disputed this, stating the horse had had cover in that particular race and had often raced on the fence.

[19] Mr O’Connell agreed with Mr Renault that his intention was to race parked or to trail.

[20] He concluded his case by reiterating he was not prepared to take hold of his horse. He did not want to lose momentum.

Decision as to breach

[21] The Stewards are concerned that Mr O’Connell continued to race parked when having the opportunity to take cover and with his not taking the trail when the opportunity presented itself. On both occasions his horse would have obtained some respite.

[22] Mr O’Connell raced parked from the first bend to into the home straight with a lap to run at which time Mr Curtin driving TIGER MOTH challenged him for the parked one out position. Mr O’Connell had the opportunity to allow Mr Curtin to progress past and to take the one out one back position. Instead of so doing and obtaining some respite for PETE’S DASH, he used the reins and urged the horse forward to prevent Mr Curtin from crossing over. Mr O’Connell said PETE’S DASH was racing nice and relaxed. At this point, however, it is evident that the horse has to be urged to withstand the move from TIGER MOTH.

[23] Mr O’Connell has acknowledged that he knew the trailing horse had dropped off and that he was intent on keeping PETE’S DASH parked. His explanation is simply that he wanted to keep momentum and again that the horse was racing in a relaxed fashion.

[24] It is evident there was a distance, conservatively some 150 plus metres, when Mr O’Connell had the opportunity to ease his horse, take hold, and drop into the trail. It is accepted that it was ultimately easier for Ms Ottley to take the trail, as Mr Anderson has stated, but the Respondent had previously had the opportunity to so do himself but had spurned this. The horse had raced parked for some time and, by so doing, he would have again given PETE’S DASH some respite.

[25] The Committee has noted Mr O’Connell’s concern that PAUL’S VERDICT might stop. This is always a concern for a trailing horse but there was no evidence on this occasion that PAUL’S VERDICT might do this. In this regard, just after the 800 metres Mr O’Connell has taken time to activate the gear (pull the ear plugs) as he has had some difficulty, before urging PETE’S DASH to keep up with PAUL’S VERDICT. Almost immediately after Ms Ottley had taken the trailing position that had been available to him, Mr O’Connell has had to start working on PETE’S DASH and, not surprisingly, the horse has tired and dropped back.

[26] Mr O’Connell, as he has acknowledged, had over assessed the ability of PETE’S DASH. It was his first drive behind the horse, and it was not as good a horse as he thought.

[27] Mr O’Connell’s concern that TIGER MOTH is roughly gaited and the fact he believed PAUL’S VERDICT might tire before the passing lane and thus cart him back appear to be post facto justifications, as does the difficulty with his glasses, for his failure to take the two opportunities that were available to him to give PETE’S DASH some respite.

[28] Mr O’Connell has acknowledged he was aware he could have looked to drop down and trail, but he chose not to. The Committee is satisfied that Mr O’Connell’s intention once he failed to get the trail after the start was to sit parked, come what may; ie he had had a fixed mindset to sit parked as believed the horse raced better in this fashion. As a consequence, the Committee finds that Mr O’Connell did not take all reasonable and permissible measures that were available to him to ensure PETE’S DASH was given full opportunity to win or obtain the best possible placing.

[29] The breach of r 868(2) is thus proved.

Penalty submissions

[30] Mr Renault produced the Respondent’s record. It showed no breaches of this Rule.

[31] Mr Renault described the breach as towards mid-range. There were two occasions on which Mr O’Connell could have made decisions that would have kept his drive within the Rules.

[32] Mr Renault referred to the starting point in the Penalty Guide of 20 drives or a $1,000 fine and submitted a six month suspension and a $400 to $500 fine was the appropriate penalty.

[33] Mr O’Connell responded that he did not want a fine. He would prefer to take a suspension, even one of the length submitted by Mr Renault.

[34] When the Committee informed Mr O’Connell that a suspension that equated to a little less than the 20 drive starting point was likely to be imposed, he was adamant that he did not wish a fine to be part of the penalty. He stated his horses would continue to compete primarily at Invercargill and Addington and that Ms Young-Grant would be likely to drive them.

Decision as to penalty

[35] The breach is towards the lower end of the range. The track conditions on the day were not ideal and Mr O’Connell was driving PETE’S DASH for the first time. He, as previously described, had over assessed the ability of the horse. He had a fixed mindset to sit parked, as he believed the horse raced better in this fashion and did not take the reasonable and permissible measures that were available to him.

[36] When regard is had to the seriousness of the breach and the Respondent’s degree of culpability, and factoring in the very good record, the appropriate penalty is a 16 drive suspension.

[37] Mr O’Connell drives very infrequently. After reviewing the number of drives he had last season and has had since February this year, it is evident he has about 16 drives in a six-month period.

[38] Mr O’Connell requested that the penalty to be deferred until after the upcoming Methven meeting and the Informant had no objection to this.

[39] Mr O’Connell is thus suspended from the end of racing on 30 October up to and including 30 April. The penalty is calculated in accordance with the Penalty Guide and there is no need for a fine to also be imposed in addition to the suspension.

Costs

[40] The matter was heard before the first race on raceday. There is no award of costs in favour of the RIU or the JCA.

Dated at Dunedin this 2nd day of November 2020.

Geoff Hall, Chairman

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