RACING APPEALS
TRIBUNAL
NEW SOUTH WALES
TRIBUNAL MR DB ARMATI
ASSESSOR MR J PONSONBY
EX TEMPORE DECISION
WEDNESDAY 6 APRIL 2016
LICENSEE ROBERT MORRIS
AUSTRALIAN HARNESS RACING
RULE 168(1)(e)
DECISION: 1. Appeal upheld
2. Appeal deposit refunded
1. Mr Robert Morris, a licensed driver, has appealed against a decision of
the stewards of 19 February 2016 to impose upon him a period of
suspension of his licence to drive for 28 days for a breach of rule 168(1)(e),
which reads as follows:
"A person shall not before, during or after a race drive in a manner
which in the opinion of the stewards (e) is improper."
That was particularised as follows:
" … at the Tabcorp Park meeting on Friday, 19 February 2016, in
Race 8 you, in the opinion of the stewards, directed your horse
inwards resulting in your sulky wheel contacting the sulky wheel of
Jilliby Ling, which in turn resulted in Jilliby Ling being placed in
restricted room and Ms McMullen, driver of Jilliby Ling, being obliged
to shift outwards to hold her ground."
2. When that allegation was put to him, he pleaded not guilty, the finding
was made, the penalty imposed. He has appealed to this Tribunal both on
the finding of the breach of the rule and in respect of severity.
3. The evidence has comprised the transcript and the video images of the
race, together with the oral evidence of steward Mr Zarb, who chaired the
inquiry, and the oral evidence of Mr Morris.
4. The case contains two ingredients of a legal nature which require
examination.
5. The first is it is an opinion of the stewards case. As the Tribunal said in
McCarthy on 24 January 2014, when fresh evidence is given, it is essential
that a steward or stewards be called to give evidence about their opinion
and to state whether their opinion has changed as a result of new evidence
at the appeal. The Tribunal's function will then be to determine for itself
whether that opinion is reasonably held on the basis of the totality of the
evidence and to determine that it is reasonable unless no reasonable
steward could have come to it. Of course, this is required to be established
by the respondent Harness Racing to the Briginshaw standard.
6. The second issue is that the 168(1)(e) matter requires the proof that the
drive was improper. "Improper" is not defined in the Dictionary, Rule 1, to
the Australian Harness Racing Rules. The Tribunal is satisfied that in the
absence of any such definition and no case law being put to it, the usual
meanings are attributable. It is the opinion of the respondent here that it
means not up to the required standard. That approach seems to be too
simplistic, to the Tribunal, because the word "improper" contains with it a
failure not just to reach a standard but to reach it with some form of mental
element. It could be said to require some aspects of bad faith, which indeed
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is what the case for the respondent here is, in any event. It could be said to
be behaviour which is morally wrong, not suitable for the situation, not in
accordance with propriety or manners, abnormal or irregular. Many other
definitions could be turned to. Suffice it to say that if the facts justify it, the
Tribunal must then turn to consider whether the respondent satisfies it that
the drive was improper.
7. There are three key horses involved. The first is Sevens Hope, which ran
at all times on the rails. The second is Jilliby Ling, driven by Ms McMullen.
And the third is Hes Lightfingered, driven by the appellant, Mr Morris. There
was nothing untoward about the conduct of the first of those two horses and
their drivers at any time. Their positions throughout the race do not require
examination in any detail. Suffice it to say that at the relevant time, Sevens
Hope was on the marker pegs; Jilliby Ling was one out; at times, Hes
Lightfingered was four wide and came in at the relevant time to three wide.
8. The horse itself is, in Mr Morris's opinion, "wobbly". That requires some
explanation. In the course of the transcript, he described the horse as "a
wobbly big bugger at the best of times". Further, "he's a dumb, big bugger",
which is repeated to the stewards. Or, alternatively, "he's a stupid big
bugger at the best of times, so it just depends on him".
9. The Tribunal is satisfied that prior to the 800 metre mark and prior to the
relevant 650 metre mark throughout the drive in the race, the horse was off
the bit and it is apparent from an observation of the video that Mr Morris was
attempting to get the horse on the bit. At or about the 850 metres, the
stewards' evidence before the Tribunal commenced with the horses in the
position earlier described – Sevens Hope on the marker pegs, Jilliby Ling
outside it and Hes Lightfingered outside Jilliby Ling. It is at the 650 metre
mark that the stewards' concern arose. To paraphrase it, it is their position
that Mr Morris deliberately drove down onto Ms McMullen's horse because
he was frustrated by his position in the race.
10. It is Mr Morris's case that he did no such thing and was not so motivated,
that the horse itself came down the track and he immediately corrected it.
There is no dispute that the sulky wheels of the two respective horses came
into contact. The Tribunal is satisfied that the driver of Sevens Hope did not
deviate and played no part in this incident. There is no doubt that the
running room of Jilliby Ling was tightened. There is no doubt that after the
contact with the wheels over a period of about 10 metres, or two and a half
lengths, or three or four strides – various descriptions have been given –
that Mr Morris took action to move Hes Lightfingered from that contact and
that the horse at that point dropped back slightly under pressure. Those
matters need not be examined further.
11. Dealing then with the case for the stewards and the opinion expressed
by them. Mr Zarb, in giving the reasons for decision in the adverse finding at
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the inquiry, was of the opinion that Jilliby Ling was restricted solely by the
shift inwards of Hes Lightfingered and that it was an incident and a contact
which was avoidable, that there was a degree of force in that contact and it
was only relieved by Mr Morris, unable to hold his position, responding,
causing his horse to respond to his driving and move from that contact.
12. In evidence today Mr Zarb described it as an abrupt shift in. There was a
degree of evidence about the position of the respective wheels of each of
the three sulkies of the three relevant horses. The Tribunal sees little benefit
in examining that. There was evidence about the location of axles and other
pieces of equipment. There is little utility in examining that, the reason being
that there is no issue that Hes Lightfingered came down and that there was
contact and that the contact was relieved within the distances previously
referred to.
13. The issue is the narrow one whether it was the deliberate action or not. It
is quite apparent from the stewards' inquiry that from the very outset they
were concerned that the drive was improper on the basis of a perception
that Mr Morris was frustrated in driving the favourite and seeing a 30 to 1
horse, Jilliby Ling, in Mr Morris's preferred racing position, and that driven by
that frustration and, as he said, being filthy upon himself, he caused the
movement down. That it was Mr Zarb's opinion that the most likely reason
that this movement down occurred was by actions taken by Mr Morris and
not Hes Lightfingered.
14. Ms McMullen, the driver of Jilliby Ling, gave evidence before the
stewards. It is fair to say that she essentially saw nothing about this incident
that was of any concern to her. She is used to driving in tight situations, and
what occurred was normal for her. She described the coming together as a
brushing together and that the effect of it (transcript page 3): question: "He
didn't push your gig sideways or anything?" Answer: No." There is no doubt
there was no contact horse-to-horse, and she said, importantly, at transcript
3: "we were just sort of going hard at that stage and both horses were
running around a little bit." She said in respect of Hes Lightfingered that her
horse got in a little bit and, to quote her: "and Robbie's probably followed me
in a little bit as well and then I've straightened him back up a bit".
15. She later conceded she had slightly shifted in a bit and then came back
to hold her ground. Importantly, she said: "I just sort of held my ground and
it didn't worry my horse at all." That Mr Morris had shifted in a little bit, there
was no call for room, there wasn't time, it all happened very quickly, and that
Mr Morris pulled off.
16. In relation to Ms McMullen and her involvement in the matter, the
stewards opined, Mr Zarb in oral evidence was of the opinion, that there
was a contact of some force. It was the submission made in addresses that
that degree of force caused Ms McMullen to be turned sideways on her
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sulky and for the sulky to skid. In respect of those matters (transcript 3.20),
as just set out, Ms McMullen said her gig was “not pushed sideways or
anything”.
17. It is the Tribunal's opinion, having viewed the DVD, assisted by Assessor
Mr Ponsonby, that the extent of any sideways movement was minimal,
trifling and difficult to measure, but insignificant. She was not asked as to
whether she was turned sideways. A viewing of the DVD causes the
Tribunal to come to the conclusion, assisted by the Assessor, that there was
a very slight movement of her upper body at the point of contact. It
appeared to cause her no difficulty in maintaining her drive, that it was not a
turning sideways and it was not a contact of any significant force.
18. There is, therefore, in respect of the stewards' opinion case, no
evidence, in the Tribunal's opinion, that would support a contact of such
force that it must have been done for an improper motive.
19. There is then the issue of whether or not the shift down was done out of
the aspects of frustration and out of the fact that Mr Morris was, to quote his
own evidence to the stewards, "filthy". In that regard, the stewards cannot
know what was in Mr Morris's mind and can only look at the objective facts
available to them.
20. Mr Morris explained to the stewards that he was not driven by such
frustration and in his oral evidence today has maintained that position. He
accepts that the meaning of "filthy", as he described it, was the fact that as
the driver of the favourite he was not happy with the fact that he was in the
position in which he was in, that he wished to be in the position occupied by
Ms McMullen on Jilliby Ling. The stewards have drawn a conclusion that he
was frustrated and therefore driven by an improper intent and therefore has
driven improperly.
21. What objective facts support that? Firstly, Mr Zarb conceded in questions
from the Tribunal that he could not see any actions by Mr Morris in pulling
the left rein of Hes Lightfingered to cause that horse to move down. The
horse had its head turned in. It was his experience that if a horse was laying
in, its head would be turned outwards and that this did not happen on this
occasion until Mr Morris took corrective action to remove the contact. He
was also of the opinion that if the horse had laid in, as Mr Morris described
it, he would expect to have seen a contact with force.
22. Mr Morris has given evidence, both to the stewards and in evidence
here, that he took no action to cause the horse to move down. He says that
– the Tribunal has summarised his description of it – the horse was racing
off the bit at a time he was attempting to get it on the bit, has itself angled
down and he has immediately grabbed it and got it off.
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23. The Tribunal questioned Mr Morris about the expectation that such a
thing would happen. In that regard, it is common ground that he is a driver
of some eight and a half years, has an A Grade driver's licence and can be
assessed on those facts as an experienced driver well able to anticipate the
reactions of any horse he is driving. In addition, he was armed with the
knowledge of this horse, as he has described it, as a "wobbly big bugger"
and armed with the knowledge that he was racing off the bit and attempting
to get it on the bit. He is further armed with the knowledge that a horse
racing three wide, as it was approaching the bend immediately after the 650
metre point, would likely want to angle down. The issue, therefore, is, as
directed to him by the Tribunal, armed with all of that knowledge and
experience, why the horse was allowed to do what he said it did, that is,
angle down. His answer to that was he did not expect it to do it, that armed
with that knowledge, immediately that it did, he commenced the corrective
action.
24. The issue then becomes is there evidence to satisfy the Tribunal that the
particulars as pleaded are established and, if they are, whether it made the
drive improper.
25. The first particular is that he directed his horse inwards. The second is
that resulted in contact. And, thirdly, that it placed Ms McMullen's horse in
restricted room and she being obliged to shift outwards. In respect of each
of the last of those particulars, they are established.
26. The issue becomes can the Tribunal be satisfied to the Briginshaw
standard that the opinion formed by the stewards, that the cause of this
conduct was the direction of the horse downwards, can be seen as a
reasonable opinion having regard to all of the facts? The key point of that is
this: that there is no evidence to support the conclusions of the stewards
that there was a deliberate action by Mr Morris to move the horse
downwards. In the absence of that evidence, it has either occurred in
circumstances of conjecture or it has occurred because the horse itself
moved down. The onus is upon Harness Racing. They do not satisfy the
Tribunal that the move down was occasioned by an intentional act of Mr
Morris. They cannot therefore establish that it was driven by a motive of
frustration. They cannot therefore establish on those facts – but more are
yet to be looked at – that the drive itself was improper.
27. Mr Morris has not been called before this Tribunal to deal with a case
other than that which is that he directed his horse inwards. Therefore, as to
whether his drive might otherwise have been improper, by reason of his
failure to control the horse in the circumstances outlined, is not the case
with which this Tribunal is dealing. As to what if any action could have been
taken in respect of other methods of driving, or what might be taken in
respect of it, is not a matter for this Tribunal. Accordingly, any other issues
to deal with the manner of his drive do not need to be examined.
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28. In the circumstances, the Tribunal cannot be satisfied that his drive was
improper, however "improper" is defined.
29. In those circumstances, the appeal is upheld.
30. In the circumstances, the appellant having succeeded on his appeal, I
order the appeal deposit refunded.
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