DeFilippi gutted over losing appeal but pleads with fellow horsemen not to boycott cup day

Colin DeFilippi was a crushed man when he left Riccarton racecourse today after losing an 11th hour bid to drive his own horse Heza Sport in Tuesday’s $600,000 IRT New Zealand Trotting Cup.

But he honourably urged his fellow horsemen not to mobilise any form of protest or boycott at Tuesday’s big meeting at Addington, which many have been threatening.

“They musn’t do that,” DeFilippi said. “I don’t want to hurt the club or the owners on such a big day, that’s not what it’s all about.

“But we the horsemen need to get together afterwards. We need to be stronger and have more of a say in the rules as we’re getting shat on at the moment.”

DeFilippi was appealing his three-day suspension for a whip rule breach at Kaikoura last Monday which meant he couldn’t drive on Tuesday because it is one day outside the allowable seven day window for fulfilling engagements.

“I didn’t really expect to win,” DeFilippi said. “I know what they’re like. They’re on a different wavelength.

“The hearing was a joke. They wanted to adjourn to make their decision without letting me speak - you could see they had their minds made up.”

DeFilippi said he took no consolation from the stewards, including chief Nigel McIntyre, who offered their sympathies after the result was declared.

“The stewards said they’re sorry but they were just doing their jobs. I replied: ‘You’re not sorry and you’re not doing a very good job’.”

DeFilippi said his wife Julie was actually more upset than he was over losing out on a 50-year dream to breed, own, train and drive a horse in the cup.

“I just lost my brother so I said you have to put it into perspective - it’s just a race.”

DeFilippi said he was really happy with Heza Sport and confident in the ability of Bob Butt to get the best out of him on Tuesday. The horse would go a lot better than his form suggested after he was treated for a recent infection.

King’s counsel Paul Dale … “The way the RIB is structured it wears too many hats.” King’s Counsel Paul Dale, who argued the case for DeFilippi remotely from Auckland, said it was a very disappointing decision.

DeFilippi had no other right of appeal and time and money ruled out further action in the High Court where he would have to show some administrative error was made.

“We were hoping for a good hearing from an independent appeal panel and the Racing Integrity Board needs to take a good look at itself. The way it is structured it wears too many hats.”

Dale submitted at the hearing that said there was clear precedent for a tribunal to modify a penalty to take into account special circumstances.

He pointed to a decision of November 2, 2018 where Natalie Rasmussen was up on charges 11 days before the New Zealand Trotting Cup for excessive use of the whip after she struck Sires’ Stakes heat winner A Bettor Act 11 times in the run home.

Ironically, Rasmussen was fined four days earlier on a similar charge at Kaikoura when fined $300 for 13 strikes of the whip.

While stipendiary steward Nick Ydgren said the breach warranted a suspension of three to five days, he supported an alternative sanction because Rasmussen would miss a full day of cup day drives, she was on the likely cup favourite (Thefixer, who won) and some betting markets were already open.

The tribunal chairman agreed and instead fined Rasmussen $1000 stating “committees may depart from the guidelines provided there is good reason to believe that the case has some special characteristics.”

Natalie Rasmussen … clear precedent of being allowed to drive on Cup day despite “poor” record with whip breaches.Dale said the case was a good example of tailoring the penalty to meet the interests of justice and DeFilippi should be given similar concession.

“The committee’s findings in the Rasmussen case of a disproportionate sanction for a breach of this nature is an apt description of the outcome in Mr DeFilippi’s case if the appeal is not allowed.”

Tribunal chairman Allan Harper and member Garry Thompson did not agree with the submission, saying that case was heard under a different rule and penalty structure and Rasmussen had hit her horse only once over the then permittable 10 strikes.

Harper said since 2018 attitudes towards use of the whip and matters of animal welfare had stiffened considerably.

“The only way this industry is going to retain its social licence is if there are strict animal welfare rules in place, which are rigidly enforced and appropriate penalties applied. So the way Rasmussen was treated in 2018 really doesn’t have too much of a bearing to matters in 2022.”

Dale acknowledged the committee at Kaikoura took the cup issue into account in imposing a three day suspension on DeFilippi, instead of five days, but there was a huge difference between missing out on a potential winning cup drive and driving at two more minor meetings.

Dale pointed to another case where the judicial committee had also deviated from the normal three-day suspension, one ironically chaired by the same person as ruled on the DeFilippi case at Kaikoura, Russell McKenzie.

It also involved Rasmussen and excessive use of the whip and followed the running of the 2018 cup which Rasmussen won on Thefixer.

Ydgren showed Rasmussen struck the horse 12 times from the 400 but instead of arguing for a longer suspension he submitted she could be dealt a shorter suspension plus a fine.

Despite McKenzie saying Rasmussen had a “poor” record - it was her third whip breach in less than three weeks - he agreed to a three-day suspension plus a $2500 fine.

Dale submitted that case illustrated the need for flexible sentencing.

It also flies in the face of McKenzie’s remarks at Kaikoura when he refused a plea by DeFilippi to have his penalty split between a shorter suspension and a fine to allow him to drive on cup day.

“No special concession can be made despite the respondent’s submissions,” McKenzie said. “Any such concession may create a dangerous precedent.”

Dale submitted it seemed unfair that people guilty of the same kind of offending could have such dramatically different outcomes for the sake of one day.

Under the rules, offenders can fulfil engagements only if they lie within the next seven days - DeFilippi’s breach was eight days out from the cup.

Matthew Williamson breached the same whip rule on the same day as DeFilippi but can drive on Cup and Show day because his hearing wasn’t held until yesterday.Nonsensical

Dale pointed to the nonsensical situation of Matthew Williamson being free to drive on cup day despite also having breached the whip rule at Kaikoura last Monday.

The difference was Williamson’s case was not heard until yesterday. On the day stewards noted they would be talking to Williamson in the upcoming days about his use of the whip on the favourite Anything Goes who ran third in the Yearling Sales Aged Classic.

They subsequently decided to charge him with using the whip in more than a wrist-flicking motion - exactly the same as DeFilippi - and on Friday at the Rangiora race meeting he was put out for four days.

Crucially, because stewards didn’t act immediately and the hearing wasn’t until yesterday, Williamson is able to fulfil any engagements for the next seven days.

Dale also pointed to thoroughbred racing having a 10-day window which was much more favourable for jockeys. The seven day specification still applied in the thoroughbred rules but the penalty guidelines were extended during Covid when there was a perfect storm of a shortage of riders due to sickness and many being suspended for whip breaches.

In his submissions he noted the more flexible gallops regulations which also saw five jockeys only fined, Tarzino winner Lisa Allpress heavily, with none suspended, at the premier Hastings meeting in September.

Dale argued rule 1304 (4) conferred discretion on tribunals and underlined the principles of natural justice and how Justice Peters in arguments in the Wigg case made reference to the Sentencing Act as being an appropriate guideline.

“I draw to your particular attention to the importance of consistency, imposing the least restrictive penalty, and ensuring that overall the penalty is fair, reasonable and proportionate.”

Dale said he expected the tribunal would be aware that in many instances in a criminal context the courts made allowance for the impact a conviction would have on sporting figures, the outcome usually a discharge without conviction.

“Proportionality is something that must be considered here. It is clear Mr DeFilippi will suffer a disproportionate penalty by missing out on the cup drive, particularly given he is the owner, trainer and breeder of the horse Heza Sport.

“Mr DeFilippi has a long and distinguished career in the harness racing industry. This may be his final opportunity to drive in the New Zealand Cup. It would be unfortunate if the opportunity is lost when such an outcome would be disproportionately severe in comparison to the nature of offending.”

In dismissing the appeal, Harper referred to the tribunal chairman’s comments made in the Opie Bosson case of January 2021, when the leading rider failed in an appeal against two suspensions which ruled him out of the riding at the rich Karaka Million meeting at Ellerslie.

“All riders must obey the same rules and accept the same outcomes if those rules are breached.

“To apply discretion to Mr DeFilippi is in our view an incorrect path to take because that leads to a great deal of uncertainty and one of the principles of the penalty guide is to ensure there is consistency in whether or not the rules are applied evenly.

“Whether the rules are correct or not is not a matter for our sitting. The rules are set by Harness Racing New Zealand and if Mr DeFilippi has a gripe with those rules he needs to address that with HRNZ.”

In expressing his disappointment to the chairman, DeFilippi said: “This game is not going as good as it was 10 years ago, or 50 years ago when I started … and now I see why.”

Harper replied: “We don’t set the rules. We totally understand your position and very much sympathise with it but our hands are tied. We are bound by precedent of other cases.”

DeFilippi: “What’s the point of even having this hearing if your hands are tied?”