Non Raceday Inquiry – Penalty Decision dated 26 July 2021 – Kirstin Barclay

PENALTY DECISION OF JUDICIAL COMMITTEE

[1] We have found Ms Barclay to be in breach of r 868(2) after she admitted the charge when Information A10683 was amended by the Committee under cl 27 of the 5th Schedule of the Rules of Harness Racing from one that alleged a breach of r 869(3)(g). The reasons for amending the charge are stated in our decision of 12 July.

[2] We called for and received written penalty submissions from both parties. After receiving supplementary submissions, we called a teleconference on 23 July, which had to be reconvened on 26 July due to technical issues.

[3] We refer to the Informant as the RIU and the Committee as a Judicial Committee of the JCA as the Information was laid and the matter first heard prior to 1 July 2021.

Informant’s submissions

[4] Mr Munro submitted that the starting point for a breach under r 868(2) where the Driver has failed to take all reasonable and permissible measures at all times during the race to ensure that his/her horse is given full opportunity to win the race or to obtain the best possible position and/or finishing place, as per the Penalty Guide is a 20-drive suspension or a $1000 fine.

[5] Ms Barclay has had 3566 lifetime drives, 173 last season and 200 this current season to date. She is predominately a Southland/Otago Driver, rarely venturing out of this region.

[6] With her 200 drives this season which is over 53 individual meetings, this averages out at 3.77 drives per meeting.

[7] Ms Barclay has a clear record with no previous breaches of this Rule.

[8] The Informant submitted that the main aggravating factor was that the horse A TASTE OF HONEY was the second favourite in a 9-horse field. Therefore, by finishing only in third place some of the betting public were denied a return on their investments. The Industry is driven by the gambling dollar and public confidence in the integrity of the Industry is paramount. Driving in this manner undermines this confidence so therefore it needs to attract a penalty that acts as a deterrent.

[9] The Stewards submitted that Ms Barclay was the initiator in this matter; by putting the speed into the race by attacking for the lead for a considerable distance. With her actions being far more culpable compared to those of Mr Hurrell’s, it was appropriate for an uplift to the starting point.

[10] The RIU submitted a suspension of six Southland/Otago days was appropriate.

Respondent’s submissions

[11] Ms Barclay stated that she was “disappointed” to read the Informant’s submission and completely disagreed that she should be handed a higher penalty than Mr Hurrell considering that his horse, due to his drive, compounded and finished lengths behind her drive A TASTE OF HONEY, who raced well and placed third. A TASTE OF HONEY with easier drives failed afterwards to improve her form, as she had previously, before the race in question.

[12] Ms Barclay stated her “preferred penalty” was a fine rather than a suspension.

[13] Ms Barclay emphasised she had a clean record with no serious driving charges and had a major client who had indicated that, if she was suspended for a large amount of time, he would look to take his horses elsewhere, as he required a Trainer/Driver.

[14] Ms Barclay said she had a number of horses that would be ready to race in the early part of the season and she intended to race some of these in Christchurch. If she was not able to take a fine, she would like the Committee to consider that she had raced in Christchurch throughout the past season and would be in the new season, therefore some of the driving days should include Addington meetings.

[15] Ms Barclay concluded her submission by noting in Mr Munro’s submission he had stated “Southland only” which she felt was “very unfair”.

Decision

[16] Ms Barclay is in breach of r 868(2) in that she urged A TASTE OF HONEY with the reins for too long a time, at too strong a pace, and took too long to cross JODY DIREEN.

[17] We accept the Informant’s submission that it was Ms Barclay who put the speed into the race through attacking Mr Hurrell’s drive, JODY DIREEN. Principally, we imposed a penalty of five days’ suspension in the related decision of RIU v Hurrell 9 July 2021 on the basis that having decided to hand up the lead to Ms Barclay, Mr Hurrell took too long to do so. We do not accept Ms Barclay’s submission that because JODY DIREEN stopped more quickly than did A TASTE OF HONEY, she should receive a lesser penalty than that imposed upon Mr Hurrell. Conversely, we do not place great weight on the Informant’s submission that the fact A TASTE OF HONEY was the second favourite and only ran third is an aggravating factor.

[18] We believe a suspension is the appropriate penalty. A breach of r 868(2) is not a common breach of the Rules. It can raise issues as to the integrity of the Harness Industry, although we have noted in our decision as to breach that we believe Ms Barclay was doing what was in her mind best for the mare, having regard to the horse’s preferred style of racing. However, she persevered with the tactic of pressuring Mr Hurrell for the lead with A TASTE OF HONEY for too long a period of time, as she has acknowledged by her admission of the breach.

[19] We raise the 20-day starting point by 4 drives for Ms Barclay continuing to force what was too quick a pace early in the race and then reduce this by 8 drives for Ms Barclay’s good record and admission of the breach.

[20] This leaves a penalty of a 16-drive suspension. We impose penalty on the basis that Ms Barclay is a busy Otago / Southland Driver who drives from time to time in Canterbury. Four of the upcoming six South Island days are at Addington. Ms Barclay has acknowledged she would not have had many drives at these Addington meetings. The penalty encompasses a second Southland meeting to ensure the suspension has the appropriate ‘bite’; ie it is an effective deterrent to Ms Barclay repeating her conduct and is at a level that holds her accountable for actions that may have been questioned by those persons who had placed investments on A TASTE OF HONEY.

[21] Ms Barclay is suspended from driving from 26 July up to and including 12 August.

[22] There was no application for costs by the RIU and there is no award in favour of the JCA.

Dated at Dunedin this 26th day of July 2021.

Geoff Hall, Chairman