Auckland TC 1 August 2025 – R3 (heard 22 August 2025 at Alexandra Park) – Jay Abernethy

[1]  Following the running of Race 3 on 1 August 2025 at the Auckland Trotting Club meeting, Alexandra Park, Mr J Abernethy was charged with a breach of Rule 869(3)(g). Both Mr Abernethy and Mr Mulcay, Senior Steward, agreed for the hearing of the charge to be adjourned to the following Friday at Alexandra Park.

[2]  The hearing began on 8 August before this Adjudicative Committee but because of time constraints, after evidence had been given by the Informant, the hearing had to be adjourned again. It was scheduled to resume the following Friday 15 August 2025. Prior to the hearing commencing, again the Informant made an application to amend the charge to a breach of Rule 868(2). At Mr Abernethy’s request, that hearing was adjourned with the consent of the Informant, to 22 August 2025. The amendment sought was not opposed and the hearing continued on the basis of the amended charge. The Adjudicative Committee ruled the evidence given earlier in relation to the original charge, should form part of the evidence for the amended charge.

[3]  THE AMENDED CHARGE

“As the driver of MURTLE THE TURTLE in Race 3 at the Auckland TC’s meeting held 01 August 2025, it is alleged that J Abernethy has breached Rule 868(2) in that he has failed to take all reasonable and permissible measures to ensure his mare was given full opportunity to win the race or obtain the best possible position and/or finishing place by persisting with a challenge for the lead over the initial 550m,  which has resulted in his runner weakening on the final turn to finish in 9th place beaten 22 lengths.”

[4]  Mr Abernethy denies this charge as he did in respect of the original charge.

[5]  Rule 868(2) states:

“Every driver 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.”

[6]  The Adjudicative Committee heard evidence from Mr Mulcay, Mr Stormont and Mr Abernethy and had an added advantage of considering written submissions from both the Informant and Respondent.

[7]  THE FACTS

1.  Mr Abernethy was the driver of MURTLE THE TURTLE in Race 3 the “CADUCEUS CLUB FILLIES AND MARE MOBILE PACE” an event for 3yo and older Fillies and Mares up to & including R50.

2. The race was over 1700m from the mobile. MURTLE THE TURTLE drew barrier 4 off the front and showed gate speed to contest the early lead with AQUILA (J Stormont) approaching and rounding the first turn.

3.  Mr Abernethy then continued his challenge for the lead, which was resisted by Mr Stormont, entering the front straight until Mr Abernethy relented near the 1150m and then restrained MURTLE THE TURTLE before shifting down onto the back of AQUILA approaching the winning post on the first occasion, momentarily hampering PRINCESS LISA (C Hackett) which then shifted out to lead up the running line. The lead time was recorded as a fast 5.7 seconds, with the first quarter of the last mile being run in an extremely fast 27.9 seconds.

4.  AQUILA has then continued in the lead, with Mr Stormont being able to ease the tempo through the second quarter which was run in 31.0 seconds, before receiving pressure from PRINCESS LISA when that filly worked forward, resulting in the third quarter quickening to 29.1 seconds. MURTLE THE TURTLE has then commenced to weaken near the 500m and lay in, contacting track markers before finishing in 9th place beaten 22 lengths. A post-race veterinary examination detected no obvious abnormality.

[8]  INFORMANT’S CASE

1.  The Stewards submitted that by persisting with the challenge for the lead for the substantial distance of 550 metres, Mr Abernethy has clearly impacted on MURTLE THE TURTLE’s chances of winning or obtaining the best possible position and/or finishing place by leaving the mare with insufficient reserves to finish the race off in a competitive manner.

2.  Replays clearly show that Mr Abernethy has had ample opportunity to realise that Mr Stormont was travelling comfortably when maintaining the lead and to have desisted with the challenge, which would have allowed the pace to ease, thereby giving MURTLE THE TURTLE some respite.

3.  Mr Abernethy’s failure to take this measure, which was both reasonable and permissible, has in Stewards’ opinion resulted in the mare being set a task which was clearly beyond its capabilities and was so unreasonable given the circumstances, as to be culpable. Stewards maintain that Mr Abernethy’s drive fell well short of the standard expected from a Driver of his experience.

4.  Persisting with his challenge for the lead over the initial 550m has resulted in the fast lead time being recorded of 5.7 seconds, on what was a cold wintery night with the first quarter of the last mile being run in an extremely fast 27.9 seconds, which equates to a mile rate of 1.51.6 to give some indication as to the tempo over this section of the event.

5.  MURTLE THE TURTLE underwent a post-race veterinary examination, which revealed no obvious abnormality that may have had a bearing on the mare’s performance.

6.  The Stewards referred to the 2015 Decision of RIU v Cox & Williamson, where it was found that 400m was a reasonable distance for Drivers to contest for the lead, before taking action to give their runner respite, so as to enable the horse to be competitive at the finish of the race. It was noted that Stewards used 400m as a rule of thumb, when considering whether or not a Driver could have breached Rule 868(2). There is nothing in MURTLE THE TURTLE’s exposed form line, that would support the mare being able to remain competitive, when driven in the manner which Mr Abernethy drove.

7.  The Adjudicative Committee was referred to a number of relevant decisions where this rule has been interpreted, such as RIB v Nairn 17 May 2024, HRNZ v Higgs and RIB v Newman.

[9]  RESPONDENT’S CASE

1. Mr Abernethy submitted his case is separate and unique, from those referred to by the Informant and if prosecuted in the manner suggested by the RIB, it has the potential to discourage competitive driving in the future.

2.  In addition, he referred the Adjudicative Committee to three recent races where similar positive forward-driving tactics were adopted, yet no charge or adverse comment was made:

TREACHEROUS LOVE — Alexandra Park, 16 May 2025 (1700m)
Lead time 5.5s, first quarter 27.4s, overall time 2.01.5. TREACHEROUS LOVE finished in 2.06.2, some 29.6 lengths behind the winner. The Stewards recorded: “weakened rounding the final turn hampering a trailing runner… driver advised she was disappointed with the effort but could offer no tangible reason.” No allegation of culpable driving was raised.

SEMBA — Alexandra Park, 25 July 2025 (Race 5 — 2200m)
Raced early in a lead-up time of 40.5s and ultimately finished 1 18.2 lengths from the winner. The Stewards recorded: “weakened from the 600m.. post-race veterinary examination revealed no abnormality. The driver could offer no explanation for the disappointing performance.” Again, no criticism or implication of culpable tactics was made.

KINGS WATCH – Alexandra Park, 15 May 2025 (2200m)
The race was run in a fast 2.40.5. KINGS WATCH was sent three-wide from the 1550m and attempted to obtain the parked position (held by Tyson), before easing. KINGS WATCH finished 30 lengths from the winner. The Stewards noted: “raced wide without cover from near the 1600m… weakened from the 500m.” Again, no suggestion of culpable driving was raised.

3.  These examples clearly demonstrate that similar forward-driving tactics have been adopted in comparable races without any disciplinary action. In that context, it would be inconsistent and unfair to single out Mr Abernethy’s drive for sanction.

4.  Finally, footage of MURTLE THE TURTLE’S own past performances was shown, which demonstrates that she is capable of being used early and still finishing off her races strongly. Mr Abernethy referred to two recent races at Cambridge. The first on 15 April 2025 — (Race 5) where MURTLE THE TURTLE drew barrier 1, she held off an early challenge from KAWACTUS maintained the lead, and finished third in 2.04.0 (beaten 1/2 length and a neck). The second on 17 July 2025 where she drew barrier 2, began quickly with AQUILA drawn 1, galloping at the start, then trailed in a 6.0s lead-up time and ran second.

5. These previous performances provide clear evidence that MURTLE THE TURTLE has responded positively to similar early-driving tactics, and for that reason, it cannot reasonably be said that her performance in the present case was “beyond her capabilities”. Mr Abernethy said he cannot be held liable, nor should any Driver when a horse underperforms for no explicable reason. In situations where a horse is simply not on its game, or begins to hang, break gait, strike a knee, or otherwise fails to try despite being placed in a competitive position, the performance lies with the horse, not the Driver. Drivers should not be punished for making reasonable tactical decisions in good faith, when the horse subsequently fails to perform for reasons beyond the Driver’s control.

6.  In this instance, his actions were taken in good faith, based on what he honestly believed to be in the best interests of his mare at the time. The Rule requires an objective assessment of the drive in the context of how the race unfolded—not a judgement based on hindsight.

7.  Reasonableness of the Challenge
MURTLE THE TURTLE showed genuine gate speed and was travelling strongly and comfortably. The challenge lasted approximately 500—550m, which is not unusual in mobile-mile racing and is entirely consistent with accepted forward-driving tactics in 1700m races.

8.  Opportunity to Desist
While the Informant suggests Mr Abernethy had “ample opportunity” to desist, this overlooks the fact that he was entitled to test the leader when his mare began well and was travelling strongly. Mr Stormont did not initially defend the lead vigorously. Approaching the middle of the first bend he had to correct his mare from shifting inwards, which gave Mr Stormont the opportunity to kick up again. He said he did look to desist at that point, but there was insufficient room to safely obtain the trail. He therefore continued briefly to ensure there was enough space to take the sit.

9.  As they approached the second-to-last bend, his mare began to hang and knocked over several marker pegs. When she hangs, she strikes her knee and, as has occurred in the past, stops trying. On a previous occasion at the workouts, she struck her knee and was off the track for more than ten weeks. Once it became apparent that she would not finish in a stakes-bearing position, he eased as he always does.

10.  Pace of the Race
The Informant places significant emphasis on the 27.9s first quarter and 5.7s lead time. These sectionals are not in themselves unusual or culpable. Fast early sectionals are common at Alexandra Park in sprint races, particularly when early position is critical. Other runners also contributed to the tempo. It is unfair to attribute the final race time solely to his actions. Previous performances clearly show that MURTLE THE TURTLE has responded well when driven forward, and in any event, the sectionals referred to are not “extremely fast” when compared with other 1700m events at Alexandra Park.

11.  Error of Judgment vs Culpable Conduct
Mr Abernethy accepted the drive may appear assertive, but an assertive drive is not necessarily a culpable one. At worst, this was a reasonable tactical decision taken in real time. The Justice Haylen Test requires conduct so unreasonable that an objective observer would ask “what on earth is the driver doing?”. That is not the case here. It is also entirely appropriate and in fact expected, that a Driver adopt positive tactics when a horse begins well and is travelling strongly. Equally, a Driver should not be held responsible when a horse fails to perform, despite being given every opportunity. If a horse becomes unbalanced, hangs, strikes a knee or simply fails to respond, that is a matter of the horse’s performance, not the Driver’s decision-making.

12.  Public Confidence
Finally, Mr Abernethy rejected the suggestion that his drive undermines public confidence in Harness Racing. The public expects Drivers to be competitive, to adopt positive tactics, and to give their horses every opportunity to finish in the best possible position. Public confidence would be harmed, not protected, if Drivers were discouraged from making legitimate tactical decisions for fear of retrospective criticism. In his view, the integrity of the sport is strengthened when Drivers take proactive decisions in good faith and in accordance with accepted practices.

13.  Conclusion
In summary, he submitted his drive was made in good faith, in accordance with established race-driving tactics, and with a genuine desire to give his horse every opportunity to obtain the best possible result.

[10]  DISCUSSION

1.  Mr Mulcay in his submissions, correctly drew the Adjudicative Committee’s attention to Rule 1008, which makes it clear that the charge brought against Mr Abernethy does not require the Informant to prove intent to commit that breach. The Rule in fact makes it abundantly clear, that the offence is one of strict liability. Mr Mulcay also submitted that the standard of proof for the Informant, is on the balance of probabilities, which means the Adjudicative Committee need only be satisfied that it is more likely than not, that the alleged events occurred and amount to a breach of the Rule.

2.  The Adjudicative Committee viewed and reviewed videos of the race and additionally viewed videos of other races where MURTLE THE TURTLE was being driven by Mr Abernethy. The Committee took great care to consider all the evidence.

3.  Mr Mulcay helpfully referred to the Appeals Tribunal Decision of RIB v Nairn 17 May 2024, which considered the meaning of “reasonable and permissible” in the context of this Rule. We set out below an extract from Nairn, which also refers to a Decision of HRNZ v Higgs where it was stated:

21. The Rule has been considered in a number of Decisions, both on Raceday and on appeal. It has also been the subject of judicial comment.
22. The use of the word “permissible” means “lawful”. Further, the use of the word “reasonable” imports an objective standard. These matters of interpretation were detailed in RIB v Newman. The purpose of the Rule was also detailed in HRNZ v Higgs, where it was stated:

“The rule requires the demonstration of tactics that can, by objective standards, be said to be both reasonable and permissible. Those have to be tactics which can be seen by not only the Stipendiary Stewards but also those present at the racetrack, and in particular by the betting public, to be tactics which are designed to give the horse every chance to finish in the best possible position that it can. The informant does not have to prove any deliberate intent not to win the race. The informant does however need to prove more than an error of judgment…. There must be some carelessness or incompetence involved and the charge can only be upheld where the driver has failed to take some measure or measures which were reasonably and permissibly open to him/her. There may be circumstances in which a driver’s manner of driving may amount to merely a permissible error of tactics but when that error of tactics amounts to bad judgment that results in a disadvantage to his/her horse, then such a manner of driving falls within the terms of the rule.”

4.  The commentary in the Horan case by Justice Goran gives guidance as to the principles to be applied when determining reasonableness and permissibility.

In that case, Justice Goran detailed the principles to be applied;

1. It is the quality of the drive and the circumstances of the particular case which has to be judged;

2. That judgment must be based on an objective assessment of the drive and particular race;

3. A mere error of judgment by a driver is not a sufficient basis for an adverse finding;

4. A driver’s conduct must be culpable in the sense that it is objectively judged and is found to be blameworthy;

5. The focus of the rule is the quality or otherwise of the drive. That is to say that if the driver fails, given the circumstances of the race, to take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or obtain the best possible place in the field, then he is breaching the rule and liable to penalty;

6. The rule imposes an objective standard of care. This standard of care takes into account amongst other things, the views and explanation of the driver in the opinion of the stewards;

7. The onus is on the stewards to prove that the driver has been in breach of the rule. The driver is required to give an explanation for his actions but the onus always remains on the stewards;

8. The standard of proof is on the balance of probabilities. However because of the nature of the charge and the gravity of the consequences that flow from a finding that the charge is proved, the Adjudicative Committee must have a reasonable degree of satisfaction that the charge has been proved.

[11]  Mr Abernethy‘s drive must indeed be judged in an objective manner. This is a finally balanced case. The Adjudicative Committee was assisted considerably by the Informant and Respondent providing written submissions. Whilst not being critical of the Steward’s interpretation of Mr Abernethy‘s actions on that night, looked at objectively, the drive can be interpreted in a different way to that advanced by the Stewards. As has been observed, the Adjudicative Committee is required to take into account Mr Abernethy’s explanation for his actions.

[12]  The Adjudicative Committee is satisfied on the balance of probabilities, that the reasons Mr Abernethy advances for the tactics he used in the race are clear and unequivocal. His evidence persuades us that Mr Abernethy had driven his mare on a number of occasions prior to the race in question and he had used very similar tactics in at least two, if not three earlier races, which enabled his runner to be placed second and third in those races.

[13]  The Adjudicative Committee is of the view that it was reasonable and permissible for Mr Abernethy to drive in the manner he did. It was an acceptable tactic to endeavour to take the lead and in fact, the video showed at one stage, that he was almost clear of AQUILA to allow him to cross in front. However, Mr Abernethy made the proper decision not to endeavour to cross in those circumstances.

[14]  The Committee agrees with Mr Abernethy‘s statement that “it cannot reasonably be said that her (MURTLE THE TURTLE) performance in the present case was beyond her capabilities“. We are satisfied that Mr Abernethy acted in good faith and believed that his actions to challenge for the lead were in his mare’s best interests. We also agree that whilst Mr Abernethy did have ample opportunity as the Stewards submit, to desist, that overlooks that the challenge made by Mr Abernethy was reasonable and permissible. We also accept Mr Abernethy’s evidence that once it became apparent to him that his mare would not finish in a stakes bearing position, he eased. The Adjudicative Committee is satisfied that whilst the pace of the race was fast, the sectional times are not so unusual as to be culpable. We accept Mr Abernethy’s submission that previous performances clearly show that MURTLE THE TURTLE responded well when driven forward.

[15]  The Committee accepts Mr Abernethy’s description of his driving as being “assertive”, but also agrees with his submission that the drive was not a culpable one. We find his driving was based on a reasonable tactical decision.

[16]   Referring to the issue of public confidence in Harness Racing, we are not necessarily satisfied that Mr Abernethy‘s drive in these circumstances, undermines public confidence. We agree with Mr Abernethy’s statement in his written submissions that “the public expects drivers to be competitive, to adopt positive tactics and to give their horses every opportunity to finish in the best possible position”. Public confidence could be harmed not protected if drivers were discouraged from making legitimate tactical decisions“.

[17]  The Adjudicative Committee is not satisfied that it has been proved on the balance of probabilities, that what may now be described as an error of judgement, amounts to culpable driving by Mr Abernethy, due to some carelessness or incompetence. We are satisfied that Mr Abernethy‘s manner of driving amounts to a permissible error of tactics.

[18]  OUTCOME

Accordingly, the charge is dismissed.