Invercargill HRC 7 November 2021 – R6 (heard 14 November 2021 at Winton) – Kirstin Barclay

The Informant alleged that Mrs Barclay (WATTLEBANK STAR) drove carelessly into the first bend by shifting ground and causing interference to horses #1 EMMA STONE and #2 NUTCRACKER.

Evidence

Mr Renault identified Mrs Barclay’s drive and the two affected horses on the side-on and back straight videos. The Respondent had drawn 4 and the other horses 1 and 2 on the mobile. Entering the first bend Ms K Tomlinson, who was on the pylons, had to take hold and eventually struck the wheel of Mr Ferguson who had drawn 2. He received a flat tyre. At the time Mrs Barclay was shifting inwards from the 4 position and was approximately half a length ahead of Mr Ferguson and a length ahead of Ms Tomlinson.

At the point of the bend Mrs Barclay’s horse could be seen to turn its head to the outside. Mr Renault believed she was attempting to shift WATTLEBANK STAR outwards at this time. He said this was too late. Mrs Barclay had attempted to get to the lead when there were 2 horses to her inside. At the point of the bend Mrs Barclay was 2 1/2 horse widths out from the pylons, but there were already 2 horses to her inside. As a consequence, Ms Tomlinson had run out of room and had struck a marker and the inside wheel of Mr Ferguson’s cart.

Mr Renault said the only person shifting ground on the track was Mrs Barclay. He accepted it was a gradual movement, but it had resulted in interference to Ms Tomlinson, who lost 4 or 5 lengths, and ultimately to Mr Ferguson as he had had a flat tyre for the rest of the race. He demonstrated on the video that the tyre had eventually come off the rim. He said Mr Ferguson was always going to cross Ms Tomlinson but he had not been given the opportunity to give her room. He was unable to relieve the pressure when Mrs Barclay came across. Ms Tomlinson ultimately dropped out of the race. Mr Ferguson finished third; Mrs Barclay won the race.

Mr Ferguson gave evidence. He said when racing into the first bend “things got quite tight”. He said horses would instinctively come in on a bend, but Mrs Barclay had come in a bit and his wheel had touched the leg of the horse to his inside. He was not entirely clear of Ms Tomlinson and it was his intention eventually to cross her. He had received tightening from his outside on the bend and he was not able to relieve the pressure on the horse to his inside and Ms Tomlinson had had struck a pylon. There was a light touch between his cart and Ms Tomlinson’s horse. He said he had not yelled out to Mrs Barclay, but he had not been given enough room. He agreed there was no contact between him and Mrs Barclay and added that the pressure had only come late. He said Mrs Barclay’s horse was hanging and they were all travelling at high speed. He agreed Ms Tomlinson could have taken hold of her horse and reiterated he would have given her more room if he had been able to relieve the pressure, but he could not. He further stated that he believed Ms Tomlinson was entitled to be where she was positioned on the track.

Mr Renault concluded the Informant’s case by stating that Mrs Barclay had made an effort to pull her horse out, but it was too little, too late.  Mrs Barclay had failed to allow room to the horses to her inside had thus driven carelessly.

Mrs Barclay demonstrated on the video that her horse had its head to the side which she said showed that she had taken steps to correct it. She had not let her horse lay in. She said Mr Ferguson had never yelled out to her. She felt at the time she was clear and had not realised that Ms Tomlinson had touched Mr Ferguson’s wheel.

Mrs Barclay said she did not believe she had driven carelessly and put the incident down to general tightening. She had steadied her horse, straightened it, and pushed on to the front once clear. She agreed that Ms Tomlinson was entitled to be where she was but she believed Ms Tomlinson was unwise to be chasing her horse up on the inside of Mr Ferguson.

When questioned by Mr Renault as to whether she was aware that Ms Tomlinson was to Mr Ferguson’s inside, Mrs Barclay said she did not realise Ms Tomlinson was still there. There was a comfortable space between herself and Mr Ferguson, he was not yelling and there was no reaction from the two of them, so there was no reason for her to have a look. She thought there was “just the two of us”.

Mrs Barclay concluded her defence to the charge by saying it was a misjudgement, but not careless driving. She had felt she was clear and did not realise Ms Tomlinson was still racing inside Mr Ferguson and she had corrected when she felt her horse go in.

Decision as to breach

Mrs Barclay has allowed her horse to shift gradually inwards in search of the lead. By the bend there was not enough room for the 2 runners on her inside. As Mrs Barclay has accepted, it was a misjudgement. She has come across just before the bend and has not realised that there was still a horse racing to the inside of Mr Ferguson. Unfortunately there was. That horse was EMMA STONE driven by Ms Tomlinson. Mrs Barclay has stated that she believed Ms Tomlinson was unwise to push up on the inside of Mr Ferguson in the manner that she did, but the parties and Mr Ferguson all agree she was entitled to be where she was on the track.

The consequence of the inwards pressure from Mrs Barclay on to Mr Ferguson was that Ms Tomlinson ran out of room and touched a pylon and also the wheel of Mr Ferguson’s cart. The tyre deflated and eventually came off the rim. Mr Ferguson was simply unable to give Ms Tomlinson room because of the pressure from Mrs Barclay on his outside. Mrs Barclay was not clear of Mr Ferguson who in turn was not clear of Ms Tomlinson. There was no pressure on Mrs Barclay from her outside.  She was simply coming across at speed to get to the pylons and the lead.

It is clear that Mrs Barclay took remedial action when she realised her horse was shifting in as the horse’s had can be seen on the video to be turned out and she then stayed clear of Mr Ferguson, but this was too late. Ms Tomlinson had run out of room and had contacted the marker peg and Mr Ferguson’s cart. The charge of careless driving is proved.

Penalty submissions

Mr Renault produced Mrs Barclay’s record. She has had 250 drives this season and 173 the last. She has no breaches of this rule in the past 12 months. Mr Renault stated he believed a 4-day suspension was appropriate. The consequences of Mrs Barclay’s carelessness were high in that Mr Ferguson’s runner which like Mrs Barclay’s horse, was a favoured runner, had participated in much of the race with a flat tyre.

Mrs Barclay believed this penalty submission was “a bit harsh”.  She referred to penalties imposed at Addington in Cup week. She emphasised she had taken remedial action and asked the Committee to consider a fine.

Penalty

The starting point in the Penalty Guide is a 10-drive suspension or a $500 fine. The consequences of the breach were such that a suspension is appropriate in this case. Mr Ferguson’s chances were affected, and Ms Tomlinson’s to a lesser extent, as she was able to recover her position and trail Mr Ferguson. An uplift for the gravity of the breach is outweighed by Mrs Barclay’s excellent record this season under this rule, especially when regard is had to the fact she is a busy South Island driver. Mrs Barclay averages 3 to 4 drives a meeting.

Mrs Barclay is suspended from the end of racing on 14 November up to and including 3 December. This is 3 Otago/ Southland days and has regard to the fact she may have also have had one Addington drive on 26 or 28 November.