Non Raceday Inquiry – Decision dated 16 June 2022 – Andre Poutama
Waikato BOP Harness Racing Inc
Cambridge Raceway - 1 Taylor Street, Cambridge, 3434
Penalty: Driver Mr Poutama suspended 3 days and fined $300
 This is a penalty hearing arising from the running of Race 7 at the Waikato BOP Inc Harness race meeting held on 3 June 2022. Driver Mr Andre Poutama admitted a charge alleging that he breached Rule 868(2). Following the race Stewards opened and adjourned an investigation after which authority to charge was provided by the CE of the Racing Integrity Board, Mr Mike Clement.
 The charge was admitted and heard at Alexandra Park on 16 June 2022.
 Information number A18258 provides:
That at a race meeting conducted by Waikato BOP Harness Inc at Cambridge in Race 7, Driver, A Poutama failed to take all reasonable and permissible measures to ensure that his horse 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, which was being held by “PETER FORSBERG (J Abernethy), over the initial 700m and that this resulted in his gelding weakening near the 700m to finish in 11th (last) place beaten 85.8 lengths. An alleged breach of Rule 868(2) of the New Zealand Rules of Harness Racing).
 Rule 868(2) provides that:
“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.”
The Penalty Provisions
 The Penalty Guidelines provide a starting point of a 20-drive suspension or $1000 fine.
 Mr Poutama has admitted the breach. It is therefore deemed to be proved.
 Mr Mulcay provided the Adjudicative Committee with a summary of the incident which he elaborated upon using the race films.
The agreed facts
 Mr Poutama was the Driver of RORY MCILROY in Race 7 the Mico Mobile Pace – a R35 – R54 event for horses 3yo and older.
 The race was over 2200m from the mobile. RORY MCILROY drew barrier 3 off the front and showed gate speed to challenge for the early lead with PETER FORSBERG (J Abernethy).
 Mr Poutama then continued his challenge for the lead, which was resisted by Driver J Abernethy, rounding the first turn and racing down the back straight until relenting near the 1500m and then restraining RORY MCILROY back to take up a position three back on the marker line. The lead time was recorded as an extremely fast 39.8 seconds – especially when considering the class of horse in the event and the track was rain affected.
 RORY MCILROY has then been placed three back on the inner after PETER FORSBERG handed up to SOME GIRLS DON’T (Z Butcher) near the 1100m before then commencing to weaken and give ground near the 700m finishing in 11th (last) place beaten 85.8 lengths. A post-race veterinary examination detected no obvious abnormality.
 Mr Poutama was then interviewed by Stewards and after hearing initial evidence and viewing the replays the matter was adjourned sine die.
 Permission was then sought and obtained from RIB Chief Executive Mike Clement to charge Mr Poutama with an alleged breach of Rule 868(2) on the grounds that he failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win or obtain the best position and/or finishing place by persisting in his challenge for the lead, which was being held by PETER FORSBERG (J Abernethy), over the initial 700m.
 Mr Mulcay added that when Mr Poutama realised his horse was “spent” he allowed it to drift out to the rear of the field.
 In response Mr Poutama stated that his driving instructions from Mr Fleming (Trainer) were to try and find the lead. He said that he was told that RORY MCILROY had been working well during the previous week and had been beating its stablemate, who finished in second place. Mr Poutama said that after making every effort to lead, he realised that RORY MCILROY was a “spent force” and did not persevere further. He added that in its previous start RORY MCILROY had finished 37 lengths last.
Penalty Submissions – Applicant
 The Applicant Mr Mulcay provided written submissions which he confirmed and expanded upon during the hearing.
 Stewards submit that by challenging for the prolonged period that he did that Mr Poutama’s tactics have clearly been detrimental to RORY MCILROY’s chances of winning or obtaining the best possible position and/or finishing place by leaving the gelding with insufficient reserves to finish the race off in a competitive manner.
 The measure that Mr Poutama had available to him which was both reasonable and permissible was to desist with the challenge and ease his runner to look for a trail or at the very least allow the pace to ease thereby giving RORY MCILROY some respite.
 Mr Poutama’s failure to take this measure is in Stewards’ opinion so unreasonable as to be culpable and has resulted in him setting his gelding a task which was clearly beyond its capabilities given the circumstances. Stewards maintain that Mr Poutama’s driving fell well short of the standard expected from a Driver of his experience.
 By challenging in the manner which he did over the initial 600m has resulted in an extremely fast lead time being recorded of 39.8 seconds on what was a cold, wintery night on a rain affected track which was classed as “easy”. This lead time was the fastest of the night and equates to a mile rate of 1.46.7 to give some indication as to the tempo over this section of the event. It is also of concern that Mr Poutama did not actually desist with his challenge and attempt to restrain RORY MCILROY back to take a trail until near the 1500m.
 RORY MCILROY underwent a post-race veterinary examination following the event which revealed no obvious abnormality. Stewards have since followed up with the Trainer who advised that the gelding had recovered in the normal manner and had not displayed symptoms of any condition that may have had a bearing on the performance.
 In settling on a charge under Rule 868(2) as opposed to Rule 869(3)(g), which deals with driving in a manner capable of diminishing the horse’s chances of winning, Stewards have adopted the finding of the Adjudicative Committee in RIB V Hurrell (09 July 2021) [35} “We commence our decision by stating that we do not believe there was a duel between the two drivers in the sense that each had decided they were going to lead come hell or high water. We accept at the time each driver thought the decisions they were making during the course of the race were in the best interests of their respective drives. The key issue is whether this was so and did Mr Hurrell fail to take all reasonable and permissible measures to obtain the best possible placing for JODY DOREEN”.
 The Harness Racing Industry is driven by the gambling dollar and maintaining public confidence in the integrity of the industry is paramount. Stewards submit that driving in this manner undermines that confidence and must not be condoned and/or deemed as acceptable.
 Mr Mulcay submitted that Mr Poutama has a clear record under the Rule, and he admitted the charge at the first opportunity for which he should receive credit. He highlighted the fact that northern Drivers have limited opportunities during the winter months, in comparison with southern Drivers. He said that given the circumstances, Stewards have assessed the breach to be in the mid-range.
 Mr Mulcay said that Stewards have no objection to a combined suspension and fine and that a penalty like that imposed on Mr Abernethy should be imposed.
 He added that since 1 January 2022 Mr Poutama has had 126 drives over 31 meetings which on average is a little over 4 drives per meeting.
Penalty Submissions – Respondent
 Mr Poutama submitted that he would prefer a fine and that if a suspension is proposed he would like it to commence immediately after racing on 16 June 2022.
 Mr Poutama said that it is hard for him to retain drives, and any suspension could result in him losing drives. He had nothing further to add.
 Although this decision deals with the culpability of Mr Poutama it should be pointed out that Mr Abernethy already admitted a charge relating to his part in this incident. He received a 3-day suspension and $400 fine.
 It has been submitted that the lead time was 39.8 seconds which by any measure was exceptional. Particularly for R35 to R56 horses racing at Cambridge on a mid-winter evening where the track was said to be rain affected. Both Drivers are very experienced and are well versed at exercising the necessary judgment when it comes to rating their horses. On this occasion their judgement fell well below the required standard.
 Mr Abernethy has had over 6000 lifetime drives and Mr Poutama 2750 lifetime drives.
 Mr Mulcay referred to the RIB V Hurrell and Barclay decisions. There are some similarities with this breach. Ms Barclay, with over 3500 lifetime drives, is an experienced Driver. Mr Hurrell is a Junior Driver, albeit a successful one who had over 1400 lifetime race drives at the time of his breach.
 There are also striking similarities between this incident and the circumstances relating to ‘duelling’ charges that were filed in relation to Williams and B Williamson (6 March 2022) who were charged under Rule 869(3)(g). Mr Mulcay has explained that Stewards on this occasion preferred a charge under Rule 868(2), but the relevant point to be taken from the Williams decision is that the Adjudicative Committee referred to the driver’s ego……perhaps just bloody mindedness…. but accepted that……race tracks are a very competitive place and these incidents happen from time to time but they have a detrimental effect on Harness Racing. Clearly egos and perhaps bloody mindedness were at play in this case.
 Whilst this charge is not one of ‘duelling’ it must be said that the race was broadcast live on Trackside TV and casual armchair viewers, particularly those who may have wagered on the two horses, may well have been alarmed by the tactics that were adopted by both Drivers.
 After reviewing the race films the Adjudicative Committee has assessed the breach as above mid-range. There is no doubt that Mr Poutama did not give his horse the best opportunity to win the race or to obtain the best possible position. This is evidenced by the tactics in the first 600 metres of the race when neither Driver made any discernable effort to surrender their position. In that regard the actions, or non-actions, of both Drivers involved, in the opinion of the Adjudicative Committee, render them equally blameworthy.
 The Adjudicative Committee considered precedent penalties for several cases under Rule 868(2). It was noted that there is a wide variance in penalties for breaches under this Rule, due in part to cases being determined on a fact dependent basis because the Rule can encompass a range of factors as well as Drivers’ personal circumstances.
 The Penalty Guide starting point is 20 drives or $1000 suspension.
 Mr Mulcay has submitted that a penalty commensurate to that imposed on Mr Abernethy would be appropriate. His comments about limited driving opportunities have validity. Currently the ratio of Canterbury meetings to northern (Auckland / Cambridge) is two to one.
 Mr Poutama has submitted that he would prefer a fine.
 In consideration of the submissions and penalties that have been imposed for similar cases the Adjudicative Committee adopts 20 drives as the starting point, which takes into account the breach is assessed above mid-range. Mr Poutama is afforded a two-drive discount for his admission. The end point is therefore 18 drives.
 Mr Poutama usually has, on average, a little over 4 drives per meeting, which is slightly more than Mr Abernethy.
 Mulcay submitted that Stewards would support a combined suspension and fine. As was determined in Mr Abernethy’s case there are no reasons why a combined suspension and fine cannot be imposed in this case.
 Accordingly, a 3-meeting (12 drives) suspension and $300 fine (equal to 6 drives) is imposed.
 Mr Poutama’s license to drive in race is suspended from 17 June 2022 until after racing on 7 July 2022. In addition, he is fined $300.
Note – the $100 difference in the fine imposed, compared to Mr Abernethy, is because Mr Poutama has more race night drives.
 There is no award for costs.
Decision Date: 16/06/2022
Publish Date: 20/06/2022