Non Raceday Inquiry – Decision dated 16 June 2022 – Jay Abernethy

[1] This is a penalty hearing arising from the running of Race 7 at the Waikato BOP Inc Harness race meeting on 3 June 2022.  Driver Mr Jay Abernethy admitted a charge alleging that he breached Rule 868(2).

[2] Following the race Stewards opened and adjourned an investigation after which authority to charge was sought and given by the CE of the Racing Integrity Board, Mr Mike Clement.

[3] The charge was heard at Alexandra Park on 16 June 2022, and at the commencement of the hearing Mr Abernethy confirmed that he admitted the breach and that he understood the nature of the charge.

The Charge

[4] The details of the charge are outlined in Information number A18256 which provides:

That at a race meeting conducted by Waikato BOP Harness Inc at Cambridge in Race 7, Driver J Abernethy (PETER FORSBERG) failed to take all reasonable and permissible measures to ensure his horse was given full opportunity to win the race or obtain the best possible position and/or finishing place by holding the lead when challenged by RORY MCILROY (A Poutama) over the initial 700m which has resulted in “PETER FORSBERG weakening from near the 700m to finish in 10^th (2^nd last) place beaten 50.10 lengths.  An alleged breach of Rule 868(2) of the New Zealand Rules of Harness Racing).

The Rule

[5] 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

[6] The Penalty Guidelines provide a starting point of a 20-drive suspension or $1000 fine.

Decision

[7] The Respondent Mr Abernethy has admitted the breach.  It is therefore deemed to be proved.

Evidence

[8] Mr Mulcay provided the Adjudicative Committee with a written summary of facts which he confirmed and expanded upon during the hearing referencing the available race films.

The agreed facts

[9] Mr Abernethy was the Driver of PETER FORSBERG in Race 7 the Micro Mobile Pace, an R35-R54 event for horses 3yo and older.

[10] The race was over 2200m from the mobile. PETER FORSBERG drew barrier 2 off the front and showed gate speed to lead with RORY MCILROY (A Poutama), barrier 3, then challenging for the lead shortly after.

[11] Mr Poutama then continued his challenge for the lead, which was resisted by Mr Abernethy, rounding the first turn, and racing down the back straight until Mr Poutama relented near the 1500m and then restrained 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.

[12] PETER FORSBERG has then continued on in the lead with the first quarter of the last mile being run in 31.5 seconds before Mr Abernethy handed up to SOME GIRLS DON’T (Z Butcher) near the 1100m. PETER FORSBERG has commenced to weaken and give ground near the 700m finishing in 10th place beaten 50.1 lengths. A post-race veterinary examination detected no obvious abnormality.

[13] Mr Abernethy was then interviewed by Stewards and after hearing initial evidence and viewing the replays the matter was adjourned sine die.

[14] Permission was sought and obtained from RIB Chief Executive Mike Clement to charge Mr Abernethy 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 holding the lead when challenged by RORY MCILROY (A Poutama) over the initial 700m which has resulted in his gelding commencing to weaken near the 700m.

[15] Mr Mulcay concluded his evidence by pointing out that although both horses raced side by side for a considerable distance they were not placed under pressure, and this was not a ‘lead at all costs’ situation.

[16] In response Mr Abernethy stated that going into the race, he assessed the form of his rivals and was aware of the form of RORY MCILROY who had dropped out and finished last at its previous start.  He accepted that on this occasion he had made an error of judgement in that he and Mr Poutama went too far.  Mr Abernethy said that although the lead time was 39.8 sec, it should be noted that on the same night lower rated horses went 41 sec (Race 2) and 41 (Race 5).

[17] Mr Abernethy said that he does drive aggressively to give his horses the best chance of winning.  He referred to the fact that he has won over 530 races from more than 6000 lifetime drives.

Penalty Submissions – Applicant

[18] Mr Mulcay provided the Adjudicative Committee with written submissions which he confirmed and expanded upon during the hearing.

[19] Stewards submitted that by resisting the challenge from RORY MCLLROY for the prolonged period that he did, that Mr Abernethy’s tactics have clearly been detrimental to PETER FORSBERG’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.

[20] The measure that Mr Abernethy had available to him which was both reasonable and permissible was to surrender the lead to RORY MCILROY which would have allowed the pace to ease thereby giving PETER FORSBERG some respite.

[21] Mr Abernethy’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.

[22] Stewards maintain that Mr Abernethy’s drive fell well short of the standard expected from a Driver of his experience.

[23] By holding the lead 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 Abernethy continued to hold the lead until Mr Poutama desisted with his challenge near the 1500m and restrained RORY MCILROY back to take a trail three back on the markers.

[24] Peter FORSBERG underwent a post-race veterinary examination following the event which revealed no obvious abnormality.

[25] 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 (9 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”.

[26] 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.

[27] Mr Mulcay said that the Penalty Guide provides for a 20 drive or $1000 fine as the starting point.  He said that Mr Abernethy should be given credit for his clear record and frank admission.

[28] Mr Mulcay added that there are limited opportunities for northern Drivers compared to southern (particularly Canterbury), with only one meeting being available in the north during the winter months.  He said that if a Driver is suspended for a lengthy period, it means they lose drives, and it can be hard for them to get back on.

[29] He assessed the breach to be in the mid-range, and for reasons highlighted, Stewards would have no objection to a 2-day suspension and a moderate fine.

[30] Mr Mulcay referred to precedent cases, the Hurrell (9 July 2021) and Barclay (12 July 2021) in which he said the circumstances were similar and the Adjudicative Committee should note they each received Hurrell (5 days suspension) and Barclay (16 drives suspension).

[31] Mr Mulcay concluded by advising that based on Mr Abernethy’s recent driving record he has, on average, 3.4 drives per meeting (and since 1 January 2022 has driven at 34 meetings).

Penalty Submissions – Respondent

[32] Mr Abernethy said that he would prefer a fine rather than a suspension and if a suspension was proposed he would seek a deferment until after racing at Cambridge on 23 June 2022.

[33] Mr Abernethy supported the Stewards’ submission with regards to limited driving opportunities for northern Drivers.  He said that at best there is currently only one meeting in the north and if suspended it is hard to retain drives.

Penalty Decision

[34] Although this decision deals with the culpability of Mr Abernethy, it should be pointed out that Mr Poutama is also similarly charged for his part in the incident.

[35] It has been submitted that the lead time was 39.8 seconds which by any measure is exceptional.  Particularly for R35 to R56 horses racing at Cambridge on a mid-winter evening where the track was said to be rain affected.

[36] 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.

[37] 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.

[38] 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 who dealt with that matter 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.

[39] 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.

[40] After reviewing the race films the Adjudicative Committee has assessed the breach as above mid-range.  There is no doubt that Mr Abernethy did not give his horse the best opportunity to win the race or to obtain the best possible position.  This is evidenced by his tactics in the first 600 metres of the race when limited respite was given and little or no effort was made to surrender his position.  In that regard the actions, or non-actions, of both Drivers involved, in the opinion of the Adjudicative Committee, render them equally blameworthy.

[41] Precedent penalties for a number of cases under Rule 868(2) were considered by the Adjudicative Committee.  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 breaches that fall within the Rule, as well as personal circumstances.

[42] As already stated, the Penalty Guide starting point is 20 drives or $1000 suspension.

[43] Mr Mulcay has submitted that a 2-day suspension and moderate fine 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.

[44] Mr Abernethy has submitted that he would prefer a fine.

[45] 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 mid-range. Mr Abernethy is afforded a two-drive discount for his admission. The end point is therefore 18 drives.

[46] Taking into account that Mr Abernethy has, on average, 3.4 drives per meeting, 18 drives equate to 5 meetings.

[47] Mr Mulcay has sought consideration for a combined suspension and fine.  There are no compelling reasons why a combined suspension and fine cannot be imposed in this case.

[48] Accordingly, a 3-meeting suspension (10 drives) and $400 fine (8 drives) is imposed.

Conclusion

[49] Mr Abernethy is granted a deferment.  His license to drive in a race is suspended from 24 June 2022 until after racing on 15 July 2022.  In addition, he is fined $400.

[50] There was no application for costs by the RIB and there is no award for costs in favour of the RIB Adjudicative Committee.