Non Raceday Inquiry – Written Decision dated 9 July 2021 – Mark Hurrell
Penalty: Junior Driver Mark Hurrell is suspended for five meetings
 An Information was filed by Stipendiary Steward, Mr Munro, against Junior Driver, Mr M Hurrell, alleging a breach of r 868(2) in that “that as the driver of JODY DIREEN in Race 6 at the Invercargill HRC’s meeting held on 25 March 2021, he failed to take all reasonable and permissible measures between the 1600 to 1100 metres to ensure that his horse was given full opportunity to win or obtain the best possible finishing position, by failing to surrender the lead to A TASTE OF HONEY and such failure has proved to be to his horse’s detriment given that the mare weakened over the final stages to finish 7th.”
 Rule 868(2) reads: “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 charge was heard as a Non-Raceday Hearing at Invercargill on 29 June 2021.
 Mr Hurrell did not admit the breach and confirmed this at the hearing. He was assisted by Mr C Ferguson.
 With reference to the video, Mr Munro demonstrated on four angles that Mr Hurrell, who was driving JODY DIREEN, drew #5 over a mobile 2200 metre race. As the start was effected, Mr Hurrell urged his runner forward, and took the lead near the 1850 metres.
 Ms Barclay, driving A TASTE OF HONEY, drove forward and sat parked about half a length off Mr Hurrell’s charge.
 From the 1650 metre mark Ms Barclay became active in the sulky urging her runner forward and shortly thereafter she was on level terms with Mr Hurrell’s charge.
 Entering the home straight and passing the 1250 metres, Ms Barclay’s charge was marginally in front, and at the 1050 metre mark, Mr Hurrell allowed Ms Barclay to take the front and move down to the marker line.
 When Ms Barclay took the lead, her horse and that of Mr Hurrell’s were 20 metres in front of the remainder of the field, which then closed quickly after a fast tempo for the first 1400 metres.
 Mr Hurrell then trailed Ms Barclay. He activated the deafeners near the 600 metres, then weakened from the 500 metres, finishing 15.4 lengths from the winner, in 7th place.
 A post-race veterinary examination revealed JODY DIREEN had a slow recovery and was suffering from mild respiratory distress. She was stood down for a veterinary clearance, which was subsequently provided. The veterinarian stated that the cause of the distress was not known.
 The race meeting was held on a fine day with a good track. The overall time was 1.7 seconds quicker than any other 2200 metre mobile on the day. In comparison with the times for the day, the initial 1400 metres of the race was run in 1.41.1, which was 2.7 seconds quicker than any other pacing race on the day. The race was the slowest pacing race over the final 800 metres, being 60.1, with all of the other 4 races breaking 60 seconds for the last half.
 When spoken to regarding his drive, Mr Hurrell confirmed that he had received no instructions on how to drive the mare. He stated in his interview post-race that he had a decent draw and JODY DIREEN was a known leader, so it was a good race to lead up in. She had won multiple times when leading previously. He further stated the previous start when he had restrained the mare to cover, she had travelled unkindly thereafter, pulling, and not settling, as she relaxed best when in front.
 Mr Hurrell agreed with the Stewards that he had obtained the lead relatively easily and had his whip drawn to keep JODY DIREEN’s mind on the job and retain the lead. Nothing was said by either himself or Ms Barclay on the track.
 When asked why he eased at the 1100 metres to take a trail, Mr Hurrell replied, “it was getting past ridiculous as how long she had attacked me, I easily pulled back to take the trail”. Mr Hurrell further stated that the mare had travelled well to the 500 metres but then became tired. Mr Hurrell was asked why he did not hand up earlier. He replied he did not want to snag his horse back as she would have then pulled by being too keen in behind.
 Mr Munro said there was a distance of 600 metres “at worse” that Mr Hurrell could have easily pulled back.
 Mr Munro demonstrated on the videos that at times Ms Barclay was clearly urging her horse. He said she was very active in the sulky, and she appeared to have removed the earplugs about 300 metres after the start. Whereas Mr Hurrell’s horse was rolling along freely.
 Mr Ferguson spoke first. He said that JODY DIREEN races best in front and that 50% of her wins had been in this fashion. He believed Mr Hurrell was reluctant to hand up to a horse that was under a drive, and he had wanted to lead.
 Mr Ferguson said Ms Barclay had attempted to take the lead in the back straight, although she appeared to be sitting quietly on the top bend. Mr Hurrell’s horse was on the bit and was travelling well. He said after Ms Barclay got urgent again with a lap to run that Mr Hurrell had no option but to hand over the lead. He said the race was in two parts: Ms Barclay attacked for the lead, then sat quietly before going for the lead again, and this was when Mr Hurrell handed up.
 Mr Ferguson said JODY DIREEN was known to over-race when taking the trail and she was travelling better than A TASTE OF HONEY. Thus, it made sense for Mr Hurrell to maintain the lead. He said Mr Hurrell would not want to trail and then have to come out and sit outside the leader.
 Mr Ferguson said JODY DIREEN had choked down in the past. He also drew our attention to the veterinarian report.
 Mr Hurrell said he knew A TASTE OF HONEY was a good horse and he thought if he could stay in front of that horse he could win. He had driven JODY DIREEN at a previous start and had tried to take the trail, but she would not relax, and he had had to take the lead. At that start she was racing too keen, and he had had to take her around the field. He had driven JODY DIREEN a number of times and thought he would get the best result by taking the lead. He did not want to trail.
 Mr Hurrell said JODY DIREEN was a strong mare and he believed she was happy in the race doing her own thing leading and with no horses (other than A TASTE OF HONEY, presumably) around her. He thought on paper she was a good chance in the race if she could go forward and lead, but Ms Barclay had had her own ideas. He said he had his stick up to indicate to Ms Barclay he wanted to keep the lead, but she had kept going. Mr Ferguson confirmed this point.
 When Ms Barclay first attacked, he believed he was a length or two from the trailing horse. He said he had not moved in the cart and was trying to keep JODY DIREEN travelling at the same speed. As he rounded the bend, he was aware of the distance they were in front of the rest of the field. JODY DIREEN was still on the bit and travelling well, so he did not pull back. However he realised as he rounded the bend that they had gone too quick for too long. They had gone too far, so he eased JODY DIREEN. He acknowledged he did not have an issue on the day easing JODY DIREEN. He gradually held her until Ms Barclay took over.
 Mr Munro questioned Mr Hurrell concerning the previous win of JODY DIREEN when leading. Mr Hurrell agreed he had got an uncontested lead on that occasion. The time was slower (2.42.2, last 800 in 55.6). Both Mr Hurrell and Mr Ferguson agreed the times were too quick in the race at issue before us.
 Mr Hurrell said it was when Ms Barclay got the head of her horse in front of his that he decided to let her take the lead. He said it had taken a while for Ms Barclay to get to the lead. He thought it was about 350 metres. He did believe, however, that he had started to ease his horse. He said Ms Barclay had had to work on her horse to get past. He said A TASTE OF HONEY was quite lazy and was a one pacer.
 Mr Munro said Mr Hurrell had measures available to him which were both reasonable and permissible, as from the 1600 metre mark to the 1100 he had an option of restraining and taking a trailing position.
 Mr Munro said it was a prolonged attack for the lead by Ms Barclay over a distance of some 600 metres. Mr Hurrell had made no effort to restrain his horse. Indeed the speed of the two horses increased as the gap back to the field got bigger.
 Mr Munro disputed that Mr Hurrell had decided on the bend to hand up as it was some 350 to 400 metres before Ms Barclay got to the lead. He believed Mr Hurrell could have eased JODY DIREEN and given the lead to Ms Barclay. If Mr Hurrell had wanted to sit parked, he could have, and could have controlled the tempo from there.
 Mr Hurrell had clearly driven his horse beyond her capabilities by not giving her some respite in the middle stages. When compared to RIU v Cox & M Williamson (2015), Mr Hurrell had taken far too long to surrender the lead which had been to the detriment of his drive.
 The Appeals Tribunal in J & C (19 October 2000) had emphasised that each race would depend on its own particular circumstances, especially as they unfold during the race. However, the obligation to drive within the Rules of Harness Racing exhibiting skill and utilising experience, rests with the Driver for the duration of the race.
 Mr Ferguson questioned whether the gap had got bigger because Mr McIlwrick who was leading the field up had made no attempt to catch up. He believed Mr McIlwrick had a strong hold on his horse and appeared to be easing it. Mr Munro said the Stewards believed Mr McIlwrick had held his horse together in the belief that the leading horses would stop.
 Mr Ferguson said whichever option Mr Hurrell chose would be to the detriment of the horse. The two horses racing side by side had gone on longer than it should have, and Mr Hurrell had acknowledged that. But Mr Hurrell was aware of the possibility that JODY DIREEN could choke down and had eased the horse slowly. The veterinarian report indicated the horse had been driven hard in the race and had had a slow recovery. It was not 100% on the day.
 Mr Hurrell said he had given JODY DIREEN every chance and he was surprised at how quickly the horse had stopped. It should have run 4th or 5th. JODY DIREEN was a 2-42 horse, and the time of the race was only 2-41.3
REASON FOR DECISION:
 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 DIREEN.
 We need to examine the circumstances of the race as they unfolded.
 Mr Hurrell got to the front shortly after the start and was almost immediately challenged for the lead by Ms Barclay.
 At the time of the first challenge the two horses were only a length or two ahead of the field. Ms Barclay continued to sit outside Mr Hurrell and on the bend at the 1400 metres the head of her horse is in front of that of Mr Hurrell’s. At that point, Mr Hurrell has told us, he decided to hand up to Ms Barclay. We believe that was a wise decision. However, there is no evidence that Mr Hurrell has made any attempt to ease his horse from this point on until some 350 to 400 metres later when close to the winning post (1050 metres) with a lap to run. To the contrary, he appears to have been content to allow JODY DIREEN to bowl along. As he told us, he believed JODY DIREEN was doing it easily, whereas Ms Barclay was having to work on her horse to sit outside him.
 We accept Mr Hurrell’s and Mr Ferguson’s statements that JODY DIREEN races best when in front and is known to over-race when in the trail. We further accept that Mr Hurrell had factored this into his decision-making when allowing JODY DIREEN to stride out; ie it was better for her to lead, than to trail or to sit outside leader. However, as Mr Hurrell has acknowledged, they went too quick at this stage of the race. The last 600 metres was the slowest of the four pacing races on the day. The time of the race was 2-41.3. JODY DIREEN dropped out and ran 7th of nine horses in a time of 2-44.4.
 With reference to the stand down of JODY DIREEN pending a veterinarian certificate, this is inconclusive. The cause of the respiratory distress is not known. Neither party called the Veterinarian to give evidence.
 We are satisfied that Mr Hurrell had time from the top bend when A TASTE OF HONEY’s head was in front until to just before winning post to ease JODY DIREEN. He did not restrain or ease JODY DIREEN. We do not accept that this was because he was concerned the horse would choke down. JODY DIREEN was pacing kindly. She was rolling along freely, and the opportunity was there for Mr Hurrell to ease her and to hand up the lead to Ms Barclay. Mr Hurrell only handed up the lead when he felt he had no other option when Ms Barclay got busy on A TASTE OF HONEY again.
 Thus, we find he has failed to take all reasonable and permissible measures to ensure that JODY DIREEN was given full opportunity to win the race or to obtain the best possible finishing place and, thus, is in breach of r 868(2).
SUBMISSION FOR PENALTY:
 Mr Munro produced the Respondent’s record which showed he was a busy South Island Junior Driver. Mr Munro calculated that Mr Hurrell has four drives on average per meeting.
 Mr Hurrell has had one related suspension in 2021. On 2 May he was found to have driven in a manner capable of diminishing his horse’s chances of winning in race 12 at the Waikouaiti TC’s meeting on 28 February 2021. Mr Munro did not believe the penalty should be increased because of this breach.
 The starting point in the Penalty Guide for a breach of r 868(2) is 20 drives or a fine of $1,000. Mr Munro submitted that a penalty near the starting point was appropriate.
 Mr Hurrell said he wanted to drive in the South v North Junior Driver races at Addington and asked if the Committee could factor this into our decision-making.
REASON FOR PENALTY:
 Mr Hurrell has had 1406 lifetime drives as of 1 July; 320 last season and 368 this current season. He is a leading South Island Junior Driver.
 We believe the breach is mid-range. The Chairman is aware of the circumstances of the breach on 28 February last and the Committee accepts Mr Munro’s submission that the circumstances of that breach were different to those before us today. We view Mr Hurrell’s record as neutral.
 There is no need for us to depart from the 20-drive starting point. It marks appropriately Mr Hurrell’s culpability in the particular circumstances of this case as the race unfolded. He simply did not ease his horse when the opportunity was there for him to do so.
 Mr Hurrell is suspended from the end of racing on 1 July up to and including 11 July 2021. This is five meetings.
 There was no application for costs by the RIU and there is no award in favour of the JCA.
Dated at Dunedin this 9th day of July 2021.
Geoff Hall, Chairman
Decision Date: 09/07/2021
Publish Date: 13/07/2021