Non Raceday Inquiry – Written Reserved Decision dated 12 July 2021 – Kirstin Barclay
Penalty: Awaiting penalty submissions and decision
 An Information was filed by Stipendiary Steward, Mr Munro, against Driver, Ms K Barclay, alleging a breach of r 869(3)(g) in that “as the Driver of A TASTE OF HONEY in Race 6 at the Invercargill HRC’s meeting held on 25 March 2021, she drove in a manner capable of diminishing her horse’s chances of winning by failing to ease her drive during the middle stages when racing outside the leader JODY DIREEN so as to give A TASTE OF HONEY some respite which would thereby have enabled the mare to finish the race off in the most competitive manner possible.”
 Rule 869(3)(g) reads: “No driver in any race shall drive in any manner capable of diminishing the chances of his horse winning.”
 The charge was heard as a Non-Raceday Hearing at Invercargill on 29 June 2021.
 Ms Barclay indicated on the signed Information that she did not admit the breach of r 869(3)(g) and confirmed this at the hearing.
 With reference to the video, Mr Munro demonstrated Ms Barclay’s charge drew #6 over a mobile 2200 metre race and was 2/2 in the market. As the start was effected, Ms Barclay urged her runner forward. She was initially 3 wide before taking the parked position near the 1850 metres, outside the leader JODY DIREEN.
 Immediately from this point, Ms Barclay drove A TASTE OF HONEY forward and sat parked about half a length off JODY DIREEN. Ms Barclay sat up in the sulky for about 100 metres at this point.
 From the 1650 metre mark Ms Barclay became active in the sulky urging her runner forward for the lead and shortly thereafter 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 what was a fast tempo for the first 1400 metres.
 A TASTE OF HONEY was run down into 3rd place, beaten 5.8 lengths in a time of 2-42.5. The time for the winner of the race was 2-41.3.
 A post-race veterinary examination revealed the mare to have no abnormalities.
 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. Comparison with times for the day, showed that in this particular race the initial 1400 metres 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 four races breaking 60 seconds for the last half.
 When spoken to regarding her drive, Ms Barclay advised the Stewards that her mare had no speed, and had won her previous start sitting parked and maintaining a fast clip throughout. This was on a 1.53 mile rate.
 Ms Barclay stated her tactics were to lead in this race, or to race as close to the pace as possible to keep the tempo up. JOHNNY MAC and INVALUABLE were the horses to beat and, if she sat back, in her view, she would not have been able to outpace them.
 Ms Barclay further stated that she had driven JODY DIREEN before and she is a sit and sprint horse who cannot lead, which had made her decision pretty easy to go forward.
 It became obvious to Ms Barclay that the lead was not there for a part so she gave A TASTE OF HONEY some respite at the 1700 metres. She then attacked for the lead as she felt if she had pulled back or sat up then she would have finished 5th or 6th as the mare could not quicken. She also stated that she did not want to trail as the mare could not sprint.
 Ms Barclay made the decision at the 1700 metres to press forward to make it a true pace and then had taken nearly 700 metres to reach the lead.
 Ms Barclay had options open to her rather than to challenge for the lead for such a prolonged distance as she could have sat parked and still dictated the pace or taken a trail.
 Mr Munro produced a copy of the summary of performances of A TASTE OF HONEY when starting for the Barclay & Ellis training partnership. In total the mare had had nine starts, in one of which she was retired from the event. Of particular note were the drives from Ms Barclay in races 1, 5, 6 and 7, where the mare had sat parked and never challenged for lead in the manner she had in the race before us.
 Mr Munro submitted Ms Barclay’s drive was well below the standard expected of a Driver with her experience. The way A TASTE OF HONEY was driven meant the mare’s chances of winning were significantly diminished through the middle stages of the race. A drive like this had detrimental effects on the Industry by way of speculation and impacted on the confidence in the integrity of the Industry, which was paramount.
 Ms Barclay questioned where in the Rules was it stated how long a Driver could attack for the lead. She believed the result in the race would have been the same as A TASTE OF HONEY was run over at the finish of the race and this was consistent with the pattern of her previous races. She said she had not diminished A TASTE OF HONEY’s chances but had created the same result, if not better.
 In a previous race A TASTE OF HONEY had had cover from the 1000 metres and had stopped and finished 4th or 5th. She said if A TASTE OF HONEY was not driven hard, she just battles. The harder she drove the horse, the better A TASTE OF HONEY went. The horse needed the pace on. In Auckland the horse had run 2-41.4 for a new Trainer, with a last half in 58 and a last quarter in 29.3. In her last start in Canterbury (which we take to be 3 April and the start immediately after the one in question), when she had driven A TASTE OF HONEY quietly, the horse had just battled home for 5th.
 With reference to JODY DIREEN, she said she had won on her from a sit. The Owner had told her that the horse could not lead.
 Ms Barclay emphasised that A TASTE OF HONEY was a big sluggish mare and was one-paced. The horse had fallen in to win her first start for her and Mr Ellis, but the horse had never been able to quicken. She said they had been training A TASTE OF HONEY pretty hard and she was ready to race on the day. The veterinarian had commented that A TASTE OF HONEY’s recovery after the race was very good. That justified her belief that the mare was very fit and was ready to race.
 Ms Barclay commented that she was wanting to keep the pace up. She wanted a solid pace and was slapping A TASTE OF HONEY up with the reins. She had taken the plugs out quite early. She thought not long after the gate, at the first bend. This was her usual practice with A TASTE OF HONEY.
 Ms Barclay said she thought Mr Hurrell was not looking good in the straight so she had pressed on to take the lead. She did not recall there being any conversation with him.
 Ms Barclay said she could not let A TASTE OF HONEY drop the bit. If she had dropped back and trailed, she would have “stuffed her chances”. She thought JODY DIREEN was going to stop as she did not believe she was an overly brave mare.
 Ms Barclay said she was aware of the distance she and Mr Hurrell were ahead of the field but she was driving her own race. She knew they were running at a true pace. The overall speed was not a concern to her as her aim was to keep the pace up. A TASTE OF HONEY could not sprint up on a slow pace.
 When questioned why it had taken a while for her to get to the front, Ms Barclay commented that A TASTE OF HONEY drops the bit a lot. She had thought that Mr Hurrell was going to let her go from the 1400 metres at around the time A TASTE OF HONEY had got her head in front.
 Mr Munro put to Ms Barclay that she had taken too long a period to get to the front to the detriment of the horse. She replied that it was not to the horse’s detriment as it had finished 3rd. She was aware they were some distance in front of the rest of the field. If she had got to the front earlier, this would not have been the case.
 Ms Barclay said JOHNNY MAC was a good horse. She did not want to sit parked with him getting a run one out and one off on her back. She thought she was better off in the lead and was wanting to keep the pace up. Sitting half off JODY DIREEN was not a wise thing to do.
 Ms Barclay said she had reflected on the race and had concluded that she probably still would have driven A TASTE OF HONEY the same, but would have not taken as long as she did to get to the front.
 Mr Munro submitted that the Rule is one of strict liability. To prove a charge under the Rule, the Stewards only needed to prove that Ms Barclay had driven in a manner capable of diminishing A TASTE OF HONEY’s chances of winning the race. There was no requirement to prove intent.
 The fact that Ms Barclay had attacked for the lead for approximately 600 metres, and/or failed to take other options that were available to her on the day, had resulted in her being caught by the Rule. It was her actions from the 1650 to the 1050 metres that were of concern to the Stewards.
 After failing to take the lead after 400 metres of the challenge, the Stewards would have expected Ms Barclay to have shown far greater judgement and to have taken other options so as to give her drive some respite.
 Clearly in this race Ms Barclay had been hell bent on getting to the lead, but the challenge had been for too long and as a consequence A TASTE OF HONEY had had to work too hard to have any realistic chance of winning.
 When compared to RIU v Cox & M Williamson (2015), Ms Barclay had challenged for the lead for a far greater distance than in that case.
 In J & C (19 October 2000) the Appeals Tribunal had emphasised that each race would depend on its own particular circumstances, especially as they unfolded during the race. The obligation to drive within the Rules of Harness Racing exhibiting skill and utilising experience, rested with the Driver for the duration of the race.
 The Stewards further submitted that Ms Barclay’s drive had basically set her mare a task which had proved to be beyond her capabilities and, as such, she had driven in a manner which diminished the chances of A TASTE OF HONEY winning.
 Ms Barclay reiterated that A TASTE OF HONEY’s racing performances were in line with the result in this race. The horse had not finished any worse because of the manner in which she was driven, and, in fact, probably, better. She had run in the money and when driven nicely with a sit in her next race, she had finished 5th.
 In her mind at the time was that JODY DIREEN was not a leader. She had driven that horse two or three times and that was her belief. She had won on the horse coming off a sit. With respect to A TASTE OF HONEY, she said she had to chase her, be urgent with her, in order to get the best out of her. She agreed Mr Hurrell was just sitting on JODY DIREEN and that that horse was going the better. She emphasised that although A TASTE OF HONEY had done more work, she had finished the better.
 Ms Barclay concluded her submission by stating that what she had asked of A TASTE OF HONEY on the day was not beyond the mare’s capabilities. The time in which the race was won was within her ability. She had not diminished the horse’s chances. A TASTE OF HONEY had finished 3rd.
REASON FOR DECISION:
 Mr Hurrell, driving JODY DIREEN, got to the front shortly after the start and was almost immediately challenged for the lead by Ms Barclay, who urged her horse forward to sit outside JODY DIREEN.
 At the time of her first challenge for the lead the two horses were only a length or two ahead of the field. Ms Barclay then 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. Ms Barclay is unable to make further progress despite urging A TASTE OF HONEY from time to time with the reins until the 1050 metres when Mr Hurrell has eased his horse, which prior to this point had been bowling along, and allowed Ms Barclay to cross to the markers. It is evident that Ms Barclay was having to work on her horse to sit outside Mr Hurrell for much but not all of this time.
 As we stated in our earlier related decision in Hurrell (9 July 2021) we do not believe that there was a duel between the two Drivers in the sense that each was going to have the lead come hell or high water. We accept at the time each Driver thought the decisions they were making during the running of the race were in the best interests of their respective drives. The key issue is whether this was so and, in particular, did Ms Barclay drive in a manner capable of diminishing the chances of A TASTE OF HONEY winning.
 Ms Barclay either challenged for the lead or sat up outside Mr Hurrell for some 600 metres. She has explained that A TASTE OF HONEY would get off the bit, so she was urging the horse most of this time to get her to go past Mr Hurrell and take the lead. A TASTE OF HONEY took time to cross JODY DIREEN. And it is evident that for the best part of 600 metres Ms Barclay was unable to do so.
 Ms Barclay stated that she had driven the horse in the manner in which she believed she would get the best out of her and the best finishing position. She said that in previous races A TASTE OF HONEY had been run over at the finish, as the horse was in this race, and that she believed A TASTE OF HONEY would not have beaten the winner no matter how the race had panned out. We view these comments in the context that she was the Co-Trainer and regular Driver of the horse.
 We accept Ms Barclay’s comment that A TASTE OF HONEY is one-paced. We are also aware that Mr Hurrell earlier today described A TASTE OF HONEY as being “quite lazy and a one pacer”. Ms Barclay described the horse as being a big sluggish mare. She said she was happy with the pace. She wanted the pace on as the horse provides her best in these circumstances and had trained well leading up to the race. We also accept Ms Barclay’s statement that A TASTE OF HONEY was ready to run a race and that she was wanting to dictate the pace.
 However, Ms Barclay’s comment that she was happy with the pace needs to be put into context. The race was won in a time of 2-41.3 and A TASTE OF HONEY ran 3rd in a time of 2-42.5. The overall time for the race 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, and the final 800 metres, in 60.1, with all of the other four races breaking 60 seconds for the last half.
 We reserved our decision on the day. After considering the evidence and the submissions from the parties, the Committee determined that a charge under r 868(2) was more appropriate having regard to Ms Barclay’s culpability in the particular circumstances of this case as the race unfolded.
 At the Forbury Park TC meeting on 1 July the Committee reconvened with the Chairman being present and the parties were informed that the Committee intended to use its power under cl 27 of the 5th Schedule to amend the Information to a charge under r 868(2). Ms Barclay was given the opportunity to plead to the amended Information. She stated that she admitted the breach of this Rule.
 The parties agreed we could accept the evidence already given as applying to the amended Information and that there was no need for further evidence to be called or for us to receive further submissions.
 While the Rules provide similar penalties for a breach of rr 869(3)(g) and 868(2), the JCA Penalty Guide provides a 40 race starting point for a 869(3)(g) breach and a 20-drive starting point for a 868(2) breach. Thus, r 868(2) is regarded as a lesser charge than one under r 869(3)(g).
 Our reasoning was that when regard was had to the racing style of A TASTE OF HONEY and, in particular, that she is one-paced, we could understand why Ms Barclay wanted a truly run race and chose to sit outside Mr Hurrell and pressure him from time to time for the lead. Significantly, she was not working on her horse all of this time. There were times she was just sitting quite quietly in the cart.
 We did not believe she had driven in a manner that would have diminished the chances of A TASTE OF HONEY winning. In our view, however, the length of time and thus the distance over which this pressure continued brought into question whether or not Ms Barclay was in breach of r 868(2) of failing to take all reasonable and permissible measures to obtain the best possible placing. Ultimately, after consideration, as we have noted, Ms Barclay admitted a breach of this Rule. We believe she was wise to do so.
 In regard to r 868(2), we are satisfied that Ms Barclay simply took too long to cross JODY DIREEN. It should have been apparent to her shortly after she was unable to get past JODY DIREEN on the top bend that Mr Hurrell was not going to hand up. She then could have either eased A TASTE OF HONEY to take the trail, notwithstanding the fact she believed this was not A TASTE OF HONEY’s preferred style of racing, or she could have sat quietly outside JODY DIREEN, despite her thinking the pace might ease and give JOHNNY MAC a desirable one out run with cover. Thus, although we accept Ms Barclay reasoned that the racing style of A TASTE OF HONEY did not suit either tactic, as we have said, she urged A TASTE OF HONEY with the reins for too long a time, at too strong a pace, and she took too long to cross. As a consequence, as she has acknowledged, her drive was in breach of r 868(2).
 As Ms Barclay has admitted the breach of r 868(2), it is found to be proved.
 The Informant is to provide written penalty submissions by 3 pm Wednesday 14 July and Ms Barclay is to respond by 3 pm Monday 19 July.
Dated at Dunedin this 12th day of July 2021.
Geoff Hall, Chairman
Decision Date: 12/07/2021
Publish Date: 14/07/2021