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Non Raceday Inquiry RIU v K Barclay - Reserved Decision dated 4 December 2019 - Chair, Prof G Hall

Created on 06 December 2019

BEFORE A JUDICIAL COMMITTEE OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN RACING INTEGRITY UNIT (RIU)

Informant

AND KIRSTIN BARCLAY

Licensed Public Trainer /Open Horsewoman

Respondent

Information: A12866

Judicial Committee: Prof G Hall, Chairman

Mr M Conway, Member

Appearing: Mr V Munro, for the Informant

The Respondent in person

Date of hearing : 22 November 2019

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] The informant, the RIU, has laid information A12866 with respect to the respondent, Ms K Barclay, alleging a breach of r 869(3)(g).

[2] This information alleges that the manner in which Ms Barclay (TACT EZE) drove through the early and middle stages of race 7 at the Invercargill HRC meeting on 7 November 2019 “by applying a constant and sustained pressure was capable of diminishing her horse’s winning chances.”

[3] Rule 869(3)(g) states: “No horseman in any race shall drive in any manner capable of diminishing the chances of his horse winning”.

[4] TACT EZE is trained by Mr T Proctor and the horse finished in eighth place.

Informant’s submissions

[5] Mr Munro commenced the informant’s case by reviewing the race.

[6] TACT EZE drew barrier 3 in a 12-horse field, a mobile start pace over 2200 metres. The race was part of the Invited Drivers series which was run throughout the day.

[7] As the start was effected, Ms Barclay urged her horse out the gate, using the whip and reins over the first 200 metres to end up in the parked position.

[8] Approximately 300 metres after the start Ms Barclay glanced over her inside shoulder three times to see where the trailing horse was. From this point it was “handlebars down” with a number of urgings of her horse to go forward.

[9] When the leaders reached the 1600 metres point, there were a number of large gaps in the field, with a number of horses battling to stay in touch due to the hot pace that was being set.

[10] As the field entered the bend by the 1500 metres, Ms Barclay could be seen still to be urging her horse. Shortly after, at the 1400 metres point, TACT EZE was able to take the lead and drop down to the pylons.

[11] When in the lead, Ms Barclay was still urging the horse to the 1200 metres where TACT EZE finally got some respite, albeit briefly.

[12] As the field passed the 700 metres TACT EZE was passed by another horse and weakened from this point and battled to the line, some 21.9 lengths from the winning horse.

[13] When spoken to by Chief Harness Steward, Mr Ydgren, Ms Barclay commented:

KB: The trainer told me that it led its first start and she wouldn’t let them past it so that’s the belief I was under.

NY: You didn’t look at any of the horse’s previous starts?

KB: No.

NY: Would it be fair to say you went out there with a plan A?

KB: That and stuck to it, yeah.

NY: And didn’t really adopt [sic] to the situation that may have unfolded?

KB: No. I looked across at one stage and thought I might’ve been able to drag back into the trail but the second horse had pumped up by that point so I was gonna be parked for the trip so I thought [indistinct 3.29].

NY: That was at which point around here somewhere?

KB: Just around this bend at one stage when maybe Matty wasn’t quite keeping up, I thought I might’ve been able to drag back at one stage and then I realised I couldn’t. It’s hardly an all-out speed dual [sic], it’s not that we’ve [indistinct 3.53] clear of the field. The field’s all there still.

NY: What I’m looking at, the thing is have you maybe overestimated the ability of the horse?

KB: Yeah, definitely. I thought the horse was way fitter than what it was. It warmed up really well, it felt good. In my opinion, the way I train my horses, it should’ve been able to do that and carry on and at least finish off the race. I’d say fitness was lacking a fair bit on its side. Without being detrimental to the trainer. I don’t wanna say that [indistinct 4.25] be detrimental to the trainer. In this day and age, they’re running 2.41 week in/week out, it should be able to do that and do a little bit of work. Like it’s worked out of the gate but we’re not balls out attacking, attacking, attacking. We’re just grinding, in my opinion.

[14] Mr Munro produced an analysis of the race times for the day. He said of note was that in the first 600 metres of Ms Barclay’s race they had gone 2.6 seconds quicker than any other race. He said this equated to some 13 lengths. (We observe in fact it was 2.36 seconds quicker — see table at [28].)

[15] The Stewards on the day questioned junior driver Ms S Tomlinson regarding the performance of her drive in that race. She advised the horse had been unsuited to the fast early tempo, resulting in it having to chase throughout.

[16] Following the race on the day in question, Stewards ordered a post-race veterinary examination of TACT EZE. However, when the vet visited the stables, the horse had left the course.

[17] The next week Mr Munro spoke to the trainer of TACT EZE, Mr Proctor. Mr Munro questioned him as to what tactics he had advised Ms Barclay of prior to the race. He said he had told her to go to the front if possible as Ms Barron had said when driving the horse at the workouts, when in front she does not like giving the lead away. Mr Proctor knew TACT EZE would beat TOBY O'GARA out of the gate and he said that PADUKA usually hands up.

[18] When she returned to the stables Ms Barclay had apologised to him for the terrible, shocking drive. He was asking himself, “Why did she drive like that?”

[19] When asked what his thoughts were on the drive, Mr Proctor replied, “A shocking drive, 200 metres max then go to second plan if lead not available, but she kept pressing. I said to my partner when we hit the front that we are gone, the horse had done its race.”

[20] Mr Proctor said the horse blew a lot when first back after the race, far more than her last start. He said, “No wonder when the first 600 metres was in 41 seconds.” (We observe it was 42 seconds — see table at [28].) He gave her three days off after the race and the horse had recovered well. She ate up well the night of the race.

[21] With respect to her previous runs, he said when TACT EZE won at Winton first up, she came from behind. Then at Gore and Riverton she was off the gate and was warned the second time, so he had done some work behind the gate with her at Winton, and he was confident she would go out well at Invercargill.

[22] Mr Munro emphasised that the Stewards were not alleging there had been a duel but that Ms Barclay had “used too much petrol”. She simply had a mind set to drive aggressively.

[23] The Stewards’ summary of the charge was that Ms Barclay had driven her horse hard for the first 700 to 800 metres, that this drive was unreasonable and had diminished TACT EZE’s chances for the latter stages of the race.

[24] Ms Barclay admitted in her interview post-race with Chief Harness Steward Mr Ydgren that she had driven the horse aggressively as that had been working for her all day. She also agreed that she did not have a plan B for this drive; her intention was to get to the front.

[25] Mr Munro submitted it was clear that Ms Barclay had not researched her drive’s previous starts and relied on what the trainer had told her, which she had taken incorrectly when thinking TACT EZE led in a race it had won, when in fact he was meaning in a recent workout. This misunderstanding, he believed, had had a major effect on the performance of the horse. It was clear that Mr Proctor was not happy with the drive as he clearly stated his view to take the lead “if possible”.

[26] Ms Barclay knew her drive was not up to standard with her own admission to the Stewards that it “wasn’t a great drive” and her apology to the trainer after the race.

[27] Looking at the times for the day, the Stewards agreed with Ms Barclay that 2.41 is a normal time, however of concern was that the first 600 metres was in a time 2.6 [2.36] seconds or 13 lengths quicker than any other race on the day. He believed the actions of Mr Orange on PADUKA to stay in the lead (at times chasing his horse to keep the front when he was driving a favoured runner) due to the speed they were going during the time he did not hand up and the distance they travelled while he stayed in the lead, should have pointed to Ms Barclay that she needed another plan, and not to continue to pursue the lead and diminish her horse’s chances.

[28] Mr Munro provided the following summary:

Class of Race                 Overall Time        Last 800m         Last 400m            2200 - 1600
R40                                2.41.6                 56.8                  29.0                     44.92
MR46 to MR50               2.42.6                 57.5                   28.3                     44.50
MR40 to MR45               2.45.2                 58.5                   29.6                     44.82
R43 to R49                     2.42.9                 57.7                  29.4                     45.34
R50 to R55                    2.41.6                 59.3                  29.3                    42.00
NW F & M                       2.44.3                 57.1                   28.0                    44.36
21 Sept 2019                 2.42.7                 57.2                   28.3                    44.87

[29] Mr Munro noted that although it was the highest assessed class of the day it was: equal fastest time of the day with an R40 race; consistent with other races over the last 400 metres; the slowest last 800 metres of the day by 0.8 seconds; and the first 600 metres was the quickest by 2.36 seconds.

[30] Mr Munro submitted the question to be asked was whether the actions of Ms Barclay had diminished the chances of TACT EZE. The Stewards believed that clearly they had by the manner in which Ms Barclay had driven through the opening 800 metres after which her horse was spent and weakened from the 700 metres and thus did not have a chance of filling a place. With no alternative plan B or C, such as slotting into the trail, or taking hold and easing to sit parked and not applying pressure to the leader and hoping to get cover if another horse came round, Ms Barclay had not assisted the horse by her aggressive drive that had diminished TACT EZE’s chances.

Respondent’s evidence and submissions

[31] Ms Barclay commented she was not aware that a charge would be laid when she spoke to Mr Ydgren after the race. She believed she had been called to the room to discuss the horse’s performance. In addition, she stated she was not aware that the Stipendiary Stewards record interviews as a matter of practice.

[32] Ms Barclay opened her defence by stating it was a poor field and she believed a number of horses would pull back at the start.

[33] TACT EZE was out quickly and after the bend the field was strung out. She looked over her shoulder to see if she could take a trail, but she could see she could not do so.

[34] Ms Barclay said she did not continue to press hard and sat at Mr Orange’s wheel until she took the front. She was half a length off the leading horse. Ms Barclay emphasised that the lead horse set the time. She did not believe Mr Orange’s chances had been diminished.

[35] Ms Barclay added that once TACT EZE had got to the front the horse had knocked off. She said once she had again urged TACT EZE after getting to the lead, the horse had her ears pricked and was enjoying her work. She said once TACT EZE lost the lead the horse had switched off noticeably.

[36] Ms Barclay said she had decided to take the lead and at the same time Mr Orange had said go to the front. Prior to that he had said he was going to stay there, but she said drivers often said that; it was just general race chat / tactics.

[37] Ms Barclay said she understood that TACT EZE in her first start had raced 3-wide for the first 600 metres, was parked, then had the trail and won by a nose. There was 11 lengths from the third horse to the rest of the field. On the day she thought Mr Proctor had said TACT EZE had led in the race that she won. In her next two starts TACT EZE had been well beaten.

[38] Ms Barclay believed TACT EZE was not race fit or was not right on the day. She was capable of running the time in which the race was won. Mr Proctor had said to drive the horse positively out of the gate and she understood that the horse had won that way. She now understands that it was in fact a workout but that was not her belief at the time.

[39] She said that although she was keeping Mr Orange honest the whole way, she was half a length back. She was making TACT EZE feel “brave and strong”. She wanted the front if she could get it. She added she was an aggressive driver. Her drive on VINTAGE ROSE earlier in the day was an example of this.

[40] Ms Barclay emphasised she did have a plan B. She was looking for the trail. In particular, she was trying to create a gap by going out of the gate fast. She thought she would have more speed than Mr M Williamson (who was driving the trailing horse) so therefore she was not at breakneck speed trying to get the lead. Her plan B was to drop into the trail if there was enough of a gap back to Mr Williamson.

[41] She said she was trying to get a breather for TACT EZE after she got the lead. She was comfortable with the way the horse was travelling. The time was not that quick. She just wanted a consistent and hot tempo. She believed this was favourable for that type of horse and she also wanted to take the finish out of the other horses.

[42] Ms Barclay said she realised now that she had misinterpreted what Mr Proctor had said but at the time she thought what she did was her best bet; ie to be aggressive, get the horse to the front, and she would fight. When TACT EZE first got to the front she had switched off. Ms Barclay thought this was not ideal but then the horse later had her ears pricked. She accepted she had driven the horse hard. She had been successful doing this in the past and, in doing so, was not in breach of the Rules.

[43] With respect to plan C, she said they were “running along at a good clip” and she did not think that a horse behind her would come around and give her cover. To do so, she believed, she would have had to pull back a couple of lengths. She was half a length back and did not want to be in a speed duel. To do so, she would have had to attack for the lead. She did not do this. She was just sitting there one out and the horse was feeling good and was racing at a consistent speed.

[44] Ms Barclay said TACT EZE had warmed up well and she was encouraged by this. She thought the trainer had said she was a good front runner, and she expected a good run from TACT EZE. She was concerned the horse had switched off so quickly. She had asked no more of TACT EZE than she would ask of the horses she trains. The horse should have been able to do it. She understood the horse had eaten up well after the race and she believed if she had asked too much of the horse, TACT EZE would not have done so.

[45] Ms Barclay acknowledged the time was two seconds quicker at the start, but the overall time of the race was no different to another on the day. Mr Orange was setting the pace and his horse had finished the race off well.

[46] She said she had not had a discussion with Mr Orange after the race but the trainer of TACT EZE had said he was unhappy with her drive. She was a little surprised at this considering the instructions she had received. She apologised to Mr Proctor. On reflection she did not think she should have, but this was the easy option to take at the time.

[47] Ms Barclay questioned at what point should she have eased. She emphasised she had looked over her shoulder and could see she could not get the trail. She could not see where in the first 700 metres she had diminished TACT EZE’s chances.

Summing up

[48] Mr Munro summed up by stating the respondent had a plan to drive aggressively, with no other plan. She had driven so fast early that she had diminished the chances of TACT EZE.

[49] Mr Munro stated that Mr Orange was dictating the pace, but he was not able to get respite because the respondent was sitting outside him and was pressing on until the point he said to her to take the lead. Ms Barclay was placing pressure on Mr Orange until this time.

[50] Mr Munro confirmed TACT EZE was not checked by the veterinarian on the day or subsequently.

[51] Ms Barclay said she had not seen that Mr Orange had flicked the whip once or twice to his horse in the early stages. She added Mr Orange was sitting comfortably on his horse and the flicks were him encouraging the horse and were not evidence of him shaking it up. If they were going too quick that should have been to the detriment of PADUKA. It was not; that horse had finished third.

[52] Ms Barclay said the fact that she was sitting half a length back was a key factor. It was Mr Orange, not her, setting the pace until she got to the lead.

[53] She said she had not researched TACT EZE’s previous starts as she wanted to go into the race with a clear mind. A horse could be driven in a completely different way to what it had been in the past and win.

[54] Ms Barclay concluded her defence by stating horses were not machines. She expected the horse to be able to do the work. TACT EZE clearly could not on the day, for whatever reason. She now wondered whether had she attacked for the lead, Mr Orange might have handed up the lead earlier. She decided to go to the front just as Mr Orange had said to take it. Once she got to the front she was keen to give the horse a breather, so she was going to ease the pace. TACT EZE was racing okay, her ears were pricked, but she had switched off once the other horses came up outside.

[55] When questioned, she said she was not concerned about the speed of the first 600 metres. The horse should have had “enough gas.” Now, knowing the time, she still was not concerned.

Decision

[56] We have had regard to the comments of Ms Barclay on raceday and her evidence and submissions before this hearing, the submissions of Mr Munro, and the raceday videos.

[57] The allegation is not one of a speed duel. That has never formed part of the informant’s case.

[58] The race time, while quick, is no faster than another race on the day. The Stewards’ principal concerns are with the fast first 700 to 800 metres and that Ms Barclay did not have a plan B when it should have become obvious to her that she was not going to get the lead off Mr Orange.

[59] With respect to the time, we accept that Mr Orange, as the driver of the lead horse, had control over the speed of the race, but, that said, Ms Barclay by her own admission, although not directly and persistently challenging for the lead, was placing pressure on Mr Orange by sitting up outside his cart.

[60] Ms Barclay explained that she was wanting to put pressure on Mr Orange to keep Mr Orange honest and her horse “brave and strong”. She cannot then state that she had no influence on the speed of the opening section of the race and that it was all down to Mr Orange who was driving the leading horse. Thus, it is our view Ms Barclay had some influence on the speed of the race at that time.

[61] Mr Orange had the option to hand up to Ms Barclay from the moment she first moved up and sat to his outside. This he refused to do for some time, as is his right. He eventually did hand up after some 800 metres, at the time that Ms Barclay says she had formed the intention to go up and take the lead anyway.

[62] The first 600 metres is quick, but negative split races are not unknown. Significantly, PADUKA fought on gamely for third after setting the early pace. Ms Barclay believed she had the opportunity to take the lead but this was denied her for some distance. We do not believe her sitting outside Mr Orange’s cart for some 700 to 800 metres applying pressure to Mr Orange and at the speed the first 600 metres was run, were actions that brought her in breach of r 869(3)(g).

[63] This was the first time the respondent had driven TACT EZE either at trials or on raceday. There was confusion as to whether the horse had won her first race (Winton, 26 September) from in front. Ms Barclay now recognised the horse had not; at the time of the 7 November race she thought TACT EZE had. She acknowledged she had not researched the horse’s previous starts, believing to drive the horse “cold” was a better option, as from her experience some horses responded well when driven in a manner different to that to which they were accustomed. While a little surprised at the absence of research into TACT EZE’s racing history (and we note that had there been such, the confusion as to the horse winning after leading might not have arisen), we do not think this failure advances the informant’s case.

[64] The respondent persevered with sitting outside Mr Orange for some 600 to 700 metres (allowing some 100 metres for the field to sort itself out after the start) in circumstances where the Stipendiary Stewards believe she should have resorted to a plan B or a plan C. The suggested plan B was to drop in for the trail. Ms Barclay states that she endeavoured to do so. She looked three times, as confirmed by the videos, but as Mr Williamson was close behind Mr Orange, this opportunity did not eventuate. We see no reason to doubt Ms Barclay’s submission in this regard, despite her agreeing with Mr Ydgren, when questioned after the race, that she had “stuck to a plan A”.

[65] Significantly, we note her next statement, made when Mr Ydgren suggested she had not adapted to the situation that may have unfolded, was, “No. I looked across at one stage and thought I might’ve been able to drag back into the trail but the second horse had pumped up by that point so I was gonna be parked for the trip”.

[66] We do not attach great weight to an agreement in the heat of the moment with a proposition that is put by the Stewards when it is followed immediately by a contrary explanation, especially when this explanation is verified by the videos.

[67] The suggested plan C was to ease TACT EZE and hope that another horse might improve to in front of TACT EZE and give her some cover. Ms Barclay has said she thought this would be unlikely as any horse that did so would lose its cover in the field. She also explained that she decided to put pressure on Mr Orange in the hope that the resulting speed would allow a gap to open up behind him. As we have noted, this did not eventuate. The options then for Ms Barclay were plan C, which coincidentally ran counter to her intentions with plan B, or to press on with plan A; she chose the latter and, at the 1400 metres, she obtained the lead. She did not obviously ease the pace at this time as TACT EZE, she said, wanted to knock off the moment she reached the lead and she had to tap the horse up to remind her of her work. She said at this time the horse had her ears pricked and was travelling well. She was then able to ease the pace a little at that point.

[68] At the 700 metres TACT EZE gave ground and the horse finished eighth. This was a poor performance by the horse, and we agree with the Stewards, as we understand does Ms Barclay, that this was a poor drive on her part, especially having regard to the fact she is an experienced driver. But our role is not to judge horse or driver in this manner, but to determine whether there has been a breach of the Rules and, on this occasion, a breach of r 869(3)(g). We do not find that Ms Barclay had a closed mind and determined that the lead was going to be hers, come what may, and by so doing has driven in a manner capable of diminishing TACT EZE’s chances. There was a plan B. It did not eventuate, but this was due to the circumstances of the race rather than a failure by Ms Barclay to drive in accordance with the Rules.

[69] We thus find the charge under r 869(3)(g) not to be proved.

Dated at Riverton this 4th day of December 2019.

Geoff Hall, Chairman

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