Northern Southland TC 22 March 2014 – R 12 (heard on 30 March 2014 at Invercargill)

hearingid: 6aa36d6f658b7474205d93f8d926c4b8

informantnumber:

horsename:

hearing_racingtype: harness-racing

startdate: 22/03/2014

newcharge:

plea:

penaltyrequired:

decisiondate: no date provided

hearing_title: Northern Southland TC 22 March 2014 - R 12 (heard on 30 March 2014 at Invercargill)

charge:

facts:

appealdecision:

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

RACEDAY JUDICIAL COMMITTEE DECISION

Informant:  Mr C Allison Stipendiary Steward

Respondent:  Mrs K Barclay, Open Horsewoman

Information No: 1730

Meeting:  Northern Southland TC 22 March 2014 (heard on 30 March 2014 at Invercargill)
Race:  12

Rule No:  869(2)(a)

Judicial Committee:  G Hall, Chairman - N Skelt, Committee Member

Plea:  Not admitted.

Also present: Mr T Kilkelly - Licensed Trainer, Mr G Lee - Open Horseman
Charge:
Excessive use of the whip:
Rule 869(2)(a) provides: “No horsewoman shall during any race use her whip in an unnecessary, excessive or improper manner.”

Evidence:

Mr Allison alleged that in race 12, the Harrington Electrical Ltd/ Sheetmetal Craft Mobile Pace, Mrs Barclay used her whip excessively when driving out BLANCO over the final 400 metres.

Submissions For Decision:

Mr Allison demonstrated on the video that prior to turning for home the respondent was holding the reins in her left hand and her whip in her right hand. He counted 21 strikes commencing from approximately the 300 to 250 metres mark. He said the respondent had flicked the horse a couple of times before this but he had not included these in his count as she was using the whip with the reins in her hand. He said there was a clear grouping of the strikes and that there were distinct breaks in her use of the whip. However, the number was excessive. He said there was a need for consistency and the practice of the stewards was to charge under this rule where the number of strikes was 20 or more. He said he had no issue with the force of the strikes and that the stewards had not requested that the horse be checked for marks after the race.

When questioned by Mrs Barclay as to when the stewards started counting the number of strikes, Mr Allison replied whenever a driver starts driving the horse out. On this occasion it was as she was turning for the run home.

Mrs Barclay stated she believed the count started from the top of the straight and this belief had been fortified by a Stipendiary Steward at Wingatui last week telling her it was a long straight and to watch her use of the whip. She had been counting and there were only 18 strikes in the straight. She had broken up the strikes and had kept, she thought, within the 20 limit. She accepted it was a public perception issue but her strikes were not forceful and a number were merely to the cropper. She said the horse was lazy, had no form, and had only just got 4th.

Mr Kilkelly, the trainer of the horse, gave evidence. He said he did not use drivers who knocked horses about and he had had no issues with the respondent’s drive. He said there might have been more than 20 strikes but there was no strength to them. He had inspected the horse, which was an “old bludger”, after the race and there were no marks on its rump. He said he believed there was confusion over the application of the rule.

Mr Lee also gave evidence. He said he was the local president of the Horseman’s Association and was a member of the national executive. He said the number of strikes had never been written down but the Southland stipendiary stewards had consistently used 20 as the cut-off point. He believed there was confusion amongst horsemen as to when the counting of the strikes began. He said some thought it was the home straight; others that it was the 400 metres mark. He believed clarification of this issue would be advantageous. He also said the respondent like many female drivers moved in the cart as she used the whip, and in particular, Mrs Barclay nodded her head. He thought this only added to the perception that there was excessive use of the whip by the respondent. Further, he did not believe there was any animal welfare issue on this occasion, which was the purpose underlying the rule.

Reasons For Decision:

The count is clearly 21 strikes, despite it being evident that Mrs Barclay has endeavoured to break up her use of the whip. Everyone is agreed as to the number if the count starts as the field turns for home.

The dispute, however, is as to when the count starts. On this occasion Mr Allison has started his count as the horses turned for home. He has discounted a couple of earlier flicks of the whip. He says the correct time to start counting is when a driver starts to drive his or her horse out. And that is what he has done on this occasion.

Mrs Barclay has said that she started counting once she was in the home straight as that was her understanding of the rule. Mr Lee, council member of the New Zealand Horseman’s Association has given evidence on her behalf that there was an agreement some years ago between the Association and HRNZ that the figure of 20 strikes would be used as a rough indicator of when whip use might be seen to be excessive. He indicated that a few years back the Southland stipendiary stewards, namely Mr Knowles and Mr Allison, had started to use this figure as a guide to charging, and this practice has continued over the years. Mr Allison has confirmed that 20 is the tipping point at which he determines to lay a charge.

We accept it is appropriate to count the strikes from when a driver commences to drive the horse out to the finish. On this occasion it is as Mrs Barclay was turning for home. We accept that this figure of 20 is no more than a rough and ready indicator as to when a driver might be thought to be in breach of the rule and is there to ensure consistency, which is an important consideration. We are concerned not only at the number of strikes but also by the frequency with which the strikes are applied. Yes there is grouping, in other words pauses between some of the strikes, we count 6 pauses, but the fact Mrs Barclay managed to accumulate 21 strikes in this time is indicative of the rapid and repetitive nature of her whip action.

Considerations of whether the strikes were to the horse or the cropper, that there were no marks on the horse as Mr Kilkelly has confirmed, or that the horse is a 5 year-old and bludges as the respondent and Mr Kilkelly state, has not been in the money in recent starts, and had finished 4th only by a nose, are not determinative of whether the charge is proved. Both the T case and the E case support our conclusion in this regard. The allegation by Mr Lee that a female is more likely to strike the horse rapidly and with less force than a male and that this may distort public perception of whether the rule is being broken, we believe is untested and we do not attach any weight to this. Furthermore, Mr Allison is surely correct when he says the rules have to apply equally to men and women.

Decision:

It is thus our decision that the breach is proved.

Submissions For Penalty:

Mr Allison produced the respondent’s record, which showed 3 breaches of the rule since 7 January when she was fined $200 at Cromwell. The latter breaches were both at Gore on 9 March when she was first fined $250 and then suspended for 3 days. Mr Allison stated the breach was low end but was compounded by the fact this was the respondent’s 4th breach this year. He acknowledged that Mrs Barclay had recently driven at Addington and should thus be regarded as a South Island driver.

Mrs Barclay stated she preferred a suspension to a fine. She made no submission as to the number of days.

Reasons For Penalty:

We agree with Mr Allison’s assessment that this is a breach at the lower end of the scale. Mrs Barclay was only just over the figure of 20, which is used in the interests of consistency for guidance in determining whether there is a breach of the rule. We accept that Mrs Barclay was counting the number of strikes and, in her mind, this figure was 18. Mrs Barclay’s mistake arose out of the fact that she only started counting in the home straight. That she did only count from that point might be thought to be unusual were it not for the fact that Mr Lee has stated that in his opinion there is nationwide confusion among horsemen and women as to when the count commences. He was strongly of the view that many licence-holders would share Mrs Barclay’s misconception. While we have no way of confirming whether or not this is in fact correct, we are prepared to identify this as a mitigating factor on this occasion. We also take into account that although falling foul of the rule, Mrs Barclay endeavoured to break up the strikes. The problem was with her rapid fire grouping of the strikes. We remind the respondent there are other methods by which she may endeavour to get the best from a horse, such as using the whip or the reins through the tail.

We take a starting point of 10 drives as recommended in the Penalty Guide. On the basis that she has on average 3 drives a meeting, we regard this as being 3 days. We uplift this by a day to reflect the repeated nature of the last 3 breaches. From this 4-day point, we give 2 days’ reduction, one for Mrs Barclay’s obvious attempts to break up the strikes, and another for the fact that she, and allegedly a number of other drivers, are confused as to when the count commences. We thus give significant weight to the fact that she was clearly endeavouring to comply with the rule and that this need not be a penalty that has as its purpose one of specific deterrence.

Penalty:

Mrs Barclay is suspended from end of racing today up to and including 6 April. This is 2 South Island days. We add that we have spoken advisedly to Mrs Barclay in order that in the future she should be in no doubt as to what her obligations are under the whip rule and the likely consequence of any further breach of this rule.

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Old Hearing

Rules: 869(2)(a)

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: