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Non Raceday Inquiry RIU v B McLellan - Reserved Decision dated 5 March 2018 - Chair, Prof G Hall

Created on 16 March 2018




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




Open Horseman/ Licensed Trainer


Information: A10153

Judicial Committee: Prof G Hall, Chairman

Mr V Munro, Member until 20 February

Appearing: Mr S Wallis, for the Informant

The Respondent in person

Date of hearing: 10 February 2018


[1] The informant, the RIU, has laid information A10153 with respect to the respondent, Mr B McLellan.

[2] This information alleges that at a race meeting conducted by Wyndham Harness Racing Club at Wyndham on 18 January 2018 in race 9, as the driver of PASS THE SPEIGHTS, Open Horseman, B McLellan, failed to take all reasonable and permissible measures to ensure the horse was given full opportunity to win the race, or in the alternative, failed to drive the horse out to the end of the race when having a reasonable chance of winning. This was an alleged breach of r 862(2) or r 868(3) of the New Zealand Rules of Harness Racing.

[3] Rule 868(2) provides: “Every horseman 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.”

[4] Rule 868(3) provides: “Every horseman shall drive his horse out to the end of the race if he has any reasonable chance of running first, second, third, fourth, fifth, or sixth.”

[5] At the Wyndham HRC’s meeting on 18 January 2018 Mr McLellan was the driver of PASS THE SPEIGHTS in the Bruce Sinclair Pace. The horse drew barrier 6 of 10 starters. PASS THE SPEIGHTS at start time was 4/4 in the betting. The official margin between 1st and 2nd was 1/2 a head. The time for the race was 3.02.6, with the last 400 metres in 28.1.

[6] PASS THE SPEIGHTS has had 13 starts and has won three races. The horse has always been trained by the respondent. One of the wins was when the horse was driven by Mr Hurrell, a junior driver. The other two were when the respondent had driven the horse.

[7] Mr Wallis produced a letter dated 24 January 2018 from Mr M Godber, General manager of the RIU, authorising pursuant to r 1103(4)(c) the laying of the charge alleging a breach of r 868(2) or in the alternative, r 868(3) of the Rules of Harness Racing. The Committee observes that this reference is to the authorisation rule as it was prior to the rewriting of the Rules in 2015. The current rule is r 1108(2). We do not believe that the respondent has been misled by this mis-description and thus there is no likelihood of there being a miscarriage of justice by the Committee continuing to determine the matter.

[8] On 20 February 2018, Mr Munro, the Member of this Committee, resigned from the JCA. The 5th Schedule to the Rules provides in cl 9.3: “One member shall constitute a quorum of the Judicial Committee.” We discussed the matter briefly after our hearing the case on 10 February before becoming involved in the usual racedays matters. Mr Munro has not participated further, in particular he has not been involved in determining the outcome of the hearing nor has he contributed to this written decision. Those tasks have fallen to the Chairman of the Judicial Committee.

Informant’s case

[9] The RIU alleged that the vigour shown by Mr McLellan over the concluding stages of the race in question was unacceptable in the circumstances. They believed it was both reasonable and permissible for him to demonstrate a more concerted effort to encourage his runner when holding a reasonable chance of winning the race. The Stewards also alleged that it was unreasonable for the respondent to stop driving his horse when in such a tight finish.

[10] Mr Wallis referred to several matters on the videos. He showed the side-on video first.

[11] PASS THE SPEIGHTS received cover through the early stages while racing one off the marker line. The horse was then obliged to race parked from the 1600 metres before receiving cover again near the 1100 metres. PASS THE SPEIGHTS was then one out one back until the 350 metres when Mr McLellan improved the horse outwards to make his run.

[12] From the time that PASS THE SPEIGHTS entered the home straight until near the 30 metres, Mr Wallis alleged that Mr McLellan could be seen to urge the gelding using only minimal flicks with his whip. He counted five strikes, the first of which was at the top of the straight. In between these strikes, Mr McLellan could be seen to urge the gelding with the reins, again with minimal urgency, with the last act of any urging being prior to the 30 metres. During this time PASS THE SPEIGHTS was able to withstand the challenge from his outside from SAGWITCH, driven by Mr B Williamson.

[13] Reaching the 30 metres PASS THE SPEIGHTS was still leading the race. At this point Mr McLellan turned his whip away and ceased in his urgings of any type from this point to the finish line. (However, when questioned by the Committee, Mr Wallis conceded there was a minimal urging with the reins at about the 25 metres.) It was only in the last couple of strides that the eventual winner, SAGWITCH, was able to get in front of PASS THE SPEIGHTS. The horse went on to win the race by the official margin of half a head.

[14] Mr Wallis then reviewed the race from a number of video angles. On the final bend Mr McLellan had placed PASS THE SPEIGHTS in a position where the horse was within striking distance of the leaders. Shortly after turning for home the horse was in front, and only the eventual winner, SAGWITCH, which was to its outside, was a possible danger to PASS THE SPEIGHTS.

[15] In the run down the final straight Mr McLellan utilised the whip on PASS THE SPEIGHTS on four occasions and only used his reins to urge the horse with the barest of vigour. Mr McLellan only lightly tapped his horse with the whip once just after passing the 50 metres and had then ceased in all urgings from the 30 metres to be beaten by half a head.

[16] Mr Wallis submitted it was not unreasonable to suggest that PASS THE SPEIGHTS could have won the race had Mr McLellan placed his runner under more pressure throughout the run home in order to have momentum going forward and, of greater importance, had he not ceased in his urgings by turning his whip away when, in his opinion, Mr McLellan was still in front.

[17] The Stewards alleged that Mr McLellan’s lack of vigour over the concluding stages was unacceptable in the circumstances and his actions through the early stages of the run home could, at best, be described as intermittent or sporadic. His urgings over the final 30 metres were non-existent.

[18] Mr Wallis stated that PASS THE SPEIGHTS was pacing and steering “okay”. There were no issues with the horse.

[19] Mr Wallis emphasised that at no stage would Stewards encourage drivers to use excessive force to drive a runner out. There was a clear and well-defined area between using a whip with excessive force and the driving that Mr McLellan had demonstrated in this race, which was viewed to be acceptable. Mr McLellan had several alternative actions available to him that he could have successfully employed, which would have removed any doubt in viewers’ eyes as to his actions or intentions.

[20] Mr Wallis assessed the extent of Mr McLellan’s urgings in the run home to amount to a total of four or five flicks with his whip and minimal urgings, where he used his reins in a circular motion. Given the fact PASS THE SPEIGHTS was in front when Mr McLellan’s urging ceased, and was beaten by a half head margin, the Stewards were satisfied that the vigour displayed fell well below the expected standards of a horseman who is involved in a tight finish. The actions of Mr McLellan at this time were detrimental to the chances of his horse winning.

[21] Mr Wallis said that at a time of the race when the racing public should be able to witness a driver doing everything they could within the Rules to encourage their runners, what was demonstrated from the respondent through the early and middle stages of the run up the home straight was a very relaxed style whereby only a minimal amount of pressure was placed on his horse to absolutely nothing over a vital stage of the race, especially in such a close finish between two runners.

[22] Mr Wallis drew the Committee’s attention to a quote from the Hon Justice Mr W R Haylen, who stated in a decision on 20 May 2009: “Perhaps to throw my own interpretation into the mix I might view it this way – that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect “What on earth is he doing” or “My goodness, look at that” or some such exclamation. Mr Wallis submitted that this statement demonstrated how r 868(2) should be applied and represented a common-sense application of the rule.

[23] With only one real threat to beat PASS THE SPEIGHTS home, Mr Wallis said Mr McLellan was to be expected to drive with more vigour. To cease in all urgings when still in front and clearly still having a chance of winning, would result in any person who placed a wager on his horse rightly asking, “What on earth is he doing?”

[24] Mr Wallis said there was “no clear or obvious impediment to Mr McLellan placing his runner under more pressure throughout the run home and right to the finish.” The horse was pacing cleanly and was not hanging. Mr McLellan had accepted these points when spoken to regarding his actions. PASS THE SPEIGHTS was accepting of the respondent’s urgings as evidenced by the fact it continued to keep the margin between him and SAGWITCH the same until Mr McLellan stopped driving him out. Given that PASS THE SPEIGHTS was not in danger of breaking and was steering well, Mr Wallis believed it was entirely reasonable for him to apply vigour during the outlined stages of concern and to still have his whip facing forward and using it to urge his horse.

[25] When asked as to the reasoning behind his actions, Mr McLellan told the Stewards that he believed PASS THE SPEIGHTS had peaked on his run and that SAGWITCH was in front of him when he ceased in his urgings. Simply put, the RIU did not believe that SAGWITCH was in front of PASS THE SPEIGHTS when Mr McLellan stopped driving him out and, even if he was, the distance to the finish line and the winning margin were too small to be an acceptable excuse to cease in his urgings.

[26] The RIU’s case was “he simply got it wrong and the consequential effects of that are that he may have cost the horse’s connections and the punters who invested on it the win.” Stewards did not, and could not, accept drivers applying such minimal pressure and, in this case, over the final 30 metres, in a tight finish, no pressure, without valid cause or justifiable reasoning. Mr McLellan had failed to give PASS THE SPEIGHTS its chance to race to its full potential and finish in the highest possible place.

[27] The RIU’s final submission was that, as with every horseman who takes their place in a race, Mr McLellan had a very clear and important obligation placed upon him. That was he had to leave no doubt in the minds of the viewing public that he had afforded his runner every chance to win the race or to obtain the best possible finishing position. At the conclusion of every race there should be no doubt in the mind of any person watching that each driver had taken all available measures that were both reasonable and permissible to ensure their horse received every chance to run to its full capabilities. They believed Mr McLellan on this occasion had fallen short of the required standard and failed in his duties to ensure these obligations were not compromised. PASS THE SPEIGHTS had not been given every chance to win the race by the simple fact that the horse had not been asked for its best right to the finish.

Respondent’s case

[28] Mr McLellan’s case revolved primarily around the optical illusion he believed had been produced by the side-on film of the finishing stages of the race. In particular, he alleged that he had not stopped urging PASS THE SPEIGHTS until SAGWITCH had headed his horse. As he put it, “I have put away the stick over the last 20 metres when the other horse has passed me.”

[29] Mr McLellan emphasised that the side-on video was not a true angle; it favoured the inside horse by up to 200 mm. He was adamant that at the 30 metres he had been headed and PASS THE SPEIGHTS had come to the end of its run and SAGWITCH had the momentum. To emphasise this point, he played the video of race 2 at the Wyndham meeting on 4 February and paused the video as the horses passed the winning post. He questioned whether we believed the horse CARLO GAMBINO had run third or fourth. His point was that the angle was deceptive, as he believed it appeared the horse was third when in fact it ran fourth.

[30] Mr McLellan submitted there was a difference in the length of the respective carts. At his request the Committee accompanied him outside and inspected the two carts. He demonstrated there was just under a foot difference in lengths and he believed this was the distance SAGWITCH was ahead of PASS THE SPEIGHTS at the 30 metres. Mr Wallis commented that the way in which the carts were hitched could affect this issue as well. Mr McLellan did not disagree but said he believed the carts were similarly hitched on the day.

[31] Mr McLellan described the last few hundred metres of the race. He said there was not much between the horses at the top of the straight. He had pulled the plugs and PASS THE SPEIGHTS had sprinted better than SAGWITCH. He believed he had put at least a length on that horse at that time. The momentum was with PASS THE SPEIGHTS and he was holding SAGWITCH. However, PASS THE SPEIGHTS had peaked on its run and had come to the end of it. SAGWITCH, on the other hand, was getting to the line strongly, far stronger than PASS THE SPEIGHTS.

[32] Mr McLellan reiterated that the last 30 metres was the only time he knocked off in the home straight. The only reason he put the stick away was because the other horse had headed him. SAGWITCH had the momentum on him and was ahead of PASS THE SPEIGHTS. He believed the race was “basically lost at that point” (ie 30 metres out)

[33] Mr McLellan asked the Committee to consider race 1 at Auckland on 19 January last where Mr Miller, an experienced horseman, had not been charged. He believed those circumstances were more serious than the case before us. Mr Wallis explained he was not a Stipendiary Steward on the night. That case is not before the Committee, and the Committee refrains from any further consideration of it.

[34] Mr McLellan called Mr B Williamson to give evidence on his behalf. Mr Williamson described the race. He said when he pulled off the respondent’s back his horse travelled up “real well” and he got there “pretty quickly”. He was balancing his horse up at that time and had not pulled the plugs or blinds. He believed at that time he was going to win.

[35] Mr Williamson said PASS THE SPEIGHTS had pulled away from SAGWITCH at the top of the straight. However, in the last 100 metres PASS THE SPEIGHTS began to tire, he activated the pull-down blinds on SAGWITCH with about 110 metres to race, and his horse improved on PASS THE SPEIGHTS significantly, and this was why he won the race.

[36] Mr Williamson believed PASS THE SPEIGHTS had kicked away at the top of the straight “on ability” but in the last 100 metres the better fitness levels of SAGWITCH had told, and this was the reason SAGWITCH found the line better than PASS THE SPEIGHTS.

[37] Mr Williamson agreed with Mr McLellan that the manner in which the respondent drove PASS THE SPEIGHTS on this occasion was consistent with his style of driving. He had urged his horse until he (Mr Williamson) had headed Mr McLellan. When questioned, he believed PASS THE SPEIGHTS had a half a length on him at the top of the straight, although earlier in his evidence he had said, a neck.

[38] When questioned by the Committee, Mr Williamson stated that he believed the horses were nose-to-nose 50 metres short of the post, and 30 metres out he thought he was in front, but it was never a big margin that he was ahead. However, when further questioned, he agreed he was level with Mr McLellan with about 25 to 30 metres to race.

[39] Mr Williamson agreed with the Committee that it was a tight finish. He said he had been caught unaware when PASS THE SPEIGHTS went away from him at the top of straight, over a distance of perhaps 50 to 100 metres. Until that time, he thought he would win by a length, whereas his horse had had to “really knuckle down” to beat Mr McLellan’s horse. Had PASS THE SPEIGHTS been at peak fitness, he believed that horse would have won.

[40] Mr Williamson demonstrated on the videos that SAGWITCH had two lengths on PASS THE SPEIGHTS 20 metres after the line. Some 30 to 40 metres from the post, he had formed the view that he would win. He believed over the last 50 metres the respondent was urging his horse with the reins but not the stick. He said Mr McLellan did not necessarily use the stick. He had hit PASS THE SPEIGHTS about 50 metres out when Mr Williamson believed SAGWITCH was in the motion of going past him. He thought the respondent had chosen to look after his horse. He believed the horses were level when the respondent used his whip for the last time. He said Mr McLellan had used the reins once after this time.

[41] Mr Williamson stated that the respondent’s usual driving style was not aggressive. He would show the stick to the horse and shake the reins. He was “not a whip aggressive driver”. He believed in the last 30 metres the respondent had shaken the reins and encouraged the horse to run on. It was hard, almost impossible, to say had Mr McLellan used the stick the horse would have regained its momentum and won the race. He believed in the last two or three strides (later said to be two) the respondent had recognised that PASS THE SPEIGHTS had lost the race. He thought prior to this Mr McLellan had done his best within his style of driving to win the race. They had two different methods of driving the horse out. He was urging with the stick; Mr McLellan with the reins.

[42] When questioned by Mr McLellan as to whether PASS THE SPEIGHTS had every opportunity to win the race, Mr Williamson replied, “Absolutely.” He thought Mr McLellan had been parked for the first 1000 metres and if PASS THE SPEIGHTS had been good enough, it could have won the race. He thought by perhaps a margin of three lengths.

[43] When questioned by Mr Wallis, Mr Williamson said when PASS THE SPEIGHTS kicked at the top of the straight for 50 metres he thought that horse had him. Prior to the bend he had been sitting on his horse thinking he was racing better than the rest. He agreed after he activated the gear and shook up his horse it had immediately made ground on PASS THE SPEIGHTS. He also agreed he had urged his horse in order to win the race. He thought PASS THE SPEIGHTS had peaked because it was its first start for nine months (later established to be seven months — the horse had last raced on 10 June 2017).

[44] With reference to the fact his horse was two lengths ahead of PASS THE SPEIGHTS after the post, he agreed with Mr Wallis that some horses can pull up quicker than others. And he further agreed that how horses were hitched to the sulky was significant.

[45] By way of a final question, Mr Wallis said to Mr Williamson had he not got past Mr McLellan as easy as he had thought, and had he driven his horse with urgings right to the line. Mr Williamson replied, “Correct.”

[46] Mr McLellan said PASS THE SPEIGHTS had had 13 starts for him and had won three races. It had gone to three or four (established to be four) workouts and had raced well. It had been placed on every occasion. Since the start in question, the horse had raced once, and had finished midfield.

[47] At the request of Mr McLellan, the Committee viewed the videos of some of these workouts. The respondent emphasised with reference to these videos that he did not like using the whip or hitting a horse when it was doing its best or was tiring. In this regard, he reiterated PASS THE SPEIGHTS had peaked and come to the end of its run. He was adamant the horse had given its best. SAGWITCH simply had more race fitness. He had only stopped driving when headed. He agreed with Mr Wallis’s assertion that PASS THE SPEIGHTS could take the whip if it had to be used.

[48] The Committee asked Mr McLellan to comment on the manner in which he had driven the horse CARLO GAMBINO in race 2 on 4 February. This was the race he had shown the Committee in order to demonstrate the uncertainty of the video angles. When questioned as to whether he had shown more vigour on that occasion, Mr McLellan stated that he believed it was “basically the same” as PASS THE SPEIGHTS in this race. Mr Wallis said in his view Mr McLellan’s urgings of the horse were similar but it was right to the line. Mr McLellan said the important distinction was that CARLO GAMBINO was still going forward to the line and was driven out. With respect to the race before us, he said PASS THE SPEIGHTS had come to the end of its run and SAGWITCH had the momentum and, as no other horses were coming, he had stopped driving with the whip. He emphasised no other horse had caught him.

Summing up

[49] Mr Wallis said that the respondent’s professional opinion was that PASS THE SPEIGHTS had nothing left to give in the final 30 metres. However, he should have been driving the horse out in the latter stages of the race, especially when it was a close finish, and the margin was so short.

[50] In terms of r 868(2), he said it was reasonable for the respondent to keep urging his horse. Under r 868(3), his obligation was to drive PASS THE SPEIGHTS out to the finish. He believed PASS THE SPEIGHTS was only headed in the last couple of strides. He agreed the camera angle was not ideal. Nonetheless, he did not accept that the respondent was not ahead of Mr Williamson at the 30 metres. He should have punched his horse out to the line, as had Mr Williamson.

[51] Mr McLellan questioned the fairness and consistency in his being charged when Mr Millar had not.

[52] Mr McLellan emphasised that Mr Williamson was in the best position after himself to assess his drive. He had said that he was in no doubt that Mr McLellan had given PASS THE SPEIGHTS every opportunity to win the race. Mr McLellan said he had come out at the right time and had been urging PASS THE SPEIGHTS with the whip and reins all the way up the straight until the point he was headed. That was when he stopped driving PASS THE SPEIGHTS with the whip. The horse had come to the end of it and had no chance of winning the race.

[53] To uphold the charges, Mr McLellan believed there needed to be better evidence than the camera angles that had been provided that SAGWITCH had not passed him. His actions on this occasion were no different from how he normally drove at the finish. These were very serious charges and there needed to be better evidence that the Rules had been broken. The side-on video evidence was not ideal and was not correct.

[54] Mr McLellan concluded by saying he had given PASS THE SPEIGHTS every chance of winning the race and had not stopped driving until SAGWITCH had headed him.

[55] Mr McLellan said he should not be found in breach purely on the perception of the public or the punter. To use the whip was unnecessary if the horse was tiring.


[56] Mr McLellan has placed a great deal of emphasis on the fact that SAGWITCH had headed PASS THE SPEIGHTS before he turned his whip. He said SAGWITCH had “the momentum” at this point and the only reason he put the stick away was because this horse had headed him. However, the video angles are far from conclusive as to whether SAGWITCH had headed PASS THE SPEIGHTS at the 30 metres. It is evident the horses are at least neck-to-neck at this point, and Mr Williamson’s evidence is to this effect, although he leaned slightly towards the view he might have had his nose in front of Mr McLellan by this point in the race. He agreed that it was a tight finish.

[57] The inspection of the carts was not of great assistance to the Committee as it was impossible to determine the manner in which the carts had been hitched to the horses in the race in question. Similarly, the fact that SAGWITCH had a couple of lengths on PASS THE SPEIGHTS 20 metres after the line is not viewed as being of significance, given that Mr McLellan had stopped driving PASS THE SPEIGHTS and Mr Williamson had continued to punch SAGWITCH out to the line, and it addition, it is noted that some horses pull up more quickly others once the race is over.

[58] Other than a very light slap with the reins at about the 25 metres, the respondent sits quietly on PASS THE SPEIGHTS from the 30 metres point. This is in marked contrast to Mr Williamson, who can be seen to be urging SAGWITCH to the line. It would be expected that a prudent driver, who was driving in accordance with the Rules, would further ask his or her horse for an effort over the last 25 to 30 metres when in a very tight finish. Mr McLellan may be right when he states PASS THE SPEIGHTS had peaked on his run and had nothing more to give, but the crucial fact is that there is no way of being sure of this as PASS THE SPEIGHTS was not asked for one final effort.

[59] Mr McLellan has submitted that his actions on this occasion were no different to the manner in which he usually drives his horses in a tight finish. Mr Williamson in his evidence supported Mr McLellan’s submission. With reference to the video of race 2 at the Wyndham meeting on 4 February, which the respondent played, it is the Committee’s view that more vigour was shown in that race in driving the horse out to the line than the respondent has shown in the race in question.

[60] Mr McLellan has not alleged that PASS THE SPEIGHTS was giving him a difficult drive and he has acknowledged that the horse will “take the whip”. Mr Wallis is correct when he states that whipping a horse is not necessary to ensure it gives of its best. And this is not what is being required of the respondent in this case; simply a concerted urging of the horse to the line to ensure it gave of its best.

[61] It is accepted that Mr McLellan is not an aggressive driver. Mr Williamson has stated this in his evidence and the videos that the respondent has played for the Committee demonstrate this. The Chairman is aware also of this fact from watching the respondent participate in many races. When driving PASS THE SPEIGHTS on this occasion the Committee is of the view that there was less urgency than is normally displayed by the respondent when driving a horse to the finish of a race. Mr McLellan states PASS THE SPEIGHTS had given of its best. He would have been aware this was PASS THE SPEIGHTS first start for seven months and this may have been in the back of his mind when he was kind to the horse in the finish of the race. This is a possible explanation for the fact that in the final two or three strides the respondent was not urging his horse to the same extent, as was Mr Williamson.

[62] Both Mr Williamson and the respondent are of the view that while PASS THE SPEIGHTS had kicked away at the top of the straight, in the last 100 metres its fitness levels had told, and this was the reason SAGWITCH found the line better than PASS THE SPEIGHTS. This may be so, but it does not relieve Mr McLellan of the duty to drive his horse out to the line, especially when the margin was as close as half a head.

[63] While the respondent has not displayed his usual vigour in urging PASS THE SPEIGHTS for the majority of the home straight, it is evident that he has used both whip and rein in this time. Mr Wallis’s description of Mr McLellan using minimal flicks with the whip and a circular motion with reins in the run up the straight is accurate. When regard is had to the “Justice Haylen test”, cited at [22], the Committee would not find that those persons who had placed money on the horse would exclaim as the horses were progressing up the home straight, “What on earth is Mr McLellan doing?” However, they might rightly have questioned whether he could have asked the horse for a little more by way of an effort and, in particular, that this effort be all the way to the line.

[64] It is the final 25 to 30 metres that are the principal concern. As Mr McLellan has admitted, he “knocked off” at this time. In such a close finish, with the margin being only a half a head, this is unacceptable. As noted, those persons who invested on PASS THE SPEIGHTS would rightly have anticipated that the horse would be tried to the winning post. PASS THE SPEIGHTS was not.

[65] For this reason, when the alternative charges are considered, the Committee finds the charge under r 868(3) rather than that under 868(2) to be proved. Mr McLellan has simply not done enough at this crucial stage in the race to avoid his falling foul of the “failing to drive out” rule.

[66] The Committee requires the RIU to provide submissions as to penalty within 5 working days of the receipt of this decision. Mr McLellan is given a further 5 days in which to respond.

Dated at Dunedin this 5th day of March 2018.

Geoff Hall, Chairman

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