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Non Raceday Inquiry RIU v S Walkinshaw - Reserved Decision of Judicial Committee dated 30 November 2017 - Chairman, Prof G Hall

Created on 04 December 2017

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 MR SHANE WALKINSHAW

Open Horseman

Respondent

Information: A9584

Judicial Committee: Prof G Hall, Chairman

Mr V Munro, Member

Appearing: Mr S Renault, Stipendiary Steward, for the Informant

The Respondent in person

RESERVED DECISION OF JUDICIAL COMMITTEE

[1] Mr Walkinshaw is charged under r 869(3)(f) that on 7 September last in race 9 at the Winton Harness Racing Club’s meeting he drove improperly in the home straight by shifting his horse PAY ME JIMMY wider on the track which enabled his stablemate EL CAPITAN (B Barclay) to improve to his inside.

[2] Rule 869(3) states: “No horseman shall during any race drive: (f) improperly.”

[3] The matter was heard at the Wyndham racecourse on 12 November.

[4] The race in question, the PHILLIPS HORSE TRANSPORT MOBILE PACE was run over a distance of 2400 metres and PAY ME JIMMY, which had drawn 2 on the second line, finished fourth. The margins were ½ length, ½ length, 1 ¼ lengths. PAY ME JIMMY was thus 2.3 lengths from the winner, LEIGH MAJOR. PAY ME JIMMY is trained by Mr B Gray.

[5] Mr Renault produced a letter dated 6 October from Mr M Godber, General Manager of the RIU, authorising the laying of the information pursuant to r 1108(2).

[6] There is no definition of the word “improper” in the Rules, but in this context we accept that Mr Renault’s submission that the Oxford Dictionary definition of “not in accordance with accepted standards...” is appropriate.

Informant’s submissions

[7] The RIU based their case on an interpretation of the videos of the incident.

[8] Mr Renault identified PAY ME JIMMY on the videos of the race in question. PAY ME JIMMY settled midfield for the first 1000 metres before improving three wide with cover following its stablemate EL CAPITAN (B Barclay) from the 1400 metres. PAY ME JIMMY then improved to the parked position near the 800 metres. The Stewards believed this point in the race was important in that it demonstrated that there “should have been no doubt in Mr Walkinshaw’s mind that the stablemate EL CAPITAN was on his back”.

[9] Mr Renault stated that on the final bend near the 400 metres, PAY ME JIMMY was under pressure. The horse was under a hard drive from Mr Walkinshaw with considerable urging until the entrance to the home straight. This included the use of the whip and the slapping of the reins. It was clear on the video that PAY ME JIMMY was hanging inwards leaving the final bend. As the field entered the home straight, the leader ROCKING ROBYN drifted approximately one cart width out from the marker line. Mr Renault said this was not a sudden shift, nor did the RIU believe that this had any impact on PAY ME JIMMY.

[10] Once the field straightened for the run home, Mr Renault observed that PAY ME JIMMY had a clear and unobstructed run to the finish line. The Stewards’ submitted that the video showed Mr Walkinshaw pulling on the right rein several times and, as a result, PAY ME JIMMY shifted wider on the track. They believed Mr Walkinshaw had steered PAY ME JIMMY outwards. Although the leader had run out one cart width, it had ceased in that movement and did not shift any further. That horse had not dictated PAY ME JIMMY wider. There was no pressure between the carts or horses. ROCKING ROBYN maintained a straight course through to the line.

[11] This action of directing the horse outwards enabled the trailing stablemate EL CAPITAN to obtain a run between ROCKING ROBYN and PAY ME JIMMY, which it used to its advantage. The horse finished well from “a seemingly impossible position” to run third. Mr Renault said that the Stewards submitted it was an impossible position because had it not been for the actions of Mr Walkinshaw, EL CAPITAN would not have gained clear running at this time. It would have remained held up for a further distance.

[12] Mr Walkinshaw’s actions were said to change completely as the field entered the straight. He went from being extremely urgent with the whip and reins to showing very little vigour and to be intent on shifting outwards. At a time when all drivers were doing their best to urge their horses, Mr Renault said Mr Walkinshaw changed style completely to ensure his runner was moved outwards creating the gap to his inside.

[13] Mr Walkinshaw’s obligation under the Home Straight Regulations was to maintain as straight a course to the finish as possible. As PAY ME JIMMY had a clear run, Mr Renault said there was no reason for Mr Walkinshaw to shift wider on the track. He alleged that Mr Walkinshaw would have been aware that EL CAPITAN was following him as he had followed it around the field in the middle stages and had provided it with cover from around the 800 metres.

[14] The stewards thus alleged that Mr Walkinshaw’s actions upon entering the home straight were improper, as he had no reason to shift wider on the track other than to assist the stablemate EL CAPITAN to obtain a run to which it was not entitled. They did not believe that PAY ME JIMMY had been caused to race wider by any other horse or driver.

[15] When questioned on the day, Mr Walkinshaw advised the Stewards that he had been dictated wider by ROCKING ROBYN. The Stewards were satisfied this was not the case. Mr Walkinshaw said that because of the leader’s outwards movement EL CAPITAN was able to become established to his inside and Mr Walkinshaw, through fear of checking this runner, said he had to shift outwards to prevent interference being caused.

[16] Immediately after EL CAPITAN was able to secure clear running, PAY ME JIMMY straightened up and Mr Renault was of the view that the horse maintained a straight course when being driven out. Stewards were not satisfied that this could be attributed to coincidence. They believed that once the trailing runner was granted its run, Mr Walkinshaw was no longer making sure his runner was taken out and he went back to doing what he should have been doing all along, which was driving his runner out to the best of his and its ability without concern as to whether other horses required assistance.

[17] Mr Renault stated that the Stewards had spoken to Mr Gray, the trainer of PAY ME JIMMY, regarding the horse’s mannerisms. Mr Gray said that the horse was not an easy horse to drive and could hang.

[18] Mr Gray asked the Stewards to look at the horse’s previous races, as these would show its hanging tendencies. The start prior to the race in question, at Gore, PAY ME JIMMY led out. Racing into the first bend PAY ME JIMMY raced greenly and hung outwards before taking a trail for the remainder of the race. The horse then utilised the passing lane without any difficulty and finished in third place.

[19] Two starts prior to this race, PAY ME JIMMY raced at Forbury Park in early July. The horse made a mid-race move before obtaining the 1x1 position. The horse improved three wide on the final bend before finishing in eighth place. Once again, the driver appeared to have no difficulty steering the horse.

[20] The race following Winton, which was on 7 September, PAY ME JIMMY was driven by Ms S Tomlinson. This was also at Winton. Near the 1000 metres the horse over-raced and hung outwards. In doing so, it contacted the wheel of a runner in front of her, which sustained a punctured sulky tyre.

[21] The race at issue in this case was Mr Walkinshaw’s first and only drive on PAY ME JIMMY.

[22] Mr Renault submitted that racing in general relied on betting turnover and therefore it was important to maintain the confidence of the betting public. The type of driving evidenced by Mr Walkinshaw could not be tolerated by Stewards, as it questioned the integrity of the industry and brought it into disrepute.

[23] Mr Walkinshaw’s actions, Mr Renault said, did not only assist another runner, which clearly fell within the bounds of the rule, but they also diminished the chances of his runner. The stablemate was clearly travelling the better of the two runners. Mr Walkinshaw would have been aware of this. He had given that horse an opportunity it should not have received. That horse had capitalised on this and, when doing so, the connections and those who had invested on Mr Walkinshaw were directly affected in an adverse manner.

Respondent’s case

[24] Mr Walkinshaw commenced his case by demonstrating on the videos that PAY ME JIMMY was fighting him as he went around the bend and was hanging. The horse continued to do this as he straightened for the run home. This worried him, as he was aware he needed to give room to his inside and to keep his horse clear of ROCKING ROBYN.

[25] Mr Walkinshaw said he saw ROCKING ROBYN move and he gave PAY ME JIMMY a couple of jerks with the reins to keep his horse clear. The horse co-operated more than he had anticipated when he jerked the reins.

[26] A further key tenet of Mr Walkinshaw’s defence was that he had no idea who was racing to his inside. He said it could have been any horse. He saw legs coming through to his inside and was concerned he might strike the legs of this runner. He gave that horse a bit of room in the interests of safety by jerking on the reins a couple of times. But the main reason he had jerked the reins was that ROCKING ROBYN was shifting outwards.

[27] Mr Walkinshaw acknowledged he knew Mr Barclay was on his back when he crossed to the parked position. He emphasised Mr Barclay could have got off his back after that and he had never looked to see where Mr Barclay was. He believed if he was intent on giving Mr Barclay a run he would have shifted in rather than out, as this would have given Mr Barclay a run to his outside.

[28] Mr Walkinshaw emphasised everything had opened up to his inside because ROCKING ROBYN had drifted out. He had never felt there was a horse on his back needing a run. For example, his helmet had not been hit. He had never looked back to see who was coming through on his inside.

[29] Mr Walkinshaw stated this was the first time he had driven the horse. He had had a lot of difficulty steering him, especially over the last 400 metres. When ROCKING ROBYN started shifting out, he was marginally behind that horse and, with PAY ME JIMMY fighting him, he was concerned he might drift in and lock wheels or run over the top of ROCKING ROBYN. He was jerking the reins to allow room between the sulkies. PAY ME JIMMY had come out a lot more than he had expected. He believed this was because after he exited the bend and straightened for the run home, PAY ME JIMMY was running in a straight line and was no longer fighting him.

[30] Once ROCKING ROBYN had come out, he had jerked on the reins, and he gave a further jerk when he saw the legs of the horse to his inside, as “the last thing [he] wanted to do was to take that horse’s legs”. It was not clear how far ROCKING ROBYN was going to come out and he had allowed extra room as a result and because his horse was not steering well. He was not trying to present a run for the stablemate.

[31] Mr Walkinshaw said Mr Gray had told him the horse might feel flat and did not take to the use of the stick too well. That was why he had used the reins and whip through the tail. He said in response to Mr Renault’s submission that he was not driving the horse out to the best of his and its ability, he said he could not drive the horse out when jerking the reins and trying to steer outwards. He emphasised he thought he would be in the first 3 or 4 when straightening. He was never going to beat the winner, however.

[32] Mr Walkinshaw called Mr B Gray, Licensed Trainer, Mr B Barclay, Open Horseman, and Ms S Tomlinson, Junior Driver, as witnesses.

[33] Mr Gray, the trainer of PAY ME JIMMY, stated that it was a bad steering horse. It ran in on the bends and out in the straights. He said it would have its head around on the bends then go the other way on the straight. He said the horse “had done the same thing” as it had in the race in question when driven at its next start by Ms Tomlinson.

[34] Mr Gray described the horse as having a “goose neck” and to over-react in its races.

[35] Mr Gray could not recall if he had given Mr Walkinshaw any driving instructions other than telling him PAY ME JIMMY was a hard horse to drive. He thought he had told him it was not a horse that you could chase up.

[36] Mr Renault questioned Mr Gray. Mr Gray said his viewing of the video confirmed his statement that PAY ME JIMMY was a difficult horse to drive and that it over-reacts. He said in the race in question the horse had gone out in the straight and it had run “all over the show”. He said that the horse had had about 5 starts for Mr P Kerr before it came to him. It had had a reputation for jumping out of its gear.

[37] Mr Gray stated PAY ME JIMMY was a one-win horse that had had a couple of placings. It was a horse that sticks on in its races. It had had 20 starts, including 15 for him. He said the horse had a rein pricker each side, no overcheck, but it did have a jawbreaker, which is an extended bit, and the horse could over-react when there was pressure on its mouth as a consequence of this. It also had pull down blinds. The jawbreaker had been used for the last few starts. He said this could cause an over-reaction by the horse as there was quite a bit of play. He believed there was nothing untoward in the outwards movement of PAY ME JIMMY but acknowledged that with the stablemate coming through on the inside it did not look good. He emphasised the horse did run around a lot. Steering had always been an issue and he had wondered if the horse was feeling something, perhaps a knee. A chiropractor had found nothing, however. He concluded by describing PAY ME JIMMY as “a funny little Christian Cullen horse”.

[38] Ms Tomlinson also gave evidence. She described PAY ME JIMMY as “erratic”. He was not a nice horse to drive. When she had driven him in the race immediately after the one we are considering, the horse had ignored her actions and had gone too quick for itself. It was hanging, mostly outwards, but had hung inwards as well. She had struck a wheel and the horse had been fighting her. Mr Barclay had told her before her drive that PAY ME JIMMY was a bad steering horse.

[39] Ms Tomlinson viewed the video of the race in question. She said PAY ME JIMMY was hanging and appeared to be ignoring Mr Walkinshaw. She said he appeared to be trying to steer the horse so he did not cause interference. She agreed with Mr Renault that it had appeared to respond to Mr Walkinshaw’s actions. She said it was still hanging when racing down the straight and that a horse would usually hang more on a bend.

[40] Mr Barclay, the driver of EL CAPITAN, then gave evidence. He stated that he had not attempted to take a run outside Mr Walkinshaw. He had noted the horse was hanging. He had instead taken a punt that he would get a run to the inside of PAY ME JIMMY. He said both PAY ME JIMMY and EL CAPITAN were awful steering horses.

[41] Mr Barclay said he was looking for a run to the inside of PAY ME JIMMY and had poked into a gap that was not there and had pushed through. He said this was an acceptable practice provided he did not interfere with anything else. ROCKING ROBYN, which had been leading, had run out a cart and a half. There had been no yelling.

[42] PAY ME JIMMY was an awkward horse to drive. It ran in and out; in on the bends, and then would go the other way. Nothing appeared to work, gear wise. He described the horse as “rubber necked”.

[43] When questioned by Mr Renault, Mr Barclay stated he was surprised that the gap had appeared. However, he was aware at the time that PAY ME JIMMY was inclined to drift out when in the straight. He agreed he had looked for a gap that was not there for a start. He believed this arose because the respondent had shifted wider for safety when ROCKING ROBYN had shifted out on exiting the bend. He agreed that Mr Walkinshaw had moved a little bit more than perhaps he had to, but he said this would have been for safety reasons.

[44] Mr Barclay was adamant that he did not believe Mr Walkinshaw knew it was him that was coming through the gap to Mr Walkinshaw’s inner. Once his legs were in the gap PAY ME JIMMY had come out because it was hanging. He did not believe Mr Walkinshaw had pulled PAY ME JIMMY out of his road. He posed the question, why would Mr Walkinshaw want to give up third position to run fourth. To his mind, this did not make sense.

[45] Mr Barclay emphasised he would have done the same as Mr Walkinshaw had, as he would not have wanted to squeeze anyone up exiting the bend.

[46] Mr Barclay concluded by stating PAY ME JIMMY would hang in and out and would definitely over-react. Some days the horse was dead in the mouth and then it could be the other way. He said he could see on the video that the respondent was at the horse with the mouth the whole way. Mr Walkinshaw had shifted outwards only when his legs were in the gap and he was close to Mr Walkinshaw’s wheel. It was just the head of PAY ME JIMMY that was around.

[47] Mr Renault summed up by stating Mr Walkinshaw had made 3 or 4 jerks to PAY ME JIMMY’s mouth prior to Mr Barclay taking the gap. He believed Mr Walkinshaw had pulled the horse out of the way to let Mr Barclay through. The respondent’s obligation was to maintain a straight line to the winning post rather than to give another driver room.

[48] Mr Renault said the respondent had not looked around but he knew Mr Barclay was on his back. It looked bad in that Mr Walkinshaw had assisted his stablemate to get a run he was never going to get. He had not pulled out of Mr Barclay’s way for safety reasons as he had shifted wider before Mr Barclay was in the gap.

[49] Mr Walkinshaw replied that he had not pulled out of Mr Barclay’s way. He had never turned his head around and he never knew Mr Barclay was there. Mr Barclay could have got off his back at any time in the run.

[50] Mr Walkinshaw stated that when PAY ME JIMMY had been trailing it had been “ok to drive” but when he moved to the parked position the horse had fought him.

[51] Mr Walkinshaw said he had allowed room once he saw horse’s legs to his inside. He had shifted PAY ME JIMMY out by jerking the reins. If he had not, he could have locked wheels with ROCKING ROBYN. He had shifted out for safety reasons. Mr McLellan (LEIGH MAJOR) had gone past 3-wide and he was aware there was room to manoeuvre to the outside. He concluded by stating it was “purely coincidental” that it was Mr Barclay behind him.

Decision

[52] We are faced with a case based on an interpretation of the various video angles by the informant, and statements from Mr Walkinshaw and defence witnesses to the effect that PAY ME JIMMY is a very difficult horse to drive.

[53] We have viewed the 4 video angles, head-on, side-on, back straight and trackside, on a number of occasions. The most helpful is the head-on. It is impossible to tell from any one angle or from a combination of angles how many times Mr Walkinshaw has pulled on the right rein. Mr Walkinshaw in his evidence describes giving the reins a couple of jerks. Mr Renault believes it was up to four on the right rein. As we say, the videos are not conclusive. We find there were at least two jerks of the reins, and are not able to be more specific.

[54] ROCKING ROBYN clearly shifts out at least one cart width when leading the field and exiting the bend into the home straight and straightening for the run home. At this point in the race PAY ME JIMMY is hanging but there is always a gap between the wheels of the carts of PAY ME JIMMY and ROCKING ROBYN, although this gap is not constant, as the two horses round and exit the bend. LEIGH MAJOR is racing to the outside of PAY ME JIMMY and is finishing off the race better than that horse. EL CAPITAN is behind PAY ME JIMMY and ROCKING ROBYN, and is about to poke through a small gap between these two horses. WESTERN DELIGHT progresses to the inside of ROCKING ROBYN without going into the passing lane. This is indicative of just how far ROCKING ROBYN has shifted outwards.

[55] The gap between ROCKING ROBYN and PAY ME JIMMY increases incrementally until the legs of EL CAPITAN are in that space. WESTERN DELIGHT continues to race to the inside of ROCKING ROBYN and there is room for MELINA LOWE to take a run in the passing lane to the inside of WESTERN DELIGHT. Neither of these horses finishes off the race particularly well and ROCKING ROBYN also drops away. PAY ME JIMMY is still hanging when EL CAPITAN pokes its head and then its legs into the gap. By the time the head of PAY ME JIMMY is straight EL CAPITAN has established a run to the inside of that horse. PAY ME JIMMY finishes off the race fairly but still runs about, although the horse is no longer noticeably hanging.

[56] There is no need to repeat the evidence of Mr Gray, Mr Barclay and Ms Tomlinson. It is clear and consistent and is to the effect that the horse can fight its driver and can hang and shift in, especially on the bends. It is evident that PAY ME JIMMY was doing just that on this occasion. The videos show the horse with its head around to the outside and its body angling inwards both while traversing the home bend and when exiting it. Without corrective action, there is a possibility that PAY ME JIMMY could have come into the line of ROCKING ROBYN, which as we have noted had come out at least a cart width on exiting the bend. We thus do not agree with the informant that the outwards movement of that horse had not had any impact on PAY ME JIMMY.

[57] We have regard to the fact that this was the respondent’s first drive on the horse, he had been warned PAY ME JIMMY was a difficult horse to steer, and the horse was hanging during the running.

[58] The action of the respondent that is of the most concern to this Committee is the final jerk on the reins after straightening for the run home. This jerking resulted in PAY ME JIMMY shifting out further on the track and presenting the gap into which EL CAPITAN improved. As everyone has agreed, this is “not a good look” for harness racing. But the issue for this Committee is whether this a sufficient reason to find that there has been a breach of the Rules.

[59] Mr Walkinshaw is adamant that he was not aware which horse was racing to his inside and he simply shifted PAY ME JIMMY wider on the track to ensure there was room for the runner to his inside. This was in the interests of safety. He was aware PAY ME JIMMY was hanging and shifting in and said his initial outwards movement was because ROCKING ROBYN had shifted out at least a cart width as it exited the home bend. He pointed out he had faced two careless driving charges recently arising out of his failure to ensure there was room to his inside on the home bend and he was ensuring this did not happen again.

[60] On the other hand, Mr Renault has submitted that the respondent would have been aware that the stablemate was clearly travelling the better of the two runners. EL CAPITAN was behind PAY ME JIMMY in the running from the 800 metres when PAY ME JIMMY had crossed that horse until EL CAPITAN progressed through the gap to Mr Walkinshaw’s inside. At that point, we accept it would have been evident that EL CAPITAN was travelling the better of the two horses but there was no yelling, and nothing put before us in evidence that suggests the respondent was aware how EL CAPITAN was travelling prior to this time.

[61] Mr Walkinshaw has stated he was aware the legs of a horse were poking through on his inside and, to prevent interference being caused to this horse by PAY ME JIMMY hanging, he shifted PAY ME JIMMY wider on the track by jerking the reins. He has said PAY ME JIMMY over-reacted at this time and he ended up wider on the track than he had intended. Significantly, this statement of Mr Walkinshaw is supported by the evidence of both Mr Gray and Mr Barclay, which was to the effect the horse was goose or rubber necked and would over-react when pressure was placed on its mouth.

[62] Mr Renault has stated that the respondent was working on PAY ME JIMMY on the home bend and was urging the horse with whip and reins. This is true but equally the videos do not demonstrate that PAY ME JIMMY had come to the end of it and was not going to run into the finish of the race. Indeed, the evidence is that PAY ME JIMMY finished on fairly for fourth and would have finished third had ELUSIVE FLIGHT not run past it and EL CAPITAN in the last 60 metres of the race. Like Mr Barclay, we doubt that in these circumstances the respondent would have decided to forgo the chance of a better finishing position in order to create space for a horse which he may have suspected, or even perhaps thought, was likely to be a stablemate racing to his inside. This is reinforced by the fact that there is evidence there was no yelling and no video evidence that the respondent looked around to see where Mr Barclay was or to confirm that it was EL CAPITAN that was progressing through the gap to his inner that Mr Walkinshaw had created by the last jerk of the reins. We are thus unable to conclude from the evidence before us that Mr Walkinshaw deliberately made space for a stablemate that he knew was finishing the race off better than was his drive.

[63] We summarise. The crux of the case, as we have noted, revolves around PAY ME JIMMY shifting wider on the track early in the run home. Mr Walkinshaw says this is because the horse over-reacted when, in the interests of safety, he made room to give a run to the horse that was established in the gap to his inner. That horse happened to be his stablemate. Mr Renault submits that Mr Walkinshaw’s obligation at this time was to drive his horse out in a straight line to the winning post and that he was not doing this at this time. Mr Walkinshaw’s response is that he could not straighten PAY ME JIMMY and drive it out at the same time.

[64] The gap in question had become available because ROCKING ROBYN had shifted out and PAY ME JIMMY was hanging and was shifting in and Mr Walkinshaw had taken corrective action. The consequence was the size of the gap increased. It is very difficult to determine from the videos the extent to which EL CAPITAN was in the gap at the time PAY ME JIMMY ceased to shift in. But at the time EL CAPITAN became established in the gap PAY ME JIMMY’s head was still turned outwards.

[65] We are concerned that the type of driving evidenced by Mr Walkinshaw creates doubt, and this is accentuated when the person questioning the drive is a knowledgeable member of the racing public. A driver creating a gap for a stablemate to drive through is always going to create excitement and speculation as to whether the race is a fair contest. Mr Renault alleges that it is more than a happy coincidence that it was the stablemate. Mr Gray agrees it is not a good look but points to the racing manners of PAY ME JIMMY as the cause, not the actions of Mr Walkinshaw.

[66] Were we of the view that the respondent’s actions were a deliberate attempt to provide a gap for a stablemate (the standard is the balance of probabilities — see r 1008A) we would find the charge proved. And the penalty ultimately imposed would need to reflect the fact that the integrity of the industry had not only been questioned but had been brought into disrepute.

[67] PAY ME JIMMY wears a jawbreaker; it over-reacts to pressure on its mouth as a consequence. The last jerk of the right rein was after the horse had straightened for the run home. As Mr Walkinshaw said, the horse at this time stopped fighting him because it had exited the bend. It certainly then ran wider than it needed to and Mr Walkinshaw has said that it was more than he had anticipated. Mr Walkinshaw said the last jerk was for safety reasons in order to ensure there was no interference to the horse making its run between him and ROCKING ROBYN. The Rules certainly do not require him to make room for that horse but when driving a difficult steering horse that had been causing problems by hanging, we are hesitant to and indeed do not draw the conclusion that Mr Walkinshaw’s actions were improper. As a consequence, we find that the respondent’s actions were not in breach of the Rules.

[68] The charge is dismissed.

Dated at Dunedin this 30th day of November 2017.

Geoff Hall, Chairman

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