Appeal – Written Decision dated 23 May 2024 – Kurtis Pertab

Background

1.  The Appellant is the holder of a Class B Trainers Licence, issued by New Zealand Thoroughbred Racing (“NZTR”).

2.  On 30 December 2023 at the Matamata Racecourse, the Appellant rode a filly in trackwork. At the conclusion of the trackwork, the filly displayed some behavioural issues which were responded to by the Appellant.

3.  Following this incident and as a result of enquiries conducted by the RIB, the Appellant was charged with a breach of Rule 802(1) alleging he:

“Failed to handle the three year old filly (Staphanos – Ashalini) in accordance with the handling practices outlined in Section 6.1.5 of the NZTR Thoroughbred Welfare Detailed Assessment Standards and Part 6.1 Equine Handling and Training Code of Welfare – Horses and Donkeys in that he struck the horse about the head and around the side of the belly and across the shoulder with a riding whip numerous times in an excessive and unnecessary manner, therefore liable to penalty pursuant to Rule 803(1).”

4.  Prior to the hearing of the charge, the parties agreed on a Summary of Facts, which was dated 7 March 2024.

5.  At a hearing held at the Te Rapa Racecourse on 26 March 2024, the Appellant entered a plea of guilty to the charge and was disqualified by the Adjudicative Committee for a period of four (4) months commencing 18 April 2024 and to conclude on 18 August 2024.

6.  As a preliminary matter, this Tribunal granted the Appellant an extension to the commencement of the disqualification. It was extended to commence on 23 April 2024 and expire 23 August 2024.

7.  The Appellant now appeals the Decision of the Adjudicative Committee as to penalty.

Appellant Submissions

8.  On or about Friday 16 February 2024, Counsel for the Appellant attended a telephone conference with the Chair of the Adjudicative Committee. Also present on that telephone conference, was Mr R Carr on behalf of RIB. Counsel for the Appellant intimated a guilty plea would be entered on an agreed Summary of Facts. If an agreed Summary of Facts could not be reached, then the alternative was a guilty plea would be entered subject to a disputed facts hearing.

9.  Subsequent to that telephone conference and after apparent negotiations, an agreed Summary of Facts was reached.

10.  Prior to the hearing, Counsel for the Appellant corresponded with the RIB regarding the extent of any additional matters which may be adduced by the Adjudicative Committee. This was particularly referring to four transcripts of witness interviews that were both unsworn and unsigned which had been provided during the disclosure process. The Adjudicative Committee issued a Minute which stated:

“So that it is clear the Adjudicative Committee will only consider as relevant the facts contained in the amended summary of facts relating to the alleged offence. The documents containing transcripts of the recorded interviews with the various witnesses are in fact not “statements of evidence” but simply exhibits of the records of what was then said. They are not signed. They were simply provided when disclosure was sought by Mr Pertab’s Counsel. They have not been read by the Adjudicative Committee and will not be considered where inconsistent with the amended summary of facts.”

11.  The Appellant alleges that when reading the Written Decision dated 4 April 2024, there are a number of statements contained in that Decision which contradict what was said in that Minute. Counsel for the Appellant submitted that there were at least nine (9) instances where statements were made in the Decision by the Adjudicative Committee which could only have been obtained by reference to the four witness statements which have been referred to.

12.  It was submitted the Adjudicative Committee acted in contradiction of their own Minute and the representations given by the Adjudicative Committee in that Minute.

13.  Counsel submits that had the Appellant been aware the Adjudicative Committee was to consider these additional written interview statements, then those parties who made the statements would have been called upon to give formal evidence and to be cross-examined on that evidence. As a consequence, the Appellant maintains he has not been able to test these statements as in his opinion, they contained statements which are incorrect and which are not referenced in the agreed Summary of Facts. Therefore, the Appellant it is alleged, has been denied natural justice.

14.  It was further submitted that had the Adjudicative Committee not given consideration to the written interview statements, then they may well have imposed a lesser penalty.

15.  The Appellant accepts disqualification was an inevitable outcome, but submits a penalty of a two (2) month disqualification may well have been imposed.

Respondents Submissions

16.  Not surprisingly, the Respondent does not agree with those submissions.

17.  The Respondent notes the reference in the Summary of Facts under paragraph 8, which stated:

“All four witnesses have deemed Kurtis Pertab’s action in handling the horse that morning as excessive and unnecessary.”

18.  In its Written Decision, the Adjudicative Committee referenced Rule 915(1) of the Rules, which states:

“Where at the hearing of an information both the informant and the defence appear the following provisions shall apply:

1.  The Adjudicative Committee may, in its discretion, admit any evidence it deems relevant whether admissible in a Court of Law or not;”

19.  The Respondent takes the view, the Rule in effect gives the Committee absolute discretion to admit any evidence it deems relevant, whether admissible in a Court of Law or not.

20.  The Respondent’s view is that the Adjudicative Committee was entitled to explore all avenues open to them and given four separate persons described the Appellant’s actions that morning in handling the horse was excessive and unnecessary, it was incumbent on the Adjudicative Committee to enquire further into those statements.

21.  Given it is the view of the Respondent the Adjudicative Committee was entitled to consider those four witness interview statements, it was submitted that the Appellant has no cause for complaint and in fact, it was further submitted by the Respondent, the penalty to be imposed by this Tribunal should be increased from four (4) months disqualification to six (6) months disqualification.

Discussion

22.  At the outset, the Tribunal confirmed the Appeal would be conducted pursuant to Rule 1005(3) of the Rules by way of a re-hearing. That means that the Tribunal will consider the evidence which was placed before the Adjudicative Committee and having considered that evidence, will then form its own conclusion as to the appropriate penalty.

23.  It was confirmed the only material which this Tribunal accessed is:

1. The agreed Summary of Facts.
2. A transcript of the Hearing.
3. The Decision of the Adjudicative Committee.
4. The Appellant’s submissions; and
5. The Respondent’s submissions.

24.  The Tribunal emphasised to the parties, it had not seen or had any opportunity to even read the four witness interview statements which are referenced by the Appellant.

25.  The Appellant accepts disqualification is an inevitable penalty.

26.  The Tribunal therefore gives consideration to the appropriate term of disqualification for an admitted breach of the Rule and agreed Summary of Facts.

27.  This Tribunal has regard to well established and accepted sentencing principles.

28.  These include:

1. Penalties are designed to punish the offender for his/her wrongdoing. They are not meant to be retributive in the sense that the punishment is disproportionate to the offence but the offender must be met with a punishment.
2. In the racing context, it is extremely important that any penalty has the effect of deterring others from committing similar offences.
3. A penalty should also reflect the disapproval of the Adjudicative Committee for the type of behaviour in question.
4. The need to rehabilitate the offender should be considered.

29.  It is now well accepted that a high standard of animal welfare is imperative for the industry – and this includes all three Codes – to maintain its social licence to operate. Any actions which compromise those high standards must be met with a stern response.

30.  Attitudes towards animal welfare continue to stiffen and that will be reflected in penalties which may be imposed by Adjudicative Committees and Appeals Tribunals where standards are not maintained.

31.  The Respondent sought a penalty of six (6) months disqualification before the Adjudicative Committee. It was adopted by the Adjudicative Committee as a starting point and after giving consideration to matters of mitigation, allowed a discount which the Adjudicative Committee termed generous to reach a penalty of four (4) months disqualification.

32.  The Appeals Tribunal does not agree with the Respondent that it can increase the level of penalty which was imposed in the absence of any appeal as to penalty by the Respondent.

33.  Therefore, the Appeals Tribunal also adopts a starting point of six (6) months disqualification, even though it is of the view that is a generous starting point to take. The Appeals Tribunal has considered the matters of mitigation which were considered by the Adjudicative Committee, and it agrees with those and the level of discount which was offered.

34.  Again, as there has been no appeal by the Respondent as to penalty, it would not be incumbent on the Appeals Tribunal to reduce the level of discount. The Appeals Tribunal is therefore of the view, a four (4) month disqualification of the Appellant’s Class B Trainer’s Licence is appropriate.

35.  In forming that view, the Appeals Tribunal relates the penalty to the sentencing principles.

36.  The Appeals Tribunal considers any less period of disqualification would be manifestly inadequate and send incorrect signals to all participants. A four (4) month disqualification is, however, a stern penalty which will cause the Appellant some financial strain. This is, however, a natural consequence of offending on this scale.

37.  It marks the Appeals Tribunal’s disapproval of his conduct on the day, but the disqualification is for a period which will enable him to rehabilitate his behaviour and reintegrate back into the industry.

38.  There were a large number of glowing references in support of the Appellant, both before the Adjudicative Committee and the Appeals Tribunal. That shows there are a number of people who are prepared to support the Appellant in the industry in the future and it is hoped the Appellant makes use of the support he has been offered.

39.  Counsel for the Appellant had submitted to the Appeals Tribunal, the wide interpretation of Rule 915 of the Rules by the Adjudicative Committee was a breach of natural justice. It was further submitted, utilising the provisions of this Rule cannot be unfettered and the principles of natural justice must still apply.

40.  The Appeals Tribunal did not receive detailed submissions or any authority to assist in the interpretation of this Rule. The Appeals Tribunal has detailed the material which it considered. There is no reference to the four unsworn and undated written interview statements. The Appeals Tribunal conducted the Appeal by way of a re-hearing, considering only the evidence which was considered by the Adjudicative Committee. It is therefore not necessary for this Tribunal to give further consideration to the extent and authorities of Rule 915 of the Rules.

Outcome

41.  For the reasons it has set out, the Appeals Tribunal is of the view, the disqualification imposed of a period of four (4) months is an appropriate penalty in these circumstances.

42.  The Appeal is therefore dismissed.

Costs

43.  The Respondent was the successful party to this Appeal but does not seek costs.

44.  The Appellant submits that although unsuccessful in his Appeal, the matter only proceeded to Appeal due to the Adjudicative Committee allegedly acting outside its authority contained in Rule 915 of the Rules and also acting contrary to the Minute which it had issued.

45.  As indicated, the Appeals Tribunal was not required to give a ruling on these matters, as it did not have any access to the written interview statements which have been complained of by the Appellant.

46.  In the circumstances, the Appeals Tribunal has determined that the Appellant should pay costs of $1,000 towards the cost of the Tribunal and direct expenses associated with the Hearing.