Non Raceday Inquiry – Written Decision as to Reasons and Penalty dated 22 October 2024 – Rachel Joanne Malcolm

The Charge

[1]  The RIB charged Mrs Malcolm with a breach of Rule 801(1)(p) of the Rules of Racing in that on 9 March 2023, at  Cheltenham Stables Cambridge, she, together with John Ross Malcolm, inflicted undue suffering on the rising 2 year-old colt “KIRRAWEE” (2021 Vanbrugh x Severa), in that they used an alkathene pipe or similar, to strike the horse multiple times over a sustained period whilst in the round pen.

[2]  Mrs Malcolm, represented by Mr P Cornegé, denied the charge.

[3]  After receiving and evaluating evidence from witnesses for the RIB and Mrs Malcolm, as well as oral evidence from her, and considering the photographic and expert opinion evidence, as well as the taped recording of Mrs Malcolm’s interview by an Investigator on 5 June 2024, the Adjudicative Committee found the charge proved on the balance of probabilities, “by a wide margin”.  It invited both Counsel to provide written penalty submissions within a set timetable.  It said it would then deliver its reasons in writing as to both liability and penalty.  This it now does.

Introduction

[4]  Mrs Malcolm (“the Respondent”) is the holder of a Class B Miscellaneous Rider Licence issued by New Zealand Thoroughbred Racing (NZTR).  She operates Cheltenham Stables Limited together with her husband, John Ross Malcom and a primary part of their joint business involves breaking, educating and pre-training thoroughbreds.  At the time of the offence, the Respondent was listed as a co-director of Cheltenham Stables Limited along with fellow director – John Ross Malcolm, although Company records show that Mr Malcolm ceased as a director on 26 June 2024.

The Relevant Rules

[5]  Rule 801(1) provides that:

A  person commits a Serious Racing Offence within the meaning of these Rules who:

(p) inflicts undue suffering on a horse by any means or has in their possession any gear, equipment, appliance, device or apparatus (other than as approved, from time to time, by NZTR) that is capable of being used to inflict undue suffering on a horse. 

[6] Rule 802(1)  provides that:

A person commits a breach of these Rules who:

(a) acts in contravention of or fails to comply with any provision of these Rules or Regulations made thereunder, or any policy, notice, direction, instruction, guideline, restriction, requirement or condition given, made or imposed under the Rules; or…

(f) does or omits to do an act for the purpose of aiding a person or horse to commit a breach of these Rules;

(g) abets any person in the commission of a breach of these Rules; and/or

(h) incites, counsels or procures a person to commit a breach of these Rules.

[7]  Section 6 of the HANDLING of NZTR Thoroughbred Welfare Detailed Assessment Standards provides standards that must be adhered to, and specifically:

Part 6.1.3 (Code of Welfare)

“A thoroughbred must be handled and trained at all times in such a way as to minimise the risk of pain, injury or distress”.

Preliminary Matters

[8]  Leading up to the hearing, the Adjudicative Committee issued 4 Minutes, which in essence confirmed (a) that this Respondent wished to have this charge heard earlier and separately from charges relating to Mr Malcolm, (b) that the witness statements of the Informant be admitted by consent; and (c) the hearing date(s) were confirmed.  Mr Malcolm’s Counsel confirmed his consent to the separate hearings.

[9]  Counsel for both the Informant and Respondent filed pre-hearing memoranda on 20 September 2024.  Mr Cornegé raised objections to some aspects of the manner in which the Informant proposed to prosecute its case in terms of the Respondent’s alleged liability.  He contended that this Respondent had to be shown that she herself (and not as a party) acted so as to cause undue suffering to the horse.  He said she had not been charged as a party.  He also contended that the Rules did not provide for a joint charge.

[10]  The Adjudicative Committee heard submissions from both Counsel.  The intricate argument of Mr Cornegé, if meritorious, could be dealt with after all the factual evidence and submissions were completed.  The Adjudicative Committee said that, only then, if it was then thought necessary, it was open for Mr Cornegé to later call other evidence (and expert opinion, he intimated), then it would be open to him to do so – “that door was left open”.  The Adjudicative Committee can now say that if it had become necessary to amend the wording of the charge to specify “parties”, rather than “jointly”, it would have done so, as no prejudice to the Respondent could possibly arise.  But it has not been necessary.

[11]  The Informant’s case was supported by the written evidence from five witnesses (Mr Cornegé did not seek to cross examine them) plus the photograph exhibits and the recording of Mrs Malcolm’s interview on 5 June 2024.  In summary, the evidence was as follows.

[12]  Two former employees of Cheltenham Stables (Ms Thorne-George and Ms Leigh), were on 9 March 2023 working or walking in the vicinity of the round pen or ring which because of its height, a person cannot see into it if the door is shut.  They both heard a commotion including shouting and swearing and a horse being struck by some implement, assumed to be “whips”, but they could not see into the pen.  Mr Malcolm was yelling at the Respondent instructing her to whip the horse harder.  She was heard to say “No, I don’t want to.”  He was heard to say “F…’s sake, I’ll do it.”  One witness said that the whipping went on for “probably about 10 minutes”.  The other witness evidence was:

“I could hear the shouting and swearing.  The whips.  The “lashings” …. I mean whipping the horse with a long schooling whip or with a long lunging whip.  It would make you wince it was so hard.  I could hear the grunts that horses make when they are in pain – that horrible grunting desperation.  I also heard from John shouting at his wife to either hit it or hit it harder……  He was calling the horse a “dirty dog”…….  After about 20 minutes to half an hour, the horse was led out of the round pen and round to the wash bay for us to wash off.”

This witness said she then:

“I looked at him and thought, we need to take some photos of this and do something about it because it’s just horrible seeing such a lovely horse like that looking so sad and miserable and hurt.

The horse had multiple [rising] welts/lashings over its body.

Some of the whip marks were open and bloody.  The horse had damage to his foot where he’d tied him up, cuts and scrapes on his body and his eyes were very swollen where he’d been hit in the face.

I washed the horse and [my companion] applied ‘blue spray’ to its cuts.

Later that day [my companion] used her cell phone to take several photographs of the injuries to the horse which she sent to me at a later date.

While the incident was going on I felt disgusted.  I was quite upset and angry.”

The other witness confirmed this evidence, to the effect that “John was screaming at …. Rachel telling her to hit it harder ….[she] saying no I don’t want to …… [him saying] For f…’s sake I’ll do it”…. [the beating] went on for probably about 10 minutes, when the horse was led out, it was dripping with sweat, many welts on its body (shoulder, stomach), a swollen eye, and blood on a hock.  She said she “felt horrible, it was disgusting” and took photographs on her phone.  These have been produced.

A vet was not called to treat the horse.

[13]  The recorded interview of Mrs Malcolm with Investigator Mr S Irving took about 1 hour 10 minutes.  It was played to the Adjudicative Committee.  After the allegations of the two complainants were put to Mrs Malcolm, her initial responses were:

“I don’t really recall that particular incident as being a [sic] issue.  John usually rides the lead pony and he was quite a difficult horse, that horse.  I rode him a lot of the time, very sensitive, very flighty, quite a difficult horse.  There will be times where John will ride the lead pony and hold the whip to keep the horse going so that I can just hold on if it’s being difficult and kind of dangerous, not doing what you are wanting it to do.  In no way do I ever recall that horse being hurt or traumatised or any of those things.  He was a difficult horse so he definitely spent quite a lot of rides in the round yard with the lead pony but he was quite sensitive so I don’t recall that particular incident.”

QUESTION:  The complainant in this case said that it had significant and severe welts all over its body, some which had cut or caused abrasions and also had abrasions to its legs and a swollen left eye from that particular incident.  Does that resonate at all with you?

ANSWER:  He used to live with another horse out there cos he was really fractious in the stable, I don’t recall him having welt marks.  To be honest, I don’t recall him being injured but he very may well have been whipped a few times to get him to go forward and needed to whip him a bit more to get him to go forward.

QUESTION:  What about, if you for example, had the whip as is described here and John saying to you “leave it to me, I need to do it because I can hit harder”.  Do you recall that?

ANSWER:  I don’t especially recall that but he may have taken the whip from me, that wouldn’t be a totally unusual thing and not necessarily to hit it harder ….

[14]  When shown the photographs of the horse and its welts, this exchange with the Respondent followed:

QUESTION:  Do you actually recall how those were inflicted – welts?

ANSWER:  Yeah we do and we have changed now.  We used to use, they’re not a hard piece but they’re like a fatter piece of pipe.  Most of the horses it works very well cos it makes noise.

QUESTION:  The black alkathene?

ANSWER:  Yes.  It makes noise but obviously in this incident, it’s done more damage than a padded whip would have done.

QUESTION:  Did you see John hit the horse with the alkathene pipe to create these welts?

ANSWER:  Yes, I may’ve created these as well but I don’t recall hitting him hard enough to do that.

QUESTION:  Can you explain what part of the process within the pen would that occur or did that occur?

ANSWER:  While he was being ridden.  I don’t recall any other time than when he was being ridden?

QUESTION:  You were riding him?

ANSWER:  Yeah.

QUESTION:  We’re looking at the right hand side of the horse.  Are you saying that you may have caused these welts using an alkathene pipe hitting the horse?

ANSWER:  Yes, either John or I have caused those.  I hadn’t intended to obviously inflict welts like that.

QUESTION:  If John had done them, would he have been riding at the time or has he been standing next to the horse?

ANSWER:  Yeah it looks like maybe he’s been …. I honestly don’t recall ….. how exactly.

QUESTION:  But you are certain that it would’ve been caused by an alkathene pipe, not by any other whip or stock whip or anything?  That is alkathene pipe marks?

ANSWER:  Yeah.  We do have a lunge whip in there but that’s just to chase them forward, we don’t have stock whips or lunge whips.

QUESTION:  Blue spray on the feet?

ANSWER:  That’s probably just crashing into the wall and standing on himself because he did do a fair amount of crashing into the wall trying to get him to go forward.  He would stop and not go or just leap forward and crash into the wall.

QUESTION:  The blue spray is an antiseptic spray used on grazes and abrasions?

ANSWER:  Yes.

QUESTION:  The complainant also said they had to give it Bute to assist with presumably the swollen eye and the feet, just for a bit of pain relief?

ANSWER:  Yeah.

QUESTION:  Looking at that, do you think that’s acceptable?

ANSWER:  I think going forward in good practice, I don’t want to think that’s acceptable, so endeavour to do everything we can to get them broken in without ever having to do that to a horse.  Obviously, hit it harder than …. the welts didn’t last, if she’d taken a photo of it the next day, there wouldn’t have been welts on it, to my recollection anyway.

QUESTION:  Just to be really clear, you aren’t sure as to whether that was you or John or a combination of, that has caused those welts?

ANSWER:  I think it was probably a combination of being ridden, maybe trying to get him to go forward from the ground.  I cannot recall the entire ride.  I remember the horse being difficult and it being hard work to get it going but I don’t recall exactly but I’d say that was probably an unintentional combination – not intending to hurt him but trying to get him to go forward to achieve something.

QUESTION:  You’ve since modified or changed your approach a little bit?

ANSWER:  Yes.

QUESTION:  Is that because you think that was a little bit excessive or unnecessary to go that hard maybe?

ANSWER:  Yes, I think so.  I think looking at that, that’s probably a reason we have modified, continue to modify.

QUESTION:  Do you think if Mr Archer [the Owner] perhaps saw those, he might be a little bit concerned about was that necessary?

ANSWER:  Yes.”

[15]  There was evidence from a very experienced full time equestrian and Class B Thoroughbred Trainer who over 23 years has worked with in excess of 2,000 horses including thoroughbreds, sport horses, wild Kaimanawa horses in New Zealand, Brumbies in Australia and Mustangs in the USA.  Her qualifications as an expert are obvious.

[16]  She says that:

“In 2017 I was invited to Kentucky, USA, to compete in the ‘Road to the Horse – The World Championships of Colt Starting’ which I won.

I returned to Kentucky in 2018 to defend my title, this time starting two colts and competing against two former ‘Road to the Horse’ Champions.  I won the event for the second year running, cementing my place as one of the world’s most highly respected horse trainers and obtaining the title of double World Champion of Colt Starting.

Philosophy –

“When working with horses I have a specific philosophy that puts the welfare of the horse first and produces a happy horse that loves to work.

I also incorporate equine therapy whilst working with horses and I believe that undesirable behaviour is almost always a symptom of pain or fear.”

[17]  She stated that she was not told of the person(s) who were under investigation but was shown a series of photographs that showed a bay horse with welt marks and abrasions to the majority of its body.  She said:

“I was asked what force I believe would be required to cause the marks in question.

I believe that that force used would have been full force.  A 10/10.  I also believe that it was done with a wide whip, such as a wide race whip.  If a smaller whip was used it would have caused more hair to have been missing.

This is unacceptable and would have caused undue suffering to the horse.

If you compare this to humans, this would be comparable to slavery that occurred in the past.”

[18]  The 5th witness for the Informant was a qualified Veterinarian registered since 2006, Ms A C Mikhail, being the RIB Head of Veterinary Services.  She was provided with the series of photographs of the horse which reveal welt marks and abrasions to the majority of its body.  Her opinion was that:

“In looking at the photos provided, it would appear that the horse was struck hard by an elongated object to cause the welts apparent in the photos.

The Animal Welfare Act recognizes that animals are a sentient which simply means that animals are able to perceive or feel things.

Looking at the photos of the horse’s body, legs and face, in my opinion, those injuries would cause the horse to feel pain and, therefore, suffering.

Although the term “undue suffering” is subjective, beating a horse in order to get it to do what someone wants it to do, in this case, for breaking in, is a technique that the majority of people would not use.  In other words, there are other successful ways to break in a horse that do not include the use of excessive pain, causing distress.”

The Evidence of, and Submitted by, the Respondent

[19]  In essence, this was in three areas.

(a)  From two experienced Trainers to the effect that sometimes they have seen horses return from racing with stick or welt marks arising from whip use by the Rider.

(b)  A pretraining, breaking and spelling practitioner from Auckland expressed opinions based upon the Respondent’s evidence (rather than the interview transcript) and photographs.  She opined “there is more evidence of care and professionalism and fair training from the Stable than there is of so called abuse.”  She gives opinion evidence based, as she says, of “Rachel’s testimony and what she states”.  The witness statement says that “young colts are often aggressive, violent or throw themselves against walls of the round yard and that when young horses do aggressively avoid education, it is “common practice that the answer to their behaviour is to teach them they must travel forward away from the pressure…”

(c)  A statement of opinion was tendered from an Australian horse breaking and training establishment, but this is also based upon what the Respondent states in her evidential statement, which in some relevant respects, has been factually discounted by her oral statement.  It largely relates to her good character.

(d)  A statement of support for the Respondent from a Cambridge Trainer in the form of character evidence.  It expresses the opinion that “even the widespread and accepted use of the whip [in races, trials, jump outs, entering the starting gates], the charges against [the Respondent] for a minor instance of whip use seems unjust” and that “she has always” acted in line with Industry norms.”

Mrs Malcolm’s Evidence

[20]  She said to the Adjudicative Committee that the horse was “difficult, aggressive, sensitive and dangerous” …. with “the slightest increase in pressure seemed to set him off …. often throwing himself at walls.”  She said that on 9 March 2023, she was riding the horse with Mr Malcolm leading her off the pony.  She explained that whilst she said in her interview that she “believed” that she was riding with the “poly pipe” she now “believes” she may have been using a padded whip.  She says she “recalls it now because John was frustrated with me because KIRRAWEE wasn’t responding to my use of the whip, which would have probably been down the left hand side of the horse …. He reminded me that I should have used a poly pipe instead, and we did argue about this.”

[21]  The Adjudicative Committee concludes that this part of her evidence is inconsistent with her statement made three months ago that “she was certain the welts were made by the use of the alkathene pipe”.  Why otherwise would she have shown the Investigator the pipe and hold it when it was photographed and presented in evidence.

[22]  Her attempt to recant from these admissions to Mr Irving in her interview was unimpressive and may in parts be an attempt to minimise the use of the alkathene pipe.

[23]  The acceptance in the interview by her that she “may have caused the welts” on the horse’s left side, does not align with her present claim that it was on the left side (where no welts were seen) that she whipped the horse.

[24]  Naturally, because some aspects of her evidence are not accepted as reliable by the Adjudicative Committee, it does not mean the charge against her is established, but her new version of what occurred reflects on her credibility.

Outcome

[25]  “Inflicts” may mean to strike, but it also means “to cause someone or animal to experience something seriously unpleasant.”  That is, painful or suffering.

[26]  “Undue suffering” is that which is intolerable and which any person or animal should reasonably not have endured or is unnecessary.  To be “undue” is to exceed or violate proper standards or fitness, so as to be unjust, unwarranted and improper.

[27]  There can be no doubt that this horse suffered undue pain and distress when in the round pen for, at least, the last 10-15 minutes of the 25-30 minutes it was there.  The noises it was heard to make, the condition it was in (welt marks on its stomach, flank, shoulder, open and bloody welts), the observations and distressed reactions of the two staff members when the horse was led out of the pen.  Young horses can become agitated and difficult when they feel threatened or frightened and act unpredictably and, although in the education process (as that is what is “breaking in”), firmness may sometimes be necessary, it should be done with kindness and encouragement, but not with violence, harassment and abuse.  As a very experienced horsewoman, it is hard to reconcile that Mrs Malcolm would not have an appreciation of this.

Liability of this Respondent

[28]  The Adjudicative Committee said at the conclusion of the hearing, that it found on all the evidence, photographs, recorded interviews, and after a careful analysis and application of the proper principles pertaining to duties of a professional Licensee under the NZTR Rules, the charge was established.

[29]  The Adjudicative Committee concluded from all the evidence including the photographs, Mrs Malcolm’s initial statements when interviewed, that the use of the alkathene pipe by Mr Malcolm, at least, was a direct cause of the undue suffering and she also a cause, albeit to a lesser degree.

[30]  There can be more than one cause to bring about a prohibited event or outcome.  The issue in this inquiry was whether Mrs Malcolm’s acts or omissions were of in part or wholly responsible for the outcome.  Mr Cornegé contended that it had not been proved that she struck the horse so as to cause undue suffering.  His argument was that Mrs Malcolm had not been formally charged as a “legal party” so she could not be found liable for the outcome unless it was proved that she was a principal offender.

[31]  Nobody could see into the pen to be an eye witness to what occurred there, but if Mrs Malcolm’s statements on the interview are accurate (and the Adjudicative Committee has no reason to doubt them), she was a “lesser cause”.

[32]  The Adjudicative Committee rejects the intricate argument of Mr Cornegé, that she had not been charged as a “legal party”.  It is clear that a person commits a Serious Racing Offence if that person:

(a)  does or omits any act for the purpose of aiding a person to commit a Serious Racing Offence;

(b)  abets a person in the commission of a Serious Racing Offence;

(c)  counsels, procures or incites a person to commit a Serious Racing Offence.

To “abet” is to assist.  The evidence which the Adjudicative Committee has accepted, established that Mrs Malcolm assisted her husband as a party:

(a)  By giving him the alkathene pipe.

(b)  Knowing that he was going to use it aggressively (hit it harder) on the horse (his angry words make that clear).

(c)  She stood nearby omitting to do anything to prevent this.

The Adjudicative Committee accepts that whilst the major or direct causes of all the suffering were not the wilful acts of Mrs Malcolm, nevertheless the two persons were both together over about 30 minutes in the pen when the horse was struck severely for at least 10 minutes so as to inflict pain from injuries.  And based on her statement to the Investigator, she accepted that the welts “may” have been caused by her or her husband.  In addition, she was also a cause by failing to intervene.

[33]  It is well established by the New Zealand Court of Appeal, in Charnley v R [2013] NZCA 226 that a person who stands by, doing nothing to prevent an offence taking place, knowing that it is occurring, can also be guilty or liable for that offence in some circumstances.  While passive presence alone will not suffice, an inference of intention to encourage or assist (e.g. her first use of and then giving the pipe to her husband knowing what may occur), can be drawn where a person is deliberately present witnessing the commission of the offence, or breach of the Rule, and offering no opposition or dissent when he/she ought be expected to do so.

[34]  Naturally, it will all depend upon the particular factual circumstances surrounding the incident or event.  That may be particularly the case where, as here, there exists a professional and civil duty on the person to act so as to prevent harm arising.

[35]  Whilst the Respondent said in evidence “there was nothing I could do”, so it was “not reasonable to do so”, it was her duty (as a Licensed professional) to the horse and its Owner, to do so.  As one of two persons, to whom the horse was entrusted by its Owner so as to educate and care for it, she had a direct duty to take reasonable care not to harm the horse through negligent acts or omissions.  So, apart from her professional duty to afford necessary care, and her contractual duty owed to the Owner, she was accountable for any negligent breach of her duty of care in those circumstances.  This arose under a long established principle, since 1932, which will be well known to Counsel, which is that, apart from contract, a person has a duty of care to avoid acts or omissions that he/she can reasonably foresee would be likely to injure others, not just someone nearby, but anyone who could be foreseeably affected by one’s careless actions or inactions – and in this case, the duty extends to both the horse and its Owner.

[36]  So, the Respondent, apart from her professional duty, had a legal (civil) duty to intervene to prevent injury to the horse apart from her duty to its Owner.  Crucially, in the horse welfare and professional obligations context, there was a predominate duty to the horse.  She said she did not intend the harm that resulted, but that is not a necessary ingredient for her to be neither professionally liable nor in negligence.  All the evidence the Adjudicative Committee accepts, established:

(a)  Her relationship to the horse and its Owner was that she had a duty of care to both.

(b)  Whilst using an alkathene pipe on the horse to discipline (or educate it), she was told she was not hitting it “hard” enough, she gave it to Mr Malcolm to carry on.

(c)  She knew he was going to use it on the horse “harder”.

(d)  She dismounted and got on the pony, and her husband got off the pony to mount on the horse.

(e)  She stood by watching what was occurring for up to 10 minutes and the horse endured pain and suffering that she must have known was occurring.

(f)  She failed to intervene to prevent this when she had a duty to do so.

[37]  For completeness, the Adjudicative Committee does not accept her now claim that this “treatment” was necessary because the horse was “wild and dangerous”.  Often a young horse will be likely to react in fright, fear and confusion when subject to punishment causing pain or distress, but that does equate to it being naturally wild or dangerous.

[38]  It is for the foregoing reasons and analysis, that the Adjudicative Committee concluded the charge to have been established.

Penalty

[39]  Written submissions have been received from both Counsel.

[40]  Rule 801(2) is the Penalty Rule that applies to “Serious Racing Offence”.  It provides:

A person who commits a Serious Racing Offence shall be liable to:

(a)  be disqualified for any specific period or for life; and/or

(b)  be suspended from holding or obtaining a Licence for a period not exceeding 12 months.  If a Licence is renewed during a term of suspension, then the suspension shall continue to apply to the renewed Licence; and/or

(c)  a fine not exceeding $50,000.

Submissions of Informant

[41]  Mr Dow referred to “sentencing” principles expounded in RIU v L in May 2019, being:

• The public interest.
• The interests of the offending member of the profession.
• The interests of the professional body as a whole.
• The seriousness of the offending or actual behaviour.
• Any aggravating or mitigating factors.

And we add the need to deter others is vitally important.

[42]  In seeking a period of disqualification (and not suspension or fine), Mr Dow submitted the penalty on Mrs Malcolm must sanction:

(a)  Her own conduct in whipping the horse, which she accepted when interviewed may have caused some of the welts visible on the horse after the incident; and

(b)  Her role in respect of Mr Malcolm’s conduct in whipping the horse, which occurred after she had handed the pipe to him in circumstances where he had told her she was not hitting the horse hard enough [and her failure to intervene when she could be expected to do so].

• Given the seriousness of the conduct, which involved the infliction of undue suffering – that is, the infliction of unacceptable pain on a horse, the penalty must be a period of disqualification.
• For the principle offending, a lengthy period of disqualification would have been justified for this serious racing offence.  However, it is recognised that Mrs Malcolm was not the principal offender and played a lesser role in the offending, reducing her culpability.  That was factored into the Informant’s submissions on penalty.

[43]  Mr Dow referred to some other cases such as RIB v Pertab (26 March, 15 May 2024), BHA v M Todd (14 April 2022) and RIB v W Pinn (21 November 2021, 16 June 2022 (improper use of whip in races)).

[44]  In the Pertab case, he pleaded guilty and the Appeal Judges said that the “starting point” adopted by the Adjudicative Committee of 6 months disqualification was “a generous starting point to take” (i.e. it could have been more).  Mr Pertab’s appeal against a term of 4 months disqualification was dismissed.  And his was not a “Serious Racing Offence” as it was not a charge of causing undue suffering and carried the very reduced maximum penalty.

[45]  Mr Dow sought a penalty of disqualification for between 6 and 9 months, with costs of $4,050 to be awarded to the Informant.)

[46]  Mr Cornegé’s penalty submissions touched upon submitting that:

(a)  The Committee should look at what in fact occurred – rather than the precise charge.  This is consistent with the approach of the Senior Courts to sentencing for violence related offending – where the specific charge may not properly reflect an offender’s level of culpability.

(b)  The conduct in the M Todd case was, he claimed, more serious than Mrs Malcolm’s.

(c)  The case of RIB v Williams (sic, as it was not against Mr Williams, but against G Telfer) 13 August 2023 where he admitted a breach of Rule 801(1)(p) based on the second limb of possession of equipment that can cause suffering (but not in fact using it to cause such), for which he was only fined $1,500.  He says his client does not suggest a similar penalty is appropriate for her.

(d)  Counsel referred to RIB v Downs 15 September 2024, where a Jumps Jockey struck his mount 14 times in a race and was only suspended for 1 day and fined $1,600.

[47]  Counsel submitted that “based on these cases and of what Mrs Malcolm did and did not do”, a starting point of between 2-3 months suspension only was appropriate.

[48]  Mrs Malcolm has no previous breaches of the Rules and the offending was out of character.  Other staff have spoken well of her, advising of her kindness to horses and had never witnessed her “abuse a horse”.

[49]  Counsel emphasised that the emotional and financial impact of being charged has been significant with substantial reputational damage having occurred.  An Affidavit by Mrs Malcolm was put before the Adjudicative Committee to advance those matters.  Counsel submitted that reductions in penalty must be given to reflect those matters and there is “no sensible or principled basis for the penalty sought” by the Informant.

[50]  In conclusion, Mr Cornegé submitted that:

• The Committee should not impose a penalty that is crushing on Mrs Malcolm.  Given her level of involvement, a suspension is appropriate.  That suspension should be no longer than the period Mrs Malcolm has already served.
• This is the only way that Mrs Malcolm might be able to start to rebuild her life.

[51]  He made no submissions on the question of Costs.

Penalty Outcome

[52]  The Adjudicative Committee accepts as relevant the principles contained in Mr Dow’s submissions and for completeness, refers to the well established principles outlined by the Appeal Judges in RIB v Pertab (15 May 2024) namely:

“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.”

[53]  The Adjudicative Committee does not consider than an order for suspension of a Class B Licence (and certainly not for “time served”, as contended by Mr Cornegé) is appropriate or adequate.  The crucial need to deter others who work with thoroughbreds and who might forget their duties, requires a disqualification so that persons who might transgress in this way can expect a stern response.  Disqualification must follow.  Inevitably this will impact upon Mrs Malcolm but that will often, if not always, be the case where a professional person is debarred from his/her profession because of misconduct.  But the Company in which she is a shareholder and director may still operate, if she wishes, with employees performing the essential tasks with horses.

[54]  From a starting point of 8 months disqualification (higher than in Pertab because her breach involved “undue suffering” to a horse), there are no aggravating factors as to require any uplift.  It is not aggravating that she defended the charge, but she cannot (and does not) claim any mitigation for a guilty plea.

[55]  Mitigating factors which we take into account are:

• A blameless record.
• Positive character references and supporting comments of staff.
• Whilst her Affidavit now filed says she is “sorry for any harm caused to the horse, but I still believe I did not personally cause any harm”.  This does not quite equate to genuine remorse.  Nevertheless, there is promise for her future in the sport with a wish to pursue a Trainer’s Licence (which the NZTR will later consider her application).
• Disqualifications cannot be backdated, so the Adjudicative Committee takes as a possible mitigating factor that her Class B Licence to ride was withdrawn by NZTR some time ago.

[56]  For these factors, the Adjudicative Committee affords her a significant 25% discount from the starting point of 8 months disqualification.

[57]  Accordingly, Mrs Malcolm is disqualified for 6 months, to commence on 28 October 2024, so as to provide her with time to dispose of any horses in which she has an interest and secure replacement employees of the Company to assist in any training and education of horses (see Rule 1104(1) as to disabilities of a disqualified person).

Costs

[58]  Significant costs and expenses have been incurred by the Informant and the Adjudicative Committee in relation to the proceedings against Mrs Malcolm.  An order is made that she pay these at a level of 60% of those actually incurred.

[59]  She is ordered to pay costs of $4,050 to the Informant and $4,500 to the Adjudicative Committee, being a total of $8,550.

Suppression

[60]  The Adjudicative Committee considered the possibility of postponing delivery of any Penalty Decision, and its reasons, as well as not publishing these, until such time as the Information No. A18530, being Mr JR Malcolm’s joint charge, was determined one way or the other.  But Mrs Malcolm’s Licence remains withdrawn by the NZTR and further delay in having the charge against her and disqualification penalty finalised may be unfair to her and Mr Cornegé’s submission was that she wished to have her charge finalised without further delay.  The Adjudicative Committee does not consider any prejudice to Mr Malcolm arises so as to outweigh the desirability of Mrs Malcolm commencing her disqualification as soon as practicable.

[61]  It is mindful of the fact that publication of these reasons (not the penalty), might have an impact on Mr Malcolm before the hearing of his Information’s in late November 2024.

[62]  Accordingly, Mrs Malcolm’s disqualification to commence on 28 October 2024 and its length may be published, but the written reasons are suppressed from publication in the meantime, until proceedings against Mr Malcolm are determined.  But publication to the Informant, the NZTR and Counsel for Mrs and Mr Malcolm is naturally permitted.