Appeal – Written Decision dated 16 January 2025 – Rachel Joanne Malcolm

1. INTRODUCTION

1.1. The Appeal was heard at Te Rapa Racecourse on the 16th of December 2024.

1.2. Both counsel filed comprehensive submissions in advance of the hearing and made detailed oral submissions on the 16th of December. The Tribunal has carefully considered the written submissions and the oral submissions that were advanced at the hearing.

1.3. This is an Appeal by Mrs Malcolm from a Decision of an Adjudicative Committee dated the 23rd of September 2024, which found a breach of Rule 801(1)(p) of the Rules of Racing. It was found that Mrs Malcolm had been a party to the inflicting of undue suffering on the rising two year old colt Kirrawee by her husband Mr Malcolm, this by using an alkathene pipe or similar to strike Kirrawee multiple times over a significant period of time at the Malcolm Cheltenham Stables in Cambridge.

1.4. The Adjudicative Committee delivered a Written Decision on the 22nd of October 2024. The charge was found proved and Mrs Malcolm was disqualified for a period of 6 months. She appeals both the finding that there was a breach of the rule and the penalty that was put in place.

2. GROUNDS OF APPEAL

2.1 Mrs Malcolm advanced a number of grounds of appeal. These were:

a) That there was procedural unfairness in the hearing and that this prejudiced Mrs Malcolm’s defence.
b) That the Adjudicative Committee failed to properly consider the precise elements required to find the charge proven, this on the basis that Mrs Malcolm was a secondary party abetting Mr Malcolm to inflict undue suffering on Kirrawee.
c) The finding that Mrs Malcolm abetted Mr Malcolm was not sustainable on the evidence.
d) That the penalty imposed was manifestly excessive. This with reference to Mrs Malcolm’s level of culpability, her personal circumstances and comparable Decisions.

3. THE RELEVANT TIMETABLE

3.1 Consideration of the timetable is important, particularly with reference to the ground of appeal which advances procedural unfairness.

3.2 Mrs Malcolm was charged under Information No. A18530 as follows:
On the 9th of March 2023 at Cheltenham Stables Cambridge together with John Ross Malcolm inflicted undue suffering on the rising two 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.

3.3 Mr John Malcolm faced the same charge along with a further 11 charges.

3.4 The Information A18530 charging Mrs Malcolm set out that the “charge rule was as attached” and that Mrs Malcolm was charged together with Mr John Malcolm. The document attached to Information A18530 was described as “charge rule and penalty provisions”. That document set out that the relevant rule underlying charge was Rule 801(1)(p), specifically that a person commits a serious racing offence within the meaning of the rules who “inflicts undue suffering on any horse by any means.”

3.5 It is pointed out for the Appellant, that neither the Information nor the charge rule and penalty provisions document set out any reference to Rule 801(1)(u) – (w) which provides that a person commits a serious racing offence who:

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 of incites a person to commit a serious racing offence.

3.6 On the 19th of August 2024, the Adjudicative Committee set down a hearing for the charges against both Mr and Mrs Malcolm. On the 27th of August 2024, Mr Cornegé, the then Counsel acting for Mrs Malcolm, filed a memorandum seeking a separate hearing for Mrs Malcolm. This, on the basis that she faced a single charge alleging she (as a principal) inflicted undue suffering that none of the witnesses interviewed by the RIB would be required for questioning and that Mr Malcolm, given his accepted actions of causing the welts to the horse Kirrawee, did not consider he would be prejudiced in his case proceeding separately on the same charge.

3.7 On the 30th of August 2024, the Adjudicative Committee set down a separate hearing of the charge against Mrs Malcolm for the 23rd of September, noting that her Counsel did not require the Informant’s witnesses to attend for questioning and that their evidence could be presented by way of signed written statements. On the 20th of September 2024, Counsel for the RIB filed a memorandum which referred the Committee to Rules 801(1)(u) – (w) noting that those provisions mirrored Section 66 of The Crimes Act, which establishes secondary liability for an offence. On the same day, Mr Cornegé, by way of memorandum, raised an objection to the Informant now proceeding with the charge on the basis that Mrs Malcolm was a secondary party to inflicting of undue suffering by abetting, aiding or counselling serious racing offence committed by Mr Malcolm.

3.8 On the 23rd of September 2024, the hearing of the charge against Mrs Malcolm took place. At the commencement of the hearing, the objection which had been raised by Mr Cornegé was considered. Mr Cornegé submitted that until the information filed raising the party liability under Rule 801(1)(u) – (w) the information and factual basis was that Mrs Malcolm had in some way breached Rule 801(1)(p) through her actions as a principal. It was submitted that there could not be a separate hearing for the Committee to find Mrs Malcolm a party, as it would need to make a finding against Mr Malcolm, who was not participating in that hearing. The Committee considered this objection and said it did not intend to make findings against Mr Malcolm and that it understood that the information saying Mrs Malcolm was liable for “participating in any event and herself being implicated or professionally responsible for what she did”. Mr Cornegé, for Mrs Malcolm, then agreed that the hearing could proceed on that footing. The Informant’s witness statements were then read to the Committee. An extract from Mrs Malcolm’s interview with the RIB Investigator was played to the Committee and Mrs Malcolm gave evidence. When the evidence had been heard, the Adjudicative Committee indicated that it would not make a decision or give reasons until after the hearing against Mr Malcolm had taken place. The Committee explained that because of the matters raised on behalf of Mrs Malcolm at the commencement of the hearing, she could appear at Mr Malcolm’s hearing and adduce further evidence which had not already been given.

3.9 Mrs Malcolm then instructed her Counsel that she wished to have the matter dealt with on that day; that is on the 23rd of September 2024. Closing submissions were then made and the Committee indicated that it found the charge proved. The Committee set out that its reasons would follow in writing and set a timetable for filing of penalty submissions. On the 22nd of October 2024, the Adjudicative Committee delivered its Decision setting out the reasons for the charge having been found proved and for the penalty imposed.

4. ADJUDICATIVE COMMITTEE DECISION

4.1 The Committee found at para 31 of its Decision, that there had been a breach of Rule 801(1)(p). That rule provides that a person commits a “serious racing offence” if they “inflict undue suffering on a horse by any means”.

4.2 The Committee referred to Rule 802(1) which provides as follows:

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 these Rules;
…..
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.

4.3 The Committee found that “the use of the alkathene pipe by Mr Malcolm, at least, was a direct cause of the undue suffering” of Kirrawee and that Mrs Malcolm was “also a cause albeit to a lesser degree”. The Committee found that part of Mrs Malcolm’s evidence was not reliable. It did however, note that there were no eyewitnesses who could see into the pen at the stables where the beating of the horse took place. It found that Mrs Malcolm was the “lesser cause” of the suffering suffered by Kirrawee.

4.4 The Committee referenced the evidence which established that Mrs Malcolm had assisted her husband as a party to the mistreatment of the horse by reference to the following:

a) She gave him the alkathene pipe.
b) She must have known that he was going to use it aggressively.
c) She stood in close proximity and did nothing to prevent the beating of the horse.
d) There was an express finding that Mrs Malcolm “failed to intervene”. Reference was made to the Decision of the Court of Appeal in Charnley v R (2013) NZCA 226. That judgment of the Court of Appeal establishes that a person who stands by and does nothing when an offence is taking place can be guilty of the offence in certain circumstances. The Committee found that Mrs Malcolm “offered no opposition or dissent when she ought to be expected to do so”.

5. THE APPEAL BASED UPON THE GROUND THAT THERE WAS PROCEDURAL UNFAIRNESS

5.1 The submissions for the Appellant acknowledged that the Adjudicative Committee properly recognised that the rules of fairness and natural justice were to be applied.

5.2 It is submitted that changing the way the charge was presented so shortly before the hearing and where it is said that the basis of the charge was broadened, was a breach of natural justice principles. Further, it is submitted that if Mrs Malcolm had what is said to be “proper notice and appropriate time to prepare her case”, in respect to the alleged party liability, the focus of her defence may have been different. It is said that Mrs Malcolm was not physically inflicting undue suffering herself, then the focus ought to have been on her intentions, that is to say whether she intended to encourage some other person to cause undue suffering.

5.3 It is said that under Rules 801(1)(u)-(w) that there are three discreet types of serious racing offences. Mrs Malcolm was not charged with an offence under these rules. It is contended that it was procedurally unfair for the RIB at the eleventh hour to contend that the charge before the Committee could be dealt with as one of the three party offences. This, it is submitted, gave rise to duplicity and this a breach of natural justice. The charges originally put before the Committee was that Mrs Malcolm was a principal alongside Mr Malcolm. It is contended that it therefore had to be shown that Mrs Malcolm herself inflicted undue suffering rather than being a party to that taking place.

5.4 It is submitted that a further unfair aspect of the hearing arose, when the Committee at the commencement of the hearing, stated that it would not be making a finding that Mr Malcolm committed a serious racing offence. It is said that the Committee did make such a finding against Mr Malcolm. There was, in the Tribunal’s view, sufficient evidence to make such a finding. Further, Mrs Malcolm, who was represented by experienced Legal Counsel previously involved in disciplinary proceedings in Thoroughbred Racing, expressly requested that the case against her proceed on the 23rd of September. At the hearing on the 23rd of September, the Adjudicative Committee indicated that it did not intend to make a finding about Mr Malcolm’s liability. Mrs Malcolm, through her Counsel, requested that the hearing proceed.

5.5 After hearing the evidence, the Committee advised that it would reserve its decision until it had heard the evidence against Mr Malcolm. Mr Cornegé objected to that saying “Mrs Malcolm would like it heard with today”. After an adjournment, the Committee issued its results decision. It found that the charge had been proved “by a significant margin”.

5.6 It is said for the Respondent, that Mrs Malcolm’s submission that her defence might have been different had she had more time to prepare her case, is not valid, as she was offered that opportunity. She declined to take that and requested that the matter be dealt with on the day.

5.7 While the lead up to the hearing involved a good of deal “coming and going”, the Committee gave Mrs Malcolm the opportunity to take more time. The submissions filed on her behalf do not explain how she may have advanced a different defence, had she been granted further time. In any event and importantly, she expressly requested that the matter proceed on the 23rd of September. The Tribunal does not consider that there was any material unfairness. The hearing proceeded as Mrs Malcolm proposed.

6. THE RELEVANT LAW AND EVIDENCE

6.1 Both Counsel reference the judgment of the Supreme Court in Z v Dental Complaints Assessment Committee (2009) 1 NZLR 1 (SC). Although that judgment is not expressly referred to in the Decision of the Committee, the Tribunal is confident that the Committee would have been well aware that the standard of proof required is the balance of probabilities and where the alleged breach of rules is more serious, the more compelling the evidence that is required to establish proof of such breach. The reference by the Committee to finding the charge proved “by a significant margin”, indicates that the Committee applied the appropriate standard.

6.2 The grounds for culpability under Rule 801(u) – (w) reflect the party liability as set out in Section 66(1) of the Crimes Act 1961. The authorities establish that to prove liability under Section 66(1) of the Crimes Act 1961, the following must be established:

a) That the secondary party must intend their own contribution to aid, abet, incite, counsel or procure the primary party and
b) the secondary party must know the nature of the primary party’s actions. That is to say the secondary party must know the “essential matters” relating to the primary party’s actions which make such actions an offence. It is submitted for Mrs Malcolm, that the Committee failed to adequately analyse the evidence and was in error in finding that Mrs Malcolm assisted as a party and particularly in considering her intention. It is said that the Committee was required to consider whether Mrs Malcolm intended that the horse would be caused undue suffering.

The Committee expressly referenced the Court of Appeal Decision in Charnley v R (2013) NZCA 226. It is appropriate to set out para 33 of the Committee’s Decision. That was as follows:
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 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.

6.3 Counsel for the Respondent points to the uncontested evidence that was placed before the Committee. There were five witnesses. Two of the witnesses gave factual evidence about what they heard and saw and one of those persons took photographs of the horse Kirrawee after the incident. Two witnesses provided expert evidence based upon the photographs of Kirrawee. The racing inspector Simon Irving produced a recorded interview with Mrs Malcolm. It is said for the Respondent that the following matters were established by uncontested evidence:

a) Mrs Malcolm and Mr Malcolm were in the round pen with Kirrawee.
b) The witnesses were nearby doing yard duties and could hear what was happening in the round pen, although they could not see inside the pen.
c) Mrs Malcolm was striking Kirrawee with an alkathene pipe. She accepted when interviewed that in striking Kirrawee with the alkathene pipe, she may have caused some of the welts that were later visible.
d) Mr Malcolm was “screaming” at Mrs Malcolm, telling her to “whip a horse harder”.
e) Mr Malcolm was calling Kirrawee a “dirty dog”.
f) Mrs Malcolm said “no, I don’t want to”.
g) Mr Malcolm said “f..k sakes, I’ll do it”.
h) Mrs Malcolm handed the alkathene pipe to Mr Malcolm, who then whipped the horse for 10 to 20 minutes.
i) Mr Malcolm and Mrs Malcolm came out of the round pen with the horse, which was sweated up, covered in welts and had a swollen eye.
j) Mrs Malcolm seemed “quite upset and quiet”.
k) The horse still had the welt marks the following day.

For the RIB, it is said that the force required to cause the welts shown in the photographs would have been “full force”. Further, that the injuries to the horse’s body, legs and face would “cause the horse to feel pain and, therefore suffering.”

6.4 For the RIB, it is submitted that there are a number of inferences that could be and were properly drawn by the Committee from the uncontested evidence. These were:

a) Mrs Malcolm must have had the alkathene pipe at the start and must have been striking Kirrawee with it. This follows from the fact that Mr Malcolm was telling her to “whip the horse harder”. It was also accepted by Mrs Malcolm in her interview.
b) Mrs Malcolm must have handed the alkathene pipe to Mr Malcolm. This follows from Mr Malcolm saying “f..k sakes, I’ll do it then” and from the whipping sounds subsequently intensifying.
c) Mr Malcolm was angry. This follows from the description of him “screaming” at Mrs Malcolm, calling Kirrawee a “dirty dog”, saying “f..k sakes, I’ll do it” and the general evidence of the factual witnesses about his behaviour.
d) When Mrs Malcolm handed the whip to Mr Malcolm, she knew that he was going to use it to whip the horse harder. This follows from him saying “whip the horse harder” and then when she refused, him saying “f..k sakes, I’ll do it then”.
e) Mrs Malcolm did not do anything to stop Mr Malcolm from whipping the horse over a period of between 10 to 20 minutes. This follows from the absence of evidence of her saying or doing anything and the description of her after the incident. She also accepted this when giving evidence.

6.5 It is appropriate to set out para 36 of the Decision of the Committee that was as follows:

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 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.

6.6 The Tribunal has determined that the Committee was justified in concluding that Mrs Malcolm knew that the horse might well suffer undue suffering. Mr Malcolm was angry. He asked her for the alkathene pipe. Clearly that was to beat the horse. She knew that it was to hit the horse harder. She did nothing for some 10 minutes.

7. PENALTY

7.1 For Mrs Malcolm, it is said that the starting point adopted by the Committee was too high. It is submitted that there was insufficient recognition that Mrs Malcolm’s culpability was substantially lower, than if she had directly inflicted the undue suffering upon the horse.

7.2 The most comparable case is Pertab. Mr Pertab, a Licensed Trainer, was disqualified for 6 months following the beating of a horse with a whip. Injuries to the horse hit by Mr Pertab were significantly less serious than the injuries to Kirrawee. Mr Pertab pleaded guilty.

7.3 The Committee took account of appropriate mitigating circumstances: reference para 55 of the Decision.

7.4 To reduce a penalty decision, an Appeals Tribunal must be satisfied that the penalty imposed was seriously excessive or as it sometimes said with reference to criminal proceedings, “manifestly excessive”.

8. DECISION

8.1 The Adjudicative Committee was senior and vastly experienced. It was chaired by a former Judge of the High Court.

8.2 To contend that Mrs Malcolm was blameless, defies the realities of the offence, which were established by largely uncontested evidence.

8.3 The correct legal approach was adopted, with reference to a party (not a principal) to the alleged offending.

8.4 The appeal against the guilty finding is dismissed.

8.5 The penalty imposed was stern, but not excessive. That appeal is also dismissed.

9. COSTS

9.1 The parties have incurred considerable expense in the preparation of detailed submissions and in attending the half day hearing at Te Rapa.

9.2 If the RIB wishes to seek costs, it is to file submissions by the 23rd of January.

9.3 Counsel for Mrs Malcolm is to respond with submissions by the 31st of January.

9.4 The Tribunal will then issue a Costs Ruling.

The Tribunal thanks both Counsel for their significant assistance.