Non Raceday Inquiry – Written Penalty Decision dated 3 April 2025 – John Ross Malcolm

1.  Mr Malcolm was found liable for a total of 11 breaches of the NZTR Rules of Racing after a defended hearing encompassing 4 days at Cambridge. The Decision of the Adjudicative Committee was delivered to the parties on 27 January 2025.

2.  Those breaches were for 4 Serious Racing Offences involving inflicting undue suffering on horses under his care. As well as 7 racing offences of failing to comply with the NZTR Thoroughbred Welfare Detailed Assessment Standards by failing to handle horses under his care in such a way as to minimise the risk of pain, injury or distress.

3.  The relevant penalty provisions in the Rules are:

(a)  For Serious Racing Offence (Charges 1, 3, 6, 9):

Disqualification for a specific period or for life, and/or suspension from holding or obtaining a licence for a period not exceeding 12 months, and/or at fine not exceeding $50,000.00.

(b)  For a Racing Offence (Charges 2, 4, 5, 7, 10, 11, 12) disqualification or suspension of licence for up to 12 months, and/or a fine not exceeding $20,000.00.

4.  The relevant evidence and proven facts and separate particulars of each charge are set out in detail in the Adjudicative Committee’s Reserved Decision of 27 January 2025. It is not necessary to elaborate on these in further detail other than to observe that the totality of the behaviour involved behaviour that cumulatively comprised very serious breaches of animal welfare standards.

5.  Both Counsel for the RIB and Respondent have filed detailed submissions. In summary form they are:

The RIB’s Submissions

6.  Counsel submitted that the proven offences involved a large number of abusive actions towards registered thoroughbreds over a 14-month period. They fell into the category of being “amongst the most serious instances of abuse of horses in the Racing Industry to come before the Adjudicative Committee.” Counsel described it as sustained abuse and contended that “there is no place for Mr Malcolm in the Racing Industry”. Counsel seeks an effective sanction of disqualification for life plus a costs order to reflect 60% of actual costs ($80,579) incurred to date.

7.  Counsel referred to the often repeated principles and purposes for penalty consideration as discussed in RIU v L (13 May 2019) and RIU v Kerr (13 April 2021) and he submits that animal welfare is critical to maintain the social licence of the Racing Industry and a stern response is required. Counsel says that an important consideration is there must be a penalty that “makes it clear that this behaviour is completely unacceptable and will not be tolerated”.

8.  Counsel referred to some other cases in New Zealand and Australia where various penalties have been imposed, albeit for different types of misconduct, and to the recent case of RIB v Dell (12 November 2024), where disqualification for life was imposed for failure to provide adequate care for a horse that had to be euthanised. The then Committee stated that Mr Dell had forfeited the privilege of participation in the industry”. Another example, as with Dell, was RIB v Lewis where there was a breach of welfare standards through “egregious neglect”. It fell into the “appalling category” and disqualification for life resulted.

9.  Counsel argued that Mr Malcolm’s position is more serious as it involves multiple intentional acts on a large number of horses. It was appalling so as to make a finite term of disqualification manifestly inadequate.

10.  Counsel noted that Mr Malcolm had no previous breaches of the Rules but said that the nature and duration of his offending and propensity negated any “discount for previous good character”.

11.  Counsel filed “witness impact” statements from seven of the young women employees who gave evidence before the Adjudicative Committee. These referred to psychological, emotional effects and distress from “witnessing abuse” of horses by Mr Malcolm. Some of the statements speak of the effect on them in having to give evidence and alleged elements of intimidation. Mr Wicks, on behalf of Mr Malcolm objected to these statements being taken into account, contending that they were not “victims” by the definition in the Victims Rights Act 2002 (relating to criminal matters). And he said in any event, they include allegations about Mr Malcolm’s conduct going beyond proper boundaries and contain prejudicial and unfair statements of which he has had no notice or opportunity to respond.

12.  But Rule 920(2)(c) enables the Adjudicative Committee to have regard to any “consequential effects on any person” as a result of the Breaches of the Rules. So, the witnesses are able to say about how they felt, and the emotional effects on them, but only up to a limited extent. The statements are received, but it is a matter for the Adjudicative Committee to decide how much weight is given to them. Being admissible and relevant to the overall consequences of Mr Malcolm’s offending, dealing with emotional impact, referred to in direct evidence given by the witnesses, and the manner of their presentation at the hearing. But distress and anxiety in giving evidence, though sadly a factor in a manner of the cases, it is not a consequence of a breach of the Rules.

13.  But the Adjudicative Committee emphasises, and records that where there may be unfair prejudicial comments and material in the statements, they are disregarded by the Adjudicative Committee.

Submissions on Behalf of Mr Malcolm

14.  These comprised written submissions from Mr Wicks, a short affidavit from Mr Malcolm and several “character” references.

15. Counsel submitted disqualification of no more than 8 years was appropriate and that there had to be a proportionate balance between several factors. Matters of the interests and reputation of the profession and its social licence, as well as general deterrence, having some bearing, but that does not involve “non engagement” of the licenced person’s interests and opportunity for rehabilitation.

16.  The Adjudicative Committee was referred to a number of cases in New Zealand and Australia, and a media report of a Defendant who was discharged without conviction because his offending against 4 horses was said to be of “low to moderate seriousness”. The Judge there is reported as saying that the potential consequences of conviction and publication would be “wholly disproportionate”. That media report does not assist Mr Malcolm, whose Counsel accepts that disqualification should follow, although he challenges the length sought by the RIB. He submits it should not exceed 8 years.

17.  Counsel submits that some weight ought to be given to the fact that “no enduring [physical] harm was caused to horses”. He refers to Mr Malcolm having had no previous breaches of the Rules and the several character references pointing to his “good character”. But Counsel contends that the nature and duration of actions might lead to some discounting of this factor, but should not “extinguish good character”.

18.  He accepts that a number of “comparable cases” are of limited assistance, other than confirming that a lengthy period of disqualification inevitably has to be imposed in this case. He draws attention to the critical issue of how long should that be?

19.  Counsel contends that Mr Malcolm’s offending does not reach the “appalling” category and refers to other cases which only support the proposition that a limited disqualification and not a life term, was required. Counsel pointed to another case (RIB v Neale) where a total period of 10 years disqualification was imposed for neglect of six horses.

20.  Counsel submits that Mr Malcolm does “acknowledge some responsibility and remorse”; a life disqualification would be “crushing” after 25 years in the industry. He refers to there having been, already, severe financial and reputational consequences to Mr Malcolm. That is why the Adjudicative Committee wished to afford him the opportunity of being heard directly as to personal matters and issues of remorse and contrition, as to mitigation. Unfortunately, he elected not to appear. But it is beyond doubt that he has, and will, suffer financially and professionally.

21.  Mr Malcolm refers in his affidavit dated 27 February 2025, that since his Class B Trainer’s Licence was suspended by the NZTR (not the RIB Adjudicative Committee) in August 2024, he has suffered financially, he is currently unemployed; has lost significant trading income and from on selling horses he had purchased. He said that he faces having to sell his property in order survive.

22.  As to any costs order, Mr Wicks submitted that the reputational and financial damage already suffered by Mr Malcolm should be reflected in substantially reducing any costs award that might otherwise arise.

OUTCOME

23.  First, the Adjudicative Committee makes it clear that any “reputational damage” could not have occurred from publication of the Adjudicative Committee’s decisions in respect of him and his wife, as the Adjudicative Committee determined that there should be no publication until all matters were determined. But realistically reputational damage has occurred through media or other sources.

24.  It is well known that an Adjudicative Committee has to consider a number of different factors and interests so as to reach a measured and proportionate balance between them. Apart from those referred to in Counsel’s submissions, namely:

• the public interest
• the interests of the offending member
• the interests of the professional body as a whole
• the seriousness of the offending
• any aggravating and mitigating factors.

25.  Further, there are provisions in Rule 920(2)(b) to which the Adjudicative Committee has referred. It says that in imposing any penalty or sanction, an Adjudicative Committee “may have regard to such matters as it considers appropriate including:
….
(c) Any consequential effects on any person or horse as a result of the breach of the Rule and/or

[and]

(d) The need to maintain integrity and public confidence in racing”.

26.  Where a Tribunal, or Court, is faced with fixing penalties for multiple offences, the established approach is to apply the principle of totality where the overall sanction effects the totality of the offending, so that the ultimate penalty should be just and proportionate. Factors to be considered including the seriousness of the offences, the extent of the offending and harm caused to others, and the appropriate approach in fixing the penalty is not to impose separate penalties for each offence so as to involve cumulative “sentences”. A “lead” sanction should be fixed incorporating all aggravating and mitigating factors. The conventional approach of fixing a “starting point” before consideration of aggravating and mitigating factors may become artificial, because it is the multiplicity of the offences and all aggravating and mitigating features that determine the lead sentence. Separate aggravating factors, as well as matters of mitigation are to be considered, so as to reflect the overall seriousness of the offender’s offences.

27.  In professional disciplinary cases, where there is a sanction of exclusion from the profession (here, a life disqualification), there need only be the single lead disqualification which reflects the total behaviour (provided it reaches the “unfitness” level), with other penalties being fixed as lesser and concurrent with the life term.

28.  So, for penalty purposes, the Adjudicative Committee takes Charge (1) as the offence to which it attaches the lead sentence. But this is not to minimise the other three Serious Racing Offences of inflicting undue suffering. In fixing the level of this, the Adjudicative Committee has been required to take account and recognise the totality of Mr Malcolm’s behaviour. Those aggravating and worrying features include:

(a)  The number of abusive actions causing undue suffering to other horses and separately, the breaches of welfare standards in relation to other horses.

(b)  The time period over which these offences occurred, at least 14 months from March 2023 until mid 2024.

(c)  The evidence that has been accepted on the propensity/habit of often striking horses on the head, or as one witness said, “aiming for the eyes”.

(d)  The evidence given by some witnesses (which the Adjudicative Committee has accepted), as to how the various injuries occurred.

29.  Counsel submitted that although the offending was very serious, it did not result in “enduring harm to the horses concerned”. But four of the proven offences established “undue suffering” to the horse. Although physical consequences for these four horses, thankfully were resolved, it is well known by the Adjudicative Committee that horses are known to have long memories and apart from having positive memories, also retain memories of negative experiences and of persons who abuse them. That was illustrated by witnesses’ evidence of the horses becoming fearful of Mr Malcolm.

30.  Whilst Mr Malcolm claims he has total remorse, the Adjudicative Committee is very concerned about the sincerity of such a claim now. His “sorrow” appeared to be rather regret that the proceedings “have come to this”. The absence of genuine remorse, contrition and insight was evident from his comments and stance taken during the hearing, which included denigrating his former staff, disparaging (incorrectly) as “pony clubbers”; criticism of the RIB for its investigation, referring to the proceedings as a “joke” and referring to the industry (breaking) being destroyed if the investigations and charges were allowed to continue if the charges were upheld.

31.  Two of Mr Malcolm’s “character witnesses” speak of his total innocence and one “hopes that this ‘injustice’ may be righted”. The Adjudicative Committee can only surmise that such views arose from what Mr Malcolm, or others on his behalf have told them, as they were not present at the hearing and the liability decision of 27 January 2025 has not been published and only provided to the parties involved. The weight that may be given to their opinions is to be limited, except as to what they believe is his good character.

32.  The Adjudicative Committee is very mindful of the impact a lengthy disqualification will have on Mr Malcolm. It has given lengthy consideration to whether something other than a life term, as sought by the RIB, should be given. But in the end, the Adjudicative Committee is bound to accept Counsel’s submission that the offending falls into the worst category of abuse and life disqualification is necessary given its seriousness and implications in the industry’s social licence. His actions seriously departed from accepted standards and involved a repeated deliberate, (not unintentional), anger driven abuse of several horses, spanning multiple breaches of the Rules over an extended period. It comprised repeated deliberate departure from accepted standards, was not through negligence, but through intentional actions.

33.  Apart from other “sentencing” considerations, there must be the further factor in imposing professional disciplinary sanctions – which this is – to those licensed to work in the profession, being found by its Rules. Account has to be taken as to the effect which any order the Adjudicative Committee might make, will have on the understanding by reasonable members of the profession/industry, and especially of the wider community, of the standards of behaviour required of Licensees. (These remarks endorse those of Kirby P in Law Society NSW v Foreman [1994] 34 NSWLR 408).

34.  Life disqualification can never be used solely to impose punishment – which naturally occurs when a person is disbarred. But where the other relevant considerations for imposing sanctioning are balanced proportionately, a crucial determining factor in this case remains (as Rule 920(d) requires) the need to maintain integrity and public confidence in racing.

35.  Those persons who participate in the Racing Profession/Industry and those who are licensed to have the privilege of participation, may misguidedly see it as a “right”. But in fact, it is a “privilege” which has to be forfeited where there arises egregious and very serious misconduct.

36.  Inevitably, a professional person who is subject to a ban from continuing in the profession will suffer financial consequences, often severe, but that is a consequence of his behaviour and misconduct of standards required by the profession/industry. Where established misbehaviour by a member of a profession is such as to require removal from the profession, the fact that they will suffer financially is not a reason why removal should not happen.

37.  The Adjudicative Committee acknowledges Mr Malcolm’s acceptance that he breached Welfare Standards by punching horses on the nose (2) and kicking in the belly (1), so fixes the disqualification term at a reduced level (but they are concurrent and have no separate effect to the lead penalty).

38.  In summary, given the very serious nature and extent of the proven misconduct and the vital consideration of the profession’s and public expectations of what is required of Licensees, the Adjudicative Committee is driven to the conclusion that Mr Malcolm has forfeited his privilege to participate in the Racing Profession/Industry/Sport. Any term of disqualification less than for life, would in the Adjudicative Committee’s assessment, be manifestly inadequate.

39.  Accordingly, the Adjudicative Committee makes the following orders:

(a)  On Charge No. 1, Mr Malcolm is disqualified for life, to commence immediately in terms of Rule 1101.

(b)  On each of the Charges 3, 6 and 9, he is disqualified for 10 years, to run concurrently with the life disqualification.

(c)  On each of the Charges 4, 7, 11 and 12, he is disqualified for 8 months, to run concurrently with the life disqualification.

(d)  On each of the Charges 2, 5 and 10, he is disqualified for 6 months, to run concurrently with the life disqualification.

(e)  Mr Malcolm is ordered to pay $48,347.00, being 60% of the actual incurred expenses and costs of the Informant RIB.

(f)  Mr Malcolm is ordered to pay to the Adjudicative Committee $11,000, being less than 50% of the actual incurred expenses and costs of the Committee.

40.  The Adjudicative Committee reminds Mr Malcolm of the provisions of Rule 1104 relating to the consequences of these orders.