Non Raceday Inquiry – Penalty and Costs Decision dated 26 February 2024 – Tracey Healy

BACKGROUND

In its earlier Written Decision dated 5 February 2024, the Adjudicative Committee found to be proved against the Respondent, a charge that she had in her possession a modified, metal-lined whip wrapped in insulation tape, gear which may cause pain, injury or distress to a horse in breach of Rule 1001(1)(r)(ii) of the New Zealand Rules of Harness Racing.

The offending whip had been found on the property, which the Respondent shared with two other Licensed Trainers, during a scheduled audit of one of those other Trainers.

The Decision followed a defended hearing on 27 November 2023.

In its Written Decision, the Adjudicative Committee invited Counsel for the parties to submit submissions in writing as to penalty and costs, and such submissions have now been received.

SUBMISSIONS OF THE INFORMANT

1. The Respondent, Tracey Anne Healy, is 56 years old and is an HRNZ Licensed Trainer and Trials Driver. She was first licensed as a Trainer from 1990 to 1994 and then from 2011 to 2023, over 18 seasons, with more than 100 starts. She trains from a property in West Melton where two other trainers are also domiciled.

2. The penalties which apply to this case are detailed in Rule 1001:
(2) Every person who commits a serious racing offence shall be liable to the following penalties:
(a) a fine not exceeding $30,000; and/or
(b) suspension from holding or obtaining a licence, for any specific period or for life; and/or
(c) disqualification for a specific period or for life.

3. Precedent –

3.1 RIB v G C Telfer (August 2023) – Harness Racing Trainer admitted a breach of Rule 1001(r)(ii) in that he had possession in his stable, at the time an audit was conducted, a homemade metal boring pole wrapped with barbed wire, gear which may cause pain, injury or distress to a horse. Mr Telfer received a $1,500 fine. While the modified implement in this case is different, and less sinister looking than the Respondent’s case, the circumstances of its possession and historical use are similar.

3.2 There are two historic, less helpful cases of Harness Drivers being in possession of unapproved or modified whips, although these occurred at race meetings, being discovered prior to the race commencing:

RIU v M Stratford (2015) – old Rule 866(a) checked out with a metal-lined whip – fined $1,000

RIU v K Smith (2013) – old Rule 866(a) checked out with an unapproved whip, being a piece of barberry painted black – fined $1,000

4. Aggravating Factors –

4.1 Ms Healy first held an HRNZ Trainer’s Licence in 1990 and should be familiar with the Rules of Harness Racing, including matters of animal welfare.

4.2 In 2017 an advisory was sent to all licenceholders through the Trainers and Drivers Association expressing concern regarding modified gear found in stable inspections:

“Recently a series of Stable Inspections was undertaken in the Southland area. Of extreme concern to the Stewards was the number of trainers who still find it appropriate to use gear which has been modified to include nails, tacks, screws and/or pins in an apparent attempt to ‘educate’ their horses… In today’s climate of public and media attention on animal welfare this is not acceptable…” The HRNZ Code of Conduct requires that a person must read, understand, keep up to date and comply with and uphold all applicable harness racing rules, regulations, directives and orders.

4.3 The focus on animal welfare is evident in HRNZ’s policy:

“HRNZ is committed to the health and welfare of horses involved in the wide range of harness racing related activities in New Zealand. HRNZ considers that the health and animal welfare standards in the industry should exceed those standards legally required in New Zealand, to ensure the ongoing sustainability and integrity of the New Zealand Harness Racing industry”.

There is an expectation on licenceholders to uphold these standards of animal welfare, in the face of increasing public scrutiny of the industry.

4.4 When interviewed, Ms Healy confirmed the whip belonged to her, and explained that she had altered it approximately five years earlier when she had a reluctant young horse, BETTERWITHBLING, that had a thick winter coat and therefore required some extra persuasion and encouragement. While the charge against Ms Healy only relates to simple possession, the inference is that she used the whip, re-enforced with fencing wire and insulation tape, to be more effective on a horse when an approved whip was ineffective.

5. Mitigating Factors –

5.1 Ms Healy was cooperative throughout the RIB’s investigation phase.

5.2 Ms Healy has no previous breaches of this Rule or any other Non Raceday charges in her 18 years of holding a Trainer’s Licence.

6. Costs –

6.1 The RIB has incurred significant legal costs in preparing the matter for, and attendance at the defended hearing via audio visual link.

6.2 In general correspondence to progress the case in October 2023, RIB Legal Counsel advised the Respondent’s Counsel that (as he was not aware of him doing matters in this jurisdiction previously) the unsuccessful party was usually awarded 60% of costs if the charge is found proved. RIB Counsel further stated, “I say this of course not to influence any decision by your client as to how she approaches this matter, but to ensure that it is not a surprise to her when costs are sought if we do reach that point.” This information was relayed to the Respondent as referenced in her evidence at the hearing.

6.3 The legal costs invoiced to the RIB by Meredith Connell totals $12,269.55 (incl. GST). This included preparation for and appearance at the hearing, and preparation of the submissions addressing the issues raised by the defence. Given the Industry standard award of 60%, the RIB therefore seeks costs of $7,361.73.

7. Conclusion –

7.1 When determining penalty, the RIB submits that the Adjudicative Committee has regard to the purpose of the proceedings, which include to ensure the Rules are complied with, to uphold and maintain the high standards expected of Trainers, and to protect the integrity of Harness Racing, giving confidence to the public that animal welfare is a priority in all matters concerning Racing.

7.2 The RIB submits that given the circumstances and factors considered, an appropriate penalty is the same to that in Telfer of a $1,500 fine and a costs award of $7,361.73.

SUBMISSIONS OF THE RESPONDENT

Counsel for the Respondent submitted as follows:

1. Ms Healy has little, if any, money. She lives in rental accommodation and remains unable to work as a result of a near fatal head injury caused by a horse in 2018. The Committee heard evidence about all that and it serves little purpose to now repeat the evidence about the situation or her circumstances, except to say that there is no evidence of the whip being used subsequent to the change in rules, in this case it was only possessed, in a rubbish pile.

2. Ms Healy was honest about the whip from the outset. The defence was focussed on the fairness of the “search”. That position is maintained. It was unfair and the Committee’s approach to her rights under the New Zealand Bill of Rights Act 1990 and right to privacy and fair process overlooks the fact that, while people were warned about audits, Ms Healy was not and was ambushed.

3. The prosecution was given the opportunity to exercise and warn, which would have been appropriate in the circumstances. Instead, the prosecutor took a Dickensian, draconian, and unreasonable approach to the prosecution, seeking to use the full weight of prosecutorial force to punish Ms Healy. Now the prosecutor seeks to recover its costs in doing that. Ms Healy is also being punished for her honesty.

4. The penalty and costs will be punitive in direct and indirect effect. The Committee’s decision rewards unfairness and will send the message that the prosecution is justified in not using discretion or properly weighting fairness, equity and rights. Also, the prosecutor has been rewarded for its early reference to the costs of prosecution as a deterrent to attempts by Ms Healy to be treated fairly. This is a victory for the prosecutorial process and the resources of the prosecution over substance and genuine fairness and the Committee’s decision endorses that.

5. Counsel cannot perceive of moral or genuinely equitable rationale for the prosecution, penalty and costs in this case.

Counsel for the Respondent concluded his submissions by referring to other matters that he had raised in his earlier closing submissions, and which had been dealt with by the Adjudicative Committee in its Decision – the way the whip was discovered, the manner of the investigation, the recorded interview and the issue of discretion. The Adjudicative Committee has ruled on those matters and does not intend to revisit any of them.

REASONS FOR PENALTY:

1. With the important need in mind to have regard for animal welfare, Harness Racing New Zealand, in October 2018, introduced Rule 1001(1)(r)(ii) making it a serious racing offence to have in one’s possession “any gear, equipment or device that has been modified in a manner which may cause pain, injury or distress to a horse”. The raison d’etre for the Rule is obvious.

2. Notwithstanding that the Respondent may not have used the modified whip since October 2018, which she claims, and notwithstanding that it may have been her intention to dispose of it, the Respondent owned to the whip belonging to her and in her possession. She explained that she had modified the whip for a particular horse which had a really thick winter coat and wouldn’t go when she hit it. Accordingly, the Adjudicative Committee found the charge to be proved, for the reasons given in its Decision.

3. As far as the Adjudicative Committee is aware, the charge against the Respondent is the second under the particular Rule in the New Zealand Harness Racing jurisdiction.

4. The first case was that of RIU v Telfer (August 2023), referred to in the Informant’s penalty submissions, in which a Trainer admitted possession of a steel pipe with a piece of barbed wire coiled around a section of it and secured by electrical tape, identified as a homemade boring pole. The Adjudicative Committee, in determining penalty, took a starting point of $1,800 to which it applied an uplift of $200 for the aggravating factor that the Respondent had admitted to having used the boring pole. A discount of 25% or $500 was then applied for the mitigating factors – a previous unblemished record over 21 years, his prompt admission of the breach and cooperation during the investigation. The final penalty was a fine of $1,500.

5. The Telfer case provides a useful precedent for determining penalty in the present case. The Adjudicative Committee takes a starting point of $1,800 as in the Telfer case. As stated by the Adjudicative Committee in Telfer, this reflects the serious nature of the breach and the disapproval of the Adjudicative Committee from an Animal Welfare point of view. The Respondent has admitted to having used the modified whip. This is an aggravating factor. However, the gear in this case was less sinister than that in the Telfer case, its use was historical and it was found in a location which did not suggest current or recent use. The starting point is uplifted to $1,900.

6. Mitigating factors to be considered are the Respondent’s good record over 18 years of holding a Licence and her cooperation during the investigation. The Respondent is entitled to credit for those factors. The Adjudicative Committee fixes the appropriate discount at $250.

PENALTY

The Respondent, Holder of Licence to Train, Tracey Anne Healy, is fined the sum of $1,650.

COSTS

1. The Adjudicative Committee has power to order a Respondent found guilty of any disciplinary breach to pay all or part of the costs incurred by the Informant – that is to say, costs of preparing and prosecuting the matter before the Adjudicative Committee. In addition, the Adjudicative Committee may award costs in its own favour in conducting the hearing.

2. Clause 27.1 of the Fifth Schedule to the New Zealand Rules of Harness Racing provides, in relation to costs:

An Adjudicative Committee, at the time of or after its decision . . . may order any person or body as it thinks fit to pay all or any of the reasonable costs and expenses of:
(e) the Racing Integrity Board; and
(f) the Adjudicative Committee.

3. In horse racing jurisdictions, there exists a loose formula whereby 60% of total costs is viewed as a starting point, that can be adjusted up or down taking into account the particular circumstances of each particular case.

4. The fixing of costs, as with the penalty determination, is a discretionary exercise, ungoverned by any restrictions in the Rules.

5. A factor to be taken into account is that the Industry ought not to be expected to fund all of the costs of its disciplinary regime. At the same time, the level of costs awarded in a particular case should not be such as to deter others from defending a charge. Neither should an award of costs be in the nature of a penalty.

6. An important matter to be taken into account is the means of the Respondent. The Adjudicative Committee was told that the Respondent lives in rental accommodation and has “little, if any money”. Furthermore, she is unable to work following an accident involving a horse in 2018.

7. The Adjudicative Committee acknowledges that the Respondent advanced a defence to the charge that was somewhat novel and not entirely without merit, certainly arguable, and it has taken this into account.

8. The final amount of costs also needs to reflect the impecuniousness of the Respondent and the matter referred to in para 7 (above).

9. Taking all of the above matters into account, an award of costs of $5,000 in favour of the Informant is appropriate/just and reasonable.

10. The Respondent is ordered to pay costs to the Racing Integrity Board in the amount of $5,000, and a further amount of $300 towards the Adjudicative Committee’s hearing costs. The latter amount reflects the fact that the hearing was conducted by audio visual link, thus avoiding venue and travel costs.