Non Raceday Inquiry – Reasons for Decision dated 2 February 2023 – Robert Francis Lewis

1.  The Informant presented two charges against Mr Lewis, namely that:

(a)  On 3 September 2022 at Whanganui he, being an “accountable person”, failed to comply with the NZTR Welfare Standards (Welfare Code) by failing to take all reasonable steps to ensure the physical health needs of the NZTR registered mare “ACANTABELLE” were met. The reasonable steps the Respondent failed to take were itemised as:

• Failing to provide “ACANTABELLE”  with adequate nutrition and hydration
• Failing to have “ACANTABELLE” seen and treated by a Vet
• Failing to have “ACANTABELLE” seen and treated by a Farrier

This was in breach of Rule 1402.

(b)  On 3 September 2022 at Whanganui he misconducted himself (in breach of Rule 340) by abusive swearing repeatedly at the RIB Investigator, Ms G Murrow.

2.  After deliberating at the conclusion of the hearing, where evidence and submissions were presented by the Informant and Respondent, the Adjudicative Committee found both charges to be proved.  It advised the parties that full reasons in writing would follow.  Penalty Submissions from the Informant and Respondent were to be later presented in writing.

3.  We now record the detailed reasons for our findings.

REASONS FOR DECISION

4.  Rule 1402 applies to “Accountable persons” in respect of a horse in accordance with Part XIV of the Rules of Racing, which relate to “Horse Welfare”.  Mr Lewis was an accountable person under Rule 1401(b) having a horse in his possession or custody or under his care, control or supervision.

5.  Rule 1402 provides that:

“(1)  Each person to whom this Rule applies in respect of a horse must take all reasonable steps to ensure that the physical, health, and behavioural needs of the horse are met in a manner that is in accordance with both: (a) good practice; and (b) scientific knowledge.

(2)  Without limiting sub-Rule (1) of this Rule, each person to whom this Rule applies in respect of a horse must ensure that the horse receives, as soon as is reasonably practicable, husbandry or treatment that alleviates any deficiencies in nutrition or provisions or unreasonable or unnecessary pain or distress being suffered by the horse.

(8)  For the purpose of Rule 801(t), any breach of Rule 1402 is deemed to be a serious racing offence.”

6.  Rule 340 deals with “Misconduct” and provides:

“A licenced person, owner lessee, Racing Manager, Official or other person bound by these rules, must not misconduct himself in any matter relating to the conduct of Races or racing.”

7.  The relevant penalty provisions for each of the breaches are:

(a)  For the Serious Racing Offence (Charge 1), Rule 801(2):

“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.”

(b)  For Misconduct (Charge 2), Rule 803(1):

A person who commits or is deemed to have committed a breach of these rules or any of them for which a penalty is not provided elsewhere in the rules shall be liable to:

(a)  Be disqualified for a period not exceeding 12 months; 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 period of suspension, then the suspension shall continue to apply to the renewed licence; and/or

(c)  A fine not exceeding $20,000.

Summary of the Informant’s Evidence

8.  Mr Lewis owns (through his Company) and manages Regal Fern Lodge, on the outskirts of Whanganui, which is said to offer a range of equine services including pretraining, foaling, and weaning. He was standing a stallion “LITTLE WONDER”, on lease from its owner.

9.  An anonymous phone call to the RIB integrity telephone line was received alleging the poor condition of horses at the address. The content of the call is naturally not evidence of the truth of what was said but it is evidence that a telephone call was made so as to result in actions of the RIB.  As a result an Investigator and Stipendiary Steward visited the address on 3 September 2022.  They observed the paddocks to be extremely muddy with little or no grass.  A mare, “ACANTABELLE” presented to them as malnourished, with a severe skin ailment, and overgrown hooves.  They immediately sought the assistance of a Vet who advised that the horse was dehydrated, malnourished, and suffering from severe laminitis, with a body condition score of 2-3/9.  Other broodmares at the address had scores of 3/9 with varying degrees of hair loss and in need of a Farrier’s attention.

10.  When Mr Lewis arrived at the property he told the Investigator that he could not afford to call a Vet to the property to treat the mare.  He said he was quite capable of treating the mare himself because of his experience with animals.  He said the mare had been grazing away from the property until “two to three weeks ago”.

11.  Because of the RIB Staff’s grave concerns for the welfare of “ACANTABELLE” and her physical state, they returned to the address later that day with 2 Veterinary Surgeons.  Both concluded that the mare urgently needed adequate and proper care.  So she was removed from the Respondent’s premises on humane grounds, as Mr Lewis was considered to be unable to provide for its care.  Because of the urgency of the situation, verbal authorisation pursuant to Rule 1415 was sought and obtained from the Chief Executives of both the NZTR and the RIB.  Subsequently formal possession orders were made in relation to “ACANTABELLE” and also a Compliant Notice was served in relation to 3 malnourished broodmares which had been examined at the address.

12.  Having departed from Whanganui, the Investigator Ms Murrow received a telephone call from Mr Lewis.  His manner was aggressive and argumentative and several times called her “a piece of shit”.  The Misconduct Charge arises out of that.

13.  Later reassessment of the pregnant mare by Vets and a Farrier was that she was malnourished, in pain, and suffering from:

• Severe dermatopathy (rain scald).
• Severely overgrown and distorted hoof growth in all four feet.
• Sever laminitis, confirmed by x-rays showing chronic pedal bone remodelling.
• Elevated inflammatory markers.
• Increased heart rate (likely due to an underlying pain response).

14.  Subsequently, during an attempted foaling, the foal died and due to the poor condition and health of the mare, Veterinarians were not able to assist her in recovering from the trauma of the labour, and she was euthanised on humane grounds.

15.  The Informant tendered further evidence to the effect that:

“a formal warning from the SPCA was issued to Mr Lewis on 8 June 2017 after another mare was found to be lame, underweight, suffering from rain scald, and Mr Lewis had then said he was treating it himself.  This mare and several other horses were taken into SPCA custody.  It advised Mr Lewis that there was sufficient evidence to charge him with an animal welfare offence but elected to issue a formal warning rather than prosecute.  Mr Lewis acknowledged receiving the warning and signed “I admit the offence”.

16.  That was admissible as “similar fact” evidence.  That is where a party to a proceeding had earlier misconducted himself in a similar manner to that alleged in the instant proceedings.  It is admitted only when its probative value exceeds the prejudicial effect, and is relevant to the issues to be determined in the present case.

17.  Expert Opinion Evidence was presented from 3 Veterinary Surgeons and a Farrier, which in summary was:

• S Mocke (Vet) to the effect that “ACANTABELLE” had extensive hair loss, severe laminitis, overgrown feet, a BCS score of 2-3/9.
• Dr J Bell (Vet) – the mare was in very poor bodily condition with a severe skin condition, unkept hooves,  with x-rays that showed severe laminitis in both front feet.
• Dr P Loh (Vet) – the mare was in poor malnourished condition, suffering from severe laminitis (confirmed by x-ray) and needed ongoing pain relief, and treatment with her care which had been “neglected for a prolonged period”.
• P Schimanski (Farrier) – the mare had chronic laminitis with extensive growth in the hooves because of lack of care.

18.  None of the witnesses could be shaken from these views in cross examination.

19.  The photographic evidence was presented in booklet form.  It is graphic and speaks for itself.  The Informant’s case was that Mr Lewis failed to meet the standards required in the NZTR Welfare Code that all reasonable steps had to be taken to ensure the physical health and behavioural needs of the horse were met in accordance with good practice and scientific knowledge.  The particulars of those failures are set out in Charge 1 of the Information.

The Respondent’s Evidence

20.  Mr Lewis was the only defence witness.  He said that he had grown up with horses and other animals and “knew the basics for treatment of horses”.  He said “ACANTABELLE” was with a Racing Trainer in early 2018 and was returned to him in June 2018 with a bacterial skin infection.  He said that he treated this himself as he had some antibiotics on hand but it flared up over the next 3-4 years.  He said he phoned a Vet, but did not request a visit.  When the mare was returned her racing shoes were embedded in her feet.  Mr Lewis said that his Farrier had done “corrective trimming for 3-4 years” and that he “had to start doing it myself from May 2022” as he could not afford to meet the fees of a Farrier.  There was no confirmation from a Farrier that he had attended to the mare.

21.  Mr Lewis said that he had a boarder who did a “lot of treatments” for the mare and “if we ever hit a brick wall she would go into work (as a Technician for a Vet) and ask her employer about it and for her to bring the answer back for us to try”.  We did not hear from that boarder.  He said that for about 14 days before 3 September 2022 the mare had diarrhoea and was losing weight which “was very concerning to me”.  He said that he gave it 5ml of “Bute” as “I decided she really needed it”.

22.  He described how the mare was fed morning and night, treated for worms, and for the skin condition.  He produced photographs of various containers of equine products he had at the premises.  He explained that the muddy condition of the paddocks was only because of recent heavy rain and there was not much grass, so on those days he increased the amount of supplemental feed he gave the horses.  He said that 3 days prior to the visit by the Investigators “I noticed that [“ACANTABELLE”] has gone lame. The ground was so wet so I believe this is what caused it”.

23.  Mr Lewis explained that he “did not feel there was an immediate necessity for a Vet to come out because I was treating “ACANTABELLE” based on my background, scientific knowledge and gut feeling”.

24.  In answer to the Misconduct Charge, he said that, as a farmer, he is “an habitual swearer” but denies that he swore at Ms Murrow but simply “swore in the sentence”.

The Adjudicative Committee’s Findings

25.  The Adjudicative Committee concluded that on the totality of the evidence, expert and otherwise, together with the photographs – the evidence was compelling and leads it to conclude, by a wide margin that the primary charge to its confident satisfaction is established.  Mr Lewis’ attempts to explain and justify his care of the mare was unconvincing and the Adjudicative Committee has not accepted his evidence on important issues as reliable.  He did not tender any documentary evidence (such as Farrier’s or Vet’s invoices) which he claimed existed.  He displayed an over confident attitude as to his ability that enabled him to properly treat and care for the mare because of his farming background and “gut feeling” without ever calling for a Vet to visit and treat the mare.  His claim is ingenuous, illustrates his lack of insight and his obstinate refusal to recognise his serious shortcomings.  “Gut feeling” is an instinct or intuition.  It illustrates his lack of insight or appreciation of what he should have done because a “gut feeling” is no more than an instinctive feeling not based on logical rationale or evidence.  He ignored his duty to obtain veterinary and other assistance needed.

26.  The BSC of 3/9 is well below that required for a pregnant mare.  The Veterinarians’ evidence and photographs, establish that – for whatever reasons – the mare was undernourished for some time.  Even if provided with feed she was not able to have sufficient nutrition to meet her needs.  The state of her hooves was deplorable.  This could only have happened over a significant period.  She needed expert Veterinarian and Farrier intervention which had been neglected, for whatever the reason.  Mr Lewis’ failure was lamentable.

27.  The Misconduct Charge is concerned with abuse towards, and of the Investigator in a derogatory and demeaning way.  Mr Lewis’ efforts to diminish this by saying, as he did, that he was simply swearing, but not “at” Ms Murrow is disingenuous and rejected.  To direct comments to a person by saying “you are a piece of shit” is aimed “at” the person.  The transcript is clear as the call was recorded.  It reveals a man in an aggressive and agitated state (he used the abuse twice, as well as saying “you are so underhand”).  It was unacceptable, improper, insulting behaviour, deliberately directed at a professional person.  The Adjudicative Committee rejects his continued attempt to deflect away what he did by claiming it was not abuse directed at the Investigator.

28. As stated both Charges have been proved.

29.  If either party requests a face to face hearing of penalty submissions please advise.  Otherwise, if they agree, these can be dealt with on the papers.  If possible the Informant’s are to be presented within 7 days, with the Respondent’s within a further 7 days.