Non Raceday Inquiry – Written Decision dated 13 October 2023 – Harry Marsh

1.  Mr Marsh holds a Class B (Owner Trainers) Licence and is the Owner and Accountable Person for two registered thoroughbred horses, namely:

(a) “BEAUTIFUL MAN”, a chestnut gelding, and

(b) “LA CHOISIE”, a bay mare.

2. The Informant charged Mr Marsh with a breach of Rule 1402 of the NZ Thoroughbred Rules of Racing in that on 28 August 2023, at Whanganui, he 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 two thoroughbred horses were met.   The reasonable steps that the Respondent failed to take were alleged to be:

• Failing to provide the horses with adequate nutrition.
• Failing to provide the horses with adequate hoof care.

3. Mr Marsh has admitted the charge and agreed, as has the Informant, that the issue of penalty may be dealt with, by the Adjudicative Committee, on the papers.

4. Rule 1402

This 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 reasonable practicable, husbandry or treatment that alleviates any deficiencies in nutrition or provisions or unreasonable or unnecessary pain or distress being suffered by the horse.

5. Rule 1402(8) deems a breach of Rule 1402 to be a Serious Racing Offence and Rule 801(t) is the operative Rule for imposing liability for a “Serious Racing Offence”.

6. The penalty provisions which apply to the commissioning of a “Serious Racing Offence” are specified in Rule 801(2) which may include disqualification for any period or for life and/or suspension from holding or obtaining a Licence for a period not exceeding 12 months and/or a fine not exceeding $50,000.

Factual Summary

7. On 21 August 2023, RIB Investigators received information alleging that the two horses trained by Mr Marsh and located in Whanganui were underweight and not receiving adequate care and attention.  As a result, an Inspector visited the property on 28 August 2023 and found:

(a)  The two horses were in a paddock which had limited grass available and there was no supplementary feed.  Both horses were in poor physical condition, in particular “BEAUTIFUL MAN” who looked skeletal with significant protrusion of his bones in his back ribs and hips.  Both horses had severely overgrown hooves.

(b)  A Veterinary Surgeon was summonsed to attend and assess the horses, who reported that “BEAUTIFUL MAN” had a condition score of 1.5/5, with severely overlong and cracked hooves being clear evidence of lack of farrier care for several months.  “LA CHOISIE” had a slightly better condition score of 2.5/5, but she was lame with overlong and cracked hooves with loss of normal hoof conformation.  This, likewise, was evidence of lack of farrier care for several months.

(c)  When interviewed, Mr Marsh told the Inspector that he was not happy with the condition of his horses.  He said he had left their care to another person becasuse he was indisposed due to ill health.  As a consequence, he was not aware of their poor condition until he received a call from the SPCA on the 22nd of August 2023.

8. A Welfare Compliance Notice (under Rules 1406 – 1410) was served on Mr Marsh.  This order allowed him 7 days to attend to the horses’ feet and 28 days to improve the condition of the horses.  Mr Marsh agreed to comply with these requirements.

9. On the 3rd of September 2023, the horses were visited, their feet had been trimmed, a large round of hay had been placed in the paddock and the horses had been hard fed.  There was a further visit on the 22nd of September 2023 where it was seen that there was some improvement in the condition of the horses.  Mr Marsh was spoken to, and explained he was now feeding both horses regularly and that they were receiving ongoing farrier care and treatment.  He accepted that as the Owner and Accountable Person, and that he was ultimately responsible for the poor condition of the horses, he said that he would continue to take all steps to improve their welfare to an acceptable standard.

Penalty Submissions

The Informant

10. Ms Murrow emphasised that the two horses were in need of urgent care with no supplemental forage and clear evidence of lack of farrier care to both horses for several months.  She referred to the relevant principles of sentencing being, apart from punishment, importance of need to deter others, uphold animal welfare standards which are imperative and condign sanctions and necessary to enable the Racing Industry to maintain its social Licence and reputation.  And to promote the wellbeing of horses.

11. Ms Murrow referred to recent similar cases where lengthy terms of disqualification have resulted; RIU v Bishop (10 years), RIB v Lewis (Life); RIB v Neale (5 years) and RIB v Agent and Williams (2 years).

12. Ms Murrow referred to the aggravating factors (the lamentable conditions of the horses, Mr Marsh as the Accountable Person had ultimate responsibility for his horses – yet did not know of their very poor state until SPCA involvement).   She fairly acknowledged mitigating factors such as Mr Marsh’s full co-operation with the RIB, his immediately attending to the Compliance Notice, his admission of liability and remorse.  She submitted that a 2 year term of disqualification was necessary to promote the vital high standards of care necessary for animal welfare by all persons involved in the Racing Industry.

The Respondent’s Submissions

13. These were comprehensively made on his behalf by a daughter.  She emphasised that this had been an isolated “one off” occurrence; Mr Marsh had spent a lifetime of devotion to horses and animals; was truly regretful, had immediately rectified the condition of both horses which were now well fed and cared for (photographs presented supported this), had Veterinary and Farrier care, with ample feed acquired and supplied since mid August.  She said that Mr Marsh had a lasting passion and love of the Horse Racing Industry and horses.

14. She said that Mr Marsh had an accident “a few months ago and became very sick” which resulted in “BEAUTIFUL MAN” not being afforded his normal care and that he had “asked someone to help but that did not happen as expected”.  She reiterated that Mr Marsh accepted that the ultimate responsibility lay with him.  She said that we (meaning the family) only have a couple of horses in work.

15. A character reference was presented from a prominent Central Districts’ Trainer who said that he had known Mr Marsh for 25 years; cared for and loved his horses and was a man well respected in the Racing Industry.

16. The submissions asked that “leniency” be extended to Mr Marsh because of all these factors.

Decision as to Penalty

17. The Welfare Responsibilities contained in the Horse Welfare Provisions of the Rules of Racing (Part XIV) are extensive and impose strict obligations on an “Accountable Person” so as to protect horses and ensure that their welfare is not neglected.  The seriousness of the performance of the obligations under Rule 1402 is highlighted by a breach is deemed to be a “Serious Racing Offence” (Rule 1402(8)) and it is not necessary for an Informant to prove that the person charged intended to commit the breach (Rule 1402(a)).

18. So liability is strict and an “Accountable Person” MUST take all reasonable steps to ensure that the physical health of a horse is met (Rule 1402(1)).

19. Mr Marsh, as Owner and Trainer, of the two thoroughbreds is an Accountable Person.  He has accepted that it was his responsibility to ensure the horses were properly cared for.

20. His being indisposed for some time through health issues, whilst affording him reason for his failure to meet the needs of his horses and it may be to some extent that a person (not identified) to whom he delegated the task of caring for the horses let him and the horses down.  But there had been inadequate care for a long time period.  That is evidenced by the photographs showing the emaciated physical state of “BEAUTIFUL MAN” and the dreadful state of the hooves of both horses.  Those consequences do not occur over a short period.

21. The Adjudicative Committee understands and has sympathy because of Mr Marsh’s health issues, but could not abdicate his absolute duty to ensure the welfare of the horses was met.  A fine is not a proper penalty.  Suspension of his B Licence would only prevent him training his own horses. But suspension would not be consistent with other cases which, (albeit some very serious) resulted in disqualification. The need to deter others who seriously fail to meet their obligations and ensure horse welfare is paramount.  A period of disqualification has to be imposed.

22. But the Adjudicative Committee is mindful of the plea for “leniency”.  Disqualification carries with it certain consequences under the Rules of Racing, including inability to race horses, or participate in the Industry, or to assist in or be employed in training.  But they are an inevitable price where a Licensed Trainer negligently fails to protect the welfare of horses.

23. But, as here, Mr Marsh only trains his own horses, and the Adjudicative Committee has enquired of Mr Marsh’s daughter, been told that:

(a) “LA CHOISIE” is owned solely by her.

(b) “BEAUTIFUL MAN” is owned by Mr Marsh and Family.

This would mean that any disqualification order would not affect the ownership of “LA CHOISIE” and Mr Marsh might only transfer his share in “BEAUTIFUL MAN” to the rest of the family.  That is, he need not transfer them to outside Owners.  Of course, he could not hold a Class B Trainers Licence but the horses, if to be raced can quite easily be placed with another alternative Trainer given the support of Central District Trainers.  So, this would be a different outcome or situation where an “A” Licensed Trainer is disqualified.

24. Given those factors which may extend some leniency to Mr Marsh, the Adjudicative Committee nevertheless must impose a period of disqualification in order to protect racehorses, deter others from offending, and promote the public confidence in the Industry and its Licensees.  From a starting point of 3 years disqualification, there are no aggravating factors requiring an uplift.  The mitigating factors are many including:

• Mr Marsh’s indisposition over some of the offending period.
• His lifetime devotion to horses.
• His good character and highly regarded reputation in the sport of Racing.
• His acceptance of responsibility (although any defence would have been futile).
• His immediate actions to remedy the condition of the horses.
• His co-operation with the Investigator, RIB and SPCA.
• The restoration of the horses to normal health.

For all of these, the Adjudicative Committee allows a significant discount of 33¹⁄₃ %.

25. Accordingly, the term of disqualification is fixed at 2 years.  It is to commence on 1 November 2023 to enable Mr Marsh to:

(a) Transfer his interest in “BEAUTIFUL MAN” to another member of his family (or to whom he chooses).

(b) Transfer the training of the 2 horses to another Licensed Trainer.

26. Given Mr Marsh’s willing co-operation, there will be no order for costs in favour of the RIB or Adjudicative Committee.