Non Raceday Inquiry – Written Reserved Decision and Reasons dated 27 January 2025 – John Ross Malcolm

1.  The RIB presented 13 charges against Mr Malcolm. They alleged that he breached Rule 801(1)(p) of the NZTR Rules of Racing in that he inflicted undue suffering on four horses (Serious Racing Offences) and 10 charges of breaches of Rule 802(1)(a) in that he failed to comply with the NZTR Welfare Standards. That is failing to handle a thoroughbred horse in such a way as to minimise the risk of pain, injury or distress, or by punching a horse in the face or by striking a horse about the head.

2.  The charges presented alleged as follows.

Charge 1: A18518 – “Serious Racing Offence”

On the 8th of March 2003 at Cheltenham Stables, Cambridge, he inflicted undue suffering on an unknown bay colt, by –

• Punching the horse in the face.
• Grabbing the horse by the nose area immobilising its head.
• Restraining the horse’s hind leg with a collar strap ‘chasing’ the horse to exhaustion.
• Kicking the horse in the stomach.
• Striking the horse with a lead rope.
• Stomping on the horse’s nose whilst it was lying on the ground.

Charge 2: A18519 – “Racing Offence”

On or about the 8th of March 2023 at Cheltenham Stables, Cambridge, he failed to handle the rising 2-year-old colt ‘2021 Vanbrugh x Sugar Hit’, in accordance with the handling practices outlined in Section 6.1.3 of the NZTR Thoroughbred Welfare Detailed Assessment Standards, by –

• Kicking the horse in the stomach whilst gearing the horse in a colt pen.
• Indirectly causing the horse to flip over backwards, hitting its head on the ground resulting in a traumatic head injury and blood flowing from both nostrils.

Charge 3: A18520 – “Serious Racing Offence”

On the 9th of March 2023 at Cheltenham Stables, Cambridge, he together with Rachel Joanne Malcolm, inflicted undue suffering on the rising 2-year-old colt ‘Kirrawee’ (2021 Vanbrugh x Severa), by using an alkathene pipe or similar, to strike the horse multiple times over a sustained period whilst in the round pen.

Charge 4: A18521 – “Racing Offence”

On the 30th of March 2023 at Cheltenham Stables, Cambridge, he failed to handle the rising 2-year-old filly ‘2021 Proisir x Orua Belle’, in accordance with the handling practices outlined in Section 6.1.3 of the NZTR Thoroughbred Welfare Detailed Assessment Standards, by –

• Striking the horse multiple times with a whip, or similar, whilst in the round pen.
• Causing a traumatic injury to the right eye.

Charge 5: A18522 – “Racing Offence”

Between the 15th of January and the 22nd of February 2024 at Cheltenham Stables, Cambridge, he failed to handle the yearling filly ‘2022 Ocean Park x Bestlegsintown’ in accordance with the handling practices outlined in section 6.1.5 of the NZTR Thoroughbred Welfare Detailed Assessment Standards & Part 6.1 Equine Handling and Training, Code of Welfare – Horses and Donkeys, in that he struck the horse in the head by punching it in the nose.

Charge 6: A18523 – “Serious Racing Offence”

In February 2024 at Cheltenham stables, Cambridge, he inflicted undue suffering on the yearling colt ‘2022 Russian Revolution x Spirited Princess’ by –

• Causing the horse to flip over backwards in excess of 10 times whilst being long reigned in the arena.
• Failing to provide vet treatment to the horse following the incident.

Charge 7: A18524 – “Racing Offence”

Between February 2024 and March 2024 at Cheltenham Stables, Cambridge, he failed to handle the yearling filly ‘Solar Flight’ (2022 Flying Artie x Solar Cry), in accordance with the handling practices outlined in Section 6.1.3 of the NZTR Thoroughbred Welfare Detailed Assessment Standards, by –

• Pulling and yanking on the horse’s mouth with the reins in an excessive and unnecessary manner whilst riding her.
• Pulling and yanking on the horse’s mouth with the reins in an excessive and unnecessary manner whilst on the ground, causing the horse to flip over backwards.

Charge 8: A18525 – “Racing Offence”

On or about the 7th of March 2024 at Cheltenham Stables, Cambridge, he failed to handle the yearling filly ‘Magic Dreams’ (2022 Zousain x Thousand Dreams) in accordance with the Nutrition practices outlined in Section 1 of the NZTR Thoroughbred Welfare Detailed Assessment Standards, by putting the horse in a yard and denying it food and water.

Charge 9: A18526 – “Serious Racing Offence”

In March 2024 at Cheltenham Stables, Cambridge, he inflicted undue suffering on the yearling filly ‘2022 Capitalist x Thames Court’, by striking the horse multiple times over a sustained period whilst in the round pen.

Charge 10: A18527 – “Racing Offence”

Between the 27th of March 2024 and 9th of May 2024 at Cheltenham Stables, Cambridge, he failed to handle a yearling filly owned by Cambridge Stud in accordance with the handling practices outlined in Section 6.1.5 of the NZTR Thoroughbred Welfare Detailed Assessment Standards & Part 6.1 Equine Handling &. Training, Code of Welfare – Horses and Donkeys, in that he struck the horse in the head by punching it in the nose causing it to bleed.

Charge 11: A18528 – “Racing Offence”

Between the 27th of March 2024 and 9th of May 2024 at Cheltenham Stables, Cambridge, he failed to handle the yearling fillies ‘Mandriana’ (2022 Hello Youmzain x Miss Ponderosa) and ‘Ciao Bellissima’ (2022 Hello Youmzain x She Is Stryking) in accordance with the handling practices outlined in Section 6.1.4 of the NZTR Thoroughbred Welfare Detailed Assessment Standards, by chasing the fillies to exhaustion whilst riding a quad bike.

Charge 12: A18529 – “Racing Offence”

In June 2024 at Cheltenham Stables, Cambridge, he failed to handle the lead pony ‘Joe’ (2015 Makfi x Zoe) in accordance with the handling practices outlined in Section 6.1.5 of the NZTR Thoroughbred Welfare Detailed Assessment Standards & Part 6.1 Equine Handling & Training, Code of Welfare – Horses and Donkeys, by –

• Striking the horse between the ears with the metal end of the lead rope.
• Kicking the horse in the stomach.

Charge 13: A18532 – “Racing Offence”

On or about the 1st of June 2023 at Cheltenham Stables, Cambridge, he failed to handle the rising 2-year-old gelding, ‘Swiss Ace x Simplicity’ in accordance with the handling practices outlined in Section 6.1.3 of the NZTR Thoroughbred Welfare Detailed Assessment Standards, by –

• Chasing the horse around the track whilst driving his Volkswagen utility vehicle.
• Striking the horse with the vehicle.

3.  Mr Malcolm denied all the charges alleging “Serious Racing Offences”, (Charges 1, 3, 6, (). He admitted three of the charges relating to the breach of the Welfare Standards (Charges 2, 5, 10) although in essence did not accept the degree of severity alleged by the Informant.

4.  The Adjudicative Committee received evidence from 11 witnesses, being seven former employees of Mr Malcolm, three expert witnesses and an Investigator of the RIB. As provided by Rule 915(1)(b), the Adjudicative Committee in the exercise of its discretion admitted documentary and statements as it deemed to be relevant in evidence. However, it makes it clear to the parties that the weight to be afforded to such statements had to be measured against some persons not giving oral evidence and being able to be questioned by Counsel or the Adjudicative Committee.  In addition, the Adjudicative Committee had a signed brief of statement from one former employee, as well as transcripts of interviews with two further former employees.

5.  The witnesses who were former employees of the Respondent are recorded in Appendix A to this decision, but are only referred to in the body of this Decision as “Witness 1”, “Witness 2”, etc.

6.  The Adjudicative Committee also received evidence for Mr Malcolm from himself and five witnesses with statements from three other witnesses taken as read.

7.  Rule 801(1) provides:

“A person commits a Serious Racing Offence within the meaning of these rules who: …

(p)      Inflicts undue suffering on a horse by any means or has in their possession any gear, equipment, appliance, device or apparatus other than as approved, from time to time by NZTR that is capable of being used to inflict undue suffering on a horse;”

8.  Rule 802(1) provides:

“A person commits a breach of these rules who:

(a)  Acts in contravention of or fails to comply with any provision of these Rules or any Regulations made thereunder, or any policy, notice, direction, instruction, guideline, restriction, requirement or condition given, made or imposed under these Rules;

Section 6 HANDLING – NZTR Thoroughbred Welfare Detailed Assessment Standards include:

6.1     A Thoroughbred must be:

6.1.3   Handled and trained at all times in such a way as to minimise the risk of pain, injury, or distress.

6.1.4   Not worked at an intensity that is likely to cause exhaustion, heat stress, injury, or distress.

6.1.5   (Minimum Standard No 8(b) (Code of Welfare) “Horses must not be struck around their heads” and 8(e) in the Code, “The whip, lead or any similar object must only be used for safety, correcting and encouragement and not used in an unnecessary, excessive or improper manner”.

9.  Pleas

Mr Malcolm denied the four Serious Racing Offence Charges (Charges 1, 3, 6, 9) by inflicting undue suffering on horses.  He admitted some charges relating to breaches of the NZTR Thoroughbred Welfare Assessment Standards (Charges 2, 5, 10) although did not agree with all the factual matters alleged.  He denied five charges of Welfare Breaches (Charges 4, 7, 11, 12, 13).

PRELIMINARY COMMENTS

10.  Propensity Evidence

(a)  Propensity evidence is evidence that tends to show a personal propensity to act in a particular way or to have a particular state of mind, being evidence of acts or omissions, events or circumstances with which a person is alleged to have been involved.

(b)  A party may offer propensity evidence in civil (or criminal proceedings) about any person. So, in these disciplinary proceedings both the Informant and the Respondent might adduce such evidence.  But only if it qualifies as being “relevant to an issue in dispute and” not unduly/prejudicial to its probative value, so as to outweigh any probative effect.

(c)  In this case, both Informant and Respondent have offered propensity evidence.

(d)  The Informant adduced this type of evidence from seven former staff of the Respondent (and one former staff in statement form – Witness No. 12) to the effect that Mr Malcolm was inclined to strike horses over the head, “aim for the eyes” and would not tell the truth to Vets who attended to injuries of the horses. Other former staff mentioned Mr Malcolm’s behaviour in punching horses to the nose and face (Witnesses No. 1, 3, 4, 6, 7).  Witness No. 7 described Mr Malcolm striking a horse hard over several minutes and “sometimes … if a horse was in the tie ups and it did something, he’d pick the lead rope up and then use the buckle end to hit it across the head with the buckle end.”  She last worked for Mr Malcolm in about 2018 so the timing of this, if it occurred, was six years before the June 2024 incident with “Joe”.  Each of these witnesses referred to personally observing Mr Malcolm’s displaying an angry temperament when often losing his temper.

(e)  Propensity evidence adduced by the respondent was more in the nature of general character evidence but nevertheless three witnesses (Trainers) said that horses always returned to them in good condition from Cheltenham. There was never any occasion for them to question their treatment; and one former employee who was there between 2011 and 2014 said that he never saw Mr Malcolm “drop a horse to the ground” or beat a horse.

11.  The Standard of Proof

(a)  Counsel are agreed that the standard is proof on the balance of probabilities. But they agree, and the Adjudicative Committee accepts, that where, as here, there are professional disciplinary proceedings which may, (if adverse findings might arise) provide serious consequence for a Respondent, cogent evidence is required.  So whilst the standard remains on the balance of probabilities, it is the quality of the evidence required to meet that standard which may differ in cogency depending upon what is at stake.  The Adjudicative Committee refers to Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1 [2008] NZSC 55 R [paras 112 – 113].

(b)  So, the Adjudicative Committee keeps in mind that convincing, clear, logical and strong evidence is required before it could find any one of these charges established on the balance of probabilities.

12.  Credibility

(a)  Counsel for both the Informant and Mr Malcolm agreed in their submissions, that the ultimate issue was whether the established facts were sufficiently cogent and clear to satisfy the Adjudicative Committee that any one charge had been proven to the required standard, and that largely hinged credibility findings of the witnesses. Mr Dow for the Informant, submitted that there was no reason why the several former staff should have made up their versions of various events.  He emphasised that there exists no motive for them to lie, and that they were all unshaken during cross examination.  Mr Wicks KC asked the Adjudicative Committee to consider why the staff had not come forward earlier with their complaints, and that the combined evidence pointed towards some collaboration and exaggeration, because of personal dislike of their former employer.  Mr Malcolm said essentially that they had manufactured the allegations.

13.  What the Enquiry is NOT About

(a)  The charges are not about whether Mr Malcolm’s methods of training, educating and breaking in (“starting”) young horses are not adopted or agreed to by others in the profession. For example, evidence that some do not agree with, or support the use of a leg strap, as Mr Malcolm did, does not without more, assist the Informant.  The Adjudicative Committee notes that Counsel accepted that and emphasised that it was the mismanaging of a horse to a state of exhaustion that formed the basis of some charges.

(b)  The Adjudicative Committee records that Mr Malcolm, at times, seemed to categorise the RIB’s presentation of the Information’s as a challenge to his proper methods of breaking in horses. He referred to the proceedings as “a joke” and that they would lead to the “downfall of the industry”.  He questioned in his evidence “what would the former staff witnesses know about breaking in” and alluded to them as “pony clubbers”.  The Adjudicative Committee mentions this solely to make it clear to Mr Malcolm and to others, that the Committee’s task is only to determine whether it is proven, on any charge, that Mr Malcolm has breached any Rule of the profession by which he is bound whilst involved either inflicting undue pain or suffering or the breach of a Welfare Standard.

(c)  The Information’s are based solely on Animal Welfare issues. The Adjudicative Committee is aware of Rule 808 that provided that in proceedings for breach of the Rules, “other than for a breach of Rule 801 [a Serious Racing Offence] it shall not be necessary for the Informant to prove that the persons charged intended to commit that or any breach of these Rules.” Intention of a person may be established from what they say they meant, or from inferences from all the actions of a person and surrounding facts of an event.  For the four Serious Racing Offence Charges (No.’s 1, 3, 6, 7), the intention that has to be established is the intention to do the prohibited act (inflict undue suffering).

14.  Outcome

“Inflicts” may mean “to strike” but it also means to “cause someone or animal to experience something seriously unpleasant – i.e. pain or suffering. “Undue suffering” is that degree, which is intolerable, which an animal should reasonably not have endured, or is unnecessary.  To be “undue” is to be unjust, unwarranted and improper and to exceed accepted proper standards of fitness.  The suffering may be mental as well as physical.  The issue is whether the actions of Mr Malcolm which are proved, were such as to inflict undue suffering and that his intention derived from reasonable inference from his actions was to punish the horse.

15.  Charge 1: Inflicting undue suffering on Bay Colt on 8 March 2023

(a)  The Adjudicative Committee accepts as credible the evidence of the staff Witness No. 1 which it summarised below. This witness observed Mr Malcolm, whilst angry, punch the horse in the nose, kicked it in the stomach, immobilised its head, chased it to a state of exhaustion and stomped on its nose as it lay exhausted on the ground.  Witness No. 2 saw the horse lying on the ground, “thrashing its head around and it looked very, very sweaty and wound up” and Witness No. 1 was very upset so took a video of the horse lying on the ground.

(b)  Witness No. 1 is a 28-year-old Trackwork Rider who worked for Cheltenham Stables between 27 February 2023, leaving, after two months in April 2023. She described this incident which occurred in the “colt” paddocks, when she witnessed Mr Malcolm becoming angry with a difficult colt and he punched it in the nose, grabbed its nose to immobilise it, hitting it with the lead rope, kicked it in the stomach.  She said that he applied a device (collar strap) to lift up a hind leg off the ground.  She said:

“Whilst the device was on the horse, John continued to hit it around with the end of the lead rope and kick it in the guts.”

The horse really, really fought the device that John was using and was scrambling around on three legs for 10 minutes until he was so exhausted he just gave up and lay down.

John was so frustrated with the horse that when it was lying on the ground, he walked up to it and stomped on the sensitive part of its muzzle once hard with his foot.

It was a good stamp.  It was horrid.

While the horse was still on the ground John left the paddock to go and get something.

He said to me, “Hold him a minute, I need to go and get something.”  I can’t remember what he was going to get.

I was on the end of the lead rope, and I was just looking at him thinking, I’m sorry mate, I don’t know what to do right now.

“While I was holding on to the horse, I took a quick video of the horse on the ground using my cell phone.”.  Her evidence was that “it really upset me for a while.  It was horrible”.

(c)  The Adjudicative Committee was shown as an exhibit, a photograph taken from the video of the horse lying on the ground.

(d)  Mr Malcolm’s evidence was that because this horse bit him, his “instant reaction” was to hit him on the nose. He said that the horse was “bucking and running around the yard until he fell over”.  He said it was lying on top of his collar strap buckle – so he had to leave the yard to get another lead rope, and when he returned, and once the strap was undone, he gave the horse a “few gentle whacks on the legs with the lead rope to get him back on his feet”.  He denied stamping on the horse’s nose or chasing it around the yard.  He did acknowledge hitting the horse on the nose and kicking it in the belly, but denied handling it in any way that inflicted undue suffering and said that Witness No. 1 had completely “orchestrated” what occurred.

(e)  Witness No. 1 was unshaken in cross examination and the Adjudicative Committee accepts her evidence as credible and reliable. It does not accept as reliable, the detailed account given by Mr Malcolm that his handling of the horse did not “in any way inflict undue suffering”.  He agreed that he had only breached the Welfare Standards by hitting the horse on the nose (he said in evidence it was in “controlled self‑defence”) and striking it in the belly.  But he claimed that the staff embellished the incident, “made it up” and that the kicking of the exhausted horse on the ground did not happen.

(f)  The Adjudicative Committee received the opinion evidence of Ms Wilson, a very experienced Class B Thoroughbred Trainer and Specialist in “starting” (breaking in) and retraining horses. She said if a horse has been worked to exhaustion to the point that it lies down, that is wrong and a horse should never be exhausted.  If any horse is lying down with gear on, “you’ve mentally exhausted the horse, or you have physically done something to make that happen.  To me this is undue suffering, and it is not at all acceptable.”

(g)  The Adjudicative Committee accepts that opinion evidence.

(h)  Further, the Adjudicative Committee received the expert opinion evidence of Ms Mikhail (Head of RIB Veterinary Services) that there is very little tissue, muscle or fat between the skin and the bone in the facial region above the upper jaw and over the nose where a lot of important nerves run, just under the skin. So, to strike in the face must cause suffering.

(i)  The Adjudicative Committee is satisfied that from the totality of the evidence it accepts, that this charge is established and that punching to the face region of a horse must cause it pain. When that is added to some other causes, such as kicking in the belly, and working a horse to exhaustion so it falls down, the Adjudicative Committee is compelled to find the cumulative actions resulted in there being undue suffering.” As Witness No. 1 said, “You can hear the grunts [of the horse on the ground] in the video.  He’s exhausted and it’s so sad the noises he’s making.”

16.  Charge 2: Racing Offence March 2023 – Vanbrugh x Sugar Hit Colt

(a)  Witness No. 1: She said she was helping Mr Malcolm remove gear from this horse and it was head shy: “and was quite scared of him as he had kicked the horse in the stomach when he was putting the gear on earlier.

As we were ‘ungearing’ him, John reached up towards his head to grab the reins.

As he’s reached up by his head, he has put pressure on the side reins which caused the horse to panic, flip over backwards and whack its pole, or something on top of its head.

The horse hit his head on the floor so hard that he’s gone blind.

He was bleeding out of his nostrils and was walking into things.  You could wave your hand in front of his eyes and he wouldn’t blink.”

She said that Mr Malcolm told her not to tell his wife that this had happened, and to say that “we found him like this.”  Mr Malcolm denies that evidence.   Dr Quinn, a Vet was called on 8 March 2023 and the horse recovered.  Dr Quinn’s clinical notes record that the signs he saw when examining the horse included that, there was a bit of skin off, but this could mean some loss of hair and maybe shallow abrasions to the skin.    He also noted the forehead which generally would tend to mean between the eyes rather than on the side of the head.  Dr Quinn’s evidence was that he was “told” that the horse had been left unattended in the tie ups and was found to have bled from both nostrils.   He could not be sure who gave him the explanation, but he said that the signs he saw when examining the horse were consistent with a pole injury and a horse flipping over backwards.

(b)  Mr Malcolm’s detailed evidence was that he once kicked the horse in the belly to stop him from bucking and later, when ungearing the horse, it took “fright at me”, moving under his neck, the horse has panicked and tripped over backwards, hitting the back of his head. He denied that he said not to say what had happened and what he had done as Witness No. 1 alleged.  He denied “he directly caused the horse to flip over backwards” but “accepted that in kicking the horse in the belly”, he breached the Handling – NZTR Thoroughbred Assessment Standards.  The charge is proved.

17.  Charge 3: Serious Racing Offence – “Kirrawee” – Vanbrugh x Severa Colt. Jointly Charged with Mrs R Malcolm

(a)  Witness No. 1 was present with another staff employed (Witness No. 2) on 9 March 2023.

Both were close by the round pen which is boarded up so they cannot see into it when the entrance is closed.  They heard a commotion and loud noises coming from the pen as Mr Malcolm and his wife were working with a horse.  Mrs Malcolm was riding the horse and the witness heard whipping sounds with, one said, grunts being made such as when a horse is in pain.  Mr Malcolm was heard shouting at his wife to, “Hit it harder,” and she responded “No, I don’t want to.”  Mr Malcolm was heard to say, “F..k’s sake, I’ll do it then,” and referred to the horse as a “dirty dog”.  Thereafter whipping sounds were heard over a period of 10-15 minutes (one witness thought a little longer) and the horse was led from the pen by Mr Malcolm with multiple welt marks on its body, a very swollen eye and some abrasions on a foot.  Both witnesses said they were very upset.  Witness No. 2 took photographs of the horse and its condition, which were produced in evidence.

(b)  Ms Mikhail, a Registered Veterinarian since 2006 and head of the Veterinary Services at the RIB, evidence was then having viewed the photos, it appeared that the horse was “struck hard by an elongated object to cause the welts”. She said horses are able to perceive or feel things.  In her opinion, the (welts) injuries would cause the horse to feel pain and therefore suffering.  She expressed the opinion that although the term ‘undue suffering’ is subjective, beating a horse in order to get it to do what someone wants it to do, in this case, for breaking in, is a technique that the majority of people would not use.

One witness said Mrs Malcolm seemed quite upset.  The Adjudicative Committee received photographs of the horse taken later that day by the witness because she was upset at what she heard and saw.

(c)  When interviewed on 5 June 2024, Mr Malcolm first said he did not remember exactly what happened in March 2024, other than that Kirrawee “was a difficult horse”. When later shown the photos of the horse and its condition, and he was told of the staff saying he said to whip the horse harder, he said,

“I would imagine if he’s needed a bit more of a chase and I’ve chased him a bit longer.

I wouldn’t think that’d be 10 minutes, 10 minutes is a long period of time and I’d say he’s been a pretty hard work horse so gotten into him a bit and tried to sort of get the work into him and tried to wear him out probably is what we’ve done there.”

He said he may have used an alkathene pipe and “looking at that I must’ve hopped on him and given him a bit of a tune up while I was riding.

(d)  Mr Malcolm accepted he breached the Welfare Standards by whipping the horse to cause the welts depicted in the photographs.  He denies he caused undue suffering to the horse by the repeated whipping, and in its manner with an alkathene pipe.

(e)  All the evidence, photographic and otherwise, compels the Adjudicative Committee to reject Mr Malcolm’s denial. Of course, use of a race whip during a race, if within the permitted Rules, may cause short pain to the horse but such does not fall into the category of undue suffering.  Witness No. 1 described hearing the sound of “grunts” of the horse, which she said horses make when they are in pain.  It will always be a matter of degree, but where a horse is hit hard multiple times (Mr Malcolm said 16 times) with a hard alkathene plastic rubber pipe as to have welts over much of its left side, the pain it felt would have been very considerable.

He agreed that this was “definitely not” acceptable behaviour.  But when giving evidence, he resiled from his admission that he used an alkathene pipe.  He said he simply took from his wife the “stick she had in her hand” but could not use the pipe as a whip.  He accepts that he had caused the multiple welts on the horse “through whip use”.  Mrs Malcolm said that she confirmed her evidence given when her joint charge was earlier heard when she claimed she may have actually been riding with a padded whip.  But she, too, was resiling from what she told the Investigator, namely it was a black alkathene pipe which makes “more noise but … done more damage than a padded whip would have done.”

(f)  The Adjudicative Committee accepts that horses’ faces and nasal passages have pain receptors so striking a horse in the face can not only cause damage to nerves that are essential for the proper functioning of the facial muscles and senses but would also cause pain so, as per the Code of Welfare for Horses and Donkeys, horses must not be struck around their heads.”

(g)  The evidence which involved playing the lengthy recordings of interviews with Mr Malcolm in which he initially said he could not really remember exactly what had happened, but the horse was quite difficult were telling. He said the whip he normally used when riding was alkathene pipe.  He did not recall the horse having injuries at any time, but that he did “vaguely remember it hitting the outside wall of the yard, but that it had no other injuries.  Later in the interview transcript, when showing the photographs of the horse, the evidence of the exchange with Ms Fox was telling.

Question:      What do you believe would’ve caused those welts on the horse?

Answer:        I would say it looks like it just been whipped.  I’d say looking at those, it’s looking more like he’s been given a bit of a hit with the alkathene.

Question:      I know that you said you remember this horse, do you remember this incident that would have caused these injuries?

Answer:        I can’t, no.  I know that he was really difficult but I don’t remember those.

Question:      Is it normal for a horse that you’re working with to receive injuries like this?

Answer:        No.

Question:      Would you normally strike a horse to these three areas?

Answer:        No.  Normally if I’m riding, I’ll get them behind the saddle but not normally there.

Question:      As you can see, under the stomach and on there as well.

Answer:        Yeah.

Question:      This is a front on photo of the horse, this was taken at 4.04pm so about three hours after that original photo.  As you can see here, the horse’s left eye is swollen.  I’ll get you to explain that one to me.

Answer:        He’s got a swollen left eye, again he’s got the blue spray on the back leg.  I would say that the eye is probably when he’s run into the side of the round yard or something ??

Question:      I know you mentioned that with the other filly, is that a normal thing that they do?  Do they run into the side?

Answer:        Not normally.  I’d say maybe he’s had his leg tied up is what I’m thinking.

Question:      In terms of those photos that I showed you prior, would you consider that acceptable behaviour?

Answer:        No, I was just about to say I would probably say that I’ve dealt with it totally in the wrong way, looking at that.

Question:      Like you said, that’s not something that would normally occur?

Answer:

Question:      You obviously agree that in this situation that that’s not acceptable behaviour?

Answer:        No, definitely not.

(h)  The evidence of Mr Malcolm was detailed to the effect that Kirrawee was difficult and aggressive, dangerous and hitting the yard wall. He could not recall whether his wife was using the stick or alkathene pipe.  He said he would have struck the horse “approximately 16 times with a whip over a 10-to-15-minute period”.  He disputed that the horse suffered unduly, but he accepted that he caused the welts and breached the NZTR Thoroughbred Welfare Standards.

(i)  Mrs Malcolm stated that she confirmed the evidence she had given to the Adjudicative Committee when it found proved the (joint) charge against her. In her interview with the Investigator, she agreed she had seen Mr Malcolm hit the horse with an alkathene pipe to create the welts shown to her.  The Adjudicative Committee received in evidence, photos of the alkathene pipe that she held as she showed it to the Investigator.  Her attempts then, and now, to backtrack or recant from these frank admissions in order to minimise what happened were unimpressive.

(j)  Mr Jorgensen’s (the Australian Vet) evidence was that, viewing the photograph he “suspected” that this horse was regularly displaying welts following any whip use” and “I suspect the eye injury occurred due to blunt force/trauma most likely contact with the inner surface of the arena.” He expressed a view that it did not “appear [to me] that improper or undue suffering was inflicted on Kirrawee.”  The Adjudicative Committee regards that statement as advocacy and not acceptable expert opinion evidence and rejects it.

(k)  Other minor injuries to the horse’s fetlocks may likely have come from hitting the pen walls, but not the multiple welts inflicted by a hard plastic/rubber alkathene pipe. It is the Adjudicative Committee’s assessment, confirmed by the witnesses, that this caused undue suffering.

(l)  Whilst the incident in relation to Orua Belle (Charge No. 4) when emerging from the round pen displaying an eye injury, allegedly having been struck with an implement, may be a “similar fact”, the Adjudicative Committee does not need to decide exactly how Kirrawee’s eye injury was caused, as a Vet was not called, so no direct express opinion evidence could be considered.

(m)  But the Adjudicative Committee is sure that the welt injuries, inflicted by striking of 16 times over at least 10 minutes by the use of an alkathene pipe, caused undue suffering to Kirrawee and was (as Mr Malcolm conceded at the end of his interview), definitely not acceptable behaviour.

(n)  This charge is established well beyond the balance of probabilities.

18.  Charge 4: Breach of Welfare Standards – Orua Belle

(a)  The evidence of Witness No. 1 was that in April 2023 (in fact, it was on 30 March 2023), she observed the filly being taken into the round pen by Mr Malcolm without any injury. But when later taken out, the filly had an injury to her eye.  She said that Mr Malcolm then called a Vet.  When he arrived, Mr Malcolm lied to the Vet and said, “it had done it in its box or something”.

(b)  Dr Quinn’s clinical notes recorded that it was a traumatic injury to the eye without a cause being given. His opinion was that it was a very uncommon injury with the eyeball being full of blood requiring blunt trauma to the eye globe.  He described a unique previous case where a polo pony had been hit with a mallet.  His view was it was unlikely this injury to have been caused by the horse running into something like a stick.  He said that “it was more consistent with a what we’d call a blunt force injury, so something of a smooth structure, striking energy across the whole eyeball rather than a focal injury in one part of the eye.  The injury was consistent with blunt force as per the comparison case I had referred to regarding the polo pony.”

(c)  Witness No. 1 said she heard whipping sounds in the pen akin to the horse being struck with a whip or similar object. She said that Dr Quinn was called when Mr Malcolm came out of the pen with the horse having the eye injury.  She said that Mr Malcolm “straight up lied to the Vet and said that it had done it in its box or something.”  Dr Quinn’s evidence was that he was unable to recall any explanation other than “we found it like that”.

(d)  Mr Malcolm denied the charge. His evidence before the Adjudicative Committee was unsatisfactory and it regrettably considers it to be contrived, and that he had developed a scenario to match a speculative theory of Dr Jorgensen.  The latter postulated a theory that the eye injury may have been preexisting, but not visible.  So that later presence of blood in the eye chamber “could occur with an increase in blood pressure due to exercise.”  His belief, he said, was that it was extremely unlikely that the injury was caused by a whip or similar implement.

(e)  Mr Malcolm in his interview on 15 June 2024, said the horse was a lovely filly and the swollen eye, and some hock injuries had nothing to do with being ridden. He said it may have had its origins of being cast in a box.  His evidence to the Adjudicative Committee was that the horse came out of its paddock with a “slightly closed eye”.  So, he first rang the Vet, Dr Quinn, but then proceeded to work the filly in the arena before the Vet later turned up.  Witness No. 1’s evidence differed.  She said the horse entered the pen without any eye injury; came out with visible injury and it was then that Dr Quinn was called.  The Adjudicative Committee prefers her evidence, and it follows that Mr Malcolm’s version now advanced, was contrived in order to fit a scenario of preexisting injury aggravated by exercise, is rejected.

(f)  In any event, this charge of a breach of Welfare Standard (Standard No. 8) does not require “undue suffering”, but just that the horse must not be struck around the head.

(g)  Accepting the evidence of Witness No. 1, and Dr Quinn as to the head injury being likened to the other event of forceful striking by a mallet to a polo pony, together with the propensity evidence of former staff (as to a pattern of striking in the region of a head when angry), the Adjudicative Committee finds the charge of breach of the Welfare Standards proved.

19.  Charge 5: Racing Offence – Breach of Welfare Standards – Ocean Park x Bestlegsintown

(a)  Mr Malcolm accepted that he breached the Welfare Standards by punching this horse in the nose. He has sought to minimise this by denying the extend of force used.

(b)  Witness No. 3 described how she saw Mr Malcolm punch the filly “on the nose full force … 10 out of 10 strength”. Mr Malcolm admitted this strike, but claimed that it did not involve full force.

(c)  Witness No. 3 is a Licensed Trackwork Rider who said she has worked with horses in Racing Industries in UK, Ireland, Bahrain and Japan. She worked for Cheltenham Stables from 8 January 2024 for six months.  Her evidence relating to this charge was that in January 2024, she was holding this filly and she saw Mr Malcolm punch her “straight on the nose, full force like he was boxing”.  He said words like something along the lines of, “You want a bit like that?” and then punched her and said, “How do you like one of these?”  She said it was a 10 out of 10 punch and expressed an opinion that Mr Malcolm’s “got a demeanour of rage about him and you see it a lot”.

(d)  Mr Malcolm’s evidence was that the filly struck him with her head and his “instant reaction was to whack her.” He said he was not sure whether it was “with a slap or a closed fist”, being a split second “heat of the moment reaction”.  He said that he should not have done it but “it was not full force nor a punch like I was boxing and it was not a 10 out of 10 strike”.  He accepted that by hitting the filly on the nose, he breached the minimum welfare standard.

(e)  This charge is proved.

20.  Charge 6: Serious Racing Offence – Russian Revolution x Spirited Princess Gelding

(a)  Witness No. 4. Her evidence was that she is a licensed trackwork rider and knew Mrs Malcolm.  She came to work for Cheltenham Stables in September 2023.  Her evidence, relating to this charge, was that she was with Mr Malcolm when the horse was being long reined in the arena.  She said the horse was caused by Mr Malcolm to jump into the air and flip onto its back “at least 10 times to end up completely exhausted”.  She said that when she put the horse back in the paddock it fell over and she urged Mr Malcolm to get a vet because she said something was wrong with it.  Mr Malcolm called Witness No. 4 and Witness No. 3 to attend a meeting with him and his wife. The outcome of which she stated he said the words to the effect of, “We are not gonna call the vet as if he’s completely f…ed, we can claim insurance but if we call the vet and he survives but he’s still f…ed, we can’t.”  Her evidence was that she felt that because the horse would not stand up, it was wrong for a vet not to be called.

(b)  Witness No. 3’s evidence was to the effect that whilst she did not see the events, although heard the “commotion” Witness No. 4 told her that something was wrong with the horse “wobbling all over the place”. Her evidence was that Mr Malcolm said to the two witnesses, “Don’t say anything to the other girls, if the horse dies, we’ll claim insurance for it but keep it between yourselves because we don’t need anybody else going down there and seeing him because if he does die, keep it between us.”

She said that she later went to the paddock and the horse was standing but not “right” staggering about as though going to collapse.  The horse eventually recovered.

(c)  Mr Malcolm’s evidence was that this horse did not flip over “more than 10 times” but he could have fallen over. He said he does not recall a meeting in which he said a vet was not being called.  He said that if the horse had needed vet treatment, he would have received it, but he did not.

(d)  Mr Malcolm’s evidence was that the reason a Vet was not to be called was because Mr Malcolm considered it not necessary, and the issue of insurance had nothing to do with it.

(e)  The “calling of the Vet” issue is not pertinent to whether undue suffering was inflicted. “Suffering” means physical or mental pain that an animal is feeling.  If a horse is worked to such a degree that it became severely exhausted so as to fall over several times and to thereafter exhibit signs of collapse, in the Adjudicative Committee’s view, it has suffered a significant degree of mental and physical distress.  Although the horse recovered, the physical and mental distress which the evidence establishes it suffered, was excessive, unwarranted and in the Adjudicative Committee’s view, more than was acceptable or reasonable.  A horse may of course fall over in the course of being trained or educated but where it is to the extent and degree of distress that followed in this case, undue suffering resulted.

(f)  The Adjudicative Committee finds this charge to have been proved to the required standard.

21.  Charge 7: Racing Offence – Solar Flight – Breach of Welfare Standards

(a)  Witness No. 3’s evidence was that in February/March 2024 she witnessed Ms Malcolm riding this filly pulling and yanking with the reins on its mouth so hard “it was horrendous” and I “honestly thought he was going to break its jaw or pull its teeth out”. After he got off the horse, he did it again, so badly, that he flipped the horse over.  She later went to the stable to check the filly and “her face was so swollen” with “her mouth blown up to the point we could not get a bit in her mouth.”

(b)  Mr Malcolm’s evidence was that, “This filly was difficult on that day but he never yanked on its mouth although recalled she had a very sensitive mouth.” He said he never pulled or yanked on the reins excessively or in an unnecessary manner so as to cause the horse to flip over backwards when on the ground or any other time.  He said none of what Witness No. 3 said ever happened.  He said that she “was lying” and others were exaggerating, being referred to as “pony clubbers”.  This witness was unshaken in cross examination, and has had 22 years’ experience working with horses in UK, Ireland, Bahrain and Japan.  She impressed the Adjudicative Committee as a careful, honest witness and it does not accept the claim by Mr Malcolm that she was falsifying when giving evidence.

(c)  Welfare Standards (Section 6 Handling) require that a thoroughbred must (clause 6.1.3) “be handled and trained at all times in such a way as to minimise the risk of pain, injury or distress”.

(d)  Accepting, as it does, the clear evidence of Witness No. 3, the Adjudicative Committee has no doubt that what occurred did not “minimise” – indeed it heightened, the risk of pain or distress. This charge is proved to the required standard.

22.  Charge 8: Racing Offence – Magic Dreams – Breach of Welfare Standards – Depriving of Food and Water

(a)  Witness No.’s 3, 4 and 5 presented evidence (and Witness No. 11 made a signed statement, but because of health issues was not able to be present for questioning). The essence of the witness’ evidence was that on a day in March 2024, this filly was proving difficult to the farrier and Mr Malcolm became “really angry with it” and put it alone in a cattle yard which had weeds, blackberry bushes and a bucket of old water which was black.  Their evidence was that Mr Malcolm said, “Leave her in there with no water and don’t feed her,” to, “teach her a lesson.”

(b)  Witness No. 3 said that she thought Mr Malcolm did that, “To teach her a lesson by taking her away from the other fillies she was with [his] instruction was not to give her any feed or water.” It was put to her in cross examination that she was lying about the motivation of Mr Malcolm to which she responded, “I have absolutely no reason to lie.”

(c)  Expert witness for the Informant expressed the opinion that to deprive a horse of water and feed was improper.

(d)  Mr Malcolm denied the allegation and said he only instructed the staff not to give the filly (hard food). He denied that the state of the pen was as bad as the witness said.

(e)  Although the Adjudicative Committee accepts the evidence of staff that Mr Malcolm instructed them to “leave the filly in the cattle yard no water and don’t feed her”, the fact is that the staff disobeyed his instructions.  Witness No. 3 provided hay and fresh water later in the day.

(f)  So, despite Mr Malcolm’s action pointing to an intent to breach the Welfare Standards (Nutritional Guidelines), it never in fact happened. That was only because of the commendable actions of staff.  Likewise, when he later, the following day, told staff that the horse was to remain in the yard without food and water for the weekend, Witness No. 4 objected and that did not occur.

(g)  The Adjudicative Committee concludes that someone cannot be found responsible for an event that did not happen even though the wish or intent was that it occur.

(h)  It follows that this charge has not been established and is dismissed.

23.  Charge 9: Serious Racing Offence – Inflicted undue suffering on Capitalist x Thames Court Filly

(a)  The Informant’s evidence was from Witness No. 3 and Witness No. 4. Witness No. 3 observed that the filly, when in the round pen, was proving difficult for Mrs Malcolm in long reining.  So, she called for her husband to help.  They were in the round pen together and after he arrived, he spoke abusively to his wife.  Then the witness heard sounds consistent with excessive slapping with the long reins and of a lunge whip or similar in the sustained force being used on the horse.  After about 10 minutes, Witness No. 3 was able to look into the round pen and saw the horse on the ground with Mr Malcolm standing over it.

(b)  Thereafter Witness No. 3, together with Witness No. 4, saw the horse being led to the wash bays being covered in welts on its body.  There was bleeding on its face.  Both witnesses described the condition of the filly as having welts “literally everywhere … the top part of the neck, crest, shoulders, flanks, rump, thighs, legs were cut, cut in the face … the horse was in a bad way, dripping with sweat and exhausted”.  (Witness No. 3) and “welts from head to toe, bleeding on her face, welts that were even bleeding on her body, all over her and just completely exhausted” (Witness No. 4), although not bleeding from the nose, but from the mouth.

(c)  Witness No. 3 said that in her experience of 22 years in the horse industry, this was the worst “treatment and injuries caused from this process she had ever seen”.

(d)  In Mr Malcolm’s evidence, he denied that there were any incidents where welts from head to toe, or cuts to the legs and face resulted.  He said he had been called to help so to “prevent the filly injuring herself” (he intimated he “understood she had thrown herself on the ground a couple of times”) so would “prevent the filly from injuring herself”.  He said he picked up the lunge whip and “would flick her around the back legs making a “cracking noise” and it did not take more than 5 or 10 minutes.

(e)  Mrs Malcolm said that the horse was not being beaten. She said it was crashing against the wall.  She said her husband never did anything to harm the horse and there were no welts or cuts on the horse’s body.  She said that Witness No. 3 had made it up or imagined something and must have mistaken the sand on the horse’s body being welts.

(f)  It was put in cross examination to Witness No. 3 that she had exaggerated in her evidence which was “not true” and her response was “No, 100% true”. Mr Malcolm said he recalled the day of 26 March 2024 when he “assisted my wife for 5-10 minutes by using a lunge whip in the proper way and sand marks on the horse’s body may have led to the staff mistaking them for welts.  He said they had “made up” their evidence by 100%.

(g)  The Adjudicative Committee accepts as truthful and reliable the evidence of Witness No. 3 which gained some support from Witness No. 4. The reference to Mrs Malcolm later saying, apparently to justify her husband’s actions, “She really needed that because she was really awful to deal with” carried a ring of truth.  Neither Witnesses 3 nor 4 had any reason to concoct their evidence.

(h)  There exists some similarity to Mr Malcolm’s treatment of Kirrawee, (Charge No. 3) in April 2023, as described by a different staff member.

(i)  The Adjudicative Committee rejects the claims in their evidence of Mr and Mr Malcolm.

(j)  There is no doubt that the identified injuries will have caused undue suffering to the horse.

(k)  This charge has been proved to the required standard.

24.  Charge 10: Breach of Welfare Standards (Between March and May 2024) – You Bet x Kakasisisi Filly

(a)  Mr Malcolm admits this charge involving punching the horse in the nose, although he denies using such force as to cause the nose to bleed.

(b)  Witness No. 4 said that in about March/April 2024 she was with Mr Malcolm, attempting to gear this filly which was not letting him put the bridle on. So, he “punched her square on the nose so hard its nose bled”.  She remembered him saying, “F…en hell, that was a good punch to make its nose bleed.”

(c)  Mr Malcolm’s evidence was that the filly bit him and “in the heat of the moment, hit the horse as an instant reaction.” The horse’s nose did not bleed, and he had never hit a horse on the nose causing it to bleed.  He acknowledged that he had breached a minimum standard of the Welfare Code.

(d)  This charge is proved.

25.  Charge 11: Racing Offence – Breach of Welfare Standards by chasing fillies whilst on a quad bike to a state of exhaustion

(a)  The only issue is whether Mr Malcolm, by his actions, caused a state of exhaustion.

(b)  Witness No. 4’s evidence was that in March/April 2024, she and Mr Malcolm were working two fillies, and both had run away in a paddock. (Mr Malcolm’s evidence was that he only chased one filly).  Whether it was one or two fillies, it is very probable that very young and confused horses can become frightened when chased and ran around the paddock for several minutes, being unable to be caught.  Witness No. 4 said that Mr Malcolm utterly exhausted “the horse (she said two of them) and ran them until they could no more.    She said:

“When I saw John, I could tell that he was very angry.  She said he got on a quad bike and drove into the paddock and drove very quickly around the paddock in laps and laps and laps chasing this horse which had gear on, so it was restricted.  It went on for a good five minutes.

The filly was absolutely terrified.  She was just running for her life, pretty much, but she was quite restricted with the gear on.

The filly continued to run until she was too tired to run away so she stood in the corner of the paddock absolutely defeated.”

(c)  Mr Malcolm’s evidence was to the effect that they had tried for some time to catch one of the two horses so he had got his quad bike to separate one horse from its mate. It “Maybe ran the equivalent to 2 or 3 laps of the paddock with me keeping the motorbike between her and her mate. The horse’s body language then changed and at this point I stopped the motorbike.  The horse turned and faced me, I hopped off and walked over and clipped the rope on.”  He said that “the horse was not exhausted or stressed.”

(d)  The Adjudicative Committee accepts Witness No. 4’s evidence that at least one filly was reduced to a state of exhaustion by being chased for a significant period by the quad bike. It comprised a breach of Welfare Standards and the Adjudicative Committee finds the charge to be proved.

26.  Charge 12: Breach of Welfare Standards by striking the lead pony “Joe” between the ears with the metal end of the lead rope and kicking the horse in the stomach

(a)  Witness No 3’s evidence was that in June 2024, she observed Mr Malcolm, when riding “Joe” the lead pony, became frustrated because it would not stop, as he wanted it to do. So, after saying, “Stop, f…ing stop you piece of s..t, you f…ing dog,” she said that Mr Malcolm had the lead rope in his hand and “turned it around so that the metal clip was at the end”.  She said, “He grabbed Joe short by the reins, drew back and went bang straight between the ears with the lead rope.”  She said that Mrs Malcolm, who was present, was shocked and said, “That was a bit much,” to which Mr Malcolm responded, “He’s a f…en dog, he’s wrecked.”  She said he didn’t hit him again after that, but he continued to rip the horse around by the reins and that he kicked the horse and further said, “I’m sick of this c..t, he’s not to get any feed anymore, he’s going on a hay diet.”

(b)  Mr Malcolm’s evidence was that he denied kicking the horse and striking with the metal end of the lead rope was “accidental”. He said Joe was proving difficult by not standing and as he had the lead rope in his hand, “Without thinking I have slapped him on the crest of the neck.  Unfortunately, I had the buckle end of the rope, and it has swung up and hit him on the top of the neck just behind his offside ear.  I felt sick for this, but it was an accident.  I did not intentionally hit him with the buckle end.”  He said he never kicked the horse in the stomach.

(c)  Mrs Malcolm in her evidence, was that she considered that the strike with the clip end was an accident.

(d)  Mr Malcolm, although denying kicking the horse, accepts that he struck it with the lead rope. The metal clip on the rope hit the horse.  Whether by accident or not, he said he hit it on “the neck”.  The Adjudicative Committee accepts the evidence of Witness No. 3 that the strike was on the head “between the ears”. Mrs Malcolm saw it and said, “That was a bit much.”  Witness No. 3 was not shaken in cross examination and adamant that “it was deliberate”.

(e)  Whether use of the metal clip end was deliberate or not, the act of hitting the horse on the head was deliberate and because of anger. As Mr Malcolm said, he was “sick of this c..t”.

(f)  The breach of the Welfare Standards by hitting the horse on the head with the lead rope, when angry, is proved.

27.  Charge 13: – Breach of Welfare Breach Standards in relation to Swiss Ace x Simplicity

(a)  This charge was that Mr Malcolm breached Welfare Standards by chasing the horse, driving his utility motor vehicle around the training track and striking it with his vehicle.

(b)  Witness No. 4’s statement, (not the subject cross examination) was to the effect that on this occasion, she saw a horse running on the track and she saw Mr Malcolm “drive (his vehicle) fast onto the track, skidding around the corner”. She said he continued to drive extremely fast around the track, to the point he was drifting the car around the corners on the track.

She said that she was the only one that saw it because of the view from where she was standing at the barriers.  She said that the horse did two or three laps of the track flat out with John chasing it in his ute.

“The incident that I saw happened on the last lap of the track.

“John came around the corner in the ute, I was looking up the race, the horse came around past me, then about halfway up the track, when the horse was between the fence and his ute, John veered into the horse and tried to stop it.

The horse then scrambled up on the fence and the ute after being pushed into the fence.

It was the driver’s side of the ute when it happened.”

She said that the horse was absolutely exhausted and distressed.

(c)  There was no other person who was an eye witness to the actual event. Another witness said that, “We just heard a load of shouting and he shouted, “I’m gonna mow that c..t down,” and when getting into his vehicle, Mrs Malcolm shouted at him to try and stop him but he just drove off after this horse.

(d) Mr Malcolm provided a different reason for the horse coming into contact with the side of the vehicle. He said that he had stopped the ute on the track, was not in it whilst waiting for the horse to finish a third lap and the horse itself went between the vehicle and inside fence, so as to contact the ute and sustain minor injuries.

(e)  It may be that a breach of the Welfare Standard relating to not working a horse to a state of exhaustion was breached, by the act of chasing the horse in a vehicle. But the only eye witness to the entire event was not able to be questioned by Counsel for Mr Malcolm or the Adjudicative Committee. Given the two conflicting versions of her and Mr Malcolm, the Adjudicative Committee was unable to be satisfied to the required standard that this charge has been proved.  It is dismissed.

28.  Conclusion

(a)  For the foregoing reasons, the Adjudicative Committee finds as proved the Serious Racing Offence Charges No. 1, 3, 6, 9 and the Breach of Welfare Standards Charges No. 2, 4, 5, 7, 10, 11, 12. The Adjudicative Committee dismisses charges No. 8 and 13.

(b)  Please could Counsel for the Informant provide written submissions as to penalty within 7 days of the date of this Decision (if possible) with Counsel for the Respondent to file his submission as to penalty within a further 7 days.

(c)  Could Counsel for the parties confer and advise the Adjudicative Committee whether they wish the penalty issue to be dealt with after a face‑to-face hearing or on the papers. The matter should if possible, be concluded by the end of February 2025.