Non Raceday Inquiry – Written Reserved Decision dated 5 February 2024 – Tracey Healy

[1]  BACKGROUND:

Information No. A16921 alleges that, on 26 July 2023 at West Melton, “when conducting an Animal Welfare Audit at the training premises of the Respondent, Tracey Anne Healy, Harness Trainer, Stewards located in the stable 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 HRNZ Rules”.

An Authority to Charge, signed by Mr Mike Clement, Chief Executive of the Racing Integrity Board, authorising the filing of the Information was produced to the Adjudicative Committee.

[2]  THE RULE:

The Rule provide as follows:

1001 (1) Every person commits a serious racing offence within the meaning of these Rules who, in New Zealand or in any other country:-
(r) (ii) at any time has in their possession any gear, equipment or device that has been modified in a manner which may cause pain, injury or distress to a horse.

[3]  EVIDENCE OF THE APPLICANT:

[1] Evidence of Nicholas Mark Ydgren

The following brief of evidence was produced. It was agreed by Counsel for the parties that it could be taken as read:

1. I, Nicholas Mark Ydgren of Christchurch, am employed by the Racing Integrity Board (RIB) as the Director of Animal Welfare based in Christchurch.

2. I have also been appointed under the New Zealand Rules of Harness Racing (“the Rules”) as a Steward since 2005.

3. Part of my role as the Director of Animal Welfare is to conduct and manage stable and kennel audits nationwide under the Rules.

4. On Wednesday 26 July 2023, I led an audit team comprising of Steward, Paul Williams, and RIB Head of Veterinary Services, Amira Mikhail, to 335 Sandy Knolls Road, West Melton, the registered training address of licensed Harness Racing New Zealand (HRNZ) trainers Terry Neale, Sue Blake and Tracey Healy.

5. The intention of the visit was to conduct a scheduled stable audit of Mr Neale’s training facilities. Ms Blake had been audited on a prior occasion.

6. At 09.30am, we arrived at the property where it became apparent that Mr Neale was not present.

7. I spoke with Mr Neale on the phone and he advised me that Peter Cook should be at the property and would be able to show us what we needed for the audit to be conducted.

8. Peter Cook is the partner of HRNZ licensed trainer, Sue Blake.

9. Mr Cook assisted and gave us access to the locked shed that Mr Neale and Ms Healy jointly use to store harness gear and medications connected to their training operation.

10. It was not easily distinguishable who was responsible for what area in the shed and issues were detected with some medication which was either expired or incorrectly labelled.

11. Mr Cook left the area soon after to tend to Ms Blake’s horses while the surrounding area was inspected.

12. In an open bay to the right of the gear room a whip was located.

13. The whip shaft appeared to be triangular which is unusual.

14. I took photographs of the whip (photographs produced).

15. Upon further inspection, it appeared as though a firm object had been taped to the length of the shaft making it very robust.

16. Mr Cook soon returned to the stabling area and was questioned regarding who was responsible for the area of the facility where the whip was located.

17. Mr Cook replied that the area was used by Tracey Healy and, when shown the whip, he indicated that it belonged to Ms Healy.

18. We completed Mr Neale’s audit and left the property, taking the modified whip as it is a breach of the rules to be in possession of a whip that has been modified in a manner which may cause pain to a horse.

19. I secured the whip in the exhibit storage area of the RIB office.

20. At 5.00pm I spoke to Mr Neale by phone to advise him of the audit findings.

21. He had no knowledge of the whip or its use, and stated that Ms Healy was responsible for the area of the stable where I described to him that the whip had been located.

22. At 11.16am the following day, I spoke with Ms Healy via telephone.

23. We first spoke briefly about the expired medications at her stable.

24. I then raised the subject of the whip and Ms Healy confirmed that it was hers.

25. She advised that the whip was modified some years ago to use on a young horse named BETTERWITHBLING which was very reluctant and therefore required some extra persuasion and encouragement.

26. She stated that she secured a length of wire to the whip with electrical tape.

27. Ms Healy also stated that she needed the whip returned to her and was keen for that to happen soon, as it was a good length.

28. I advised her that at some stage it might be appropriate to return her whip, but not in its current form.

29. I also advised her that the rules were clear regarding her ability to possess such an item and, accordingly, I would be referring the matter to the Investigative Team, who would contact her in due course.

30. I then made the Investigations Manager aware of the discovery and completed a job sheet with my actions.

Under cross-examination from Mr Jackson, Mr Ydgren confirmed that he was at the property on that day to conduct an audit of the property of Mr Neale. It was at Mr Neale’s request that Mr Cook opened the shed. The shed was locked and Mr Cook unlocked it, having been told by Mr Neale where the key was kept. The whip was not found in the shed.

The whip was located in a nearby bay. Mr Cook informed Mr Ydgren that the bay contained the Respondent’s belongings. Photographs of the whip were taken where it was, before uplifting it and taking it to Mr Cook to enquire whose whip it was. He did not speak to the Respondent until the following day, at which time she confirmed that the whip belonged to her.

[2] Evidence of Kylie Rochelle Williams

The following brief of evidence was produced. It was agreed by Counsel for the parties that it could be taken as read.

1. I, Kylie Rochelle Williams of Christchurch, am employed by the Racing Integrity Board (RIB) as a Racing Investigator.

2. I have been appointed under the New Zealand Rules of Harness Racing (“the Rules”) as a Racing Investigator since 2012.

3. I am also appointed as an Investigator under the Rules of NZ Thoroughbred Racing and NZ Greyhound Racing.

4. Part of my role as a Racing Investigator is to investigate matters under the Rules.

5. On 26 July 2023, I was informed by my manager of a modified whip found during a stable audit in West Melton. A job sheet completed by Nick Ydgren was forwarded to me for follow-up investigation.

6. At approximately 12.30pm on 28 July 2023, I attended the stables of Tracey Healy at 335 Sandy Knolls Road, West Melton with RIB Steward Shane Renault.

7. I conducted a recorded interview with Ms Healey. The interview was later transcribed (transcript produced).

8. I had received the whip from Nick Ydgren and had it with me during the interview.

9. In the presence of Ms Healy, I cut a section of the electrical tape from the shaft of the whip which exposed a metal wire which I photographed (photographs produced).

Mr Jackson cross-examined Mrs Williams at some length concerning the audit process and the process by which it was decided that a charge would be brought. He put it to Mrs Williams that she had said, early in her interview of the Respondent, that a charge would be brought following discovery of the state of the whip. She accepted that she may have said that, but any charge could only be brought after discussions with her employer. It was not her decision whether to charge, she said. Mrs Williams said that she was not involved in the audit process.

The Respondent was aware that the interview was being recorded. She was told that the recording would only be used in the event that the charge was defended.

Mr Jackson questioned Mrs Williams about the stable audit process. Mrs Williams said that she was not involved in the audit process and was not present at the audit of Mr Neale’s premises. She explained that, at any time, Investigators are permitted to enter a Trainer’s property without notice to inspect the property, equipment and horses. They have full access to any area on that training establishment. It was not a search of private property but, rather, of Licensed premises on which three individual Licensed Trainers were based. It was irrelevant that the Respondent had not been given notice of an audit, Mrs Williams said.

Mr Jackson then questioned Mrs Williams as to a discretion to charge. He asked whether a discretion was exercised. Mrs Williams said a discretion was exercised and that was to lay a charge. It was necessary to lay a charge, as the modified whip meant that a clear breach of the Rules had been committed. No consideration was given to an admonishment or warning as there had been a very serious breach of the Rules. An important element of animal welfare was involved. It was not relevant whether the Respondent had used the whip recently or not – the breach was having it in her possession. Mrs Williams was not aware that any charge or charges had been laid against Mr Neale as a result of the audit. She had not received any information as to the outcome of his audit.

Mrs Williams confirmed that the Rule was read to the Respondent following removal of the tape from the whip. She informed the Respondent that the whip having been modified, a charge would likely be laid.

[4]  EVIDENCE OF THE RESPONDENT:

The Respondent said that she had received an e-mail from Harness Racing New Zealand on 26 October 2023. It explained how to prepare for an audit following concern expressed by Trainers who had earlier been audited. The e-mail was accepted in evidence

The Respondent read into the record the following statement dated 27 October 2023, which had not been filed prior to the hearing:

1. At the time I talked to Mrs Williams, I did not realise that the statement was going to be used against me in proceedings. I was not aware that there already was an intention to lay a charge. Had I known that, I would have sought legal advice before speaking. I did not get that opportunity.

2. During the interview, I became aware that it was being recorded by Mrs Williams. I said at some point, once I had worked that out, “I know you are recording it”. In response I was told that the recording would not go anywhere, and that Mrs Williams was not going to do anything with it – that it was to protect me and to protect her, unless I defend the charge. I didn’t really know what she meant by that. I was not asked my permission to the statement being recorded and I was not asked if I was prepared to provide an evidential statement which would be used against me later in proceedings.

3. At no time did I receive any notice of the audit. I was aware, and Mrs Williams confirmed this with me that, when they are doing the audits, they give everyone a week’s notice. I believe there is a rule or regulation to that effect. I did not receive any notice of this audit and as far as I was aware it was not an audit of me or my area.

4. My area at Terry Neale’s premises was a locked shed. On the day of the audit Mr Cook, whose partner rents another shed, obtained the key to my shed and opened the door and let the auditors in. I did not authorise that entry.

5. By way of background, I initially leased that area alone, that being a 3×3 windowless shed with a lockable door, and Mr Neale used the neighbouring shed. I have leased that shed since 2019. At some stage, Mr Neale allowed Miss Blake to rent the shed they currently occupy. I note that it was rented by Sue Blake, not Sue Blake and Peter Cook. Peter Cook is simply Sue Blake’s partner. At that time, Mr Neale had some gear and he said he was just going to leave it outside, and I said there was room in the shed I was leasing, and he could put it there. There were some harnesses and other bits and pieces, and they were behind the door in my shed.

6. Mr Cook did not have my authority to open the shed and let people in there, and I had no idea there was an audit planned for that day.

7. That reference to Mr Neale’s facilities would include all of his property, which is some 30-40 acres with sheds and stables. As far as I was aware I was the person leasing the shed my gear was in. When I was not there, that shed was always locked. Mr Neale was simply using some of my space on his property.

8. In 2018, while working with a horse, I was knocked unconscious and found lying on the training track. I was hospitalised with a significant head injury which, had I laid on the track much longer, would have been fatal. I have no memory of what actually happened but, from reports, it appears that the horse must have raised its head quickly and caught me under the chin or under my head and knocked me out, with me then falling backwards onto the track.

9. After recovery and rehabilitation, I am diagnosed as no more than 70 percent of my original capacity. Prior to that I was a heavy transport truck operator and hoist operator in the transport/production environment. After the injury, I had headaches and significant fatigue for a long time. There are medical reports to demonstrate the extent of the injuries. I have not been able to work since that time, and my main occupation is looking after my horses and I otherwise live on the Government benefit/ACC in rental accommodation. I have very little in the way of spare money and I am struggling to be able to afford to defend these proceedings.

10. I have seen a letter from the [RIB’s] lawyer, Mr Dow, where he asks about an agreed summary of facts and points out that prosecutors frequently receive 60 percent of their legal costs if the charge is found proved. I think it is quite unfair that I should receive a message like that, because it is a deterrent in the sense that I am now fearful of arguing the fairness of my case because I am going to have to pay a percentage of the prosecutor’s costs. I knew about costs because my lawyer told me, but getting that message from the prosecutor feels like a threat. It feels like I am being told that, if I raise issues about fairness and breach of my rights, including right not to be randomly audited without notice and having my private area entered without permission from me and that causes the prosecutor to do extra work, then I will suffer for it. I can’t really even afford my own lawyer, but am being threatened with prosecutor’s costs just because I am trying to get fair treatment here. I can’t really even afford my own lawyer to defend it and this feels oppressive to me. I feel like I am being told that I shouldn’t defend it because I can’t afford it and it is a form of bullying – using the threat of costs to force me to just accept the charge and pay a fine. It isn’t fair.

11. I maintain that this prosecution is unfair and oppressive. I did not receive any notice of the audit and it was not an audit of me or my licence. I do not work for or with Mr Neale and his horses and the relevant area was a locked room in my possession and control – an area I rent/lease from Mr Neale. I then had a statement by me recorded without me being asked about or told that it was going to be recorded or was an evidential statement which would be used against me later on. Had I known that I was being audited and given proper notice, I would have sorted out my premises, been present at the audit, allowed access, made everything available and spoken freely to the auditors. I also would have had the opportunity to throw out any non-compliant gear in that room.

Mr Symon had the Respondent confirm that she had held a Licence from 1990-1994 and, more recently, from 2011 to the present time. She confirmed that she was, therefore, familiar with the Rules of Harness Racing, which apply to all Licensed Persons. She was not given notice of an impending search and was, therefore, surprised. She was awaiting the week’s notice of an upcoming audit and she could “clean up my stuff, go through it all”. She has always been asked for permission to enter on previous visits, and never without her being there. The Investigators were, on this occasion, given access to Mr Neale’s property, not to hers. She had no issue with where the offending whip was located, in an open area.

The Respondent confirmed that her first contact was from Mr Ydgren by telephone, at which time she confirmed that the whip was hers. Prior to that phone call, she would not have been aware that the whip had been taken. It was in plain sight in a crate of rubbish which needed “addressing”.

During the interview with Mrs Williams, she was not aware that a charge was likely to follow until halfway through that interview. The transcript of the interview is a fair record, except for a couple of errors but nothing of major importance.

She believed that the last time she had the whip was when she moved it to Mr Neale’s in 2019, and unloaded the truck after the shift. She placed it in the rubbish crate and forgot about it. It had not been used by her since it was used, once or twice, on the one horse. The horse was taken away when she got hurt. She admitted that the whip was hers.

Mr Jackson asked the Respondent to confirm that the crate in which the whip was found was the “rubbish crate”, the contents of which were destined for destruction.

Asked by the Adjudicative Committee, the Respondent said that she was not aware that Mr Neale’s property was to be audited. She was in Timaru on the day of the audit. She knew that audits were being carried out, but had no idea which Trainers were being audited. She had intended to “get her act together”, after she received her notice of audit. She had a lot of items to dispose of. The other Trainers on the property all knew the whereabouts of the key to the shed. She would have expected either Mr Neale or Ms Blake to ask her before entering the shed.

[5]  SUBMISSIONS OF THE PARTIES:

1. Mr Jackson, Counsel for the Respondent, submitted that the evidence against the Respondent was unfairly obtained as she was not put on notice of or told about the audit. It was not an audit of her stable and the seizure of the whip was the culmination of an unlawful search of her private property.

2. Mr Jackson referred to sections 21 and 6 of the New Zealand Bill of Rights Act;

21. Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

6. Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

3. He submitted that the matter should be determined as a search of the Respondent’s privately owned and held property. A search that lacks a lawful basis is a breach of the right to privacy. A search occurs where there is an activity which invades a reasonable expectation of privacy. The Respondent had a reasonable expectation of privacy which was breached by her property being investigated, and one piece of it being seized. Her right to privacy was breached, Mr Jackson submitted.

4. The Respondent should have received the benefit of the information from Harness Racing New Zealand to assist Trainers in preparation for audits and specific notice of an audit. She was denied the opportunity given to other Trainers to be on notice about the audit or to prepare for it.

5. The Respondent had a reasonable expectation as to notice of her audit which cannot be “swept away” by reference to a legislative provision that enables a search or inspection at any time. That provision must be construed in a manner consistent with section 21. A “blanket authority” to enter and inspect premises at any time. If such a blanket authority exists, it cannot defeat the operation of section 21 or the tort of breach of right to privacy and reasonable expectations.

6. Mr Jackson submitted that the evidence of the whip should, therefore, be excluded. He made reference to section 30 of the Evidence Act 2006 relating to improperly obtained evidence in criminal proceedings. He submitted that the present breach is “criminal in nature” and that this Committee was not a court. Section 30 can apply to the proceedings before the Committee.

7. He submitted that if section 30 does not apply directly, it applies as a codification of existing common law principles. The Committee has a common law residual discretion to exclude evidence on the ground of unfairness.

8. Mr Jackson then proceeded to address the specific section 30 factors:

Breach and intrusion – the Respondent had exclusive possession of a locked area as well as property nearby.

Nature of the impropriety – there was a significant impropriety in respect of the locked shed, less so for the open area.

Evidence obtained – the evidence was the modified whip. The rule makes its possession a serious matter but it is not a serious matter, being destined for burning.

Seriousness of offence – the whip was left lying around, unused for years.

Others – there were other avenues of investigation open that should have been pursued. The Respondent could have been advised of an audit and given the opportunity to dispose of the whip. There were elements of unfairness with the fact of the recording of the interview and the Respondent should have been afforded the opportunity to seek legal advice. Finally, there was no consideration of a warning or decision to invoke some form of informal resolution.

9. Mr Jackson submitted that the only effective remedy is exclusion of the evidence (the whip) and, in the absence of that evidence, the charge must be dismissed.

[6]  SUBMISSIONS OF THE INFORMANT:

1. Counsel for the Informant correctly pointed out the three issues involved:

(i) The Respondent was not put on notice about the audit and, therefore, was not given an opportunity to prepare for the audit;
(ii) The seizure of the whip culminated from an unlawful search of her lawful property; and
(iii) The interview conducted with the Respondent was unfair.

2. It was submitted that the Rules provide a complete answer to the issues raised by the Respondent. The elements of the charge are made out and the matters raised by the  Respondent do not provide a defence to the charge.

3. The Rules, contractual in nature, apply to and are binding on all Licensed Persons, including the Respondent. Rule 224 provides:

Racing Investigators shall have such powers and functions as provided by these Rules and such further power as may be reasonably necessary to enable them to carry out their functions under these Rules and to give effect to and implement these Rules.

The Rules of evidence in the Harness Racing jurisdiction are not governed by the Evidence Act 2006. Clause 17.1 of the Fifth Schedule to the Rules provides:

The Adjudicative Committee may receive as evidence any statement, document, information or material that would be inadmissible in a court of law if it is satisfied the evidence would assist it to deal justly, speedily and inexpensively with the matters before it.

4. Counsel then made reference to Rules 1704 and 223:

Powers of Stipendiary Stewards and Racing Investigators
1704 (1) Stipendiary Stewards and Racing Investigators have, in addition to all other powers conferred on them by these rules, the power to enter and inspect any property or premises of a participant at which a horse is located and inspect any horse, facility, plant, equipment, or means of horse transport for the purpose of investigating whether there has been a breach of any rule in this part of the Rules or the Horse Care Regulations.
(2) A participant must permit a Stipendiary Steward, Racing Investigator, and a veterinarian to have reasonable access to any property, racing premises, horse, facility, plant, equipment, or means of horse transport for the purposes of sub-rule (1).

223(1) Every Racing Investigator shall be entitled to enter upon the property of any licensed person and enter any building, room or place thereon used in connection with the training or breeding of horses when exercising their power under these Rules.

5. Notice of an inspection does not have to be given. Racing Investigators have developed a practice of giving notice to facilitate inspections but, it was submitted, this does not mean that notice has to be given to every Trainer based at a property, or that failure to give notice makes the inspection unlawful.

6. The fact that Investigators entered a jointly-used, locked shed on the property did not change the lawfulness of the inspection. The entry to the shed was authorised as that part of the property was used in connection with the training of horses – Rule 223(3). In any event, the whip was located in an open area of the property.

7. Counsel then made reference to the conduct of the interview with the Respondent. He submitted that the fact that she was not cautioned does not render her statement unlawfully obtained or inadmissible. Rule 226(2)(b) provides:

Every Racing Investigator may and shall have the power to question any person and require any person to supply any information within their knowledge or possession, or make a written declaration (statutory or otherwise) or statement, respecting any matter connected with harness racing or otherwise being investigated by him or her.

8. It is not accepted that there was any unfairness in the interview. The Respondent was advised by Mrs Williams that it was being recorded, which was standard practice. There is nothing about how the interview was conducted that would support the Respondent’s submission for the statement to be ruled inadmissible.

9. The Respondent raised, in submissions, issues of “prosecutorial discretion”. Such submissions are inappropriate, and the Committee should not take these into account. The decision to prosecute is not a matter for the Committee to consider.

10. There is no reason for the Committee to exclude the “relevant and cogent evidence”. There are two elements to the offence:

(i) The whip was modified in a manner which may cause pain, injury or distress to a horse. It was modified by the inclusion of a metal wire, by the Respondent’s admission, to give it greater effect on a horse with a thick coat.

(ii) The Respondent was in possession of the whip. It was located in a stable used by the Respondent, and she has admitted that she was in possession of it. The Informant does not need to prove use of the whip or any intention to use it. Reference was made to Rule 1008

In the absence of any express provision to the contrary in any proceeding for a breach of these Rules:-
(a) it shall not be necessary for the informant to prove that the defendant or any person intended to commit that or any breach of the Rule; and
(b) any breach of a Rule shall be considered as an offence of strict liability.

11. It is not a defence to claim the whip was modified several years earlier when the Rule was not in force. The Rule came into force in October 2018. The Code of Conduct requires a person to “read, understand, keep up to date, comply and uphold all applicable harness racing rules, regulations, directives and orders”. An advisory was sent to all Licenceholders expressing concern regarding similar gear found in stable inspections. There can be no suggestion that Industry participants were not on notice about the Rule or the seriousness with which it is taken by HRNZ.

12. Finally, the Informant submitted that the charge has been proved.

[7]  REASONS FOR DECISION:

1. The Respondent, Holder of Licence to Train, Tracey Anne Healy, is charged that, during the course of an audit inspection of another Licensed Trainer, Stewards located in the stable a modified, metal-lined whip wrapped in insulation tape, owned by her, gear which may cause pain, injury or distress to a horse in breach of rule 1001(1)(r)(ii) of New Zealand Rules of Harness Racing.

2. The Respondent denies the charge, but the essential facts are not in dispute.

3. The Respondent at that time shared the training property with two other Trainers, Terry Neale and Sue Blake.

4. The Respondent has admitted that the whip belonged to her, that she modified it and she has not disputed that the modified whip “may cause pain, injury or distress to a horse”. Those are the elements of the charge that the Informant is required to prove.

5. For the Respondent, a number of issues were raised:

(i) The evidence against the Respondent was unfairly obtained, as the Respondent did not receive notice of the audit, as it was not an audit of her stable property. The discovery of the offending whip was the result of an unlawful or unreasonable search of her private property. Counsel for the Respondent argued, at some length, the application of the New Zealand Bill of Rights Act.

(ii) The Respondent was not given notice of or informed about the audit. The RIB personnel were on the property to conduct an audit of another Trainer who shared the property with the Respondent.

(iii) The lack of the exercise of a discretion prior to bringing the charge or consideration of other possible avenues.

(iv) The propriety of the recorded interview by Racing Investigator, Kylie Williams, with the Respondent.

6. Counsel for the Informant, in submissions, submitted that the elements of the charge have been made out and that the matters raised on behalf of the Respondent do not provide a defence to the charge. It was submitted that the Rules are contractual in nature and apply to and are binding on all Licensed Persons. In consideration of being granted a Licence, and being allowed the privileges that brings, the Licenceholder agrees to be bound by the Rules.

7. In particular, Rules 224, 1704(1) & (2) and 223(1), which are set out in full earlier in this Decision, have application. In essence, those Rules give Racing Investigators/ Stipendiary Stewards wide-ranging powers necessary to enable them to carry out their functions under the Rules, and the Respondent is deemed to have accepted their right to do so.

8. Rule 223(3) of New Zealand Rules of Harness Racing empowers Racing Investigators to enter upon the property of any Licensed Person and enter any building, room or place in connection with the training or breeding of horses when exercising their powers under the Rules.

9. Accepting that there had been a “search” of the Respondent’s property, section 21 of the New Zealand Bill of Rights Act 1990 applies if the search or seizure was “unreasonable”. If the search was unreasonable, the evidence obtained – that is to say, the whip – may be excluded (section 30 Evidence Act 2006). There is nothing in the evidence before this Adjudicative Committee that supports the Respondent’s contention that the search or seizure was unreasonable.

10. The modified whip was found in an open bay near to the gear room in the course of a scheduled stable audit of another Trainer, Mr Neale, with whom the Respondent shared the property. Investigators were informed, by the partner of another Trainer using the property, that the area was used by the Respondent, and that the whip belonged to the Respondent. The shaft of the whip was described as “triangular” and “unusual”, and was bound in electrical tape which, when later removed, exposed a metal wire.

11. The Adjudicative Committee finds that, notwithstanding the fact that the Respondent was not given notice of the visit, the Stewards/Investigators were acting within the powers conferred on them by those Rules to be present on the property and to seize the modified whip in the possession of and owned by the Respondent. The Respondent is deemed to have consented to the search as a condition of the issue of a Licence to her by Harness Racing New Zealand.

12. The subsequent interview was not unfair or a breach of the Respondent’s rights under the Bill of Rights Act, and the Adjudicative Committee finds that it is not inadmissible. In any event, the subject matter and contents of the interview were not determining factors in proving the charge.

13. The exercise of a discretion to charge or not to charge, as the Informant quite correctly submitted, is not a matter for this Adjudicative Committee to consider. The Adjudicative Committee adds, there is no evidence before it of any predetermination or improper purpose.

14. It is not incumbent on the Informant to prove that the Respondent had used the whip, or intended to use it, nor is it relevant that the Respondent intended to dispose of it. Neither does it assist the Respondent that the whip was modified prior to Rule 1001(1)(r)(ii) coming into force.

15. For the reasons given, the evidence of the modified whip in the Respondent’s possession is not excluded.

16. The Adjudicative Committee is satisfied that:

(i) The Respondent had in her possession the whip which had been modified by a metal wire being taped to its shaft; and
(ii) The whip had been modified in a manner which may cause pain, injury or distress to a horse.

17. The charge is found proved accordingly.

[8]  PENALTY AND COSTS:

The Informant is required to file written submissions as to penalty and costs within 7 days of the date of this Decision. The Respondent shall file submissions in response within 7 days of receipt of the Informant’s submissions.