Cobalt guilty findings no help for Victorian trainers : Sydney Morning Herald 9/1/15

By Patrick Bartley

In an unprecedented move on Monday, Racing NSW Stewards released a 36-page document detailing the reasons behind the guilty findings in the long- running Sam Kavanagh Midsummer Sun cobalt inquiry.

In this inquiry Kavanagh and five other individuals faced 54 separate charges and were found guilty on 51 charges. The publication of the reasons behind the guilty findings is likely to foreshadow lengthy bans from the sport of kings for the six individuals found guilty.

From the outset this inquiry had a different flavour when Racing NSW chief executive Peter V’Landys appointed retired judge Keith Mason, QC, as co-chairman together with chief stipe Ray Murrihy. Mr Mason is a former president of the NSW Court of Appeal, the highest civil court in the state.

Some believe the appointment of this judicial luminary was a clear indication of just how serious Racing NSW was taking the threat of cobalt doping.

It could also mean any legal challenge to the stewards’ findings and penalties through the appeals court process might prove difficult as no doubt this panel with Mr Mason’s guidance have dotted the i’s and crossed every t.

Certainly, the 36-page document stating the reasons for the guilty findings is littered with legalese and references to legal precedent.

The NSW stewards panel findings are:

Sam Kavanagh (trainer) – guilty of 23 of 24 charges.

Dr Tom Brennan (Flemington Equine Clinic) – guilty of all 12 charges.

Aaron Corby (Flemington Equine Clinic manager) – guilty of one of two charges.

John Camilleri (harness racing identity) – guilty of six of seven charges.

Mitchell Butterfield (disqualified harness trainer) – guilty of all five charges.

Michael O’Loughlin (stablehand) – guilty of all four charges.

The hearing on penalties for the six individuals has been set down for September 10.

In Victoria, leading trainers Peter Moody, Mark Kavanagh, Danny O’Brien, Lee and Shannon Hope are all set to face Victoria’s Racing Appeals and Disciplinary Board later this year after their horses returned elevated cobalt levels.

The “written reasons” document released by NSW stewards is unlikely to provide any relief or solace to the Victorian five, as many of the explanations, arguments or excuses about cobalt elevations have been answered and rebutted by NSW stewards.

This is significant because although Sam Kavanagh was charged in NSW and the Victorian trainers face Racing Victoria charges – all are charged with breaches of the Australian Rules of Racing. So it’s hard to believe that reasoning adopted or endorsed by such a legal authority as Keith Mason will be ignored in Victoria.

Specifically the NSW stewards found that cobalt is a prohibited substance. This is significant as it had been argued that the bulk of the existing research data on cobalt was in humans and laboratory rats and did not apply to horses.

The stewards rejected this argument and found that, in the absence of horse research, it was acceptable to extrapolate across species and categorise a drug on the basis of how it affects other species.

The stewards found that to ignore this principle and require horse testing to categorise a drug would undermine the integrity of racing, and that this integrity was fundamental to punters believing there is a level playing field.

The NSW stewards also addressed the notion that Sam Kavanagh and Tom Brennan did not know that a “vitamin mix” contained concentrated cobalt. At the centre of Kavanagh’s case has been a “vitamin mix” allegedly supplied by Brennan that was found to contain 175 times the concentration of cobalt normally found in registered veterinary vitamin products.

The written reasons referenced a judgment by a full bench of the WA Supreme Court in a racing appeal. The four WA judges agreed there was a need to impose stringent controls on those participating in racing, to maintain the integrity of racing and also to maintain public confidence in racing.

The WA Supreme Court found that the privilege of participating in racing could well be taken from a trainer if for any reason, even without actual fault on their part, they presented a doped horse for racing.

This is essentially saying the onus to present a horse at the races drug-free is the trainer’s responsibility and theirs alone and ignorance is no excuse.