Frustrating Day at VCAT Cobalt Appeal: Racing.Com 10/10/16

By: Andrew Eddy

The cobalt appeal of trainers Danny O’Brien and Mark Kavanagh reached its 20th day and the obvious frustration of the drawn-out proceedings were laid bare in Monday’s hearing, which was marked by angry exchanges, objections and accusations.

Jeff Gleeson, SC, counsel for Racing Victoria stewards, spent the entire day questioning O’Brien over telephone calls made and received at about the time of him being informed of his cobalt positives in January last year and of his knowledge of the contents of the drips given his horses by Dr Tom Brennan.

Damian Sheales, for the trainers, complained to VCAT president Justice Greg Garde that Gleeson’s questioning was either irrelevant or transgressed the lines of fairness.

“We’re going around in circles. It’s Groundhog day,” he told the tribunal.

In the afternoon session, Sheales continued his attack of the prosecution case, which he described as ‘a train wreck’.

The venom of the counsel’s exchanges even reached the witness stand where, at one point when asked for how many minutes he had spoken to Sam Kavanagh, O’Brien shot back to Gleeson: “Is this a maths test? Do you want me to get my calculator out?”

Sheales informed Justice Garde that his client was being a ‘smart alec’ and requested O’Brien desist.

Sheales had earlier accused Gleeson of not quoting fairly or accurately from the transcript when putting a question to O’Brien concerning his payment of $3000 to Dr Tom Brennan from his personal account for the drips.

“That’s a false and desperate premise from a prosecution that is falling apart,” he said before adding: ‘’Their case is schizophrenic.”

Gleeson then sought to register a concern about the ‘performance of Mr Sheales who has made three personal attacks that are gratuitous and insulting’.

Justice Garde tried to calm the storm by pointing out that there was no value for either side to be engaged in a slanging match. He said the appeal had been ‘difficult and frustrating’ but directed the counsels to their ethical responsibilities.

O’Brien told the tribunal that at the current rate of proceedings, he and Kavanagh could be up for as much as $75,000 simply for the hearing to go ahead. He said the appeal, which comes as a $2500 daily cost, might go 30 days.

But there was some light at the end of the tunnel at the end of the day, with Gleeson telling Justice Garde that he is likely to require O’Brien to stay on the stand for the morning session only when the appeal continues on Friday.

Mark Kavanagh will follow O’Brien on the stand. The appeal is booked in for four more days with the final two days scheduled either side of VRC Oaks day.