Evidence Unveiled at VCAT Cobalt Appeal: Racing.Com 8/1/16

By: Andrew Eddy

There were so many folders containing past evidence in the long-running case, the legal representatives on day 1 of the cobalt appeal of trainers Danny O’Brien and Mark Kavanagh felt they had no alternative but to regret the fallen forests.

But this was one of just a few statements of agreed facts at the opening of the trainers’ appeals against potentially career-ending disqualifications in the Victorian Civil Administrative Tribunal.

The applicants found trouble with much of the Racing Victoria stewards’ case, won earlier in the year at the Racing Appeals and Disciplinary Board, from the process of drug sample screening to the accreditation worthiness of those laboratories who screened them, to who knew what, and when.

Danny O’Brien was disqualified for four years and Kavanagh for three years at the RAD Board for administering, or causing to be administered, prohibited substance cobalt.

Their vet, Dr Tom Brennan, who the trainers blamed for giving them vitamin drips that they did not know contained cobalt, withdrew his appeal against a five-year disqualification, citing the spiralling costs of his defence.

Damian Sheales, representing the trainers, told VCAT president Justice Greg Garde on Monday that the trouble began when Racing Victoria failed to properly do its homework on cobalt back in 2014, adding that RV’s chief veterinary Dr Brian Stewart ‘effectively mislead the public’ and ‘created this storm’ by initially presenting incorrect information about cobalt.

Sheales said Racing Victoria had simply ’jumped the gun’ by bringing in cobalt penalties in April, 2014 ‘with no science’ undertaken. He said it was prudent to note that Racing Australia waited until January 2015 to introduce nationwide cobalt rules.

“What Racing Victoria has really done is fire an arrow and then walk up to the tree and paint a bullseye around where ever it landed,” Sheales told the tribunal.

Sheales gave the hearing’s first witness, Dion Villella, a tough time on the stand as he went through the processes adopted to have the cobalt samples tested. He took the stand in the absence of chief steward Terry Bailey, who left the hearing with other future witnesses as he is expected to be called to give evidence over the next few days along with Racing Victoria’s chief vet Dr Brian Stewart.

Villella, who is now Racing Victoria’s manager of the Compliance Assurance Team, ultimately agreed that some of the processes did not accurately follow the guidelines and that the two laboratories entrusted with the testing for cobalt, were not specifically accredited to do so at the time.

After a heated grilling from Sheales, Villella also agreed that Western Australian laboratory ChemCentre failed to notify stewards of their findings. Rather, they informed the Racing Analytical Services Limited, which passed on the information to stewards. There was then a failure to notify the horse trainer of the result under the guidelines for therapeutic drugs.

Racing Victoria has denied that either Terry Bailey or Dr Brian Stewart knew that the laboratories in WA and in Hong Kong were not accredited to test for cobalt.

There was no dispute between the parties on one crucial point of the case – that the prohibited substance cobalt was found in excess in one of Kavanagh’s horses and four horses trained by O’Brien.

Earlier Jeff Gleeson QC, representing Racing Victoria stewards accused Kavanagh and O’Brien of ‘willful blindness’ in their dealings with banned veterinary Dr Brennan in that ‘they refrained from making an inquiry in fear that they may hear the truth’.

The hearing is listed to run for nine days and continues at 10am on Tuesday.