Cobalt hearings – Time for the law

By Natalie Hickey, December 9, 2015

When contemplating sporting integrity issues in 2015, the television show Hogan’s Heroes comes to mind. Set in fictional German prisoner of war camp Stalag 13 during World War II, the 1970s show had the improbable premise of allied POWs using the camp as a base for espionage and sabotage operations. Adding to the farce was the bumbling Sergeant Schultz, supposed to oversee the ‘prisoners’, but prepared to overlook much of their activities. Each episode, viewers would wait for him to deliver the line: ‘I see nothing – – NOTHING!’

The ‘I see nothing’ defence has been deployed in a variety of ways in the sporting community this year. Perhaps its use has been justified, but the term has felt ever-present. Whether it be those expressing shock at incontrovertible evidence of live-baiting in greyhound racing disclosed on the ABC’s Four Corners Program, or 34 players at Essendon Football Club who knew they were injected with supplements but cannot say with what, now we have horses testing positive with cobalt exceeding the threshold and trainers unable to explain how this occurred.

In the last fortnight, there have been many media reports concerning the latest cobalt hearing before the Racing Appeals and Disciplinary (RAD) Board, in which leading trainers Danny O’Brien and Mark Kavanagh face charges caused by certain horses returning samples containing cobalt in excess of the permitted threshold of 200 micrograms per litre in urine. Both Mr O’Brien and Mr Kavanagh have pleaded not guilty to all charges.

The trainers deny they knew cobalt was in the ‘Vitamin Complex’ administered to the affected horses via intravenous drip.

The trainers’ vet, Dr Tom Brennan, is also charged. Dr Brennan, not the trainers, administered the ‘Vitamin Complex’ to the affected horses. Dr Brennan acknowledged in July 2015 that he had failed to provide full and frank evidence during the Racing Victoria Stewards’ investigation, made further admissions about what he says really happened (some of this is disputed), and has been subject to penalties arising from a separate Racing NSW Stewards’ inquiry.

Media reports suggest much is in contest. There are competing versions of events, evidence allegedly withheld from investigators, tales of second mobile phones purchased after positive test results, allegations going to credibility, allegations against Racing Victoria for the manner of its apparent pursuit of Mr O’Brien and Mr Kavanagh, and more.

This post will neither analyse the evidence nor suggest an appropriate outcome. That is a task for the RAD Board.

Rather, the relevant legal considerations will be focused on here. The evidence is one thing. Sifting through the evidence to work out what is relevant, what is not, and why, is determined by an interpretation of the Australian Rules of Racing (and the corresponding Local Rules).

The charges

Importantly, cobalt is not a prohibited substance per se. Found naturally in horses, a marked increase in levels can be said to aid in improving a horse’s performance. At high levels, cobalt is said to stimulate red blood cell production, helping to carry oxygen throughout the body. Accordingly, it is said a horse can perform at a peak level for longer without the on-set of fatigue.

From 14 April 2014, Racing Victoria introduced a prohibition threshold for cobalt. A concentration above 200 micrograms per litre in urine in a race-day sample is deemed a prohibited substance.

According to the Racing Victoria Media Release, charges laid against Mr O’Brien and Mr Kavanagh were under the following rules:

• AR 175(h)(i) – that they administered, or caused to be administered, the prohibited substance cobalt for the purpose of affecting the performance of the horse in a race; or
• AR 175(h)(ii) – that they administered, or caused to be administered, the prohibited substance cobalt which was detected in a sample taken from the horse prior to or following its race; or
• AR 178 – that they brought the horse to race with the prohibited substance cobalt in its system; or
• AR 175(k) – that their conduct or negligence led to, or could have led to, a breach of the Rules by Dr Brennan himself administering or causing to be administered a prohibited substance to the horse.

A breach of AR 175(h)(i) has a mandatory 3 year disqualification period unless there are special circumstances justifying a reduction: AR 196(5). Special circumstances are outlined in LR 73A, and may be satisfied if, amongst other things, it is “in the interests of justice”.

Otherwise, pursuant to AR 196(1) there is general power to disqualify, suspend, reprimand or fine a person (not exceeding $100,000). A disqualification or suspension may be supplemented by a fine.

The charges against the trainers are based on the following positive results:

Mr Kavanagh – Magicool after the gelding won the UCI Stakes (Listed) over 1800 metres at Flemington on 4 October 2014 – concentration of cobalt at 640 micrograms per litre (ChemCentre) and 670 micrograms per litre (Hong Kong Jockey Club Racing Laboratory)

Mr O’Brien –

• Caravan Rolls On: the horse ran eighth in the Lexus Stakes (Group 3) over 2500 metres at Flemington on 1 November 2014 – concentration of cobalt at 350 micrograms per litre (ChemCentre) and 380 micrograms per litre (Hong Kong Jockey Club Racing Laboratory)
• Bondeiger: the colt ran second in the AAMI Victorian Derby (Group 1) over 2500 metres at Flemington on 1 November 2014 – concentration of cobalt at 330 micrograms per litre (ChemCentre) and 370 micrograms per litre (Hong Kong Jockey Club Racing Laboratory)
• De Little Engine: the gelding won the People@Work Handicap over 2300 metres at Ballarat on 22 November 2014 – concentration of cobalt at 550 micrograms per litre (ChemCentre) and 580 micrograms per litre (Hong Kong Jockey Club Racing Laboratory)
• Bullpit: the gelding won the Jeep 55 Second Challenge Heat 9 (BM70) over 955 metres at Moonee Valley on 19 December 2014 – concentration of cobalt at 300 micrograms per litre (ChemCentre) and 320 micrograms per litre (Hong Kong Jockey Club Racing Laboratory)

General discussion

It is important to understand what the RAD Board is not. Specifically, it is not a Court. This means that the rules of evidence do not apply, and the RAD Board is not obliged to give detailed reasons for its decision. For those bemused at some of the reported informal exchanges between those charged and “Jeff” [Gleeson QC] (the cross-examiner), this can be explained by the nature of the hearing, and of the industry itself. People are likely to cross paths on a frequent basis, whether on the track or, sometimes, in disciplinary hearings.

Because the hearing is of a serious disciplinary nature, the standard of proof in Briginshaw v Briginshaw applies. The test of comfortable satisfaction is a mid-way point between balance of probabilities (the civil test) and beyond reasonable doubt (the criminal test). In short, where the allegation is serious, the evidence must be clear and cogent.

A recent RAD Board decision concerning Lee and Shannon Hope, a father and son training partnership found guilty of similar charges relating to the administration of cobalt to three horses, offers guidance about the general principles the RAD Board will apply to the O’Brien and Kavanagh cases.

Having regard to the Hope case:

• Stewards will likely rely on facts proved by direct evidence and circumstantial evidence, that is, facts proved by a process of inference.
• In drawing an inference the Board will likely adopt the approach of considering the weight of the combination of proven facts and circumstances to determine whether their combined weight supports the inference (as a matter of probability).

Further, the RAD Board can expect a submission from “Jeff” (as Counsel for the Stewards) that trainers knew they must proceed with caution about cobalt by virtue of a 7 April 2014 notice issued to all trainers warning them of the new cobalt threshold.

Expert evidence assessing the plausibility of naturally occurring cobalt at a prohibited level is also likely. For instance, the Hopes had attempted to argue that excess cobalt could be explained by ‘bioaccumulation’, a steady and inexorable elevation in urine cobalt levels to levels approaching or exceeding the race day threshold. However, expert trials attempting to replicate these conditions did not, according to the RAD Board Decision, bear out this thesis.

Analysis of KEY charges

The most serious charge in light of the mandatory disqualification period deserves particular consideration. This is AR 175(h)(i), providing:

“The Stewards may penalize:

(h)       Any person who administers, or causes to be administered, to a horse any prohibited substance:

(i)        for the purpose of affecting the performance or behavior of a horse in a race.”

Let us break down the elements.

A. “Administers” and “Causes”

For lawyers, the Macquarie Dictionary is a great help:

“Administers” suggests direct application, reflected in the dictionary definition that it also means “give”. The term would likely apply to the person who applied the intravenous drip to the horse.

“Causes” suggests something different, confirmed by the dictionary definition that (as a noun) it means the person from which something results. As a verb, it means “to bring about”. In other words, even if a person is removed from the direct action, the penalty will apply if he or she instigated the end result in some way. It will be a matter for debate as to whether this must be an instruction or direction, or something less. Whatever the case, the term indicates that the person must be more than a passive observer.

Consider therefore, the RAD Board’s finding that Lee Hope was a person who “causes to administer” even though the findings did not go further than that he “knew” that cobalt had been administered.

It appears to have been common ground that Lee Hope did not have responsibility for the food and supplements regimes. It was not in dispute that Shannon Hope was responsible for the feeding and supplementation regime of the Hope trained horses, either by himself and/or his wife under his instructions.

On the question of guilt, neither witness was found to be credible, but the findings of the RAD Board went only this far on Lee Hope: “Lee Hope knew what supplements Shannon was administering but denied any knowledge of cobalt, which to the Board seems odd, he being an experienced trainer in his own right for many years before entering into partnership with his son. In the Board’s opinion, Lee Hope also knew far more about cobalt than he was prepared to admit.”

On the question of penalty, the summary of evidence refers specifically to a finding that “Lee Hope … was aware that cobalt was being used but his role was inactive”.

In short, this would ordinarily be insufficient to satisfy the terms of the rule.

There are some peculiarities in the Hope case though. Notably, both gentlemen pleaded guilty to the lesser charge of AR 175(h)(ii). This replicates the introductory language of “causes to be administered”. In other words, it may be that Lee Hope acknowledged he met this requirement by his guilty plea on the lesser charge, even if the evidence ultimately did not bear this out.

B. Is there a need to prove intention and, if so, of what?

In the Hope case, it was submitted that on a proper construction of AR 175(h)(i) the Stewards must establish an intention on the part of the person charged to exceed the cobalt threshold.

The Board rejected this interpretation. It found that the clearly stated purpose or intention under the Rule was “… for the purpose of affecting performance…”. In other words, exceeding the threshold was simply the consequence or risk (presumably unintended) of an administration of cobalt for the purpose of affecting the performance of the horse: at [365f].

Thus, according to the RAD Board, if a person wants to improve the performance of their horse, and in doing so causes cobalt to be administered, it is bad luck if the threshold is exceeded. He or she must wear the mandatory three-year ban, absent special circumstances.

Interestingly, the language used by the RAD Board in the Hope case suggests that to contravene this provision the person must be found to have known cobalt was being administered to the horse in some way or form.

What if the evidence fails to establish that the person had positive knowledge that cobalt was entering the horse’s system? For instance, by failing to inquire about the provenance of what goes into the horse, a person could be taking a Sergeant Schultz approach: “I know nothing – – NOTHING!”

It remains up for grabs as to whether AR 175(h)(i) can be construed this broadly. A liberal interpretation (i.e. Stewards) could apply as follows:

• The intention is to improve a horse’s performance;
• The person caused a prohibited substance to be administered, recklessly indifferent about what precisely the substance was; and
• If the unintended result is ‘prohibited substance’, then the rule is satisfied.

A conservative interpretation (i.e. Defence) could apply as follows:

• The intention is to improve a horse’s performance;
• To cause to be administered a prohibited substance, the person must know what the substance is; and
• If this cannot be demonstrated, then there is an insufficient nexus between cause and effect and the rule is not satisfied.

It remains to be seen how the RAD Board will approach this difficult question in the O’Brien and Kavanagh cases.

The alternative charge of AR 175(h)(ii) provides a way out, of course, in that, even if unaware cobalt was being administered, the Stewards may penalize a person who causes to be administered to any horse a prohibited substance which is detected in any sample taken from such a horse prior to or following the running of any race.

This charge lacks the intention element of AR 175(h)(i). Correspondingly, it also lacks the mandatory three-year disqualification period.

The Hopes pleaded guilty to this charge but, somewhat intriguingly, because the RAD Board found Charge 1 satisfied (under AR 175(h)(i)), the Board did not proceed to consider what penalties might apply under this charge (and whether or not it would be served concurrently). The Board chose simply not to deal with it once the more serious charge was made out.

Remaining charges

AR 178 provides in full: “…when any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalized”.

This is a strict liability provision. Essentially, it is satisfied once the horse has been detected with a prohibited substance (cobalt exceeding the threshold) and once the person satisfies the description of trainer or any other person in charge of the horse at the relevant time.

One would likely plead not guilty to this charge (if one is a trainer) only if the person wants to leave open the prospect of challenging the evidence as to whether a prohibited substance was, in fact, properly detected. In the case of cobalt, this would mean challenging the veracity of two laboratories to the effect that cobalt exceeded the 200 microgram threshold.

Note that an early guilty plea is often considered a factor in mitigation. If the person charged fails to do this, it must look to RAD Board precedent to see if there are comparable circumstances justifying a (relatively) lenient penalty. However, cobalt cases are new in Victoria. Accordingly, it is more likely that the parties will have to examine decisions with similar facts for insight into appropriate penalty if the charge is made out (e.g. performance enhancing substances rather than therapeutic substances).

AR 175(k) provides:

“The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise:

(k)       Any person who has committed any breach of the Rules, or whose conduct or negligence has led or could have led to a breach of the Rules.”

It goes without saying that this is a very broad provision. Similar considerations apply as for AR 178.

Conclusion

Interesting or dramatic evidence often comes out at hearings. This is a by-product of our adversarial system. We use cross-examination to test the evidence of the other side.

However, such evidence is essentially meaningless unless it fits within a ‘legal basket’.   In this case, the ‘baskets’ are the charges laid under the Rules of Racing.

The timing of events (before and after the positive tests are notified) can also prove important. Alternative explanations must be considered and discounted before adverse conclusions are formed. This is essential having regard to the standard of proof, namely the comfortable satisfaction test.

It follows that the task of legal interpretation must be discharged carefully and diligently. After all, when all is said and done and in the case of adverse findings, the next step is VCAT…