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Let there be no mistake: VCAT decision on O’Brien, Kavanagh is not a technical one

For the last two years, trainers Danny O’Brien and Mark Kavanagh have fought charges laid against them by Racing Victoria Limited (RVL) arising from prohibited cobalt levels in four of O’Brien’s horses and in one of Kavanagh’s.

The Racing Appeals and Disciplinary Board (RAD Board) had found the charges proven on 23 November 2015, leading the trainers to appeal to VCAT.

However, on 17 March 2017, the Victorian Administrative and Appeals Tribunal (VCAT) upheld the appeal, clearing the trainers of all charges. O’Brien and Kavanagh are therefore free to continue their careers.

The saga may not be over, because RVL has not ruled out an appeal. It wants to consider the decision in full before making that call.  If it does appeal, it will be to the Supreme Court of Victoria on points of law. The party who loses may then appeal to the Court of Appeal.  And if that happens, the party who loses may seek special leave to appeal to the High Court of Australia.

The crushingly expensive, lengthy and demoralising cost of litigation is obvious to all.

The Australian reported yesterday that RVL acting chief executive Giles Thompson said, “We have lost that case on the basis of a technicality around the interpretation of a specific rule of racing,” Thompson said.

That is simply not correct. The presiding VCAT decision maker, President Greg Garde (also a sitting member of the Supreme Court of Victoria) has done the kind of hatchet job intended to be appeal proof.  But we will see.  Let’s briefly explore the findings.

1. Cobalt was administered to the horses

Garde P was “in no doubt” of this.  He found that cobalt, most probably cobalt chloride, was administered to the O’Brien horses (Caravan Rolls On, Bondeiger, De Little Engine and Bullpit) and to Kavanagh’s horse (Magicool).

2. The fault lay with their vet

Garde P found that RVL had already found and dealt with the perpetrator, Dr Brennan, who had been the trainers’ veterinarian. This was the person found to be responsible for the administration. Dr Brennan has testified a number of times in other forums.  He has already been sentenced and disqualified. Garde P relied heavily on that earlier testimony, referring to things like prior admissions by Dr Brennan that he had given false evidence, and his remorse for having disgraced the veterinarian profession and the racing community.

Garde P’s impressions of Dr Brennan’s evidence comes through clearly when it is compared to that of others: “They are honest and competent veterinarians and staff who unfortunately found themselves in a web of deceit and malpractice instigated by Dr Brennan“.

3. Don’t accept or pay for a bottle of vitamin complex unless you know that’s what it is

To be frank, Garde P’s decision does not suggest any repercussions for buying strange vials from vets at prices that seem over the odds, and it ultimately did not tell against O’Brien or Kavanagh that they may have done just that.  The RAD Board, interested in the integrity of the racing industry as a whole and how its licensed personnel should behave within it, had taken a rather more dim view of such evidence.

It is the evidence of Mark Kavanagh’s son, Sam (who has been the subject of separate proceedings in New South Wales for his role in cobalt doping), that makes you think about the equine cost of administering substances you know little about.

Sam Kavanagh had received a bottle of ‘vitamin complex’ in the post from Dr Brennan. As the VCAT decision stated, “Sam Kavanagh explained that he stopped using the vitamin complex at the end of December 2014 after the horse Midsummer Sun had a reaction to the drip. He said the horse shook and sweated one night and was stressed“.

4. O’Brien and Kavanagh were victims of Dr Brennan

Yes – Garde P expressly used the ‘victim’ word. This is where you know the decision is not based on a mere technicality. He found the trainers had no knowledge, inkling or suspicion that Dr Brennan was intending to use material from a bottle of vitamin complex of unknown provenance in the drips of their horses. He found that they were surprised, if not stunned, when they learnt the truth.

Both were found to have told lies, but unlike Dr Brennan, their lies were found by Garde P not to count.  O’Brien lied to protect a source, it was found.  Kavanagh lied to protect his son.  These were not matters that, Garde P found, went to the heart of the issue.

Rather, he was convinced by the consistency of their testimony in relation to the problematic drip program. He was also convinced by what he regarded as the low reliability and credibility of Dr Brennan’s evidence, and so he accepted the evidence of O’Brien and Kavanagh even though “it contains some flaws and is open to criticism in some respects“.

This can be contrasted to the findings of the RAD Board which found that “much of O’Brien’s evidence in cross examination was characterised by evasion, prevarication and lacked credibility“. And, in the case of Kavanagh, that he “demonstrated a capacity to lie by falsely denying to stewards contact with his son Sam. Further, his evidence that he, unlike O’Brien and Sam Kavanagh, did not pay for the Vitamin Complex, which apparently on his version of events was provided gratuitously by Brennan for his horses, strains credulity.”

Garde P concluded that neither trainer had committed any offence under the Rules of Racing. He said it would be a serious denial of justice if they were held responsible for what was done without their knowledge, consent or involvement. He noted that their lives and businesses had sustained major adverse consequences in a saga extending over two and a half years.

What is striking about the decision is that, even though it is replete with language to the effect that RVL was unable to discharge its onus of proof (the comfortable satisfaction test was applied), Garde P was prepared to make positive findings that the O’Brien and Kavanagh were innocent of wrongdoing.  He did not need to go that far, and these findings are in stark contrast to the credibility findings made against O’Brien and Kavanagh by the RAD Board.

5. RVL’s test results were inadmissible so they would have lost anyway

This is the technical part of the decision relied on by RVL, but it is also a part of the decision Garde P sought to downplay.  He regarded this as a “discrete issue“.  In other words, it was a side issue that he did not want to distract from his major findings.

RVL could not prove the relevant samples contained cobalt to the level required because they departed substantially from the Rules of Racing. They had not followed to the letter the procedures under AR 178D that govern the sample testing and reporting regime to be adopted by stewards and by laboratories where samples are taken from horses. This meant that the samples had not been controlled in the manner required under the Rule.

Because relevant laboratories had failed to follow correct procedures in their dealings with samples, Garde P determined that “this must inevitably bring with it significant consequences“, here, “the inability of RVL to rely on testing, analysis and certification” arising from the exercise of those powers.

Note, however, that Garde P had also earlier stated that he was “in no doubt” that cobalt had been administered to the horses.  How does this conclusion reconcile with the inadmissibility of the evidence? This is by no means clear.

The trainers had also complained that they were not notified early enough of the threatened cobalt violation. However, Garde P dismissed this complaint.  Only after a certificate of analysis was received (rather than after initial screening results) should notification occur, he found.

6. VCAT HAD MORE INTEL THAN The RAD Board decision WHICH IS WHY THE DECISIONS ARE DIFFERENT

Garde P was at pains to point this out. VCAT had more comprehensive processes, he said, such as comprehensive document discovery and subpoenas requiring witnesses to attend the hearing for cross examination. He stated that this gave VCAT significant insight and knowledge. He also observed that the non-compliance of sample testing with the Rules of Racing was an issue that had come to VCAT for the first time, and was not before the RAD Board.

However, when one delves into it, the fact that there was “more” evidence doesn’t necessarily make it different in character from what occurred below. True it is, more people testified before VCAT than before the RAD Board. However, Garde P’s decision focusses heavily on prior testimony, and there is little to suggest that anything new in relation to the whole story of what happened, was revealed before him.

It must also be remembered that what was apparently new and different before VCAT, the issue of the testing results, was – according to Garde P – no more than a side issue.  This was a “discrete” issue, one recalls.

It follows that, in relation to the core part of his decision, the credit findings, little else happened other than that Garde P formed a different impression of the overall evidence than the RAD Board had done.

Conclusion: What does one make of the decision?

Certainly, Garde P is attempting to make this decision bullet proof.  Credit findings are hard to overturn on appeal.  The rules of the game from now on will be about whether the law was applied correctly; not about the factual findings themselves.

Lawyers know, however, that these questions frequently overlap.  There are grounds of legal review based on the failure of a decision maker to consider appropriately all the evidence before him or her.

Overall, one is left with the unsatisfactory impression that one person, the President of VCAT, has simply weighed up the evidence, including the lies found to have been told by O’Brien and Kavanagh, and come to a different result from the RAD Board (made up of three people, Judge Lewis, Mr B Forrest and Mr G Ellis). In these circumstances, it is difficult to tell which decision maker is right.

Perhaps this suggests that an umpire should decide between the two.

A summary and the full decision are available here on the VCAT website.

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