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Now for the Court of Appeal: What we can expect next in O’Brien & Kavanagh cobalt case

On 13 April 2017, Racing Victoria Limited (RVL) announced it had sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria from the decision of the Victorian Civil and Administrative Tribunal (VCAT) on 17 March 2017.  President Garde of VCAT had dismissed charges brought by RVL against trainers Danny O’Brien and Mark Kavanagh, arising from excessive levels of cobalt being found in certain horses under their care.

For a discussion of the VCAT decision by President Garde, see my previous post here.

These sorts of applications are technical, and for racing journalists (and punters), tricky territory to navigate. Accordingly, I thought some FAQs below might help.

Why is the application being made to the Court of Appeal (3 judges) rather than to a single judge?

After a decision is made by VCAT, there are 28 days to appeal. An appeal against an order made by a member of VCAT proceeds to a single judge of the Supreme Court.

However, if the VCAT decision is made by the President or Vice President of VCAT, then one proceeds to the Court of Appeal, where the appeal will be heard by three judges.  A reason for this is that the President of VCAT is typically a Supreme Court Judge.  Accordingly, the appeal is treated as if from the decision of a single judge in the trial division.

Therefore, because the VCAT case was heard by President Garde (who is also a Supreme Court judge), RVL must proceed to the Court of Appeal.

How come RVL has briefed a new Queens Counsel?

Reports suggest that Paul Holdenson QC rather than Jeff Gleeson QC will now be leading the barrister team for RVL.  Paul Holdenson has previous experience representing stewards and Racing Victoria in proceedings concerning jockeys and trainers.

It could be that Jeff Gleeson is unavailable but, if not, there tend to be two schools of thought in relation to Counsel appealing a decision. The first is to keep the same team in place, because they know what happened below better than anyone else, even if they lost. The second is to obtain the benefit of fresh eyes, and a specialist appellate advocate. Making the judgment call about which way to go is often very difficult.

Why is this an application for leave to appeal, and not an appeal as of right?

Due to administrative changes in the Supreme Court designed to reduce workload and prevent wastage of public money, almost all cases need to be given leave to appeal (permission of the court) before they can proceed. Very few types of cases have an automatic right of appeal. Among the very few cases that have a direct right of appeal are appeals under the Serious Sex Offenders (Detention and Supervision) Act 2009.

The new processes front-end the work so that the application for leave to appeal must be combined with a written case and list of authorities, a draft leave application book index, a draft summary, and a copy of the order and reasons for judgment.

The Court of Appeal can decide the appeal on the papers, but the parties can seek an oral hearing. Inevitably, RVL will have sought an oral hearing.

Given the public importance of the issues, one can expect leave to appeal to be granted as well as an oral hearing.

How long will the oral hearing of the appeal take?

Only about a day, two at most. As President Maxwell has previously stated in relation to civil appeals, “We don’t do two-day appeals any more”, adding that this is not an iron clad rule but reflects his view that in most appeals one day (or less) will be sufficient given that the court already has the benefit of high-quality written submissions, and high-quality argument.

This can be contrasted to the very lengthy proceedings below.

For those speculating about costs, it follows that the appeal will be much less expensive than what has gone before because the hearing time will be so much less (e.g. one day versus weeks).

Further, there will be no calling of witnesses.  New evidence is rarely permitted on appeal. In any event, it looks like the questions on appeal will be focused on the construction of the relevant rules.

What are the questions on appeal?

RVL cannot simply ask that the Court of Appeal take a fresh look at the case. It must formulate questions of law for the court, otherwise called grounds of appeal. This involves a process of picking and choosing to arrive at one’s best points.

In this context, the RVL media statement provides some vital clues:

RV is seeking leave to appeal on the proper interpretation of Australian Rule of Racing (AR) 178D, which led to VCAT determining that tests showing cobalt above the permitted threshold in horses trained by Mr O’Brien and Mr Kavanagh were inadmissible.

 RV is also seeking leave to appeal on the interpretation of ‘cause’ under AR 175(h)(i) and AR 175(h)(ii) so as to determine the appropriate level of responsibility of the licensed trainers for the management of their horses and their service providers.

 Note: I have highlighted the use of “interpretation” to highlight that the appeal will focus on a precise examination of the construction of the relevant rules. This is a legal issue (c.f. a re-examination of what happened, which goes to the facts, and is not allowed).

You can therefore see from the above that there are two key issues.  First, RVL wants to challenge the finding that its scientific test results were inadmissible because due process was not completely followed (Admissible Evidence Ground).

Secondly, RVL wants the Court of Appeal to examine the level of involvement (or lack thereof) that a trainer must have before a charge can be sustained for administration of a prohibited substance (Level of Involvement Ground).

What happens if RVL wins on the Admissible Evidence Ground?

It means that, on the presentation charge (AR 178) at least, O’Brien and Kavanagh will be found guilty.  In this respect, Garde P said that, were it not for his findings on inadmissibility, this charge would have been sustained.

AR 178 provides:

Subject to AR 178G, 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 penalised.

It is a rule of absolute liability, and hence matters such as intent, or honest and reasonable mistake are not relevant to guilt.

Accordingly, if the Court of Appeal finds that Garde P erred by tossing out the scientific evidence, O’Brien and Kavanagh will be guilty of a presentation charge. This is a lesser charge than administration, often dealt with by a fine, although there is a broad discretion on penalty in which a range of factors (e.g. the trainer’s history on integrity issues, the nature of the substance) will be relevant.

In NSW at least, a very swift examination of some of the outcomes suggests presentation charges on cobalt are dealt with quite severely, with periods of disqualification imposed.  For example, trainer Wayne Lawson was disqualified for 12 months for a cobalt positive in relation to a horse called Stella’s Chance that won Race 6 at Grafton on 21 March 2016.

If the scientific testing procedure was flawed, how can RVL overcome the inadmissibility finding?

Very briefly, AR 178D sets out the process by which samples are taken from horses, trainers are notified and steps are pursued so that the test results can be relied upon. The drafting of the rule is quite clunky, and there is no attempt to fill in the blanks should there be non-compliance with the mandated procedure (c.f. World Anti-Doping Code which is more comprehensive).

Because the drafting is so clunky, there is room to argue that even if there is non-compliance with the procedure, it does not follow that the evidence should be inadmissible.

Further, what if it is inadmissible? Does it follow that there is no other way for RVL to prove a cobalt positive?

This is relevant because AR 178D suggests that certified findings by an Official Racing Laboratory have the status of: “prima facie evidence”, meaning evidence ‘on its face’.

Accordingly, if the certified findings cannot be relied upon, it is arguable that RVL would face the long way home proving a positive result, but not necessarily no way home. Garde P took the ‘no way home’ route.

For example, in the O’Brien and Kavanagh case, even though he ruled the cobalt test results were inadmissible, Garde P found that there was “no doubt” cobalt was present in the relevant horses. RVL could seek to rely on that factual finding, arguing that there is nothing in AR 178D that precludes the ‘long way home’, and that RVL succeeded in this objective in light of the President’s remark.

In short, the fight about AR 178D is likely to concern whether the rule is a code (follow it or else) or merely a short cut (or presumption) to facilitate a positive proof, but which may not be the only method allowed.

What happens if RVL wins on the Level of Involvement Ground?

RVL will seek to persuade the Court of Appeal that the more serious administration charge should also be treated as an absolute liability offence.

Garde P’s decision focused on the knowledge, or lack thereof, of O’Brien and Kavanagh in relation to what their vet was administering to their horses.  The findings were to the effect that they knew their horses were on a drip program administered by Dr Brennan, but that they were otherwise victims of his misconduct, and completely unaware that what he was giving their horses overstepped the mark.

Working with those findings, we turn to AR 175(h)(i) and (ii) that states –

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

 (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 behaviour of a horse in a race or of preventing its starting in a race; or

(ii) which is detected in any sample taken from such horse prior to or following the running of any race.

Note: I have emphasised the words RVL has referred to in its media release.

Clarity is presumably sought of the following question, when contemplating “causes to be administered”: if you are a trainer responsible for a stable, your employees, your service providers, and the horses in your care, where does your responsibility start and stop?  Trainers cannot personally do everything themselves, but one would ordinarily expect (consistent with principles of vicarious liability) that they are responsible for the procedures – good and bad – that are adopted within their sphere and that lead to various outcomes – good and bad.

The preamble language is otherwise silent as to whether the person who “causes to be administered” the prohibited substance must have known that it was, in fact, prohibited (which, in the context of cobalt, means that it exceeds a permissible level). Garde P considered that knowledge of the administration of a prohibited substance was required (or willful disregard as to whether or not this was the case).

Now, consider limbs (i) and (ii).

Observe that limb (i) refers to the purpose of the administration. If knowledge is not relevant, one can see that a drip program might contravene this limb, because even a legitimate program would likely have the purpose of affecting the performance or behaviour of a horse.

Observe that limb (ii) does not contain the purpose requirement. It is directed solely to whether the prohibited substance has been detected in any sample taken from the horse.

One of the frequently relied on cases in this context is Harper v Racing Penalties Appeals Tribunal (1995) 12 WAR 337.  This case adopted the “absolute liability” approach to the question of trainer responsibility.  The case has been relied upon in cases such as Day v Harness Racing New South Wales [2014] NSWSC 1402 (‘I am bound to follow Harper’, said Adamson J), and Chief of the General Staff v Stuart, Lieutenant Colonel Russell Alexander [1995] FCA 1005 (Black CJ, Davies, Lockhart, Lee and Heerey JJ) (where it was held that the proper construction of a provision did not permit honest and reasonable, but mistaken belief as to a state of facts to be applied).

Garde P distinguished Harper, saying that it was a Harness Racing case and therefore irrelevant.  Whether he was right to do so will likely be front and centre of the appeal.

As it happens, the Court of Appeal in Victoria has referred to Harper approvingly before, in the context of thoroughbred horse racing. This was the context:

Horse racing in Australia is a highly regulated industry. This is hardly surprising, given the high level of public interest and participation and the consequent need to maintain public confidence in the industry. As has long been recognized, regulation is necessary both to ensure fair and open competition in racing and to maintain the health and wellbeing of horses and their jockeys.” – per Maxwell P, Hansen JA, Osborn JA (Racing Victoria Limited v Riley [2016] VSCA 230 at [1]) (my emphasis)

Consistent with this prior observation, it would not surprise if RVL were to argue that a strict interpretation of the administration rule, even if it leads to a harsh result, is necessary to preserve the health and wellbeing of horses and the integrity of the industry as a whole.

After all, athletes are used to very harsh outcomes when it comes to anti-doping violations, so why (it could be argued) should trainers enjoy a less onerous outcome?

How long will it take before judgment?

The Supreme Court has an impressive track record of dealing with cases quickly if it must. The Court of Appeal is no exception.

Unfortunately, the natural stress and inconvenience suffered by the parties involved is an integral feature of the experience. That is not itself a factor pointing to swift justice.

However, it is good PR for the court to take a ‘best practice’ approach to high profile cases. I suspect the judges will have formed a preliminary view from the written submissions even before the oral hearing.  Calling upon President Maxwell again, “The Court which I joined has a well established tradition of hard work and thorough preparation. By the time counsel stand up to begin an appeal, we have read the papers, so I routinely advise counsel to go straight to the heart of the matter.”

My estimate is that we will know the outcome within three to six months, assuming a date is allocated for an oral hearing soon.  If it takes longer, it will be because the court has a full book.




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