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Hirst: VCAT ruling 'opened a can of worms'
20 Mar 2017 | By Andrew Eddy - racing.com 
Acting Racing Victoria Chairman Mike Hirst said last Friday's VCAT ruling which overturned cobalt disqualifications for two prominent trainers has 'opened a can of worms' in respect to charges of administration.

Hirst, who confirmed that RV has not made a decision on whether to appeal the VCAT ruling, told RSN 927's Racing Pulse on Monday that Justice Greg Garde's ruling was that Dr Tom Brennan - the vet for both trainers Mark Kavanagh and Danny O'Brien - was to shoulder the entire blame for the administration of the drug.

"He (Justice Garde) has found that the vet is solely responsible for administering the drugs and he did it without the knowledge of Kavanagh and O'Brien," Hirst said.

"My reaction to that I suppose is that it's a little out of step with how drugs in sport are treated in all other sports.

"In human sports for instance, while doctors and coaches can be held responsible and liable for what's in an athlete's body, ultimately it's the athlete that is responsible for it and in other animal-related codes, it's the trainer that is held responsible.

"That is something that we need to look at in respect to the rules because I do think it does open a can of worms to some degree.

"Certainly there has to be some leeway for inadvertent things and I'm thinking about something like the Chris Waller thing with ice. You wouldn't want that to rub somebody out but where it's a little more direct in performance-enhancing, I think the responsibility has to be with the trainer."

But Hirst said that the marathon VCAT hearing had been exhaustive.

"I accept (Justice) Garde's ruling that they are innocent of the administration charges.

"He heard a whole lot of evidence before he came to that conclusion. So you can forget the administration charge. He's blaming Brennan for that so we have to accept that's the case based on his judgement."

Hirst said the lesser charge of presenting a horse to race with a prohibited substance failed due to an error involving Victoria's biggest equine laboratory Racing Analytical Services Ltd.

"While the judge found that there was no doubt that the horses had the cobalt in them and that the labs that tested for that were fully accredited and there was nothing wrong with the certificates, he puts the responsibility on Brennan," Hirst said.

"He then went on to consider whether or not the lesser charge of presenting the horses to the races with the cobalt in them could be proven and he finds that it would have been proven except for one issue around the testing procedure and the issue of who selected the second lab for (confirmatory) testing.

"The rules state that it needs to be the first lab that did the testing, whereas in this case RASL (Racing Analytical Services Ltd), who tested for all the other substances except for cobalt and arsenic, selected the second lab.

"It's not that the labs weren't accredited. It was just that the selection process for getting the confirmatory sample tested wasn't followed to the letter of the law. The labs were accredited - there was no issue with that and no issue with the certificates they produced.

"They got off the administration charge because the judge found that they had no knowledge of that administration.

"However, there is a lesser charge of presentation - which I think carries a six-month suspension - that he would have found them guilty of if not for that technicality around the second lab."

Hirst said he was pleased that Justice Garde found that RV had not abused the process in formulating their case against O'Brien and Kavanagh.

"The trainers alleged that there were abuses of process being conducted by RVL and the integrity department and bullying and other such things," Hirst said. "We heard Danny O'Brien being quite vociferous about that after the hearing on Friday.

"The judge found that none of those things were true and he said he is not persuaded that the proceedings were an abuse of process by RVL. That we were entitled to bring the proceeding against them and to defend the appeal to the tribunal.

"There is nothing about RVL's conduct at the proceedings before the tribunal that might constitute an abuse of process. So he rejected all of the submissions by O'Brien and Kavanagh that it was an unreasonable exercise.

"The industry survives on a social licence which is underpinned by two things and that is integrity and animal welfare and we'll pursue both of those to the end and cobalt goes to both of those things.

"Integrity, of course, because of the performance-enhancing and animal welfare because it is damaging for the horse to be injected with cobalt."

Hirst said he had heard the comments by the trainers following the decision and said the pressure associated with the long-running case was influential.

"In respect of the pressure that they have been under, there is no doubt that has been the case. From that point of view you could understand some of the comments that they might make.

"It's one thing to get the decision, it's another thing to look at the entire judgement and read the entire judgement in the cold light of day.

"I think when they do that, they may have a more tempered view as to the proceedings and what occurred and I hope that would be the case."

Hirst said RV has 28 days to decide whether to appeal the VCAT decision to the Court Of Appeal.

"In respect of the appeal, we will naturally sit down and talk with our barristers - about the likelihood of the success of an appeal," he said.

"We won't pursue an appeal that has no (chance of) success but if there are thoughts that there is some opportunity for success then I think it would be negligent not to pursue that opportunity. But we'll only know that in time."




Flemington trainer Danny O'Brien, picture Quentinjlang.com



 
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