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O’Brien, Kavanagh free to continue training after VCAT appeal upheld
MATT STEWART, Herald Sun
March 17, 2017 8:07pm
RACING Victoria has been left with a $6 million legal bill, no scalps and a litigation threat after trainers Mark Kavanagh and Danny O’Brien were cleared of cobalt cheating.
It took less than five minutes for the Victorian Civil and Administrative Tribunal’s Justice Garde to put an end to 26 months of heartache and uncertainty for the trainers when he upheld their appeals against career-crippling disqualifications.
O’Brien had been outed for four years and Kavanagh three by the Racing Appeals and Disciplinary Board.
Garde’s finding that neither trainer had knowingly cheated was met with gasps of relief and tears from the trainers’ families and then both relief and anger from the trainers who are now considering legal action against RV.
Interim chief executive Giles Thompson said RV was “surprised and disappointed’’ by the finding and defended RV’s right to prosecute the trainers for cobalt readings up to 100 times above naturally-occurring levels.
Thompson did not rule out an appeal to the Supreme Court.
Garde said the testing procedure between April 2014 and August 25, 2015 by RV’s lab, Racing Analytical Services Ltd, had been a “substantial departure’’ from proper protocols.
The Australian Trainers Association has demanded a “full and independent review’’ of RV’s integrity unit in light of Friday’s decision.
The protocol breach, as well as O’Brien’s accusations of “bullying and vilification’’ against some RV staff, is likely to be the catalyst for legal action against RV from the trainers.
O’Brien said he and Kavanagh had insisted their innocence from the start of a 26-month process that had decimated both stables.
Kavanagh said resurrecting his career would be “difficult’’ despite being cleared.
O’Brien said “to stand here today, 26 months later, and have Justice Garde affirm that — he’s been very clear that neither Mark or I had any intention of cheating or trying to break any rules of racing — that we’re completely innocent of all charges.
“And he’s also thrown a light on the behaviour of Racing Victoria, the breaches of the rules that they in fact have engineered throughout this process.
“And that’s probably been the most disappointing thing — the bullying and vilification of both Mark and I and our families by some people has been quite incredible.
“Midway through this Racing Victoria brought on a show-cause hearing to try to take our (training) licences away before any charges had been heard.
“We were then subjected to a show trial at the RAD Board, where we were not even allowed to cross-examine the witness.
“It’s time that (Racing Minister) Martin Pakula took a hard look at what is going on in the racing industry in this state.
Pakula said “if he (O’Brien) is calling for me as minster to discipline or take some action against the chief steward (Terry Bailey) that’s not an invitation I’ll be taking up.’’
Pakula added he would not get involved in a “spat’’ between a trainer and stewards and said RV and its stewards had every right to prosecute a case against Kavanagh and O’Brien.
He said the fact the stewards’ case was unsuccessful did not mean there should be dire consequences for them.
“It’s not a reasonable test for the integrity unit that they have to win every single case.’’
Friday’s decision may create a ripple effect of reversed convictions and abandoned cobalt cases in Victoria.
O’Brien had four horses return illegal cobalt readings after the 2014 spring carnival and Kavanagh had one.
They were advised of the positive tests on January 14, 2015 — the start of the drawn out saga.
Danny O'Brien and Mark Kavanagh O’Brien have said they will take time before considering their legal options.
Danny O’Brien and Mark Kavanagh had continued to train under a stay of proceedings before their stunning appeal win. This is what the Victorian Civil and Administrative Tribunal decision means for other players in racing’s cobalt saga.
The chief steward ran the investigation against the trainers. Bailey had conceded the testing of cobalt samples had not been “followed to the letter’’, a point which came home to roost on Friday. But Justice Greg Garde said that “there is nothing about RVL’s conduct of the proceedings before the tribunal that might constitute an abuse of process’’. Danny O’Brien has called for an investigation into Racing Victoria, but Racing Minister Martin Pakula on Friday backed Bailey.
Peter Moody walked away from training after being found guilty of a lesser charge of administering cobalt and being suspended for six months. O’Brien/Kavanagh case has no impact on his position.
SHANNON AND LEE HOPE
Shannon Hope and Lee Hope are waiting for Justice Garde to decide on their appeals against five and three-year-disqualification over cobalt use. Friday’s ruling is seen as a positive indicator for the father-son team.
TERRY AND KARINA O’SULLIVAN
Stawell trainer Terry O’Sullivan on Friday said he and his daughter training partner are waiting on the results of a stewards investigation into a positive cobalt swab dating to 2015.
Balnarring trainer was informed by stewards that his galloper Coppola had returned a cobalt level above the revised threshold of 100mcg per litre of urine (former standard was 200mcg) at Geelong in December.