O'Brien and Kavanagh win appeal and cleared on all cobalt charges

Embattled racehorse trainers Danny O'Brien and Mark Kavanagh are free to continue their training careers after the Victorian Civil and Administrative Tribunal allowed their appeal against a conviction that they doped their horses with cobalt.

The decision, delivered by Justice Greg Garde on Friday morning, found that the process adopted by Racing Victoria for testing for cobalt "substantially departed" from the requirements set out in the Rules of Racing.

The trainers have spent heavily on pursuing their appeals. Both men have also lost horses and clients, with Kavanagh – who won the Melbourne Cup in 2009 with Shocking – saying his stable strength had been reduced by 80 per cent as a result of the charges being laid against him.

Now the pair may opt to seek substantial compensation from racing's rulers for loss of reputation and the financial damage they sustained as a result of the case.

O'Brien, who numbers the Caulfield Cup and the Cox Plate among his training career highlights, spoke for the two on the steps of VCAT and delivered a withering critique of Racing Victoria for its prosecution of the case, reserving his particular venom for chief steward Terry Bailey and his integrity team.

Judge Garde's finding, said O'Brien, "has also thrown a light on the behaviour of Racing Victoria, the breaches of the rules that they have in fact engineered throughout this process. That has probably been the most disappointing thing. The bullying and vilification of both Mark and I and our families by Terry Bailey and his integrity department has been quite incredible.

"To stand here today 26 months later [after the case began] and have Justice Garde affirm that [the pair had not done anything wrong] ... he's been very clear that neither Mark nor I had any intention of cheating or to try to break any rules of racing, and that we are completely innocent of all charges," O'Brien said after the hearing.

"It's time that [Racing Minister] Martin Pakula took a hard look at what is going on in the racing industry in this state.

"It's been a long journey, particularly for our families and our staff. There's a lot of people involved here besides Mark and I, whose job security for the last two years has been very tenuous.

"We were up against a big machine here, they have spent over $6 million to try and prosecute this.

"Questions need to be asked about how Racing Victoria had such bad advice from their own lawyers, why James Ogilvy the RV in-house counsel had this so wrong,

"We are going to read the judgment. The summary from Garde was very strong that we were completely innocent and Racing Victoria have got issues.

"Once we understand the ins and outs of it, we will be reserving all our rights," O'Brien said when asked if he and Kavanagh would be seeking financial compensation

The trainers have had the axe hanging over their heads since January 2015 following a series of tests on horses which ran during the spring carnival of 2014.

In January last year O'Brien was given a four-year ban and Kavanagh was suspended for three years by the Racing and Appeals Disciplinary Board, – a process O'Brien on Friday described as a "show trial" – but the two have continued training while the appeal process has dragged on.

Four horses being trained by Flemington trainer O'Brien and one from the Flemington-based Kavanagh's yard recorded excessive levels of cobalt in 2014.

Judge Garde said the tribunal was not satisfied to the requisite standard that the trainers had caused the disqualified vet Dr Tom Brennan to administer the substance which contained a high concentration of cobalt chloride which produced the spike in readings.

Dr Brennan was subsequently found guilty and disqualified.

Justice Garde's summary also stressed that the tribunal was not satisfied that the pair were aware that the substances were being administered, nor that they were informed by Brennan or "suspected that he intended to administer an unproven and untested substance to their horses".

Justice Garde pointed out that Racing Victoria, over a 16-month period between April 2014 and August 2015 had adopted procedures for testing for cobalt in equine urine samples that had "substantially departed" from the requirements set out under AR 178D of the Rules of Racing.

"This is the rule that prescribes how sample testing for cobalt is to be conducted," he said. "The legal consequence is that the rest results are inadmissable in evidence against the trainers.

"As a result, the application for review must be allowed, and the charges against Kavanagh and O'Brien dismissed."

Racing Victoria acting CEO Giles Thompson said in a statement that the ruling body was "disappointed" with the decision and would review VCAT's reasons before deciding the next course of action.

"Throughout this issue, our fundamental concern has been to take appropriate steps to protect the integrity of Victorian thoroughbred racing and to protect the welfare of horses," Thompson said.

"It is important to remember that we took action because the horses involved returned cobalt readings that were excessively above the legal threshold."

From the time the cobalt threshold was introduced on April 1, 2014 until January 31, 2017, nearly 9750 race-day samples have been taken and 99.83 per cent have not breached the rules. The average level of cobalt in those horses was 7.4 mcg/litre, while the cobalt levels of the horses in the Kavanagh/O'Brien cases ranged from 300 to 670 mcg/litre.

"There is nothing about RVL's conduct of the proceedings before the tribunal that might constitute an abuse of process."

Story by Michael Lynch, to view full story click here

Pic by Racing Photos