The Court of Appeal (President Maxwell, Justice McLeish and Justice Cavanough) today allowed, in part, an appeal by Racing Victoria Limited (‘RVL’) against the dismissal of charges laid by the RVL stewards against two trainers, Mark Kavanagh and Danny O’Brien.

The charges arose from the alleged detection of cobalt, at concentrations above the permitted threshold level, in urine samples taken from horses trained respectively by O’Brien and Kavanagh. The charges concerned four of O’Brien’s horses and one of Kavanagh’s.

The most serious charge in each case was that the trainer had caused cobalt to be administered to the horse for the purpose of affecting its performance or behaviour in a race. In the alternative, it was alleged that:

  • cobalt had been detected in a sample taken from the horse following the running of a race, and the trainer had caused the cobalt to be administered;  and
  • the trainer had brought the horse to a racecourse, and cobalt was detected in a sample taken following its running in a race.

The charges were heard by the Racing and Disciplinary Board over eight days in November and December 2015. The RAD Board found that the most serious of the charges were proven. The other charges, being alternatives, were all dismissed.

O’Brien and Kavanagh applied to the Victorian Civil and Administrative Tribunal for a review of the RAD Board’s decisions. The Tribunal dismissed all of the charges. RVL then sought leave to appeal to the Court of Appeal against the Tribunal’s decision.

The Tribunal found that the trainers had no knowledge of the administration of any prohibited substance to any of their horses. That finding was not challenged on this application. RVL’s grounds of appeal instead concerned the Tribunal’s interpretation of the Rules of Racing. 

On the Tribunal’s unchallenged findings of fact, the Court of Appeal said, the trainers had no knowledge that cobalt, or any substance other than those previously administered, was to be administered to their horses. Accordingly, they had not ‘caused [the cobalt] to be administered’ to the horses. Those charges were correctly dismissed, the Court said.

The Court decided, however, that the Tribunal had erred in dismissing those charges which were based simply on the bringing of the relevant horse to the racecourse and the detection of cobalt in a post-race sample.

The Rules of Racing make provision for a simplified means of proving the presence of a prohibited substance. The Court held, contrary to the Tribunal’s conclusion, that this was not the only means of proof. Although certain steps in the shortcut procedure had not been fully complied with, other evidence before the Tribunal established — to the Tribunal’s satisfaction — that cobalt was detected in the relevant samples.

The Court therefore concluded that the charges based on detection of cobalt in a post-race sample were proved, and remitted the case to the Tribunal for consideration of penalty.


NOTE:  This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.  The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

Watch the delivery of the judgment summary here (External link)

Read the Court's full judgment on AustLII (External link)

Read the Application for leave to appeal

Supreme Court of Victoria
Supreme Court of Victoria
Date of Publication

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