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Offline Arsenal

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O.P. « 2018-Jan-04, 09:15 AM »
There's an old 2015 thread concerning the appointment of Sam Nati in NSW  but nothing since so best to start afresh.....with how HRV deals with licensees whose conduct comes to their attention......before acting they give them the right to be heard ..it's called natural justice.


VIC - Victoria Police Investigation - Kieran O'Keeffe
29 December 2017
 
Harness Racing Victoria (HRV) provides this update in respect to Victoria Police issuing criminal charges against licensed driver Kieran O’Keeffe.

HRV Stewards gave Mr O’Keeffe the opportunity to provide submissions as to why action should not be taken against him under the Australian Harness Racing Rules (AHRR) while his appeal regarding conviction and penalty is determined.

Mr O’Keeffe presented submissions to HRV Stewards, which have been considered along with all other relevant circumstances including the importance of protecting the integrity of and maintaining public confidence in the Victorian harness racing industry.

Following this consideration, in accordance with the provisions of AHRR 183(d), HRV Stewards have directed that Mr O’Keeffe’s drivers licence be suspended.HRV Stewards have not invoked AHRR 15(d), which would exclude Mr O’Keeffe from attending racetracks.

Mr O’Keeffe has been advised of his right to appeal this decision to the HRV Racing Appeals and Disciplinary (RAD) Board. Mr O'Keeffe has subsequently lodged an appeal and been granted a stay of proceedings until the appeal is determined.

With respect to the criminal charges, HRV is unable to make any further comment at this time.ENDS

All the latest Harness Racing news is available on........ http://www.harness.org.au/qld.cfm

HRNSW is a another site with a stack of information....the Media Centre and Racing & Integrity has all the detail of appeals disqualifications etc ...they're not removed after 6 months either.


https://www.harnessmediacentre.com.au/





Giddy Up :beer:


« Last Edit: 2018-Jan-08, 09:16 AM by Arsenal »

Online wily ole dog

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« 2018-Jan-04, 09:31 AM Reply #1 »
Sorry Arsey but I miss the relevance to Sam Nati
What have I missed

Offline Arsenal

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« 2018-Jan-04, 09:56 AM Reply #2 »
Sorry Arsey but I miss the relevance to Sam Nati
What have I missed

It was a thread I started in 2015 following  his leaving  as CEO of HRNSW but nothing since.
« Last Edit: 2018-Jan-04, 09:58 AM by Arsenal »

Offline Arsenal

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« 2018-Jan-07, 03:27 PM Reply #3 »
NSW has a history of corrupt conduct from the early days in Sydney Town up to recent years  there are many examples....... Eddie Obeid......Rex Jackson the fomer MP sent to chokey for corruption ........the chief steward of greyhound racing Potter got a 1 year 9 months non parole sentence for taking bribes..... and more recently two NSWHR stewards Bentley & O'Toole resigned their positions after being confronted with evidence of corruption.....and a trainer/driver Michael Russo who bribed Bentley not to swab his horses also went inside for his criminal conduct serving 15 months non parole of a head sentence of 30 months.

It appears that Bentley "rolled over" and spilled the beans in exchange for immunity prompting the learned judge sentencing Russo to remark :-

"3.   The corrupt activity extended over a significant period. It began sometime in early 2010. Quite who approached whom I am unable to determine, but in February 2010 the first of a series of transactions took place. Mr   Russo   contacted a steward by the name of Matthew Bentley, a corrupt steward who, somewhat amazingly, has been granted an immunity from prosecution so he may never face punishment for his involvement in what I am about to describe.
4.   The purpose of Mr   Russo   contacting Mr Bentley was to confirm that Mr Bentley would be the steward working at a particular harness racing meet on 22 February 2010. The two men worked out that Mr Bentley would be there that day and Mr   Russo   nominated a particular horse of his and asked that that horse not be pre-race drug-tested. An agreement was reached that if that horse won the race, the steward would be paid by Mr   Russo  . The horse did win. The connections of the horse received $1,400 in prize money and in the following days Mr Bentley received $500 cash from Mr   Russo  . "


O'Toole wasn't so lucky he was charged and convicted and served  18 months which IMO  is very lenient considering his betrayal of trust and less that the corrupt Potter got for accepting bribes from dishlickers. :o


"JUDGMENT


1.   HIS HONOUR: Corruption in sport is an ongoing problem and noted recent examples have included cricket, rugby league and horse racing in its various forms.
2.   I have before me an offender, Paul Anthony O'Toole, who, through his corrupt conduct, has tarnished the reputation of a particular form of horse racing, harness racing in New South Wales. He was a steward who took bribes. He did this on 30 occasions and on a further four occasions agreed to receive a bribe that was not actually paid. His offending extended over a period of 18 months and, whilst it was for the fairly modest sum of about $6,500 in total, it was intended by Mr O'Toole that his regular bribes would supplement his income and he would have financially benefited as a result.

3.   Mr O'Toole got involved with a scheme with a number of trainers and another steward whereby the stewards would agree not to test certain horses, knowing that those horses had been administered performance enhancing substances. The idea was that the trainers could administer such substances to their horses. That would increase the likelihood that the horses would win a race. That would increase the trainer's income through simply receiving prize money or through making it more likely that the trainer would win a bet. To cover up that misconduct, the stewards, including Mr O'Toole, would be bribed to ensure that the relevant horses were not subject to post race testing.

4.   The first offence occurred on 21 January 2010. I will describe what happened on that occasion because it is very similar to what happened on the other occasions that the offender committed similar offences. He was working as a steward at a race meeting at Penrith. Michael Russo, a trainer who I sentenced recently, asked Mr O'Toole that his horse, Alpine Al, not be tested. The horse won its race. Mr Russo paid some money to Mr O'Toole in order to ensure that Alpine Al was not tested. The actual sum that Mr O'Toole received is not known, but he gave between $200 and $400 to another corrupt steward, Matthew Bentley. This, as I say, was on 21 January 2010.

5.   Throughout 2010 and through half of 2011, similar activities occurred. Mr O'Toole, whether he was a steward or a starter at a race meeting, was involved in a scheme whereby trainers would pay money to ensure that particular horses were not drug tested so that the fact that the horses had been doped could be covered up.

6.   He now stands to be sentenced for nine offences of being an agent and corruptly receiving a benefit, offences which the maximum penalty is imprisonment for seven years. He asks that when I sentence him for the first of those matters, the one I have just described, I take into account a further 25 matters on a Form 1, 21 similar offences and four of corruptly agreeing to receive a benefit, although the benefit was not paid in those cases because the horse did not actually win, thus no money was paid.

7.   The criminality of these offences is obvious and the harm that his conduct has caused is also obvious. These offences represented a grave breach of trust, a matter which of course is common to all bribery offences, such as these. The Court of Criminal Appeal in dealing with an example of corruption in the greyhound racing industry has reminded us as to just how serious corruption of people involved in the racing industry, including of stewards, really is.

8.   The offender pleaded guilty to his offences at the earliest opportunity and so the sentence I will ultimately impose upon him is 25% less than it would otherwise have been.

9.   The offender is a man of prior good character. He has no other criminal offences on his history and references tendered to the Court speak highly of his general integrity. Of course it was his prior good character which put him in a position which enabled him to commit these offences and any suggestion, as is made in many of the references, that his conduct was out of character has to be considered in light of the fact that his out of character behaviour went on for 18 months and involved 34 separate acts of bribery.

10.   The offender was born in 1963. He is almost 50 years of age and he lives with his wife and their three children. There was nothing really remarkable about his upbringing apart from one particular aspect of it that I want to speak briefly about. I want to speak briefly about it not because I do not consider it important, but because of the intensely personal nature of it. His experiences at school as the victim of criminal behaviour have had a lasting and significant impact upon him. He is deserving of significant sympathy because of that. As judges understand when they sentence for crimes similar to those of which Mr O'Toole was a victim, the impact of such crimes is ongoing and at times devastating. The material tendered today is an eloquent demonstration of the seriousness with which judges treat conduct of that kind, but of course being the victim of a crime of that kind does not give anyone a licence to themselves commit crimes. I have taken into account, Mr O'Toole's terrible experiences at school but of course that cannot lead to a situation where I impose a sentence upon him which fails to reflect the objective gravity of his most serious criminal behaviour.

11.   These offences were committed by Mr O'Toole at a time when he was under additional financial and emotional stress for reasons which have also been outlined in the evidence. He and his family have suffered greatly since his misconduct has become known. Not surprisingly, there has been a great deal of publicity given to Mr O'Toole's misconduct and this has caused distress both for him and his family. The pressure that his family is under as they wait for today's sentencing proceedings has led to obvious and completely understandable consequences for the rest of his family. They too have suffered because of Mr O'Toole's criminal behaviour. That hardship however is not exceptional, nor is the hardship that the family will experience in the event that Mr O'Toole is sent to gaol exceptional either, but it remains the case that Mr O'Toole will do his sentence harder than it would otherwise have been, blaming himself and knowing that his actions have caused suffering to his family.

12.   Mr Barber, on behalf of Mr O'Toole, also relies on the circumstance that Mr O'Toole has had to give up his job as a steward, in fact give up any involvement in the harness racing industry. That of course is not unusual. Many people who commit offences, especially offences of dishonesty, find it difficult to get work and have to change careers.

13.   A submission was made in written submissions by Mr Barber that concurrent sentences are appropriate. Although I have decided to impose an aggregate sentence, it will be obvious from the indicative sentences I announce, that I do not accept Mr Barber's submission about the concurrency of sentences. These were 34 separate acts of criminality, resulting in nine specific offences which must be the subject of a sentence. No one should consider that having committed one offence, further offences, all 33 of them can be committed for free. Each offence involved further harm to the racing industry and each offence is deserving of further punishment. On the other hand of course, the principle of totality applies. I have decided in imposing an aggregate sentence, to reflect both of those principles, even though they at times point in completely opposite directions.

14.   I accept that Mr O'Toole is remorseful. Of course a large part of that is appropriately directed to the effect that his crimes have had on his family, but I accept that remorse goes beyond that and that he is sorry for what he has done.

15.   I should mention other offenders who have been sentenced for their involvement in this scheme. Two of them, trainers, were dealt with in the Local Court. Of course the principle of parity requires that no offender should have a justifiable sense of grievance when he compares his sentence with that imposed on his cooffenders but in applying that principle to those matters dealt with in the Local Court, a problem arises. Very limited information is available about one offender and the other had a significant discount allowed for him because of assistance he gave to the authorities.

16.   The principle of parity also applies to the sentence that I imposed upon Michael Russo. He was sentenced for similar offences, although because he was a trainer and not a steward, the fact that he himself did not breach any trust, means that objectively for that reason alone, his conduct was less culpable than that of Mr O'Toole. In addition, he was dealt with for fewer offences overall, but I have taken the sentence I imposed upon Mr Russo and those differences into account in determining the sentence that I will impose upon Mr O'Toole.

17.   Notwithstanding the circumstances in which Mr O'Toole committed these offences, which I have mentioned, and notwithstanding the mental health issues which have arisen because of Mr O'Toole's experience at school, general deterrence remains of prime importance in this sentencing exercise. Clearly, sums of money, perhaps significant, can be made through corrupt activity where betting is involved. Now is not the place for me to express my views as to the link between corrupt conduct and the betting industry but the link between those two activities is clear. If there is to be a betting industry, it is important that it is fair and what Mr O'Toole did was harm those people who placed bets on horses believing that things were fair when, as investigations revealed, they were not. It is hard of course to point to an individual victim of these crimes but there were no doubt many who all lost, I hope, small sums of money because of what Mr O'Toole did.

18.   Mr O'Toole is not to get any longer sentence in an effort to make an example of him, but general deterrence does remain a very important aspect of the sentence I am about announce on Mr O'Toole. Those, whether they are involved in harness racing, other forms of horse racing, other forms of racing, or other forms of sporting activity, who might be tempted to receive or offer bribes should bear in mind the likely result if they are caught.

19.   It was accepted implicitly in the submissions of Mr Barber that a sentence of imprisonment was required, although he suggested that a suspended sentence or an ICO would be appropriate. I accept Mr Barber's concession that imprisonment is required. The next question becomes how long, and only if the length of sentence is such that alternatives to fulltime imprisonment are possible does the next question arise. I have determined a length of sentence such that no alternative to fulltime imprisonment is possible.

20.   The aggregate sentence I impose upon Mr O'Toole is to consist of an 18 months non-parole period and a head sentence of three years. I would have imposed a sentence of two years on the first matter taking into account the Form 1 matters and 18 months on the remaining eight matters. The earliest date on which Mr O'Toole is to be released to parole is 20 December 2014 and I order his release to parole on that day.

21.   
http://classic.austlii.edu.au/au/cases/nsw/NSWDC/2013/181.html


http://classic.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2013/47.html?stem=0&synonyms=0&query=title(russo%20)

http://classic.austlii.edu.au/au/cases/nsw/NSWCCA/2005/26.html



Giddy Up :beer:


Offline Arsenal

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« 2018-Jan-08, 09:09 AM Reply #4 »
The Cobram charges against Nathan Jack Amanda Turnbull and others were posted on the Race Fixing Charges Thread needs to be updated ......subsequently the suspensions imposed were lifted pending the determination of the criminal charges.......which were eventually thrown out on the basis that the evidence provided under duress to stewards was inadmissible in criminal proceedings......interesting decision...licensees under harness racing rules are bound to cooperate in stewards inquiry and possibly incriminate themselves whereas the LAW allows the person the right to silence.

http://www.harnesslink.com/News/Evidence-objection

http://www.racehorsetalk.com.au/harness/race-fixing-investigation-victoria/

http://www.heraldsun.com.au/news/law-order/harnessracing-trainer-arrested-in-racefixing-probe/news-story/635546f3101efd62de5b6394faff0f0f?memtype=anonymous

Giddy Up :beer:
« Last Edit: 2018-Jan-08, 09:23 AM by Arsenal »

Offline nemisis

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« 2018-May-21, 05:39 PM Reply #5 »
Totes pools on race 7 at Menangle Park on Saturday were interesting.

$10k jackpot added to the first 4 pool and plenty seemed keen to invest.

Typical pools on other races that night were in the 2-3k region but R7 held 28k.

No real surprise to see the $1.70 fav unable to get into the first 4, after all this is harness racing.

The Tab by encouraging punters to invest could well be just contributing to a rort.

Maybe the Tab could do some tracing to at least look like they care.

Offline PoisonPen7

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« 2018-Jul-01, 02:55 PM Reply #6 »
Len Smith mile on today.

#2 Soho Tribeca is $1.50 to beat the pole #1 My Field Marshall.

Nothing else given much hope.

#11 Franco Nelson is first up and kept safe at $9. He is 10 starts first up for 5 wins and 4 placings.

Earlier the Tassie champ Ignatius made it 13 wins from 14 starts when winning in a 1.51 plus mile rate.

Offline PoisonPen7

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« 2018-Jul-01, 03:31 PM Reply #7 »
When Soho Tribeca ($1.55) galloped at exactly the same instant the green light went on I thought of Mt. Eden and Gundary Flyer. What great recoveries those were and maybe the driver would be inspired.

But no. He didn't even try.  We live in the Age Of No Risk  :(

Offline arakaan

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« 2018-Jul-01, 03:42 PM Reply #8 »
Earlier the Tassie champ Ignatius made it 13 wins from 14 starts when winning in a 1.51 plus mile rate.

It's run to go 1.53 at penrith(which i'm sure smashed the track record because I can remember anything breaking 1.55 there) a few weeks ago was ridiculous. 3 wide first half lap then death seat and cruised away in the straight.

See it jogged home today as well.
« Last Edit: 2018-Jul-01, 03:45 PM by arakaan »

Offline PoisonPen7

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« 2018-Jul-01, 03:53 PM Reply #9 »
It's run to go 1.53 at penrith(which i'm sure smashed the track record because I can remember anything breaking 1.55 there) a few weeks ago was ridiculous. 3 wide first half lap then death seat and cruised away in the straight.

See it jogged home today as well.

Could have run a quicker time.

Offline PoisonPen7

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« 2018-Jul-01, 04:03 PM Reply #10 »
Let It Ride 1.49.5

Suicide ride on Atomic Red but set up the time.

Offline Arsenal

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« 2018-Sep-24, 10:03 AM Reply #11 »
A lot of action by stewards in Victoria cobalt TCO2 and the Cobram case not concluded pending an appeal .
And Ken Rattray out for 5 years for cobalt Destreos....Ray Murrihy makes a comeback
John Justice also out.
https://www.harness.org.au/NEWS/news2/uploads/JUSTICE%20John%20-%20RAD%20Board%20Media%20Release1.pdf

TAS - Ken Rattray -TRAB Appeal Decision
24 September 2018 | ORI
 
TASMANIAN RACING APPEAL BOARD
Appeal No 22 of 2018/19
Panel:        Tom Cox (Chair)
Kate Cuthbertson
Wendy Kennedy       Appellant:       Ken Rattray
                        
Appearances:       Anthony O’Connell (on behalf of the Appellant)
Ray Murrihy (on behalf of the Stewards)
Adrian Crowther (on behalf of the Stewards)       Rules:       Australian Harness Racing Rule 190 (1), (2) and (4)
                        
Heard at:       TasRacing
Glenorchy
Tasmania       Penalty:       Disqualification for a period of 5 years
                        
Date:       30 August 2018       Result:       Penalty Varied: Disqualification for a period of 3 years
                        
REASONS FOR DECISION
1.   The appellant, Mr Ken Rattray, was the trainer of a harness racing horse, Destreos NZ, which placed fourth in Race 3 “Destreos Pace” over 2,150 metres at the Carrick Park Pacing Club race meeting held on 31 December 2017.A pre-race urine sample was taken from the horse and subsequent analysis by Racing Analytical Services Limited (RASL) detected the presence of cobalt at a level above the permitted threshold of 100 micrograms, namely 156 micrograms per litre.Confirmatory testing conducted by the Racing Science Centre, Queensland Racing Integrity Commission (RSC), detected the presence of cobalt again in excess of the threshold, namely 162 micrograms per litre.
2.   Following receipt of certificates of analysis from both RASL and RSC, Stewards issued a charge to the appellant pursuant to AHRR190. The rule relevantly provides as follows:
“(1)      A horse shall be presented for a race free of prohibited substances.
(2)        If a horse is presented for a race otherwise than in accordance with sub-rule (1) the trainer of the horse is guilty of an offence.

(4)        An offence under sub-rule (2) … is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.”
3.   The particulars of the charge were that as the trainer of Destreos NZ, the appellant presented that gelding to a race at the Carrick Park Pacing Club race meeting on 31 December 2017 when a pre-race urine sample taken from the gelding has, upon analysis, been found to contain the prohibited substance cobalt at a level in excess of the permitted threshold.
4.   Following a number of requests for adjournments and other discussions, the inquiry in relation to the matter was ultimately held on 7 June 2018.The appellant reserved his pleas.Stewards heard evidence from a number of witnesses, including some called by the appellant.They found the charge proved and proceeded to disqualify the appellant for a period of 5 years.
5.   Initially the appellant appealed against both his conviction and penalty.During the course of the hearing of the appeal, the conviction appeal was withdrawn.As a consequence, this decision concerns only the appellant’s appeal against penalty.
6.   In arriving at penalty, Stewards stated the following:
“Okay, and we have made, reached a determination in penalty today, and determining the penalty we considered the following,
7.   The needs for specific and general deterrence, both to deter you from reoffending and to deter others from presenting horses to race when not free of prohibited substances,
8.   We have considered the … negative impact that prohibited substance matters have upon the public perception of harness racing,
9.   We have considered you have …. not entered a plea to the charge, in fact you reserved your plea to the charge and as such are not entitled to any reduction in penalty that a guilty may have afforded you,
10.   I have taken the consideration that this is your sixth prohibited substance offence and your third such offence in less than 7 years,
11.   we have also taken into consideration your personal, your personal subjective circumstances you have outlines (sic) today.
It is our decision today that the appropriate penalty is disqualification of your trainer’s licence and that you be disqualified for a period of 5 years, commencing immediately and expiring at midnight on the 6th June 2023.”
12.   In relation to his penalty appeal, the appellant submitted that his culpability should be assessed at a low level.The appellant put forward a good deal of evidence before stewards during the course of the inquiry directed at explaining how cobalt may have found its way into Destreos NZ’s system other than as a consequence of administration and submitted that no credit was given to any of that information.That information included the following:
13.   That he had changed his feeding regime on moving to Tasmania.The feed that he introduced, he asserted, was delivered without a batch number.No information was put before the Board to establish that had in any way contributed to the issues being faced by the appellant.It was apparent that the ingredients of the feed were well displayed and contained cobalt based substances. Stewards approached the manufacturer and sought samples of batches that had been delivered to Tasmania during the relevant period of time that the appellant had purchased his feed. Analysis of those samples showed that the cobalt containing substances were either below or only slightly higher than the levels stated on the product’s label. A representative of the company gave evidence that the variation was explicable due to the mixing of the grains and supplements constituting the product leading to different results from testing depending upon what portion of the product was tested. The variability was within an acceptable range and none of the results explained the elevated cobalt reading in the horse;
14.   The appellant had also obtained an analysis of samples of another product he provided to his horses which he asserted showed levels of cobalt almost twice that displayed on the product. It is not clear that is the case. The product involved indicated that cobalt was added as a trace element at a rate of .5 mg per kilogram. The product also contained B12 at a rate of 40 micrograms per kilogram. The three samples tested returned readings of .824 and .979 ppm w/w (parts per million). No expert evidence was adduced to explain how these results demonstrated the presence of cobalt in the product in excess of the amount stated on the label;
15.   In respect of the analysis of feed, the expert evidence did not address how the particular feeds and the amount of cobalt contained in them could have, if at all, contributed to the elevated reading;
16.   The appellant had also sought to establish that the presence of cobalt in his horse may have been the result of airborne contamination.This was not satisfactorily established. Although his stables are close to a nickel mine, and soil analysis established that cobalt was present in the soil on the training track used by the appellant, other horses in his stable did not appear to have had similar problems.There was no evidence presented that explained what the results of the analysis meant, i.e. was it abnormal or at a level ordinarily found in soil samples. A schedule of results of testing conducted on all of the appellant’s horses between October 2017 and June 2018 showed that Destreos NZ had returned cobalt readings from 2 micrograms per litre to the positive test of 156 micrograms per litre.A previous urine sample taken on 3 December 2017 returned a reading of 107 micrograms.This was some four weeks prior to the testing that resulted in the charge.Interestingly, a test conducted a week after Destreos NZ returned the reading of 107 micrograms per litre, returned a reading of 12 micrograms per litre.Three months after the positive swab on 31 December 2017, Destreos NZ returned a reading of 6 micrograms per litre.Subsequent tests have returned readings of 3 and 2 micrograms respectively.Other horses in his stable had returned readings of 14 micrograms per litre and less over that same period of time.This would tend to suggest that there was nothing in the horse’s environment, which was common to other horses in the stable, that was contributing to these readings;
17.   The appellant did tell the Board and Stewards that he had changed his feeding regime since the positive swab.This also coincides with a reduction in the levels of cobalt in the samples taken from Destreos NZ after the positive result;
18.   The appellant provided a report from a Dr Major which addressed the elevated cobalt levels in Destreos NZ. The report contains a number of assertions about whether cobalt was in fact performance enhancing and whether urine was an appropriate medium to test for the presence of cobalt. In respect of Destreos NZ, Dr Major noted that possible causes of elevated urinary cobalt levels included:
o   Ingestion of cobalt salts;
o   Cumulative effects of cobalt exposure in feed, water, supplements and the environment;
o   Sample contamination at the time of collection.
He provided examples of some of these possible causes which either did not directly relate to Destreos NZ or were not capable of demonstrating how and why there was an elevated reading in this case. For example, he referred to the presence of the nickel mine nearby but no data was provided about how and in what circumstances that would lead to cobalt contamination in Destreos NZ’s case. He concluded by stating “In my opinion the particular circumstances of the findings in the horse Destreos should be considered in the light of the facts listed above”. The report in no way assists in explaining how the elevated reading came about in this particular horse at this particular time.
19.   Before considering the appellant’s submissions, we record and gratefully adopt the observations and matters of principle set out below by Justice Garde in Kavanagh v Racing Victoria Limited (No.2) [2018] VCAT 291 at [15]:
Kavanagh and O’Brien rely on the decision of the Racing Appeals Tribunal in McDonough v Harness Racing Victoria, where Judge Williams said:
... from the point of view of penalty the ability of a trainer to demonstrate to a Tribunal, and the onus is on the trainer, that he lacks culpability because he did not administer the substance himself or is not otherwise responsible in any way, that is still of course a significant factor in terms of penalty. But I emphasise the evidentiary onus remains in my view, on the trainer, to avail himself of the benefits of proof of reduced or absent culpability. That conclusion, from a legal point of view, is consistent with the criminal law, in the case of Storey and it is also referred to in a thoroughbred case that I was reading of the New South Wales Authority v Graeme Rogerson ... a case in which His Honour Mr Barry Thorley presided...:
In the view which this Tribunal takes of the structure of AR178, it is however for the trainer to carry the evidentiary onus of proving facts which serve to reduce the primary inference that would be drawn by the fact of the finding of a prohibited substance in a horse within his charge which has been brought to a race course.
I endorse that statement of the onus in respect of not only the thoroughbred rules but also the harness racing rules.
With this background these prohibited substance cases generally, and I emphasise generally, fall into one of three categories. First where through investigation, admission or other direct evidence the Authority, in this case Harness Racing Victoria, can establish before the Tribunal a positive culpability on the part of the person responsible, perhaps the trainer.
For example, the trainer administered the drug to the horse either himself or at his direction or had otherwise acted in some way as to be instrumental in the commission of the offence. Within that category the culpability may be in the class of deliberate wrongdoing or it may be through ignorance or carelessness or something similar.
Secondly, where at the conclusion of any evidence and plea the Tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse. This may be with the trainer giving some explanation which the Tribunal is not prepared to accept or the trainer may simple (sic.) concede that he has no explanation.
I might say that this second category is perhaps the most commonly experienced scenario. Indeed as again His Honour Mr Barry Thorley ... said:
"The common experience is of course that the Stewards have no idea as to how it is in the case of any racehorse that the prohibited substance came to be in it. They immediately, as is required, opened an inquiry. It is very seldom indeed that that inquiry demonstrates the actual culprit. Why is that? For the obvious reason that the sole knowledge of what transpires is within the stable and its staff and its professional advisors. No doubt one can speculate that there are many ways in which a horse may present with a prohibited substance. One can contemplate the act of some intruder by stealth of night entering the stable and administering some drug. One can contemplate the consumption by the animal accidentally of some substance left lying around negligently or the ingestion of some grasses which produce adverse results. One can contemplate that there was an actual, albeit mistaken administration within the stable of some product which was really intended for the horse in the adjoining stall, but mistakenly administered to the horse in question. One can even imagine that the horse might lick a rail or some place which had previously been contaminated. The number of examples one can contemplate is manifold."
As I say, that is perhaps the most common scenario that the Tribunal is left with.
Thirdly, the trainer (or other person being dealt with) may provide an explanation which the Tribunal accepts and which demonstrates that the trainer has no culpability at all. An obvious example would be if the trainer could satisfy the Tribunal that his horse had been nobbled, and it had been nobbled notwithstanding the presence of reasonable measures to prevent same.
And of course there could be various other factual scenarios where the horse could somehow be the subject of the administration or ingestion of a prohibited substance without any culpability either directly or indirectly on the part of the trainer. This category represents cases where the trainer does establish to the Tribunal's satisfaction, the onus being on him, that he is free of blame, that he himself was not instrumental in the administration of the prohibited substance and that he has done all he could be expected to do to prevent same.
Generally cases will fall into one of these three categories of case. Obviously the first category where there is positive evidence of culpability to varying degrees, is the worst from the point of view of the trainer or other person concerned and high penalties as are appropriate would be likely to flow.
The second category, the lack of evidence category, may or may not end up being similar to the first category, every case depending on its own individual facts.
As to the third category where there is little or no culpability, one would expect any penalty to reflect the absence of culpability or its low level. Within this category of cases there may in appropriate situations be instances where it is deemed not to be appropriate that the sentence express denunciation or general deterrence at all and indeed where it is appropriate to impose no penalty at all.
1.   Having regard to those observations, it appears to this Board that the only factual issues to be determined are whether the Stewards on the one hand have convinced us to the requisite degree that the appellant’s feeding and supplement regime was the probable cause of the elevated reading or, on the other hand, whether the appellant has convinced us to the requisite degree that there is an alternative probable cause that demonstrates that the appellant was not culpable.Taking the categories referred to by Justice Garde in Kavanagh, there is a contest as to whether this case falls within category 1 or 3.If we cannot reach the requisite degree of satisfaction for either position, the case should be assessed as a category 2 case where, effectively, we are left with no affirmative proof of how and why the horse came to present with an elevated reading.
2.   We can immediately put to one side the appellant’s position.As observed above, there is a pattern of cobalt readings from other horses in his stables which tends to undermine any explanation consistent with environmental contamination.This is further borne out by the fact that the horse has not consistently returned high readings and subsequent to the positive swab has returned lower readings of cobalt in its urine.The reduction in the levels of cobalt in the horses’ urine appears to have also coincided with a change in the feeding regime. It is notable that the appellant was using a number of feeding products and supplements that contain forms of cobalt.We are not satisfied that the evidence supports an assertion that the actual level of cobalt in the feed provided to the horse exceeded that stated on the label and that the levels can be explained by inadvertence. Finally, Dr Major’s report falls well short of establishing how this particular reading came about in this particular horse at this particular time in light of the circumstances relating to its feeding and supplement regime and the environment in which it was trained, stabled and raced. It throws up ideas, but does not provide any data that would assist in determining what has happened in this case.
3.   Whilst an explanation consistent with the horse being administered products containing cobalt as a consequence of its feeding and supplement regime is a possible explanation, the evidence before us is not sufficient for us to be positively satisfied that that is the case.As a consequence, we are left in the position of viewing the case as a category 2 type of case.
4.   In our view, despite our suspicions that the feeding and supplement regime contributed to the elevated reading, it would be contrary to principle to infer as much from the state of the evidence.In any event, if we made such a finding, it would not assist us in categorising the appellant’s culpability.
5.   In respect of the penalty imposed, the appellant submitted that it was excessive due to the following:
6.   he changed his feeding and supplement regime and eliminated any vitamin B from the treatments for his horses to remove any risk of further readings;
7.   other jurisdictions were looking more closely at issues in respect of cobalt and that this should play some part in the determination of penalty;
8.   he had a capacity to pay a fine, but a suspension or disqualification would be the end of his working in the industry.He is 63 years old and was only training four horses to keep himself occupied;
9.   he suffers from anxiety and type 1 diabetes which a doctor has indicated is not well controlled.He advised he suffers depression, but the medical certificates do not refer to such a diagnosis. He is not prescribed antidepressants, but Valium to control his anxiety;
10.   although Destreos NZ recorded a reading of 107 micrograms per litre which was in excess of the threshold but not actioned by Stewards due to the margin of error, no warning was given to him that there might well be a problem with the horse.
11.   In respect of the last point, this does not greatly assist him.A week after the horse returned a reading of 107 micrograms per litre, it returned a reading of 12 micrograms per litre.
12.   The appellant also submitted that the 5 year disqualification would finish him in the industry.He described the conviction and penalty as a big shock to him and as having ruined his life.Disqualification would mean that he would have to leave the property he shared with his wife so that she could take over care of the horses.
13.   Stewards noted that the appellant had five prior prohibited substance charges.In 1998, the appellant received a 5 year period of disqualification.A number of his previous prohibited substance matters related to TCO2.  The impact on the integrity of the industry was referred to by Stewards.  They submitted that being a licenced member of the racing community was a privilege and the behaviour of the appellant against the background of five previous prohibited substance convictions was viewed as disentitling.  It was noted that cobalt was labelled on each of the products that he was administering to his horse. His history of previous matters must have caused him to understand that he had to have a robust husbandry regime.  It was submitted on behalf of Stewards that one could not have painless penalties and reputable racing.  The fact that the appellant’s breach of the rules put his livelihood in jeopardy was a predictable consequence of offending against the rule.
Consideration
14.   A cobalt reading over the threshold is always a concern.The Board is aware that scientific studies have demonstrated that horses subjected to normal feeding practices record median cobalt levels of around 3-3.4 micrograms per litre with a mean of 8 micrograms per litre. The threshold of 100 micrograms per litre is extremely conservative. In this case, we have not been able to make any factual finding that would satisfy us that the appellant’s culpability was low.We are not affirmatively satisfied that the appellant’s feeding and treatment regime caused the elevated readings, however our suspicion is that it has done so particularly in light of the fact that the horse has returned very much lower readings consequent on the appellant both changing its feeding regime and removing B12 supplements from any treatment of the horse. In the circumstances, we regard this case as one falling within category 2 of those identified by Judge Williams in McDonough.
15.   Importantly, the appellant is well aware of the prohibited substance offences and the penalties.He has breached those provisions five times.He had previously received a five year disqualification in 1998 for a TCO2 breach.  He subsequently received further periods of disqualification for breaches of the prohibited substance rules.  This is not a case where suspension is appropriate.  A disqualification is a necessary consequence of the breach of this rule in this case.  Having regard to the matters set out in the Stewards’ determination, we consider that a period of disqualification of three years is appropriate.  Had we found that the appellant administered the prohibited substance knowingly or recklessly, a period of five years would have been appropriate.  Because we are unable to make such a finding, and because the breach relates to one horse in one race, the penalty imposed by the stewards should be tempered.
16.   Because the appeal against conviction was abandoned, 50% of the appellant’s deposit with be forfeited and he will be required to pay 50% of the transcription costs.
 



https://www.harness.org.au/media-room/racing-office/#stewards

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Offline Arsenal

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« 2018-Sep-24, 05:19 PM Reply #12 »
The Cobram charges against Nathan Jack Amanda Turnbull and others were posted on the Race Fixing Charges Thread needs to be updated ......subsequently the suspensions imposed were lifted pending the determination of the criminal charges.......which were eventually thrown out on the basis that the evidence provided under duress to stewards was inadmissible in criminal proceedings......interesting decision...licensees under harness racing rules are bound to cooperate in stewards inquiry and possibly incriminate themselves whereas the LAW allows the person the right to silence.

http://www.harnesslink.com/News/Evidence-objection

http://www.racehorsetalk.com.au/harness/race-fixing-investigation-victoria/

http://www.heraldsun.com.au/news/law-order/harnessracing-trainer-arrested-in-racefixing-probe/news-story/635546f3101efd62de5b6394faff0f0f?memtype=anonymous

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An update from HRV stewards concerning Nathan Jack Lisa Bartley & Mark Pitt..


VIC - Update - License Restrictions - Nathan Jack/Mark Pitt/Lisa Bartley
18 September 2018
 
On 7 September 2018, Harness Racing Victoria (HRV) Stewards suspended the licenses of Mr Nathan Jack, Mr Mark Pitt and Ms Lisa Bartley after they had been found guilty of charges under Section 195C of the Crimes Act (1958).  These charges relate to engaging in conduct that corrupts or would corrupt the betting outcome of an event or event contingency. Mr Jack, Mr Pitt and Ms Bartley were also prevented from racing or trialling any horses owned by them and excluded from attending any Victorian racecourse.
Parties were provided with the opportunity to provide submissions to Stewards by 5pm on 17 September 2018, as to why these restrictions should not remain in place pending the completion of the Stewards investigation.  Following requests from the parties legal counsels Stewards have allowed an extension for the lodging of submissions, with them now due by 5pm on 20 September 2018.  The provisional restrictions placed upon Mr Jack, Mr Pitt and Ms Bartley shall remain in place pending final determination by the Stewards
.
As the Magistrates Court decision regarding the criminal charges remains subject to an appeal period, HRV will not be making any further comment at this time.


Interesting to see the outcome of the appeal against the magistrate's decision ruling evidence obtained under duress was inadmissable in the criminal proceedings whatever the outcome I expect it will be viewed with interest and /or concern by the various control bodies.

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« 2018-Sep-24, 07:45 PM Reply #13 »
NSW Harness Racing Appeals link below.

https://www.harnessmediacentre.com.au/racing/stewards/appealsdecisions

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« 2018-Nov-13, 07:01 PM Reply #14 »
This is peculiar Racing NSW stewards hold an inquiry into a harness racing trainer charged him with three offences and disqualified him for a total of 2 years.....find it most unusual for thoroughbred stewards to be dealing with harness racing licensees...where are harness racing NSW stewards.

https://www.racingnsw.com.au/wp-content/uploads/SCHEMBRI-M-Stewards-Report-12-November-2018.pdf


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Offline arakaan

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« 2018-Nov-14, 07:52 PM Reply #15 »
I would say it was due to the fact that it involved thoroughbreds being tubed for a trainer for the broken hill cup meeting and that It seems Schembri role was as the facilitator of the deal to get the person to tube the horses for Healy. 

So the inquiry had nothing to do with at all with HRNSW other than I guess the enforcement of the decision handed down.





 




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« 2019-Feb-21, 12:15 PM Reply #16 »
The Cobram case involving Nathan Jack, Lisa Bartley & Mark Pitt since being posted previously has gone through the RADB which upheld the stewards decision to impose suspensions on the aforementioned ......the police took criminal charges to the Magistrates Court resulting in a 14 day hearing and a guilty verdict with the magistrate imposing significant fines on each of the defendants who appealled to the County Court and are awaiting their cases to be listed which is expected to be sometime next year.........they went to VCAT seeking that they be permitted to continue earning a living in the harness racing industry ......... despite the impressive pleadings by their counsel Damien Sheales the learned VCAT Deputy President Ian Proctor after balancing the interests of the appellants against the issue of integrity and public confidence in the harness racing industry decided to confirm the RADB decision.

Links to relevant material are hereunder:-

 https://www.harness.org.au/news/uploads/HRV%20RAD%20Board%20Appeal%20Decision%20-%2016%20NOV%2018.pdf

https://www.harness.org.au/media-room/news-article/?news_id=39052

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2018/1981.html


CATCHWORDS
Crimes Act 1958 s 195C, 195F – Australian Harness Racing Rules 183(c), (d) and 15(d) - whether interim suspensions from harness racing should continue, where findings of guilt, conviction and sentence in the Magistrates’ Court of Victoria are on appeal to the County Court of Victoria.
APPLICANT – Z1030/2018   Lisa Bartley
APPLICANT – Z1031/2018   Nathan Jack
APPLICANT – Z1038/2018   Mark Pitt
RESPONDENT   Harness Racing Victoria Racing Appeals and Disciplinary Board
BEFORE   Deputy President I. Proctor
HEARING TYPE   Hearing
DATE OF HEARING   23 and 29 November 2018
DATE OF ORDER   14 December 2018
DATE OF WRITTEN REASONS   14 December 2018
CITATION   Bartley, Jack & Pitt v HRV Racing Appeals and Disciplinary Board (Review and Regulation) [2018] VCAT 1981

ORDER
The Tribunal affirms the decision of the Harness Racing Victoria Racing Appeals and Disciplinary Board made on 16 November 2018."

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« 2019-Feb-21, 03:49 PM Reply #17 »
Derby and Miracle Mile heats on this week :bop:

Offline Bubbasmith

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« 2019-Feb-21, 07:01 PM Reply #18 »
Derby and Miracle Mile heats on this week :bop:

WOD, how the trots have fallen down the totem pole. I remember the days they were all over the press, today , at least in Melbourne, you would not even know they were coming up. The days of Paleface Adios, Gammalite & Pure Steel they were the golden years of the trots, but they are sadly fading into the sunset as most of the fans of those days have either passed on or are too old to care.

Online wily ole dog

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« 2019-Feb-22, 07:01 AM Reply #19 »
Sad but true Bubbs. I was a regular at Harold Park on a Friday night in that era :thumbsup:

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« 2019-Apr-23, 07:21 PM Reply #20 »
Very unusual case listed before VCAT today concerning appeals against disqualifications over when scratching a horse the reason given was the horse wouldn't load on the float to take it to the races ..very good reason why ..the stewards subsequently discovered the horse was DEAD .

https://www.harness.org.au/media-room/news-article/?news_id=40141

1.   Home
2.   Media Room
3.   News Article
VIC - David Vozlic & Naomi Kerr VCAT Application
17 April 2019

The Harness Racing Victoria (HRV) Stewards have today been informed that Mr David Vozlic and Ms Naomi Kerr have lodged applications for review with the Victorian Civil and Administrative Tribunal (VCAT) concerning the disqualifications imposed by the HRV Racing and Appeals Disciplinary (RAD) Board on 15 April 2019.
Both parties have sought a stay of proceedings, which has been opposed by the HRV Stewards. 
The VCAT have set a stay hearing to be conducted on 23 April 2019.
The decision of the HRV RAD Board can be viewed by clicking here.

https://www.harness.org.au/NEWS/news2/uploads/VOZLIC%20David%20%20KERR%20Naomi%20-%20HRV%20RAD%20Board%20Media%20Release.pdf


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Offline Arsenal

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« 2019-May-01, 09:46 PM Reply #21 »
VCAT decision confirming 12 months disqualification for John Justice for stomach tubing a horse on the day it was due to race ......the RAD board hearing was in November 2018 and JJ has been operating on a stay of proceedings up to the VCAT hearing ...in the meantime he has lost most of his horses to other trainers and has only 3 I think at the time of this hearing DQ commences on 13 Feb 2019.

http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/cases/vic/VCAT/2019/276

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