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Offline Arsenal

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« 2018-May-10, 04:24 PM Reply #175 »
Smerdon, Nelligans banned for life
Andrew Eddy (@fastisheddy) & Luke Sheehan (@LukeDSheehan)   2:23pm

Trainer Robert Smerdon has been disqualified for life by the Racing Appeals and Disciplinary Board, as the penalties for the Aquanita Inquiry were presented at Melbourne's County Court on Thursday.

Smerdon, the most prominent of the eight industry participants found guilty of serious charges under the Australian Rules of Racing, was said to be 'the major driving force behind the scheme', and Judge John Bowman rued the 'sad' state of affairs when dealing out the lifetime disqualification to the fourth-generation trainer.

Smerdon may also face a further financial sanction, with his legal counsel, led on Thursday by Mr Tim McHenry, to submit details on his financial situation within seven days, and Racing Victoria stewards have a further three days to respond to that being put forward.

In addition to Smerdon's sanction, for their involvement, Aquanita employees Greg and Denise Nelligan were also disqualified for life.

Licensed trainers Stuart Webb (four years), Tony Vasil (three years), Trent Pennuto (two years) and Liam Birchley (one year) were also handed hefty disqualification periods.

Stablehand Daniel Garland was also disqualified for one year for his involvement.

UPDATE: Earlier in the day the RAD Board confirmed a decision on penalties would be handed down at 2pm for the eight people found guilty in the Aquanita Inquiry, after hearing submissions from involved legal parties at Melbourne's County Court.

The most pertinent point of the morning's penalty submissions was the legal argument around the possibility of a fine in addition to disqualification for Smerdon.

Racing Victoria stewards' legal counsel Jeff Gleeson, QC, had raised their demand for a minimum disqualification period of life for Smerdon plus a $100,000 financial sanction, however, McHenry expressed his surprise as the 'prospect of a fine has never previously been mentioned'.

McHenry further added that it 'captures me somewhat surprised', would be 'entirely inappropriate', 'completely premature' and 'potentially disastrous' for Smerdon.

Judge Bowman later put it to Gleeson regarding the proposition of a fine, and the potential tabling of Smerdon's financial situation, to which he submitted: "It's not a matter you should take into account, but if you do, we don't resile there should be a fine nonetheless."

He added: "One is a fine directly attached to his conduct. Another would be a civil consequence of his conduct. They are two very different things."

That comment regarding potential 'civil consequence' lies in the prospect of potential prizemoney redistribution regarding disqualification of horses - a matter Judge Bowman had earlier declared would not be handled directly on Thursday.

RV had called for a lifetime ban and a $100,000 fine for Smerdon at the opening of penalty submissions in the Aquanita Inquiry in Melbourne on Thursday morning.

Gleeson told the RAD Board that 63-year-old Smerdon was at the head of Australia's largest-ever doping scandal and as such should never be allowed back into the industry.

Gleeson also called for the RAD Board to impose life bans for Greg and Denise Nelligan for their part in 'perhaps the most serious offence in racing or any sport'.

The other five found guilty - Webb, Vasil, Pennuto and Birchley as well as Garland - should receive five-year disqualifications, the RAD Board heard.

Gleeson told the RAD Board the eight who were charged and earlier this week found guilty should be sanctioned on the basis their actions have 'individually and collectively cast a shadow over the entire racing industry'.ENDS

Giddy Up :beer:

Offline Arsenal

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« 2018-May-10, 05:16 PM Reply #176 »
I've heard rumblings or grumblings that some punters are advocating the disqualified persons should be jailed ...... IMO that's hardly  likely ....despite the tough talk of racing minister Martin Pakula..... although through him   if he was so minded the Crown could decide to prosecute those involved...and while there have been prosecutions for ring ins and more recently live baiting....which resulted in jail time .......it's a long time since horse racing participants have been charged with criminal offences for  breaking the rules of racing.....if the authorities put their mind to it they could possibly argue  Smerdon & the Nelligans and to a lesser extent the other licensees could face criminal conspiracy charges or fraud but what would it be likely to achieve ......the ring leaders  been banished from the only life they've known and the others are outed for various periods.....much lesser time than Gleeson QC argued for.

Giddy Up :beer:

Offline Peter Mair

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« 2018-May-10, 10:12 PM Reply #177 »


Dark shadows and more draconian penalties?

I do not think so -- RVL would not want any of this nonsense to go near a civil court.

Dark shadows for some are a light of commonsense for others.

........... all revolutions start with a little, well-reasoned , disrespect for authority and the authorities try to run a tank over it.

It is unlikely that the 'on the day rule' would pass muster in a civil  roundup that included 'no swabs' and only stewards discretion determining 'what is a treatment' and the relevance of 'on the day' when other horses in the same races may well have had naturally higher retained  bi-carb readings.

There has been more than the usual flow of official bluff and bluster in this matter while the 'offenders' have said nothing -- and it is very likely that the (not) free-press have been encouraged to ramp it up.

I would love to see this debate go to a civil court -- check with RNSW.


Offline nemisis

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« 2018-May-10, 10:47 PM Reply #178 »








 'offenders' have said nothing --


Liam Birchley said something ........something completely unbelievable.

Offline Peter Mair

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« 2018-May-11, 07:11 AM Reply #179 »


Go back to when this story broke

.......... it was beyond comprehension that a group of respected trainers would have offended ............ unless they had good and fair reason to do so.

It is clear enough that the 'one day' rule was breached -- but this is relevant only if it is also accepted that the RVL stewards were entitled to impose such a discretionary rule in the first place.

Clubs and members are entitled to make whatever rules they like -- but when a discretionary rule impedes the reasonable exercise of professional expertise in the business of earning a living, then the  criteria for assessing the rule and its enforcement can be very different.

............. the Aquanita8  may be the ones that bring this matter to a civil court and an always-planned intention to do so may be the explanation for silence of 'offenders' not wanting to waste time in private RVL tribunals where they were clearly at a disadvantage if the 'one day' rule was the basis of the charges rather than the consequence of breaking it.

What price a snowballs chance in hell of Robert Smerdon being back on the job in 2019?


Offline arthur

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« 2018-May-11, 08:20 AM Reply #180 »
What price a snowballs chance in hell of Robert Smerdon being back on the job in 2019?

That IS a price . .

And the right one . .

And drifting . . .

Offline Arsenal

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« 2018-May-11, 09:14 AM Reply #181 »
Just another point of view contrary to the description "discretionary rule" opined by Peter Mair..the rules are not discretionary you can't please yourself which rules you'll abide by or those you'll ignore ..like the Rules of Golf which I'm familiar with .....the difference in golf is if you break a rule you penalise yourself .......I don't doubt that some players don't..they're cheats and their reputation suffers...we don't like playing with cheats.

In the Aquanita case the rules are universal the letters AR means they are the Australian Rules of Racing and apply throughout the Commonwealth LR before a rule indicates a Local Rule...which may or maynot apply in the other States...a good example is the Local Rule brought in in Victoria after the Neville Clement's case where he was found not to be bound by the Rules of racing as he was not a licensed person ...... the judge held the rules were "CONTRACTUAL" and as a non licensed person Clements did not consent and was not bound by them......but as mentioned by Judge Bowman in striking out Smerdon's claim that he is not bound by the rules as he is no longer a licensee.....RV adopted a Local Rule to fix the gap that existed in Clements' case...but in Qld RQ has not followed suit..so if Clements or anyone else were to find themselves in the same position that Clements was in they would be safe .......exempt from the Rules of Racing ..until RQ wakes up and follows RV's lead.

Peter Mair is mistaken :o

Giddy Up :beer:
« Last Edit: 2018-May-11, 09:29 AM by Arsenal »

Online wily ole dog

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« 2018-May-11, 01:18 PM Reply #182 »
Mair is not mistaken. He is wrong as ususal

Aquinita broke the rules deliberately.
They were trying to cheat

Mair protecting his mates and his own self centred agenda

The question remains the same to Mair

What was Smeadon and co hoping to achieve by giving the substances to the horses

Offline Peter Mair

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« 2018-May-11, 05:38 PM Reply #183 »

A little discretionary diversion

There is no question about the 'race day' rule being in place and it being akin to a contractural term oif the implied contract participants have with racing administrators.

In the normal course the rule is a good one and the industry enforces it -- this notwithstanding that there is almost no detected breaches of swab limits across thousands of samples.

Trainers -- including the Aquinita8 -- would be stupid to present a horse to swab positive and we kniow that the 8 are not.

The issue here is about the 'race day' rule and whether it alone can be the basis of denying a right to work in a chosen profession -- I think not.

The situation with bicarb and tripart is complicated by the reality that both  (as well as lasix and bute et al) can be used provided that on race day the concentrations are below agreed limits (including zero)

It is in this broader context that the observance and enforcement of the 'race-day' rule have an element of discretion which it may be argued is different when innocuous substances like bicarb and tripart are used in quantities that do not breach agreed limits.

There has been no suggestion in this matter of using bicarb to hide illicit substances.

To illustrate with a triviality  -- a rule may deny trainers wearing red sox the right to present a horse to race -- and it could be enforced up to a point within the industry.

However if an infringement were to result in a trainer being denied a right to work, a broader legal framework might be engaged to preclude that.

The industry gets considerable protection from the likely cost of taking a civil action but it is likely in this case that it would be considered a just cause.

........to go back to an earlier point, if any 'treatment' had been given before the cutoff time but in a way that delayed the effect til race day, then the relevant test would be about breaching the race day swab limits and that test was presumably passed on all occasions.

In a way the debate is about the determined pursuit of an action on the day not the consequences of the action that the rule is intended to preclude.

[So far, in what looks like a game of lay down misere, there is only one player at the table and all his cards have been played bar one -- evidence that the horses suspected of being treated actually performed better than expected (presumably none). The moot point is about the game being moved to a different table and some different cards being played. It would be a pity to see RVL 'win' simply because the 'offenders' cannot afford toplay their hand.]


Offline Arsenal

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« 2018-May-11, 06:57 PM Reply #184 »
Racing.com is way ahead of the rest of the pack publishing the RAD board's decisions on penalty separate from the decision handed down on Thursday.......the disqualification of Birchley & Vasil et al  is to be determined by submissions of the parties...... they are not permitted to start any horse after 10th May.

 https://cdn.racing.com/-/media/racing/files/rad-board-decison-on-penalty---aquanita-10-05-2018



Mr Liam Birchley. We have left Mr Birchley until last because whilst he
had been an Aquanita trainer until 2011, thereafter he was independent of that
organisation and was not part of the hierarchy of corruption.
 He was based in Brisbane. However, as described in our decision of 8 May 2018, he kept up his
contact with Gregory Nelligan. Between 2011 and 2015, on three occasions he
.Aquanita 10.5.18 P-7
Spark and Cannon engaged in conduct involving top-ups.
 This was not as a member of the team
that was operating, but as someone who requested and used top-ups supplied
either by that team or by Gregory Nelligan, possibly when freelancing. Each
of these instances occurred during the spring carnival, and the last on
Melbourne Cup Day. At least on that occasion he specifically contacted
Gregory Nelligan in order to get a top-up.

We also note that Mr Birchley has for all intents and purposes an unblemished
record. He is a prominent Brisbane trainer, with in excess of 60 horses in
work. A period of disqualification will hit him hard. He may not have been
part of the inner circle, he may have been outside the tent, but these are serious
matters and constituted conduct in breach of AR 175(a). For that breach,
Mr Birchley is disqualified for one year.


Giddy Up :beer:
« Last Edit: 2018-May-11, 07:02 PM by Arsenal »

Online wily ole dog

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« 2018-May-11, 07:33 PM Reply #185 »
Despite Mairs claims it’s clear that he administration of the drugs to the horses was to boost race day performance

They cheated. End of story

Offline Peter Mair

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« 2018-May-15, 06:42 AM Reply #186 »


No chance of RVL going back and investigating bets on Smerdon horses

The Smerdon stable was a betting stable -- and the bets would have gone on when the insurance was a top-up for one that had been got ready anyway.

...................so, what would an investigation find ......that horses with stable confidence were backed!

I will believe stories about stewards investigating betting when I see one example of what were clearly rorts exposed by a stewards investigation.

.........the whole game is run on the basis that connections can smoke one in and clean up without any  even sidewasys glance at the set-up and the associated insider trading.

Tell me the last time a plunge punter was asked 'what did you know' and 'who toldyou' ?


Online wily ole dog

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« 2018-May-15, 07:32 AM Reply #187 »
Do you want an answer to that question?

Offline Arsenal

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« 2018-May-15, 09:17 AM Reply #188 »
Doping ring’s $3m windfall
LEO SCHLINK

BANNED: Robert Smerdon.

ROBERT Smerdon could have amassed more than $3 million in prizemoney with doped winners, as the Racing Appeals and Disciplinary Board considers imposing a $100,000 fine on the rogue trainer.

Disqualified for life as the Aquanita doping ring mastermind, Smerdon has been convicted of being party to 115 counts relating to race-day treatment using sodium bicarbonate “top-ups”.

Of the 115 counts, The Courier-Mail has identified 54 occasions when winning horses appear to have been treated by float driver Greg Nelligan on Smerdon’s orders.

Nelligan and his wife Denise also have been disqualified for life. Five others – trainers Stuart Webb (four years), Tony Vasil (three years), Trent Pennuto (two years), Liam Birchley (one year) and stablehand Danny Garland (one year) – have also been sidelined, subject to possible appeal.

Smerdon’s lawyer, Tim McHenry, described Racing Victoria’s push for a fine as “completely premature”.

He argued that the demand for the fine and the prospect of civil court action against Smerdon, could have a “potentially disastrous financial outcome” for the veteran trainer.

Text message exchanges between Nelligan and Smerdon reveal hundreds of races were targeted by the pair and, more broadly, the so-called “circle of trust”.

Suspect victories have been uncovered in Group 1 level contests at Flemington and Rosehill to country maidens.

In total, successful Smerdon runners suspected of being illegally treated between June 2010 and June 2016 earned $3,460,877. This figure does not include stake money for minor placings and lower finishes.

McHenry last week claimed Smerdon owned no property and, at 63, was not yet able to access superannuation funds.

Trainers generally earn 10 per cent of the winner’s purse.

The board is yet to reach a position on the possibility of disqualifying horses thought to have been doped.ENDS

Assuming that Smerdon has some  of his share of the  $3M stashed away and it can be discovered and assuming the RAD board decides to impose a financial penalty I pose the question how and by what means do they intend to collect it.......Smerdon is unlikely to meekly hand it over ...and the RAD board doesn't have any hold on him now he's a free agent....in these circumstances I assume he would be put on the Victorian Forfeits List and it would be up to RV to institute civil proceedings to recoup the amount of the possible fine...but as we have seen in the Qld experience very little effort is made to collect the thousands outstanding from those on the Forfeit List many have been on the FL for years while others still train and nothing ever reduces their debts.....I expect the same situation applies in Victoria and elsewhere.

Giddy Up :beer:



Online Authorized

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« 2018-May-15, 11:33 AM Reply #189 »



Clubs and members are entitled to make whatever rules they like -- but when a discretionary rule impedes the reasonable exercise of professional expertise in the business of earning a living, then the  criteria for assessing the rule and its enforcement can be very different.



It seems 99+% of Training professionals are able to conduct their daily business practising their expertise without breaking this discretionary rule.


Offline PoisonPen7

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« 2018-May-15, 01:22 PM Reply #190 »
Geez $100k fine PLUS life  :what:

A bit like the old days when they used to disembowel someone and show it to them before they killed them  :(

Online specialweek2

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« 2018-May-15, 01:23 PM Reply #191 »
Geez $100k fine PLUS life  :what:

A bit like the old days when they used to disembowel someone and show it to them before they killed them  :(
So what happens if he decides he won't pay the fine?

Offline fours

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« 2018-May-16, 12:57 AM Reply #192 »
Hmmm,

2 points :-

At 63 he should be able to access super money - more likely he does not want to for ta advanages if he waits to 65

ALL of the parties affected by less $$ as a result of his 'wins' can go after him singly or in a class action.

Fours

Offline arthur

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« 2018-May-16, 11:02 AM Reply #193 »
So what happens if he decides he won't pay the fine?

That's a good question . . and no doubt he will have had the best legal advice on this

The QRL default list is as long as your arm, and going by infringement dates, many have no intention of 'weighing in'

Offline PoisonPen7

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« 2018-May-16, 11:52 AM Reply #194 »
So if he doesn't pay the fine he might lose his license? Oh hang on...........

Offline Arsenal

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« 2018-May-16, 07:20 PM Reply #195 »
Birchley seeks VCAT stay
Andrew Eddy@fastisheddy   3:36pm
, (
Disqualified Queensland trainer Liam Birchley will front the Victorian Civil and Administrative Tribunal on Friday seeking a stay of proceedings so as to continue his career pending an appeal.

Birchley was last Thursday disqualified for one year by the Racing Appeals and Disciplinary Board for his part in the Aquanita Inquiry, where eight people were given lengthy sanctions after being found guilty of transgressing race-day treatment rules dating back almost a decade.

After the RAD Board decision, the Queensland Racing and Integrity Commission permitted Birchley seven days to move his horses and close his stable, with the proviso that he could apply for a further seven days' grace to allow him to properly utilise the appeals process.

Friday's hearing will determine whether Birchley can continue to train horses on a stay of proceedings until his appeal is heard.

As yet, none of the other seven sanctioned people with links to the former Aquanita Racing - including former trainer Robert Smerdon, who was disqualified for life - have made submissions to VCAT for a stay of their disqualification.

They were given 28 days to lodge an appeal from the day of the penalty announcement.ENDS

You would think it would be foregone conclusion that a stay would be granted .......very prompt listing by VCAT which is as it should be......I presume RV will be entitled to oppose his application which IMO would be tantamount to denying him natural justice.

Giddy Up :beer:

Offline Arsenal

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« 2018-May-18, 08:08 AM Reply #196 »
Review and Regulation List
Directions Hearings
55 King Street, Melbourne – Room 1.4

Deputy President H. Lambrick

10:00 AM     Z367/2018             Liam Birchley v Racing Appeals and Disciplinary Board

10:00 AM     Z383/2018             Mr Tony Vasil v Racing Victoria Limited

Maybe the others have decided to pack it in ...should be a shoo in for Birchley RAD board dunno about Vasil... going for RVL ..we'll know the outcome soon enough.

Giddy Up :beer:

Offline nemisis

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« 2018-May-18, 09:53 AM Reply #197 »
 I think Birchley will have little chance.....he was a complete embarrassment to himself under questioning and doesn't deserve a stay.

Tony Vasil should have challenged the show cause notice at the beginning if he felt he was wrongly accused.........seems like he waited to see what evidence RV had against him.


Offline sobig

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« 2018-May-18, 01:39 PM Reply #198 »
latest


Ben Dorries
‏Verified account @bendorries76
1h1 hour ago

Liam Birchley WINS a stay of proceedings at VCAT re Aquanita case - can train until his his appeal against one-yr ban is heard

Offline Arsenal

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« 2018-May-18, 07:45 PM Reply #199 »
Stays granted for Birchley, Vasil
Andrew Eddy@fastisheddy   1:15pm
, (
Former Aquanita trainers Liam Birchley and Tony Vasil have both been granted stays of proceedings to allow them to continue training pending the hearing of their appeals against disqualifications to the Victorian Civil and Administrative Tribunal.

VCAT Vice President Heather Lambrick gave the orders on Friday that both trainers were entitled to attempt to clear their names, after Vasil was given a three-year disqualification and Birchley a one-year ban last week by the Racing Appeals and Disciplinary Board.

The Queensland Racing Integrity Commission confirmed on Friday afternoon that it would abide by the VCAT ruling, allowing Birchley to continue to train until the outcome of his appeal in Melbourne.

As part of his submission on a stay for Vasil, his legal counsel Patrick Wheelahan said his client agreed to conditions that he was willing to train under the former arrangement with Racing Victoria where it held all prizemoney percentage earned by him until the case is determined finally.

If he is found guilty, he will forfeit all his trainer's percentage earnings.

Earlier the tribunal heard that the RAD Board's reasons for its decisions regarding the 'Aquanita Eight' were 'unsophisticated' and involved a 'demonstrable error' regarding the actual administration of bi-carbonate.

Michael Grant-Taylor, who is representing Birchley, told the tribunal that RV's evidence of an actual administration of bi-carb was 'scarce' and that the RAD Board had erred in that respect.

Wheelahan agreed with Grant-Taylor's description of the RAD Board's reasons for the decisions, describing them as 'pithy' and 'wholly inadequate'.

He said the RAD Board had decided Vasil, who was present at Friday's application hearing, was guilty despite there not being a single text message from the trainer proving his involvement.

Wheelahan said the RAD Board relied on the text messages from Greg and Denise Nelligan, who he said were 'untruthful' and 'unreliable persons'.

Lambrick said she noted the case and evidence against Vasil was 'more circumstantial' than that of Birchley.

Jeff Gleeson, QC, representing Racing Victoria, said both applicants presented 'hollow submissions' and one that did not deal with the fact they were disqualified largely under 175 (a), which deals with dishonourable and corrupt conduct.

Gleeson said that whether the administration of bi-carb was actual administration or attempted administration still amounted to 'dishonourable conduct'.

Lambrick indicated a directions hearing for the appeals would be held in about four weeks.

Vasil and Birchley are the only two of the eight persons disqualified in last week's Aquanita ruling to seek a stay pending an appeal, but the other six still have until the second week of June to lodge an appeal.

Giddy Up :beer:


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