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Offline MagiC~*

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« 2018-Dec-18, 06:30 PM Reply #250 »
What horse are they suggesting in the MC?

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« 2018-Dec-18, 07:44 PM Reply #251 »
What horse are they suggesting in the MC?

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No horse has been named the texts allegedly were on MC day in 2015 Nelligen denies he ever hit one in the Cup.

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Offline Arsenal

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« 2018-Dec-18, 07:46 PM Reply #252 »
Greg Nelligan: I used Winx as distraction for Turnbull Stakes day doping scheme
Greg Nelligan: I used Winx as distraction for Turnbull Stakes day doping scheme Greg Nelligan. Photo: Darryl Sherer
Ben Dorries Article Author
Ben Dorries

18 December 2018
Greg Nelligan admits using mighty mare Winx as a distraction in his attempt to dope a horse on Turnbull Stakes day last year - but claims he never doped any Melbourne Cup horses.

Nelligan conceded he had attempted to illegally treat Lovani at Flemington on Turnbull Stakes Day 2017 because Winx was racing and "I foolishly thought they would all be watching her (Winx) and I had an opportunity."   

But he says he never illegally treated any Melbourne Cup horses because “I think that would be a day I considered too risky” and "you’d be ridiculously foolish to do it."

Nelligan insisted he had never illegally treated horses trained by two trainers, one known as the “Goat” or “The Goatherder” on text messages, who are not the subject of any charges stemming from the Aquanita inquiry.

Nelligan is the stablehand at the centre of the 'Aquanita eight' doping conspiracy who has been banned from racing for life.

He was quizzed at the Victorian Civil and Administrative Tribunal about the Liam Birchley-trained horse Pop ‘N’ Scotch which ran on Melbourne Cup day 2015.

Birchley has always denied ever administering or requesting a horse to be administered with any substance, despite a text message he sent saying: "Can you org (organise) a top-up for tomorrow?"

That text was sent to serial doper Nelligan concerning Pop 'N' Scotch, which was to run at Flemington on the Melbourne Cup program the following day in 2015.

Under questioning from Birchley’s legal counsel Michael Grant-Taylor at VCAT, Nelligan said he no memory of administering illegal substances to horses on Melbourne Cup day.

But he doubted he would have risked it on the biggest day in Australian racing.

“I have no idea .. I can't recall, but I don’t think that I did it,” Nelligan said

“I think that would be a day I considered too risky."

Later he said: "I don’t claim to have any integrity in this industry anymore but I wouldn’t do it (illegally treat horses) in the Melbourne Cup.

"You’d be ridiculously foolish to do it."

Nelligan, under questioning from Patrick Wheelahan for Tony Vasil, was asked further about texts referencing Melbourne Cup horses.

In texts on the eve of the 2015 Melbourne Cup, Nelligan claimed he had "two Cup horses as well” to do and there was another text saying: “Robert (Smerdon) had me do one for the guy with the Cup horses a few years ago so it's not out of the circle of trust but I still don't tell him.”

But Nelligan told VCAT: “I have no recollection of doing horses for the Melbourne Cup.”

Nelligan also said he had never illegally treated a Tony Vasil-trained horse.

Greg Nelligan was subpoenaed to give evidence by Racing Victoria lawyers during of the appeals hearing of banned trainers Smerdon, Stuart Webb, Birchley and Vasil at VCAT.

An emotional Denise Nelligan, banned from racing for life over the Aquanita 'top-ups' affair, was in the VCAT witness box late on Tuesday and admitted she at one point became involved in making the bicarb paste for illegal raceday treatments.

Denise Nelligan, Greg's wife, also conceded she knew various parties were involved in the illegal scheme.

“I didn’t like it,” Denise Nelligan said.

Denise Nelligan's evidence will continue at VCAT on Wednesday.

* Due to the ongoing nature of the appeal, comments have been turned off *

Ben Dorries Article Author
Read all News by Ben Dorries
https://www.racenet.com.au/news/greg-nelligan--too-risky--to-dope-horses-on-melbourne-cup-day-20181218


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Offline MagiC~*

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« 2018-Dec-18, 07:47 PM Reply #253 »
Goat, Greatest of all time.
D Wier?
Who won the MC in 2015 ?

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« Last Edit: 2018-Dec-18, 07:50 PM by MagiC~* »

Online wily ole dog

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« 2018-Dec-18, 07:59 PM Reply #254 »
I thought the Goat was meant yo be Gelagotis

Offline nemisis

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« 2018-Dec-18, 08:17 PM Reply #255 »
The two horses that were the most likely were Ed Dunlop's two runners.

Trip to Paris who ran 4th and the gallant Red Cadeaux who broke his fetlock and failed to finish.

Everything pointed to Manny Gelagotis being the Goatherder.......the dates, the horse and even the language used in the texts.

Offline Jeunes

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« 2018-Dec-18, 09:10 PM Reply #256 »
The two horses that were the most likely were Ed Dunlop's two runners.

Trip to Paris who ran 4th and the gallant Red Cadeaux who broke his fetlock and failed to finish.

Everything pointed to Manny Gelagotis being the Goatherder.......the dates, the horse and even the language used in the texts.

Why Ed Dunlop? He is not an Australian trainer so where is the relationship? Nelligan may not be in same circles or am I being naive?

Offline nemisis

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« 2018-Dec-19, 08:13 AM Reply #257 »
Why Ed Dunlop? He is not an Australian trainer so where is the relationship? Nelligan may not be in same circles or am I being naive?
I'm not sure what the relationship is but the truth here is in the texts......not what Jeff Gleeson is able to prize out of Greg Nelligan.

It has always looked to me that the racing industry doesn't want to investigate this properly.

« Last Edit: 2018-Dec-19, 12:44 PM by nemisis »

Offline Arsenal

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« 2018-Dec-19, 07:30 PM Reply #258 »
Vasil claims others 'topped-up' his horses
 
Andrew Eddy@fastisheddy
4:43pm

Trainer Tony Vasil told the appeal hearing against his three-year doping ban that it appears others, including those also charged and convicted over the Aquanita scandal,
had conspired to top-up his horses with illegal bi-carb mixtures.

An emotional Vasil took the stand on day five of the appeal hearing of four banned trainers to declare 'I was stunned' when he realised trusted people around him had been 'topping-up' some of his horses.

"2017 wasn't a very good year for me," Vasil told the Victorian Civil and Administrative Tribunal on Wednesday before wiping away tears.

"I never knew of or never gave consent that any of my horses were to be treated."

Vasil rejected he had any knowledge about the 'top-ups' conspiracy that ran from 2010 to 2017 and has led to sanctions for eight people - all former employees of the now defunct Aquanita Racing.

"I was shocked and disappointed," he said. "I did not know."

Vasil was taken through a number of text messages by Racing Victoria's legal counsel Jeff Gleeson, QC, from other Aquanita employees that referred to Vasil's horses and how and when they were to be topped up.

Vasil said he had no knowledge of what had been happening with respect to top-ups and was 'bamboozled' by it.

Gleeson asked Vasil if he thought those who were topping up his horses were fantasists and he replied: "Denise Nelligan is a strange person and Greg Nelligan was very addicted to betting."

Vasil said while he had gotten on well with Greg Nelligan, who was 'very supportive when my mum died' and was 'a good fella', he was not as friendly with his wife Denise.

"I don't believe anything that comes out of Denise Nelligan's mouth," he said.

He conceded to the tribunal that the Nelligans lived in a house in East Brighton that Vasil owned for as long as nine years rent free.

Vasil said he used to add sodium bicarbonate to his horse's feed but denied he has ever illegally administered the substance.

"I used to feed it to the horses," Vasil said. "It was practice for a number of years. A soup spoon measurement in their feed."

But Vasil said he would not add the bi-carb to feed on race day as he knew it was banned under the 24-hour treating rule and that he believed it was performance enhancing.

Vasil was suspended for six weeks for a bi-carb offence with a horse called Mr Splinters about a decade ago and said he swore off bi-carb from that moment.

"As soon as that happened, as soon as I got six weeks, I stopped using it," he said.

Vasil agreed he was 'quite good friends' with Greg Nelligan and just 'friends' with his wife Denise until after the Lovani incident on October 7, 2017.

But Vasil said that friendship drifted after the Lovani incident.

"I suppose I distanced myself from them," he told the tribunal. "I had to digest it."

Gleeson challenged that answer, claiming Vasil was still good friends with Greg Nelligan some months after he was caught trying to administer a bi-carb mix to Lovani and that he only fell out with Nelligan because he felt he had to be 'outraged' and 'furious' with being connected to the scandal.

Vasil was released from the stand shortly after 4pm to signal an end to the hearing that lasted five days.

VCAT deputy president Heather Lambrick adjourned the hearing until a date to be fixed in February next year when the parties will give oral submissions.

ENDS

Still it drags on oral submissions to come although it was reported previously that two previous witnesses were likey to be recalled .

Racenet Report Ben Dorries
Denise Nelligan tells VCAT former Vic chief steward Terry Bailey is an ' :censored: '
Denise Nelligan tells VCAT former Vic chief steward Terry Bailey is an ' :censored: ' Former Victorian chief steward Terry Bailey.
Ben Dorries Article Author
Ben Dorries

19 December 2018
Denise Nelligan has told the Aquanita raceday treatment appeals hearings that she thinks former Victorian chairman of stewards Terry Bailey is an " :censored: .”

Nelligan, banned for life over the Aquanita affair, was being quizzed by Racing Victoria legal counsel Jeff Gleeson at the appeals of four banned trainers at the Victorian Civil and Administrative Tribunal.

Nelligan was asked why, on one text message, she referred to then Victorian chairman of stewards Terry Bailey as “an asshole.”

“Because that’s what I think,” she replied.

Gleeson then asked Nelligan if she thought Bailey was an  :censored:  purely because he was trying to catch her and husband Greg Nelligan cheating.

“No, not just because of that,” Nelligan replied.

Bailey was at the Racing and Disciplinary Board hearings of the Aquanita affair earlier this year but has since taken up as a position as chief steward in Singapore and isn’t at the appeals hearings before VCAT.

Denise Nelligan also testified that Group I-winning trainer Stuart Webb was not involved “in a physical sense” with topping-up horses, but claims he was involved in the organisation of the illegal raceday treatment scheme.

Webb, who apart from being a Group I-winning trainer often organised the transport for the Aquanita organisation, has been banned for four years over the raceday treatment scheme.

Denise Nelligan, who was an office worker and stablehand at Aquanita, was asked by Gleeson what Webb’s involvement was.

“Not in a physical sense, the actual giving of it (raceday treatment),” Nelligan said.

Then she was asked if Webb, to her knowledge, did not personally put syringes in horses’ mouths but was involved in organising raceday treatments.

“Yes,” Nelligan replied.

Denise Nelligan also gave evidence that banned trainer Tony Vasil (three years) was involved in the scheme and had hidden “top-ups” from stewards.

“The stewards did watch Tony closely,” she said.

Nelligan admitted her husband Greg, also banned for life over the Aquanita affair, had a traditional way of trying to evade detection from stewards while embarking on raceday treatment.

She agreed that he generally hid syringes loaded with sodium bicarbonate and tripart underneath his jacket before illegally treating horses in stalls on raceday.

The Nelligans were subpoenaed to give evidence by Racing Victoria lawyers during of the appeals hearing of banned trainers Robert Smerdon, Stuart Webb, Liam Birchley and Tony Vasil at VCAT.

Denise Nelligan, in the same way as her husband, prefaced all her answers at VCAT with the phrase “I claim that the answer I give may tend to incriminate me” with reference to any potential further litigation.

* Comments have been turned off on this story while the appeals hearing is ongoing *

Ben Dorries Article Author
Read all News by Ben Dorries


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« Last Edit: 2018-Dec-19, 07:34 PM by Arsenal »

Online wily ole dog

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« 2018-Dec-20, 07:23 AM Reply #259 »
Not sure why but I tend to believe Vasil

Offline napes

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« 2018-Dec-20, 10:19 AM Reply #260 »
Yeah, he had no idea it was happening, and the Earth is flat  :tin:.

Offline Arsenal

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« 2019-Mar-08, 08:36 PM Reply #261 »
Aquanita VCAT appeals edge to conclusion
 
Racing.com Staff@Racing
5:38pm

Closing submissions in the appeals by the suspended trainers in the long-running Aquanita investigation challenged why Racing Victoria had yet to produce betting records.

Patrick Wheelahan, legal defence for trainer Tony Vasil, claimed that RV had failed to prove that betting was a motive as no records had been tabled to support that.

The Victorian Civil and Administrative Tribunal heard closing submissions in the appeals from Robert Smerdon, given a life-time ban and fined $90,000, and fellow trainers Stuart Webb (four-year ban), Vasil (three years) and Liam Birchley (one year).

The trainers, along with four others attached to the Aquanita stable, had been banned after being found guilty of 271 charges. Those banned included husband and wife Greg and Denise Nelligan, who both received life bans.

This stemmed from the detection of race-day treatment of Lovani by Greg Nelligan on Turnbull Stakes Day at Flemington in 2017, when champion mare Winx was in the spotlight.

Neither the Nelligans, Trent Penuto (two years) or Daniel Garland (one year) have appealed their bans.

RV's investigation found more than 1000 text messages during a seven-year period from a total of 70,000 texts downloaded from Greg Nelligan's mobile phone, linking to the alleged administration of sodium bicarbonate referred to as 'top ups'.

Jeff Gleeson, representing RV, said that the Nelligans 'didn't shy away or seek to disavow the content of the text messages'.

He went on to say that the Nelligans appearance at VCAT in December dashed the hopes of the banned trainers.

"People do not waste their time sending hundreds of thousands of text messages containing lies particularly when there is no motive to do so," Gleeson said.

"Our primary position is these administrations were not only proposed or planned but they were successfully carried out."

Further written submissions are due before Heather Lambrick, VCAT vice-president, delivers her verdict.
   
Aquanita VCAT appeals edge to conclusion
5:38pm
 
ENDS

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Offline Arsenal

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« 2019-Mar-12, 10:02 PM Reply #262 »
Robert Smerdon challenges life ban
Posted by: AAP+ at 1:11pm on 12/3/2019
Posted in: Horse Racing News
1 Comments
   

Robert Smerdon has argued a racing tribunal had no power to ban him for life over the “Aquanita eight” doping scandal because he had surrendered his trainer’s licence.

One of four trainers appealing their disqualifications over the cheating conspiracy, Smerdon has also challenged the Racing Appeals and Disciplinary Board’s jurisdiction to hear the charges against him.

Smerdon handed in his trainer’s licence in March last year, after he was charged with corrupt conduct but before the RAD Board heard the case and handed down sanctions.

Smerdon argued that effectively once he surrendered his licence, that was the end of the matter, the Victorian Civil and Administrative Tribunal heard on Tuesday.

Smerdon’s lawyer Tim McHenry said at the time when the RAD Board heard the charges and later determined sanctions, the trainer was no longer bound by the rules of racing.

“If the tribunal is against us on that simple premise, our pack of cards, we acknowledge, collapses,” McHenry told VCAT.

He said Racing Victoria argued Smerdon could not simply surrender his licence.

“That would suggest that somehow or other the rules endorse some sort of enslavement – that someone once being granted a licence has no option or opportunity to surrender it,” McHenry said.

RV barrister David Bennett outlined the principal question he said VCAT must address.

“Where a trainer has breached the rules while he was licensed and bound by the rules of racing, can he escape a disciplinary hearing and consequent sanction by purporting to surrender his licence after charges have been laid but before the charges are heard.

“Mr Smerdon says yes and Racing Victoria obviously says no.”

Bennett said a reasonable person would not expect someone could walk away with an untainted disciplinary record by surrendering their licence, particularly when the conduct involved serious and repeated cheating.

Eight people associated with thoroughbred management company Aquanita Racing were disqualified over the conspiracy to cheat in more than 100 races over seven years, using top-ups of sodium bicarbonate and Tripart paste.

VCAT deputy president Heather Lambrick will hand down her decision on the challenges by Smerdon, Stuart Webb (banned for four years), Tony Vasil (three years) and Liam Birchley (one year) at a later date.

ENDS

A manoeuvre to avoid LIFE and the $90K fine good luck getting that out of his piggy bank...IMO a pointless argument...why because he surrended his licence so LIFE means nothing unless he thinks there'll be an amnesty some time in the future and all will be forgiven ...most unlikely and the fine $90Kwill never be paid all that'll happen is he'll be on the Forfeits List which as experience shows means zilch. :beer:


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Offline Arsenal

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« 2019-Jul-11, 09:59 AM Reply #263 »
VCAT Deputy President Heather Lambrick is taking her time in making a decision on the Aquanita appeals and cross appeals submissions were finalised in early March and it's now 4 months and still no decision.......... in most businesses and commercial enterprises there are KPI's performance targets....... nothing like this exists at VCAT or other domestic or quasi judical tribunals. In another state jurisdiction one judge retired with 40 outstanding judgments while in QLD another judge is under pressure over the number of his decisions which have been overturned on appeal.

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Offline Arsenal

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« 2019-Jul-22, 10:06 AM Reply #264 »
STIER SAYS CHEATS WON’T BE AFFORDED A “FLASHING LIGHT”
July 10, 2019 11:39 am


Racing Victoria integrity head Jamie Stier said RV would never reveal details of its testing for illegal treatments for fear it would provide cheats with a “flashing light”.

Stier’s comments on Racing Pulse this morning came as news broke yesterday of fears that sea snail venom might be being used as an illegal pain blocker in horse and harness racing.

Stier said there was a broad test that could lead to accurate detection of “a wide range of venoms” but would not comment specifically on sea snails, which produce a venom capable of instantly paralysing prey.

“We are very firm on this. We won’t go into the specifics of what abilities we have to detect any substance that doesn’t have a legitimate place in horse racing,” he said.

“And the logic of that is very simple; just putting flashing lights on it and people would just move on.”

Those comments came after Racing NSW chief executive Peter V’landys revealed Racing NSW had a screen test specifically for sea snail venom.

“When we get information we act on it and we have a screen for this drug now. At the moment it is not a part of the normal screening process, but we have the ability to target it and test for it,” V’landys said.

Stier said a specific venom had “popped its head up periodically over the last 12 months or thereabouts.”

“And we’ve been in discussions with NSW and other jurisdiction and here at RASL (Racing Analytical Services) we do have a conotoxin test which covers a wide range of venoms, so we’re looking at ensuring that’s appropriately fitted to enable us to detect any venoms in use out there,” he said.

Stier said his department received “various bits of information and keep an eye on what’s going on here and internationally.”

He said some information trails had merit “and some don’t.”

He said diligent research was required “to ensure that you can get an evidence-based answer to it.”

He said “the word” was that some venoms were being used as pain blockers. He added that RV and other jurisdictions were diligently investigating venoms and other potential illegal treatments to ensure a level playing field.

“People will always test the boundaries, unfortunately that’s human nature. And we wish that wasn’t the case,” he said.

By Matt Stewart RSN927’s Racing Editor

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Offline Arsenal

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« 2019-Sep-14, 10:07 AM Reply #265 »
VCAT rejects Aquanita bans
LEO SCHLINK


APPEALED: Liam Birchley.

FOUR of the principal figures in the notorious Aquanita case, including Robert Smerdon, could have their penalties reduced after the Victorian Civil and Administrative Tribunal rejected some of the original sanctions.

Liam Birchley’s appeal against a one-year ban was successful, against involvement in a sophisticated doping ring from 2010-17, principally on a technicality relating to the wording of charges.

The Queenslander, who recently retired from training, was among four of the eight people charged over the scheme to appeal.

Smerdon, found guilty on 115 charges by the Racing Appeals and Disciplinary Board, earned a partial reprieve from VCAT.

The so-called driving force behind the clandestine bicarbonate on-course rorting was found guilty of 115 counts of improper behaviour and disqualified for life and fined $90,000 by the RAD Board.

But VCAT disagreed with 37 of those counts, leaving Smerdon with the prospect of pushing for a lighter penalty.

A plea hearing with submissions for revised penalties is expected next month.

Stuart Webb, banned for four years on three counts, was found guilty on one count by VCAT.

Tony Vasil, who was outed for three years on six counts, was found guilty on two counts by VCAT.

Four others involved in the doping operation – Greg Nelligan (life), Denise Nelligan (life), Trent Pennuto (two years) and Danny Garland (one year) – chose not to appeal.

All eight were linked to the now defunct Aquanita Racing organisation.

In total, they faced 271 counts of improper and fraudulent conduct over a seven-year period.

The group was detected after Greg Nelligan was caught attempting to inject Lovani with a modified syringe containing bicarbonate soda paste at Flemington on October 7, 2017. The “top-ups” boosted stamina and stifled the buildup of lactic acid in horses.

A subsequent investigation extracted thousands of incriminating text messages from Nelligan’s mobile phone.

The texts linked the doping operation to some of Australia’s biggest races, including the 2015 Melbourne Cup.

RAD Board judge John Bowman described the scandal as the darkest chapter in Australian racing.

Racing Victoria, which appealed against Birchley’s oneyear ban, was last night considering its position.

“Our primary objective is to uphold the integrity of the sport and to enforce the Rules of Racing to ensure that every horse is able to compete on a level playing field,” Racing Victoria executive general manager Jamie Stier said.

ENDS

Once the reasons for decision are published we'll know more but for the time being this is it .....as for liam Birchley his 12 months has long gone he has been free to go since May 18th give or take a day or so but the ban on nominating in NSW hasn't been revoked so much for fairness and natural justice. :o

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Offline Arsenal

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« 2019-Sep-15, 12:52 PM Reply #266 »
The VCAT decisions on the Aquanita case

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT//2019/1372.html

This case is on the Jurisdictional issue raided by Robert Smerdon that as he “surrendered his trainer’s licence” he was not bound by the RAD Board decision......Deputy President Lambreck decided against him in a detailed decision in the link above.

“Conclusion
116.   In circumstances where Mr Smerdon was licensed at the time of each of the allegations and the laying of the charges, I am comfortably satisfied that both the Racing Act 1958 and Rules of Racing conferred jurisdiction on the Stewards to lay charges and thereafter the RAD Board to make findings and determinations with respect to those charges.
117.   I am satisfied that the RAD Board had jurisdiction on 30 April 2018 to hear and determine the matter.
118.   I will not set aside the decision for want of jurisdiction.
119.   I am satisfied that Mr Smerdon could not avoid the RAD Board disciplinary hearing and resultant sanctions by surrendering his licence prior to the hearing.
120.   I will affirm the decision of the RAD Board that it had jurisdiction to hear and determine the charges laid against Mr Smerdon and the applicant’s application to have the decision of the RAD Board set aside on jurisdictional grounds will be dismissed.”
The Substantive Appeals
The second decision deals with the appeals by Smerdon and others penalised by the RAD Board the learned DP Lambreck found Liam Birchley not guilty but the others Vasil, Smerdon &Webb were found guilty .A very lengthy decision canvassing the text messages between the parties and putting the term “top ups” in the realistic light of what they were referring to ....not feed or water and a condemnation of the evidence given by RV’s witnesses who  Ms Lambreck concluded were vague not credible and self serving.

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT//2019/1394.html

FINDINGS
Z367/2018
641.   Mr Liam Birchley is not guilty of the charge of breach of old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a).
Z383/2018
642.   Mr Tony Vasil breached the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on or about 7 July 2012 and 7 June 2013 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day.
Z471/2018
643.   Mr Robert Smerdon breached the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on 78 occasions between 26 June 2010 and 5 November 2016 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day.
644.   Mr Robert Smerdon breached the Rules of Racing (old Rules of Racing AR 178E/new Rules of Racing AR 249)) in that on 8 October 2010 he caused to be administered medication to a horse on race day
Z472/2018
645.   Mr Stuart Webb breached the Rules of Racing (old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a)) in that on 28 April 2017 he engaged in a practice that was dishonest, corrupt or fraudulent, improper or dishonourable in that he was a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day.
ORDERS
Z367/2018
646.   The decision of the RAD Board made on 8 May 2018 is set aside.
Z383/2018, Z471/2018 & Z472/2018
647.   The Tribunal has scheduled an administrative mention on 15 October 2019 by which time the parties shall advise the Tribunal in writing as to the further conduct of the matter.

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Offline Peter Mair

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« 2019-Sep-15, 07:35 PM Reply #267 »



Rough Justice

.......................no positive swabs recorded from 'winners' routinely tested? --  still no 'evidence'  the horses given 'top ups' performed contrary to expectations........... still no suggestion of misbehaviour other than a 'ridiculous' rule that horses not be treated with 'anything' on race day.

Of course horses are treated on race day -- fed and watered -- well or not -- helped to win (and, worse, helped to lose).

....... a big hammer used to crack a small nut ........ the stewards do not analyze the betting records with the level of intelligent skill needed to find the crooks ....... there is no point 'setting one up' if the setters don't win unexpectedly.

... nothing found so far?


Offline Arsenal

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« 2019-Sep-16, 09:30 AM Reply #268 »
How Birchley won
NATHAN EXELBY
 
SUCCESSFUL: Liam Birchley.
 
LIAM Birchley’s success in his appeal against a one-year disqualification came down to the Victorian Civil and Administrative Tribunal not being satisfied any of his horses had been treated illegally.
Birchley, one of Queensland’s most successful trainers of the past decade, was charged as part of the Aquanita doping scandal that involved the alleged use of illegal sodium bicarbonate “top-ups” on race day.
VCAT deputy president Heather Lambrick said there was no evidence Birchley’s horse Pop ‘N’ Scotch was administered with anything on Melbourne Cup day in 2015.
“Whilst it is no credit to Mr Birchley that I do not find the particular proven, I am ultimately not satisfied that an actual administration has been proven,” Lambrick said.
“In these circumstances, I am therefore not satisfied that the charge against Mr Birchley has been proven.”
Lambrick described the text exchange between Birchley and top-up perpetrator Greg Nelligan on November 2, 2015 in which Birchley said “can u org a top up for tomorrow pls” as “damning”.
“I am satisfied that in the text exchange, Mr Birchley requested Mr Nelligan to organise a top up for the next day when he had a horse running,” she said.
“I am satisfied that the text message exchange was one in which Mr Birchley directly authorised, directed and requested Mr Nelligan to top up a horse.
“The only live question for my consideration then was whether an actual administration took place.
“I am not satisfied that it did.” Lambrick noted Nelligan did not agree to perform the “top up” in the text exchange.
She accepted the opportunity to top up Pop ‘N’ Scotch “may have been limited” but disagreed it would have been “impossible”.
“I do agree that there were potential impediments which once again raise real questions as to whether Mr Nelligan would have gone through with the administration,” she said.
Earlier in her judgment, Lambrick noted the charge and particulars do not extend to include “attempted” or “planned” administration, and that is why Birchley’s appeal was successful.
“What was alleged is an actual administration,’’ she said. “The particulars as framed do not and cannot on any reading of them include planned or attempted administration.

“I agree (with the submission of Birchley) the particulars as expressed allow for no interpretation other than that the prohibited substance was actually administered.”
The deputy president said suggestions “topping up” related to food and water was “demonstrably absurd and untenable”.
“I am satisfied … that the expression top ups … meant the practice of covertly administering sodium bicarbonate (bicarb) and/or Tripart paste to horses on race day orally via a syringe,” she said.
ENDS
Liam 's legal team found the line with their submissions that the charge of administration could not suceed RV had notice of their position but relied on the RAD board decision......... whether they could have amended the charge to "planned administration" is very doubtful based on Ms Lambreck's comments following the exchange between Grant-Taylor QC for Birchley and Gleeson QC for RV......in the light of Birchley's not gulty finding it's assumed RV's appeal for a two year disqualification has been finalised.
EXTRACT FROM DECISION
The primary position of Racing Victoria was however, that on each occasion particularised, any proposed or planned administration was successfully carried out such that the plan to administer was actually fulfilled.
Alternatively however, Racing Victoria submitted that the charge would nevertheless be made out against an applicant if it were established that the applicant was a party to a proposed/planned administration, whether such administration was fulfilled or not.
Each applicant adamantly disagreed with this latter proposition.
Each applicant contended that Racing Victoria was required, in accordance with the particulars specified, to show:
(a) that an alkalinising agent/medication was actually administered, and
(b) that the individual charged knew/consented to/acquiesced in its administration.
In the very early stages of the hearing when Mr Gleeson was introducing the case for Racing Victoria, Mr Grant-Taylor, who appeared on behalf of Mr Birchley, said:[7]
The particulars of charge which have been sought from the respondent expressly allege that there was an administration, not an attempted administration, not a counselling of an administration, but an actual administration of sodium bicarbonate to the horse ...

Mr Gleeson responded:[8]
There was one matter arising from what Mr Grant-Taylor said that I should address and that is his proposition that the only way in which the charge can be sustained against his client is if there is evidence of the actual implementation of the administration and that it wouldn’t be sufficient for there to be any planned or attempted administration. We say that’s certainly not the case. It is our case, if your Honour find that there was planned administration of sodium bicarbonate, that is clearly dishonourable, dishonest or corrupt conduct. That was our position at the RAD Board ...

There is no doubt that peppered throughout the decision of the RAD Board is terminology such as the words “long-running systemic conspiracy”... involved in a “plan” ... “were part of this conspiracy”.
Racing Victoria therefore submitted that no applicant was disadvantaged by Racing Victoria’s submission, they having been placed on notice about the way in which the case would be run by Racing Victoria, both before the RAD Board and this Tribunal.
I disagree.
I agree with the following submission made by Mr Grant-Taylor and adopted by the other applicants:
The importance of the proof of particulars of facts and circumstances relating to the alleged commission of an offence under LR 6C(3)(a)(ii) is stressed in Kavanagh v Racing Victoria Ltd [2017] VCAT 386. Nothing that was said by the Court of Appeal when the decision in Kavanagh was taken on appeal derogates from the correctness of the principal there stated. It can be assumed that the principal is of no less importance here.

In Kavanagh v Racing Victoria Limited (Review and Regulation) [2017] VCAT 386, Justice Garde said at [642]-[643]:
[642] No application was made to the Tribunal to seek to amend any of the charges to rely on the analyses set out in the table. The notices of charges to be determined by the Tribunal are in an identical form to those before the RAD Board. RVL now seeks to rely on particulars of facts and circumstances extraneous to those that are before the Tribunal and were before the RAD Board.
[643] In my view, it is not able to do so, not having sought to amend the particulars of facts and circumstances relating to the alleged commission of each offence under LR 6C(3)(a)(ii).
I agree with each of the applicant’s contentions that Justice Garde’s observations are equally applicable in the context of this hearing.
At no stage during the proceeding did Racing Victoria seek to amend the particulars despite being placed on notice by each applicant that he took issue with the way in which Racing Victoria was running its case.
During the course of the hearing before me, the following further exchange took place during the cross-examination of Mr Nelligan:
Mr Grant-Taylor: I object. I object, Deputy President. It’s as well to get this out in the open now. We have heard my learned friend recite this morning the proposition. But so far as the respondent is concerned, it will be sufficient to ground the charge if there is an attempt or counselling - allocate whatever verb you want to. Could I take you to Mr Birchley’s application for review of a decision and in particular, paragraph 7 of the reasons for making this application, perhaps rather than ...

... Your Honour, the reasons for seeking a stay decision are Annexure B to Mr Birchley’s review document. And paragraph 7 of that document says quite unequivocally:

Despite it being an element of the charge, that in respect of each of the instances of conduct alleged, sodium bicarbonate was, in fact, administered to the horse concerned. The RAD Board expressly or alternatively by inference held that a mere attempt to administer sodium bicarbonate to a horse falling short of actual administration will be sufficient to ground a verdict of guilty.

Now, the way in which my learned friend came out with the answer this morning seems to suggest that everybody at the bar table is quite complicit in the notion that all it needed to prove is some sort of conspiracy. That is, it could not be, frankly, more incorrect. The ground of appeal, which I’ve just recited is- maintained strenuously before this Tribunal and will continue to be maintained unless a ruling is advanced that there is some basis upon which it cannot be maintained.

Mr Gleeson: I’m not sure what that was, but it wasn’t an application for anything.

Mr Grant-Taylor: It was a basis for an objection to the question.

Mr Gleeson: Well, it can’t be a basis for an objection to a question to say that one party puts a certain position. If the other party puts a different position, that’s a live issue and it’s a relevant issue and the cross examination is admissible. Mr Grant Taylor’s objection would seem to presuppose that because he asserts that the RAD Board got it wrong and that because he asserts that party to administration doesn’t mean a planned administration or attempted administration, that forecloses the matter. Of course, that’s not the case.

The Deputy President: Why isn’t it a matter for submissions as opposed to the question? Why is the question an unacceptable question?

Mr Grant-Taylor: To the extent to which my learned friend suggests that the words are plain and simple words that favour his construction, my submission is quite the opposite. To say or to [hear] somebody of being party to an administration, in my respectful submission, allows for no option other than what is being alleged ... that the substance was administered. Now, that is repeated in the particulars which are exhibit A below, that there was an administration. Now, this may not be the time of the place for on to rule on the question.

The Deputy President: No.

Mr Grant Taylor: But I simply want to ensure that there is no misunderstanding that somehow we at this end of the bar table are complicit in the notion that what our learned friend announced to be the case which the respondent was putting forward is somehow something that is agreed upon. It’s not.

Mr Wheelahan: Deputy President, I just confirm from Mr Vasil’s position, that’s true as well. We are defending on the case on what the charges say which is an actual administration and the submissions below-and again, it wasn’t acquiesced to by the parties. The submissions made on behalf of Mr Vasil to the Board that it required actual administration and that is the position that will be put in closing submissions.

Mr McHenry: Can I just indicate to the Deputy President, that that’s the position of Mr Smerdon as well. But its all well and good for Racing Victoria to seek to expand upon what we would have said to be the clear and unequivocal meaning of the term, administration, in the context. That, where content that it’s a matter further submission rather than at an earlier time.

Mr Gleeson: The parties at the bar table are free to conduct their case on whatever basis they see fit-and I’m speaking of the other, not myself here. They are perfectly entitled to say, “well I’m going to meet case X,” but when it has been stated clearly in opening and in detail and by reference to the RAD Board material, the basis upon which Racing Victoria puts the case, to the applicants to turn their face away from that and say, “Well I’m not meeting that case,” is a curious decision, but one that is open to them.

But it is not open to them to say, “and I didn’t know that the contrary was the case.” The reason for requiring parties to provide particulars of the charges is to put them on notice as to the case they have to meet. It could not be clearer than that the case that these applicants have to meet and did have to meet is that it is sufficient to constitute a charge of dishonesty or corruption, et cetera, to plan to administer sodium bicarbonate. To suggest that they could be taken by surprise or that they are somehow disadvantaged obviously is a hopeless task because that’s the way the case has been run. If what is sought to be done is to require an application to amend the particulars, so as it says in terms of one or two syllables, administration, including planned or attempted administration, we’re happy to do that. They can hardly claim prejudice and say this is a new case. But I really do want to move beyond this. There is a degree of running interference after lunch today, and we’re not getting very far with the evidence. I just would be happy to make that application for leave to amend and move on if it will satisfy the parties because we’re getting bogged down.

The Deputy President: That’s likely to be opposed, of course on the basis ...

Mr Gleeson: Yes.

The Deputy President: ... that what’s being said, what the parties do tend to agree with is that it’s a matter which can be a matter for closing submissions and they’re putting everybody on notice that it will be a matter for closing submissions and I think we then get back to the question that was being asked and the objection. It seems to me in those circumstances, I should allow the question and, for what it’s worth, in due course, whichever way it goes in due course, I may be asked to ignore the question.

At no stage did Racing Victoria formally seek leave to amend the particulars.
Whether such leave would have been granted is highly debatable. It most certainly would have been opposed. Arguably, Racing Victoria would have been asking me to consider a charge that had not been the subject of any earlier determination, which I am unable to do.[9] Generally, the Tribunal must address the same question as the original decision maker was required to address even if the original decision maker addressed a different question.
Each applicant was entitled to meet the case as charged and particularised against him.

The Rules of Racing required Racing Victoria to provide particulars of charges. The purpose of particulars was to put each applicant on notice of the case he was required to meet.
Each applicant agreed that planning to cheat and believing the plan had been carried out would be a dishonest, corrupt, fraudulent, improper or dishonourable action or practice in breach of old Rules of Racing AR 175(a)/new Rules of Racing AR 229(1)(a) of the Rules of Racing. Each contended however that that was not the charge faced by him.
Each applicant maintained throughout the proceeding his interpretation of the allegation as meaning that in respect of each of the instances of conduct alleged, alkalinising agents and/or medications were in fact, administered to a horse or horses on race day.
Each criticised any finding made by the RAD Board to the effect that an attempt to administer to a horse falling short of actual administration could be sufficient to ground a finding against him.
Each also strenuously disagreed that all Racing Victoria needed to prove was some sort of conspiracy.
I agree with the construction advanced by the applicants. I agree that the expressed particulars, “you were a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day”, can only bear one interpretation, namely that the applicant knew of/consented to and/or acquiesced in an actual administration on the dates particularised.
The charge and particulars do not extend to include “attempted” or “planned” administration.

This was not a fresh issue between the parties. In correspondence dated 25 January 2018, Mr Birchley’s solicitors sought clarification of the particularisation of the charge. That request was responded to in correspondence from Minter Ellison Solicitors on behalf of Racing Victoria dated 29 January 2018, as follows:
(a) on 3 November 2011, Mr Birchley was a party with Messieurs Daniel Garland and Greg Nelligan (later amended to Mr Daniel Garland only), to the administration of alkalising agents and/or medication, in the form of sodium bicarbonate, to Emmalene, a horse trained by Mr Birchley and which ran in Race 4 at the Flemington Racecourse, in that he knew of, consented to, and acquiesced in, the administration by Mr Garland of that substance.
Similarly framed further particulars were provided in relation to the other two dates on which it was alleged that Mr Birchley had breached the Rules of Racing.
Mr Webb similarly sought particulars and received the following like response:
[142] On 15 August 2010, Mr Webb was a party with Mr Nelligan and Mr Smerdon to the administration of alkalinising agents and/or medication, in the form of sodium bicarbonate to Some are Bent, Gael Force and She’s Good as Gold, horses trained by Mr Smerdon and which ran in races one, seven and eight respectively at the Sandown race track in that he knew of, consented to, and/or acquiesced in, the administration by Mr Nelligan of that substance.
Again, similar particulars were provided in relation to the other two dates alleged against Mr Webb.
The plain wording of the original particulars coupled with the further particulars make it clear that what was alleged is an actual administration. The particulars as framed do not and cannot on any reading of them include “planned” or “attempted” administration.
Annexure A for each applicant set out the dates on which each applicant was said to have engaged in the conduct alleged against him. During the hearing, Racing Victoria took me and the various witnesses step-by-step through most of those individual incidents of alleged conduct.
The further particulars set out above are completely consistent with the wording of the original particulars. They did not allege an attempted administration or drawing an even longer bow, intended but aborted or still longer bow, considered or contemplated administration.
I also disagree with the further proposition advanced by Racing Victoria that each applicant needs to show that he is taken by surprise or somehow disadvantaged.
It is not for an applicant to positively demonstrate he is disadvantaged by a reconstruction of the particulars nor is it for me to guess whether or not the applicants would be prejudiced by an amendment or whether they would have run their cases differently if the particulars were differently framed. I agree with the submissions of each applicant that each applicant was entitled to expect that Racing Victoria would prove its case as alleged and particularised.
I agree with the submission of each applicant that the charge as faced by each applicant before the RAD Board did not include “planned” or “attempted” administration. I agree that the particulars as expressed allow for no interpretation other than that the prohibited substance was actually administered.
I am satisfied that in order to substantiate that on any date the subject of Annexure A upon which it was alleged that the applicant was a party to the administration of alkalinising agents and/or medication, Racing Victoria must establish that:
(a) the administration took place, and
(b) the applicant knew of, consented to and/or acquiesced in the administration.
Any particular conduct could of course be proven by circumstantial evidence.
 
Giddy Up :beer:

« Last Edit: 2019-Sep-16, 09:39 AM by Arsenal »

Offline Arsenal

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« 2019-Nov-11, 10:13 AM Reply #269 »
Liam Birchley's application for costs against RV has been refused in a comprehensive decision Heather Lambrick Deputy President while she praised the submissions of Birchley's legal team as meticulously prepared she was not complimentary of their client's conduct finding there were no grounds to depart from the general principle that all parties should bear their own costs.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2019/1663.html?context=1;query=%22review%20and%20regulation%20list%22;mask_path=au/cases/vic/VCAT
ORDER
1.   The application made by the applicant for the respondent to pay his costs in accordance with s 109(2) of the Victorian Civil and Administrative Tribunal Act 1998 is dismissed.

Giddy Up :beer:


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