by Helen Thomas
‘They don’t do that by ducking into the back corner of the lab and pouring it into another bottle,’ he explained. ‘They document it and do it under the supervision of an independent witness, a member of the Victorian Bar. That split sample is then sent to, one part of it, to ChemCentre, and one part of it to the Hong Kong Jockey Club racing laboratory.’
The readings returned from these tests were 380 and 410 micrograms per litre, respectively. Racing Victoria’s counsel maintained this was ‘a better-than-typical scenario of the primary laboratory delivering its certificate’: there had been a third test, and all had been ‘sufficient and satisfactory for the stewards’ purpose’.
When the senior counsel finished his opening remarks, Matthew Stirling returned to what he argued was the heart of the matter. But first he made a dramatic analogy – ‘which is murder’.
‘The conclusion doesn’t follow from the premise,’ he said. ‘Just because a woman is found dead in a house and we know that she’s married – and we also know that on most occasions when … a wife is killed, the murderer is her husband – the Racing Victoria case is the same with Peter Moody.
‘Because he is the horse trainer, and the horse trainer is the most likely person to have administered, then it must have been him. The question, of course, in a murder trial, and the question before the board in this case, is the same: what evidence is there that Mr Moody administered cobalt to Lidari?’
Stirling pressed home his point: ‘What product do they say that we gave, over and above what we have disclosed? What was the method of administration? What was the supplement? To repeat my point, [the stewards] rely on the certificate and say, “We work back and assume it was Mr Moody” … We see no charged facts against Mr Moody, just general assertions: we say that the case is hollow. Our point in this case is: if there’s no direct evidence, how do you draw the inference on the balance of probabilities? From what facts do you draw the inference?’
Later in his opening statement, Stirling moved to ‘the materials’ that his defence team had handed to the board. ‘Let’s call it an aidemémoire,’ he said, ‘a document that’s going to be of some assistance to the board.’ Effectively, this was the barrister’s submission about what occurred with Lidari’s sample. It cited an email sent from RASL to the stewards, which read: ‘There was insufficient urine in sample 318714 for further analysis, and so was not sent.’
Stirling contended that Racing Victoria overrode this decision, ‘which we say is absolutely impermissible under the rules,’ he stated. ‘One of the points we’ll be making under Rule AR 178D is that the job of Racing Victoria is to hand the samples over to the laboratory and to absolutely refrain from any decision-making or decisions in relation to where the samples are analysed, or how, or anything else.’
Essentially, Stirling was arguing that Racing Victoria had unduly interfered in the process of the testing of Lidari’s samples. ‘Independence is paramount,’ he said. ‘[But] we have an extraordinary case here where RASL, as the official racing laboratory, has said, “No, there’s insufficient urine” … so [the sample] has not been sent on to ChemCentre, and Racing Victoria then set about overriding that decision … It’s manifest from the rules that what’s supposed to happen is that … the A-part goes to the first lab, and the B-part goes to the second lab, so there’s protection to the trainer. What’s happened in this case is that both [the] ChemCentre and Hong Kong certificates are from the B-sample.
‘It’s not permissible. It’s a breach of procedure which involved substantial prejudice to Mr Moody because of the very point I’ve explained.’
This was, as three senior racing journalists present in the hearing room would report, a ‘bombshell moment’. Veteran turf journalist Adrian Dunn was particularly taken with Judge Bowman’s description of the scenario as a potential ‘knockout blow’, and noted a quick exchange between RAD Board member Jeremy Rosenthal and Matthew Stirling.
Rosenthal asked if Moody’s lawyer was inviting the board to find that some of the evidence before it was part of a ‘poison tree’, and so not to be relied upon.
‘That’s right,’ Stirling replied. ‘What cannot happen is that Racing Victoria charge Mr Moody under its half of the rule book and then tear the rest of the rule book up. That’s what happened … This is an Integrity Department. There should be transparency. The rule is there for the protection of Mr Moody.’
It was as good a time as any for the board to take a brief break. When the hearing resumed, Judge Bowman noted the significance of the issues raised by the trainer’s barrister. ‘We’re of the unanimous view,’ he said, ‘that the argument advanced in relation to the certificate pursuant to section 178D is not a trivial argument. It is one of some substance. We are of the view that to preclude Mr Moody from advancing that argument would be denying natural justice. So we are of the view that Mr Moody should be permitted to advance that argument.’
The RAD Board’s chairman was keenly aware that stewards might need to consider overnight ‘what further steps they feel should be taken in order to meet the argument’, as well as everyone’s wish that the case stay on track, mindful that Christmas was fast approaching.
Matthew Stirling pushed further, arguing that the trainer was at a grave disadvantage the longer the case continued: ‘There’s a live practical issue at my end of the table, which is that Mr Moody has a chequebook with a lot of itch in it, which he has to get out each January. If he doesn’t buy yearlings, he’s basically not in business. It’s as simple as that.’
Still, there was more expert testimony for the board to consider. Stuart Paine was an associate professor of veterinary pharmacology at the University of Nottingham, in the United Kingdom, a position sponsored by the British Horse Racing Authority. He had prepared two reports in relation to Lidari’s high cobalt reading. In essence, Paine contended there was a one-in-10,000 chance that the hoof powder regime had led to that reading. But under cross-examination by the trainer’s counsel, Paine admitted that he did not include data for 4 October 2014 – the day Lidari had actually raced at Flemington.
Stirling: ‘So that we’re clear on that: your last inputted dosage of cobalt was on October 3?’
Paine: ‘Correct, 27 hours before the sample was taken.’
Stirling: ‘Twenty-seven hours. You assumed, didn’t you, that Lidari was not fed any Availa or had any administration of cobalt on October 4?’
Paine: ‘Correct, yes.’
Stirling: ‘Did you ask anybody whether or not Lidari was fed cobalt or Availa on October 4?’
Paine: ‘No. I did ask, “Are you 100 per cent sure that the last administration was [at] 1.30? Was there administration later in the day?” That was the specific question … because I presumed there was no administration on race day.’
Stirling: ‘The reason you said that is only logic, isn’t it, that if the horse was fed Availa later in time than your assumption of 1.30, that could make a very significant difference to the conclusions reached in your report, couldn’t it?’
Paine: ‘Most definitely, yes … If it’s later, the probabilities would come down.’
Stirling: ‘You would agree, wouldn’t you, that if Availa was in fact fed to the horse on the morning of October 4 … that would blow your report out of the water, wouldn’t it? … It would make a massive difference to your opinion, wouldn’t it?’
Paine: ‘If it was early in the morning, it would completely change those probabilities. The actual probability – I’d have to go away and do the calculation, but clearly the probability would come significantly down. But as I said, even though I’m quite experienced, I can’t do these things in my head. I would ask the computer to do that and I could come up with a risk assessment of the probability.’
The hearing room could almost hear Matthew Stirling’s silent direction: ‘Hold that thought …’
Later in the week, Dr Andrew Van Eps would tell the board that the British expert whom Racing Victoria had asked to model Lidari’s feedi
ng regime had made assumptions about horses’ digestion of cobalt that could not be relied on. The Queensland University associate professor said that even if the stallion had eaten half the amount of hoof powder that Moody initially claimed, it was possible for a highly elevated reading to be produced.
*
Two of the documents Matthew Stirling had been seeking were made available the next day, and he took time to emphasise their significance. ‘Of the two documents that we’ve received,’ Stirling said, ‘one is an email from [steward] Kane Ashby to [chief steward] Terry Bailey and other stewards on December 8 [2014]. It says, in part: “Would like to keep the wheels rolling on this one. Lets [sic] know your views in actioning above.”
Stirling’s submission to the board on this point was detailed. On 4 December 2014, he argued, the deputy laboratory director of RASL wrote to the stewards, stating that five samples ‘were sent for confirmation to the ChemCentre on Wednesday; I have requested that a priority be placed on these samples. There was insufficient urine in sample V318714 [Lidari’s sample] for further analysis, and so was not sent.’
Four days later, steward Kane Ashby wrote back to RASL: ‘We understand that RASL is able to split the “B” sample into two parts and transport one of those parts to Chemcentre for analysis. The other part may then be referred to Hong Kong, in the event that Chemcentre confirms the detection of cobalt and that referee analysis is required. In the circumstances, Racing Victoria considers that … in order to ensure that there are no concerns with the chain of custody of the sample V318714, Racing Victoria proposes that the splitting of the “B” sample (and control) be undertaken by RASL, in front of an independent witness and video recorded.’
Stirling’s argument was pointed: ‘The critical words of the email are “Racing Victoria considers that” and “Racing Victoria proposes that”,’ he said. ‘It is wrong for the RV stewards to override the decision of RASL.’ The trainer’s counsel’s submission also made further arguments in relation to the email Kane Ashby sent to Terry Bailey that same day.
‘[RASL] advised this morning a minimum of 10ml would be required to conduct confirmatory testing on splitting the “B” portion of the sample,’ Ashby’s email read. ‘This will still be “touch and go” as to whether there is sufficient urine to conduct such tests.’
Matthew Stirling maintained that Racing Victoria’s stewards had breached their obligations under rule AR 178D, and ‘by its own deliberate conduct prejudiced Mr Moody by directing analysis [only] of Lidari’s B-sample by two laboratories, when the purpose and intent [of the rule] is that the trainer should have the benefit of the first Official Racing Laboratory analysing the A-sample and the second Official Racing Laboratory analysing the B-sample.
‘ChemCentre, as the first ORL, failed to refer the same sample to a second ORL as required by AR 178D; ChemCentre, as the first ORL, failed to advise the HKJC as the second ORL of the identity of the prohibited substance as required [by the rule].’
All this was important, the barrister said, because Official Racing Laboratories were ‘accredited, experienced within their specialist task and independent of RV stewards. This independence is not only important to Mr Moody as a licensed trainer; the ramifications run much wider, to other stakeholders within the industry. Every time there is a detection of a prohibited substance in a horse, it is not only the licensed trainer that is affected, but also the owner or lessee of the horse, and also the breeder.’
On a more personal note, Stirling continued, the stewards had also failed to notify Peter Moody of the detection of the prohibited substance present in Lidari’s system when they became aware of it, on 20 November 2014. He was not informed until 13 January 2015.
For all these reasons, the trainer’s lawyer wished to ‘exclude all evidence’ generated by the analyses of the Lidari sample. ‘RV stewards have shown no regard for their contractual obligations whatsoever, and have completely ignored Mr Moody’s rights and protections under the rules,’ Stirling emphasised. ‘Critically, the Lidari samples would not have been analysed if stewards had not breached the contract by interfering in the laboratory process.’
As compelling as this ‘case within a case’ had been in terms of racing law, no doubt more exciting – for all in the hearing room – was the news that, finally, the trainer would take the stand. Peter Moody’s time had come.
12
SHE WAS THE first, and in a way, Typhoon Tracy was always the easiest girl to deal with: a straightforward filly with a pretty, refined face; a quiet worker in the mornings, but a lion-hearted competitor on the track in the afternoons, especially when she unleashed her devastating sprint. She had speed, she had heart and her name had a real lilt to it, so it didn’t take long for the public to start following her.
If racegoers and omen punters had known her backstory, she would have been even more of a favourite. Bloodstock consultant Neil Jenkinson was working with Gold Coast businessman John Hutchins when Hutchins and his wife, Fu Mei, decided to have a ‘real crack’ at getting into breeding and racing. They would prove to be astute and lucky owners. The first broodmare he bought for them was Tracy’s Element – Typhoon Tracy’s mother.
In what must rank as one of the great untold stories of Australian breeding, the agent admits it had not occurred to him to pursue the mare, as he believed she would be too valuable an asset for her owner, Vinery Stud, to part with. ‘Tracy’s Element wasn’t really a mare that I had on my radar,’ Jenkinson says, ‘because I didn’t think it possible that she’d come up for sale, as a multiple Group winner and, you know, a mare a bit on the rise; she had a two-year-old at the time that was showing a lot of promise.’
Initially, he rang Vinery to ask whether another mare from the same family might be on the market, but her name came up. ‘Peter Orton actually came forward and said, “Well, we’d be interested in selling her, but if you’ve got real money, why don’t you consider buying Tracy’s Element?”
‘I was sort of taken a bit aback and said, “I didn’t think you’d sell her,” and he said, “Oh no, just at the moment if we got enough money for her we’d consider selling her.” Peter was kind enough to put a price on [her] and he told me upfront, “That’s the price it will be – there’s no negotiation.”’
But the influential breeding operation had not dealt with Fu Mei Hutchins before. ‘Fu Mei is Taiwanese, and as is the Chinese way, she wasn’t going to accept that there was no negotiation,’ Neil Jenkinson recalls. He had to come up with a ‘sweetener’ before the deal stalled, and fast.
He had an idea: he asked for a free service to Red Ransom – an international ‘shuttle stallion’ who stood at Vinery, when he was in Australia – to be included. It made sense: the mare was already in foal to the sire, so this ‘three in one’ package had an undeniable logic. ‘Peter thankfully agreed to that deal,’ the agent says, ‘and you wouldn’t believe it – that free service was Typhoon Tracy! So it’s quite a great story, that part of it.’
The foal Tracy’s Element was carrying at the time of the successful barter was ‘a beautiful colt’ the Hutchins initially tried to sell as a yearling, although eventually they raced him themselves as Red Element. He now stands at stud in Queensland. But his sister became the family’s star.
‘What they were about at the time was building a broodmare band, making it a viable operation,’ Jenkinson says. ‘And [Typhoon Tracy] was obviously the first filly born with them coming into the business. So she was never offered for sale – [she] was never going to be offered for sale.’
Yet as valuable as Typhoon Tracy was as a youngster, the bloodstock consultant admits that she ‘was not a standout; she was correct and neat and just part of a lovely bunch of fillies running around the hills at Vinery’. Even as she was broken in, at the height of the equine influenza outbreak in 2007, she did not really take anyone’s eye.
‘Yeah, she had a very uneventful life as a foal and weanling and yearling. I almost can’t remember a vet bill for her, you know; s
he never got herself in any trouble. She was just part of a big mob and had a great upbringing without any trouble, which was nice.’
The unheralded bay filly was sent to Peter Moody’s Caulfield stables in the hope she might win at least a couple of significant ‘black type’ races – the highest level of thoroughbred racing – to further enhance her already impressive family tree. So valuable was her mother, and so internationally feted her sire, that the three-year-old filly’s future was assured even if she never set foot on a racetrack. She was already a broodmare-in-waiting; anything that came before that career would be icing on the cake.
While Moody had not done a lot of business with his fellow Queenslander Jenkinson, he had been on the consultant’s radar since his days with the bloodstock company Magic Millions in Brisbane. ‘He worked hard, so I’d given Peter a leg-up with some owners when I was with Magic Millions and early in my private business, and we’d always have a laugh – I had an association with him and we got on reasonably well.
‘Once he got going in Melbourne, Pete showed that probably his greatest attribute at the time was … he was prepared to take ordinary horses anywhere that they had to go to win races. A lot of the bigger stables didn’t travel as far as he used to. Peter was taking them to Adelaide, up to the bush, to win wherever they could, and that didn’t go unnoticed with John Hutchins and myself. So I made a phone call to Pete and said, “Listen, I’ve got a nice filly.” It was a pretty straightforward sort of thing. So we sent the filly down and away she went.’