HEARING OF CHARGES ISSUED AGAINST LICENSED TRAINER MR PAUL MURRAY IN RESPECT TO THE DONCASTER PRELUDE CONDUCTED AT ROYAL RANDWICK ON 13 APRIL 2013 AND THE DISCOVERY OF A SUBSTANCE LABELLED CONCENTRATED TRACE MINERAL DURING A STABLE INSPECTION CONDUCTED ON 17 JUNE 2014.
Hearing Location: RNSW Offices Druitt Street Sydney
Steward: M F Van Gestel (Chairman)
On Thursday 16 February 2017 Racing NSW Stewards finalised the hearing of the following charges issued against licensed trainer Mr Paul Murray relative to the Analyst’s finding of cobalt at elevated levels being detected in a stored sample taken from Alma’s Fury following that gelding finishing in second placing in Race 6, the Doncaster Prelude at Royal Randwick on the 13 April 2013.
Mr Paul Murray was represented by Mr David O’Neil of counsel.
After consideration of all of the evidence and the submissions made by Mr David O’Neill on behalf of Mr Paul Murray, the Stewards found Mr Paul Murray guilty of each of the five charges.
1. AR175(h)(i) Did administer or cause to be administered, a prohibited substance to the gelding, Alma’s Fury for the purpose of affecting the performance of that horse in race 6, the Doncaster Prelude, at Royal Randwick racecourse on the 13 April 2013. Plea: Not Guilty Finding: Guilty
2. AR175(h)(ii) Did administer or cause to be administered, a prohibited substance which was detected in a sample taken from Alma’s Fury following that gelding running in race 6, the Doncaster Prelude, conducted at Royal Randwick racecourse on the 13 April 2013. Plea: Not Guilty Finding: Guilty
3. AR178 Did bring Alma’s Fury to Royal Randwick racecourse for the purpose of engaging in race 6, the Doncaster Prelude, on the 13 April 2013 and a prohibited substance was detected in a sample taken from Alma’s Fury following it running in that race. Plea: Not Guilty Finding: Guilty
RNSW STEWARDS REPORT 4. AR80E(1) Did have in his possession at his Kembla Grange stable premises, when visited by RNSW Officials on the 17 June 2014, substances that had not been registered and/or labelled and/or prescribed and/or dispensed and/or obtained in compliance with relevant State and Commonwealth legislation. Plea: Not Guilty Finding: Guilty
5. AR177B(5) Did have in his possession at his Kembla Grange stable premises on the 17 June 2014 a substance labelled “Concentrated Trace Mineral” found to contained elevated levels of cobalt that could give rise to an offence under AR177B if administered to a horse at any time. Plea: Not Guilty Finding: Guilty
In arriving at the above findings, the Stewards note the following:
1. Mr O’Neil made a number of submissions about procedural and numbering matters in respect of the relevant sample. Ultimately, the Stewards need to be satisfied to the requisite standard that the sample analysed was the sample taken from Alma’s Fury following the Doncaster Prelude and had not been contaminated or otherwise compromised. The Stewards are so satisfied. The Stewards are reinforced in this view by the safeguards contained in the Rules of Racing in respect of “A” portion and “B” portion (or as known in the Rules of Racing as the “referred reserve portion”). In this case, the “A” portion tested by National Measurement Institute (NMI) returned a reading of 890 (µg/L) and the “B” portion (“referred reserve portion”) tested by ChemCentre returned a reading of 940 (µg/L).
2. Mr O’Neil also made a number of submissions about the accreditation of NMI and ChemCentre at the relevant times. The Stewards accept the evidence of the representatives of both of those laboratories that they held the appropriate NATA accreditation at the relevant times to analyse the sample and note that they specifically identified the applicable parts of their respective NATA accreditations. As such, the Stewards consider each of the laboratories to be an “Official Racing Laboratory” as defined in the Rules of Racing, with the appropriate accreditation to analyse equine urine for cobalt.
3. It was also submitted on behalf of Mr Paul Murray that cobalt was not a prohibited substance at the relevant time as it predated the introduction of the threshold in the Australian Rules of Racing on 1 January 2015. In making that submission, Mr O’Neill submitted that the contrary findings of the Racing Appeals Tribunal in the case of Darren Smith (delivered on 22 July 2014) were inconsistent with the NSW Court of Appeal decision in Day v Harness Racing NSW  NSWCA 423. The Stewards reject that submission and note that the Racing Appeals Tribunal considered the NSW Court of Appeal decision in Day v Harness Racing NSW at some length in arriving at its finding that cobalt was a prohibited substance prior to the introduction of the threshold. The Stewards further note that the submission is not supported by AR178C(1) which exempts cobalt from being a prohibited substance under AR178B if present at concentrations at or below the threshold rather than deeming it to be a prohibited substance if above the threshold. The Stewards also note the evidence of Dr Suann that the levels of cobalt detected could not be reached through treatment or supplementation with legitimate products containing cobalt and/or vitamin B12 administered in accordance with the Rules of Racing. In this respect, it is noted that the elevated readings are extremely high, being over four times the initial cobalt level excepted by AR178C(1)(l) implemented on 1
RNSW STEWARDS REPORT January 2015 and eight times over the revised cobalt level excepted by AR178C(1)(l) applicable form 1 September 2016.
4. In respect of the administration charges under AR175(h)(i) and AR175(h)(ii), the Stewards make the finding that Mr Paul Murray administered a prohibited substance, namely cobalt, to Alma’s Fury. As to the more serious of the charges, being AR175(h)(i), the Stewards also find that Mr Paul Murray did so “for the purpose of affecting the performance” of Alma’s Fury in a race. In this respect, the Stewards note the statement by the Racing Appeals Tribunal at paragraph 9 of its penalty findings in the matter of Darren Smith (delivered on 22 July 2014) that “Why else would there have been an administration of cobalt if it was not done in the belief that it would provide a benefit to the horse? It is the intent, not the actual effect, to which the rules are directed”. The Stewards also note the finding by the Racing NSW Appeal Panel in the Appeals of Mr Sam Kavanagh, Dr Tom Brennan and Dr Adam Matthews (delivered on 6 May 2016) at paragraphs 77 and 78 that administration with the intent of aiding the recovery of a horse is for the purpose of assisting its performance in a race. In making those findings, the Stewards note that evidence of Mr Paul Murray varied in respect of his knowledge of the existence of the bottle discovered in his fridge on 17 June 2014 and further note that he admitted to administering a substance from a similar bottle that gave no indication of who manufactured it, what its precise ingredients were or where it came from.
A date will be set for submission on penalty and whether Alma’s Fury should be disqualified from Race 6, the Doncaster Prelude, at Royal Randwick racecourse on 13 April 2013.