In a triumph for common sense and good law, charges have been withdrawn against five Victorian trainers accused of administering the prohibited substance arsenic and breaching Greyhound Australasia Rule (GAR) 83 (1A) and 83 (2)(3).
The recent request by the Greyhound Racing Victoria (GRV) stewards to withdraw arsenic charges was the only logical conclusion to a “comedy of errors” that lasted in excess of nine months and should have been sorted without the intervention of the RADB.
Excessive amounts of arsenic are believed to affect the cardiovascular system of greyhounds, so in late 2015 GRV started testing for arsenic, putting trainers on notice that it would enforce breaches of a proposed urinary threshold of 800 ng/mL that was to come into effect on July 1, 2016.
GRV stewards became aware of a number of swabs clearly exceeding the 800 ng/mL threshold and initially no charges were laid. Instead, stewards continued to monitor swabs and the information about high levels was withheld from trainers.
The issue of arsenic positives first came to light when the greyhound ‘Stevron Autos’ produced two positive swabs at the Meadows on January 27 and also February 3, 2016. Additional charges were laid against four other trainers between February–May 2016.
Investigations into the feeding regimes of the dogs and subsequent testing by GRV identified the source of the arsenic as an over the counter Kelp supplement readily available to the public, marketed to the racing industry as being free of prohibited substances and sold at GRV tracks across Victoria.
But despite that simple explanation and an easy fix to the problem, GRV stewards were adamant that they were to proceed with charges and appear at the RADB. A decision they would ultimately regret.
The five trainers were each charged with two offences: administered or caused to be administered a prohibited substance; and failing to present the greyhound free of any prohibited substance.
It didn’t take long for the GRV case to start to come unglued because GAR 83 1 (a) requires that a prohibited substance is administered, or had someone else administer with prior knowledge.
Arsenic is not a foreign matter, it is not a narcotic, it is prevalent and it is even in water. One of the most interesting findings of this case is that upon analysis, arsenic was found to be present in the control solution, the swab referee sample, of two of these greyhounds.
Despite the trainers having absolute liability for their actions, the RADB members questioned how the trainers could have had prior knowledge, how it could have been deliberate and with intent, when the source of the arsenic was unknown at the time of the breaches.
With GAR 83 1 (a) ill founded, the attention the turned to GAR 83 (2) that deals with presenting a dog free of a prohibited substance.
Particulars of a charge relate to a charge and the charge relates to the rules and the rule had not commenced. So the Board found that it was not permissible for GRV to rely on the threshold as it had not been enacted and it was only a suggestion of excessive levels.
On December 5 2016, during the enquiries of William and Judith McMahon, the RADB and Mr Vince Murphy, appearing for the McMahons, raised with Counsel for the Stewards that “as particularized the charges were based upon possibly false premises”.
Counsel for GRV knew they were in trouble and decided to change tactics, choosing to opt for the charge of “the presence of a prohibited substance”, because they argued that its presence was capable of affecting a greyhound’s performance.
However, some time between the RADB hearing in December and the date set down for February 7, 2017 they realised that by successfully running the argument of the presence of a prohibited substance, they would have effectively created a massive problem for the whole greyhound industry.
GRV Chief Vet, Steven Karamatic had given evidence that greyhounds have a natural level of arsenic of around 20-25ng/mL but the problem GRV Counsel had was that without a threshold level, even one ng/mL breached the Rule.
Extrapolating those facts out it would have been impossible to race a greyhound in Victoria because every greyhound that was swabbed would naturally record a positive to arsenic and all trainers would be in breach of the Rule.
Swab by swab they would have eventually penalised every trainer and the result would have been to progressively close down greyhound racing in Victoria. With that realisation hanging over their heads, GRV was left with no alternative but to withdraw the five charges.
Finally common sense prevailed and after months of unnecessary stress and anxiety, the charges disappeared with the stroke of a pen, and the five trainers are now able to get on with their lives.
No one can question GRV’s vision for a drug free sport but on this occasion a lot of time and money was wasted on chasing what everyone, including GRV, knew was a simple feeding error.