OK, so the “baddies” have been disqualified, with at least one trainer indicating that an appeal might be in the wind, but is that really the end of the problem?
Unfortunately, it isn’t, and this sorry episode still has a few rounds to go.
Let’s take the problems and issues one by one.
Firstly, if Liam Birchley does file an appeal, it will go before VCAT, the Victorian Civil and Administrative Tribunal. That’s a far different situation than choosing to appear before the Racing Appeals and Disciplinary Board (RAD). The key difference is that VCAT is a formal legal system that operates just like a court. Unlike the RAD Board, VCAT has the power of subpoena, and that means that the lodgement of an appeal by Birchley really does have the potential to lift the lid on Pandora’s box. Birchley’s grounds for appeal appear to rest on the assertion that, in his situation, the stewards did not have sufficient evidence to support their case. Well, that’s obviously for the Tribunal to decide, but the question really is how can they do that without hearing evidence from the other people in the so-called “circle of trust” that could support Birchley’s position. It is true that Birchley has had an unblemished record in his career until this case. It is also true that he was the only one of the Aquanita Eight to front the RAD Board and proclaim his innocence. But it’s also true that the Board found it impossible to believe, on the evidence before it, that Birchley had only a passing acquaintance with Greg Nelligan, who did the actual dosing, and that the Board found that his credibility as a witness was “destroyed in cross-examination”. They found that he was a “non-paying customer” of the “top up” services provided by Nelligan. The only way those findings can be challenged is by letting Birchley’s lawyers loose in cross examination of the remaining members of the Aquanita Eight in an attempt to have one or more of them say something like “Liam didn’t know”.
And that means subpoenas, to get them into a witness box. And that means that all of the dirty laundry gets hung out. Nowhere to hide for Smerdon and the others if the subpoenas start arriving! No way to dodge the awkward questions, in the way they have been successfully dodged thus far. That would be a very good thing. At this stage, there is still a bunch of unanswered questions, and that’s never good for the industry, or, for that matter, the Aquanita Eight themselves.
So, does Liam Birchley have his day in court? If he does, then, most probably so do all of the others, and some of them obviously don’t want that to happen.
Then we have the calls for Racing Victoria to nominate the races that were affected by the individual “top up” events. They do know which races were affected. Press reports today have indicated that over 100 races were involved, and also that Smerdon-trained horses collected over $3.4 million in prize money from those races. Are we then to assume that the $3.4 million plus of ill-gotten gains actually belongs to the owners of all those horses who ran second to the “topped up” Smerdon runners? If that’s going to be the situation, where is the money going to come from? If you take Smerdon’s lawyers at their word when they argue against a $100,000 fine that is now being considered for him, Smerdon has no property, cannot access his superannuation, and hasn’t got the money anyway. The other angle to think about is that, if the owners of Smerdon-trained horses that got the “top ups” were totally unaware of what was going on, why should they be penalised – so long after the fact – for the fact that their trainer was a cheat? Not every racehorse owner is a millionaire, and if some of the affected owners have invested their winnings, winnings that they thought were completely kosher, in property, or any other assets, are they now expected to liquidate those assets to refund the prize money? Or do they take civil action against whichever of the Aquanita Eight were involved in their specific cases? And if they do that, are they likely to get any recompense anyway?
It’s just a bloody mess.
But there is something to be learned from all this. If we accept the idea that there will always, unfortunately, be people prepared to cheat, should we not also accept that there needs to be a system within racing to compensate those affected by the cheaters? Maybe something like a prize money levy, paid into a trust fund administered by the racing authorities? Has to be worth a thought …..