11

THE HORSEMAN LEFT home most days at 3.00 a.m. to drive to his stable, arriving in the strange half-light that illuminates that time – not quite morning, but no longer night. He liked the quiet shuffling as the horses around him awoke, their gentle whinnies and soft snuffling signalling that his working day – and theirs – had begun. He did this six, sometimes seven days a week, and the horses who had been with him longest knew his sounds and smell well. This was vital. Routine, old-timers insist, is the key to a successful racing yard.

And this had been a very successful one. Once owned by the man who nurtured Star Kingdom and Biscay, two equine speedsters that can still be found in the pedigree ‘tree’ of Australian racing’s internationally renowned sprinting families, it became famous again as the home of Black Caviar, the sprinting star of the contemporary era – and the ‘winningest’ horse in modern racing. ‘The good mare’, as her trainer still calls her.

She, too, would wake up as he came into the yard in that slow first light, and watch him walk towards her stall, drawing on his second, or perhaps third cigarette for the day. She probably knew his moods as well as he did hers by the end of their tumultuous time together, although the start of each day always provided the best clue as to what was in store for them both.

Yet that was years ago. Not even half a decade had passed, but it must have felt like a lifetime. In just a few hours’ time, Peter Moody would be as far away from that career high as he could ever have imagined, staring into an abyss as disheartening as his run with Black Caviar had been exhilarating. Over the past six months, this had become a reality he could not ignore.

The trainer had carried on regardless, abiding by the habits of the stable, the rigours of training thoroughbreds day after day, across at least two states. Now, having quietly closed his small satellite stable in Sydney because of the weight and distraction of the alleged blood-doping case he was facing, the operation was again focused only on Caulfield. Even so, what might lie ahead cast a pall over even his redoubtable presence.

For the first time in his life, Moody – a master of horses – would shoehorn himself into a suit and drive across town to sit for hours at a table crowded with legal briefs, books and binders. He had waited a long time to be called to explain how one of his better gallopers came to have nearly double the legal limit of a prohibited substance in his system after an important race in the spring of 2014. Now, with the moment upon them, he and his team seemed poised, even buoyant.

*

They were certainly on familiar territory. It cannot be by accident that Racing Victoria’s main building, home to the stewards and their disciplinary panels, sits on a high hill at the edge of Flemington Racecourse. It is a veritable eyrie of officialdom that houses Harness Racing Victoria, Racing Victoria’s executive, the chief steward and his team, Racing Analytical Services Limited (RASL), and the racing.com media teams. Like all trainers, Moody must have gazed in the compound’s direction countless times, probably without realising it, when working at Australia’s most famous racetrack.

Finally, 11 days before Christmas, Peter Moody’s ‘day in court’ had arrived. Finally, he would have the chance to put his case, to give his opinion on what might have led to Lidari’s illegal cobalt reading. In anticipation, he had timed his arrival at RV’s headquarters to perfection, walking into the hearing just ahead of Judge John Bowman and his panel of two, without being accosted by the hovering camera crews and journalists. Veteran turf scribes looked bemused as the trainer slipped in his seat beside his lawyer with just a minute to spare.

But Moody’s alacrity was premature; as it transpired, he would have no direct involvement in the opening day’s proceedings at all. The charges against him would not even be read until the second day of the hearing.

Nevertheless, it quickly became apparent that the trainer’s feeding regime was under the spotlight, especially regarding Availa, the oral supplement that came in powder form and was mixed into the horses’ feeds to encourage hoof growth. It was clear, too, that this inquiry would be dense with expert witnesses and their reports. But before any of that, Judge Bowman – the recently appointed chair of the RAD Board – asked Jeff Gleeson QC to outline Racing Victoria’s case.

‘As we understand it,’ Gleeson began, ‘Mr Moody admits that cobalt present in the horse’s urine at a concentration greater than 200 micrograms per litre is a prohibited substance, but he does not admit that he’s guilty of any of these charges. The matter will involve, it seems at the moment, a contest in relation to some of the processes regarding the analysis of the urine … [but] the substantial factual dispute will focus on just what substances, and I use that word neutrally, Lidari was consuming in the lead-up to October 4.’

One of Victoria’s most respected senior counsels, Jeff Gleeson has acted for clients as diverse as the AFL and the Catholic Church, and his grasp of these matters was strong. He explained to the board how Racing Victoria had tested Availa on other horses, in the amount Moody had originally claimed Lidari had been receiving. But more recently, he continued, ‘it came to the stewards’ attention’ that Moody would argue that Lidari ‘had been receiving the hoof powder Availa in very significantly greater quantities than the stewards had been led to understand’. Naturally, this meant that ‘a lot of the earlier scientific evidence [about Availa] was arguably rendered of considerably less relevance’.

Having got the ball rolling, the debonair QC then introduced Dr Martin Wainscott, who was appearing via a video link from Dubai. The former head vet for Harness Racing New South Wales had prepared a report for Racing Victoria on the central issue: could the amount of hoof powder Lidari was given have led to the high cobalt levels? This expert witness doubted it.

Peter Moody’s barrister honed in on the so-called ‘SCEC trial’, in which SCEC Pty Ltd, a contract research organisation, had tested Availa on six mares using the original information involving the hoof powder the Moody stable had given stewards. After discussing the cobalt levels of each horse – Belinda, Christmas, Conway, Hattie, Pretty and Ruby – Matthew Stirling posed a series of questions.

‘It’s the case, isn’t it, that every single one of those six horses showed a higher cobalt reading on day 15, when the horse had no Availa, and obviously no cobalt in Availa, than [on] day 14, when the horse was given Availa?’

Wainscott: ‘Yes, that’s correct; a small increase in all of them, but it’s got to be said that those increases are broadly in line with their levels for the previous 14 days that they were receiving the supplement.’

Stirling: ‘But does the SCEC trial tell us these things: the first is that the level at which different horses test varies significantly? So the horses are getting the same amount of Availa, which is 9.7 grams, aren’t they?’

Wainscott: ‘Yes.’

Stirling: ‘If Lidari was fed – and this is a fact to be found by the current board – in the order of five times 9.7 grams of Availa – that is, if Lidari got about 50 grams of Availa a day – you’d expect the detected levels of cobalt to be much higher, wouldn’t you?’

Wainscott: ‘I can’t answer that. I don’t know. There’s been no work that’s ever administered cobalt orally at such a high dose.’

Things became even more technical, with Matthew Stirling raising the issue of the ‘bioavailability’ of cobalt, or what percentage of the substance enters the bloodstream. Specifically, he asked Dr Wainscott if he agreed with Dr Andrew Van Eps, an associate professor of veterinary medicine at the University of Queensland, whose report said ‘the most important factor is whether the horse has received supplementation with cobalt-containing compounds and the nature, dose and duration of this supplementation’.

Wainscott: ‘Yes, I do.’

Stirling: ‘Can I take you to [where] he says, “The bioavailability of cobalt in horses is not known and cannot be extrapolated reliably from existing data that I have reviewed.” Do you agree with that?’

Wainscott: ‘Yes.’

Stirling: ‘It’s true, isn’t it, that the bioavailability of a product, and we’re talking about horses, varies from product to product when we’re talking about oral feed?’

Wainscott: ‘Correct, yes.’

Stirling: ‘So we know, with intravenous administration, there’s 100 per cent uptake because it goes directly into the bloodstream. Is that right?’

Wainscott: ‘Correct.’

Stirling: ‘When a horse puts his snout into the feed trough and he eats his feed, with the Availa mixed in, which is what happened with Lidari, the bioavailability might be in the single digits, and it might be, with some substances, 30, 40, 50, 60 per cent, mightn’t it? There’s a big variation.’

Wainscott: ‘Yes, some substances have high oral bioavailability, yes.’

Stirling: ‘In addition to there being a wide range [in the] bioavailability of a product, there’s a second range, isn’t there, that individual horses vary in their bioavailability of each product?’

Wainscott: ‘There’ll be an individual factor, yes.’

Stirling: ‘So Lidari or Hattie or Conway … or any of the horses in the SCEC trials will have a different percentage rate of bioavailability, which shows how much they ingest and [how much] goes into systemic circulation?’

Wainscott: ‘They could.’

Stirling: ‘Every horse is different?’

Wainscott: ‘Every horse is different.’

This was probably not news to Matthew Stirling’s client, listening patiently at his side.

*

Peter Moody had been tackling this current predicament as he had the other difficult scenarios he’d faced in his 46 years: head-on. But on the second day of his hearing, on Wednesday 16 December 2015, he held his natural demeanour in check.

The room itself had this effect on most present. It was like a cocoon: four long blinds blocked out the natural light, as well as any view of the outside world, and every word was recorded. Journalists leaned forward, trying to note all that was said.

For Moody, this stage was so different to the one on which he usually worked; it was understandable if he was not quite at ease. The problem he faced was not one with which he could grapple physically, or work out with a stopwatch, or even get mad at. His professional focus was legendary, but so too was his ability to erupt when things didn’t go his way. A fellow trainer alludes to a chair that might have flown out the window of the Caulfield tower one morning, and a fax machine on another. Such theatrics were impossible here.

His professional reputation on the line, Moody had to fight this battle within the confines of the room, as well as the rules of racing. He was the highest-profile Australian trainer charged in the cobalt scandal and so had the most to lose. He was a major racing identity, and this was now a major news story.

Like everyone entering the building, Moody had passed by an almost life-sized photograph on the foyer wall, the seminal ‘black-and-white’ of Phar Lap’s strapper, Tommy Woodcock, lying in a stall alongside his beloved galloper Reckless. Photographer Bruce Postle captured the image in 1977, on the eve of that year’s Melbourne Cup, and it made the front page of the Age on Cup Day. The city woke up to the photo and has never forgotten it. Reckless ran a valiant second in the race that afternoon.

Thirty-nine years later, his eyes are still closed, his head still resting gently on his elderly trainer’s chest. Theirs was a treasured partnership, and the photo a reminder of the bond in racing that should never be broken.

What it meant to the beleaguered younger trainer in this context was hard to know. But the time had almost come for Peter Moody to talk. He at last had the chance to plead not guilty to each of the three charges. But he had longer to wait to give evidence, as the two opposing barristers continued their opening arguments. And his counsel indicated he had something up his sleeve that might tip the case in an unexpected direction.

Matthew Stirling flagged this before Jeff Gleeson could start prosecuting the three serious charges against his client. Stirling reminded the board that it had been notified of ‘an outstanding issue in relation to documentation which we have been requesting from the RVL for a couple of months now’.

‘What it concerns is internal emails at RVL,’ Stirling went on. ‘That is, emails going between stewards, we think, or other people at RVL … The issue that those documents relate to is not the decision to analyse the samples by RASL, the samples initially provided to RASL, but the decision to provide those samples on to ChemCentre and to the Hong Kong Jockey Club.’

This was a warning shot over the bow of the prosecution, hinting at a point of racing law to be argued. Rather muffled at this stage, it still sent a ripple of anticipation through those watching. But it didn’t stop Gleeson from opening Racing Victoria’s case. He got straight to the core of the matter, as the stewards saw it.

‘If the board pleases, there are two main issues in this case,’ he said. ‘The first one is: do you believe the story that has been belatedly advanced by Mr Moody about his staff administering a hoof powder called Availa to Lidari in quantities seven times greater than the manufacturer recommended?

‘The second is: even if you do believe that story, do you accept that this hoof powder, together with a vitamin injection, resulted in the cobalt level in Lidari being almost twice the permitted level? There’s lots of other sub-issues, but ultimately we say you’ll come back to those two central issues when you come to make your determination.’

The key facts, both sides agreed, were straightforward enough. When initially interviewed by stewards early in 2015, after the trainer had been informed of Lidari’s cobalt reading on 13 January, Moody had not mentioned ‘overfeeding’ Lidari with Availa. Several months later he did. One daily scoop of the powder mixed into his feed became two, then three. It was clear the case would turn on how this changed scenario was interpreted, and the reasons it had changed.

As the hearing quickly discovered, Jeff Gleeson was not a man who minced words. ‘We say that you will find that the belated story is hopeless,’ he asserted, ‘and transparently does not explain the amount of Availa that Lidari was receiving in October 2014.’ According to Gleeson, the ‘obvious attraction of the belated Availa story’ for Moody was that he intended to argue that the administration trials conducted by the stewards were irrelevant.

Even if the stewards did believe what the QC called Moody’s ‘hopeless’ explanation about the supplement, he continued, ‘do you accept that this hoof powder, together with the vitamin injection, resulted in the cobalt level in Lidari being almost twice the permitted level? There’s a host of reasons why we say you would not accept that.’

The barrister also fired a shot back at Moody’s counsel in relation to the now-disputed process involving Lidari’s swab. A portion of the A-sample had been sent by the Melbourne-based RASL to ChemCentre in Perth to be screened for cobalt ‘because at that time [RASL] wasn’t equipped to do it’. On the initial test, the sample returned a reading of 360 micrograms of cobalt per litre. RASL then wanted to have the sample analysed further, but they understood there was ‘insufficient urine in the A-sample bottle to send a further A-sample back to ChemCentre’. In fact, Gleeson said, that assumption was wrong: ChemCentre did have enough urine to continue to test but, believing there was not enough, decided to split the B-sample bottle instead.

‘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 feeding 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.