Bryers then placed the container and syringe in a bin on top of some empty feed bags where there was another used syringe which the stewards said was moist, consistent with recent use.

Melville being aware of the prohibition regarding race day administration of medication, said to Bryers, "I hope that's not one of your runners today." According to Melville, Bryers responded "yes it is." Bryers volunteered that the substance was glucose. Melville asked him "how do you know it's glucose?" Bryers replied "It's fucking glucose."

By this time, Ms Jay Siggs, a registered stable hand, who had arrived at the stables about the same time as the stewards said that horse is not running today. A scan of the horse confirmed it was the horse Kunzite, a non-runner that day.

Next to Kunzite's box was a box which housed the horse General Truce. Uncle Keithy's box was directly opposite General Truce. Both horses were engaged to run at Caulfield, Uncle Keithy at 3.25 pm and General Truce at 4.45 pm.

Later that day at Caulfield racecourse the stewards held an enquiry. Bryers was asked whether he had given a slurry to Uncle Keithy, he replied "No Sir. Didn't touch it."

Maund, who was present at the enquiry, when shown a photograph of Uncle Keithy (see Tab 3, p 62) taken by Melville, said that the appearance of the white residue was "a mystery to me."

Dr Ledger, an RVL veterinarian who was present at the enquiry, when shown in the photograph said that it was consistent with a horse receiving an oral paste or slurry. In forming her view, she not only relied upon the photographic evidence per se but also the evidence of the container and its contents and the presence of a used syringe.

At the stewards' enquiry on 1 May 2015 in response to questions put by the Chair Mr Bailey, see Tab 2 p 64-67, Maund offered alternative explanations for the presence of white residue on Uncle Keithy.

First he proffered bird droppings - which the Board regards as fanciful. Secondly, contamination by nasal discharge from the horse known as Turbo in the adjoining box - the Board also regards this as fanciful having regard to the fact that Turbo had raced on the previous evening and had run third.

Dr Ledger's evidence was that looking at the photograph of the horse's head the two marks on the horse's nose were likely to have been caused by a human hand and she thought it unlikely that snot or discharge would account for the presence of the substance.

1. The Board accepted that the substance on the face of Uncle Keithy was attributable to human agency and rejected any suggestion that any person other than Bryers or Maund were responsible.
2. The Board further noted in its Reasons as follows:

At the RAD Board hearing on 15 July 2015, Maund said for the first time that the likely explanation for the white residue was the result of an administration of Sulprim to Uncle Keithy on Friday 17 April, 2015. He went on to say that it was not until he recovered his treatment book from the stewards after the enquiry on 1 May 2015 that he came to the realisation that Sulprim was the culprit.

Maund was adamant that for five consecutive days ceasing on 17 April 2015, Uncle Keithy received Sulprim by oral administration. Yet the treatment book shows that there was only an administration of Sulprim to Uncle Keithy on Monday, 14 April 2015.

There was no other entry relating to Sulprim between 15 April and 17 April 2015. When this was drawn to Maund's attention he strenuously maintained his position that Sulprim had been administered daily and that he was quite clear in his mind that this was the substance.

It seems to the Board to strain credulity that at the stewards enquiry on 1 May 2015, a little less than a fortnight after race day 18 April 2015, at a time when Maund's mind was focused on the issue of what the substance was, that Maund would not have revealed to the stewards that Sulprim was the cause of the white residue on Uncle Keithy.

Moreover the Board accepts the opinion of Dr Ledger that on the assumption that Sulprim was administered on Friday, 17 April 2015 the ingestion of food and water would have removed any trace of Sulprim residue at least from the lips of the horse.

1. The Board noted that Bryers had not been called to give evidence before it. However, in assessing the value of his evidence, the Board further noted that when questioned by the Stewards on 18 April and 1 May 2015, 'many of his responses were so inconsistent that the Board places little weight on his evidence'.
2. The Board concluded that it was comfortably satisfied:

That on the morning of 18 April 2015 the horse Uncle Keithy was administered an alkalinising agent orally by syringe and that the administration was performed by Maund or by Bryers under instruction from Maund.

Accordingly the Board is comfortably satisfied that Charges 1 and 2 have been proven.

Pursuant to AR 196(5) Mr Maund is disqualified for a period of 6 months. The period of disqualification will commence on Monday, 27 July 2015.

Pursuant to AR 196(6)(b) Mr Maund must not start a horse in any race from the date of the Boards decision, 20 July 2015, until the expiration of the period of disqualification.

Charge 2 - the Board finds the charge proved with no penalty imposed.

1. Accordingly, as a consequence of the Board's findings, the Applicant was disqualified from licensed activities for 6 months, being the prescribed minimum penalty under Rule 196(5).
2. There is no dispute as to the factual circumstances summarised in the Board's Reasons.
3. The following further sequence of events is noted:

1. On 18 April 2015, immediately after the stable inspection at the Applicant's stables, the Stewards conducted a short interview with Bryers; 2. On 18 April 2015, later that day during the Caulfield meeting, the Stewards interviewed Bryers, Siggs and the Applicant;

1. On 1 May 2015, the Stewards further interviewed Bryers, Siggs and the Applicant; and

1. On 1 August 2015, the Stewards further interviewed Bryers.
2. All of the above interviews were transcribed and tendered as evidence before the Tribunal.

1. An application was lodged at the Tribunal on behalf of the Applicant, seeking a stay of the decision of the Board. That application was heard and granted by Senior Member Smithers on 27 July 2015, who ordered:

The decision of the Racing Appeals and Disciplinary Board of 22 July 2015 is stayed until the final hearing of this matter, or further order of the Tribunal.

1. The Rules pursuant to which charges were laid are as follows:

(1) Notwithstanding the provisions of AR 178C(2), no person without the permission of the Stewards may administer or cause to be administered any medication to a horse on race day prior to such horse running in a race.

(1) A person must not administer an alkalinising agent, in any manner, to a horse which is engaged to run in any race, official trial or jump-out:

(a) at any time on the day of the scheduled race, official trial or jump out and prior to the start of such event; and

(b) at any time during the one Clear Day prior to 12.01am on the day of the scheduled race, official trial, or jump out.

(c) causes an alkalinising agent to be administered; and/or

(d) is a party to the administration of, or an attempt to administer, an alkalinising agent,

contrary to AR 178AA(1) commits an offence and may be penalised.

(5) Where a person is found guilty of a breach of any of the Rules listed below, a penalty of disqualification for a period of not less than the period specified for that Rule must be imposed unless there is a finding that a special circumstance exists whereupon the penalty may be reduced:

1. Sub-section 83OH(1) of the Racing Act 1958 provides:

(1) A person whose interests are affected by a decision made by a Racing Appeals and Disciplinary Board may apply to VCAT for review of that decision.

1. Section 51 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') confers the following functions and powers on the Tribunal for the purpose of the current review:

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. The Applicant, having had his licence suspended by the Board, is a person whose interests are affected by the decision subject to review.[1]
2. In Galea v Harness Racing Victoria[2] His Honour Judge Nixon gave the following useful synopsis of the Tribunal's function upon review:

The Tribunal's functions in reviewing a decision of the Board are not appellate. On review, the Tribunal stands in the shoes of the original decision-maker and must determine the correct decision on the material before it. The review is conducted without any presumption as to the correctness or otherwise of the decision subject to review. The Tribunal is not confined to the material upon which the original decision was made and may receive evidence or material which was not before the original decision-maker.

1. A Jones v Dunkel inference ought to have been drawn against the Respondent for failing to call Luke Bryers to give evidence.
2. Counsel submitted that the Respondent's case relies heavily upon the answers given by Mr Bryers during his interviews by the Stewards. Accordingly, it was incumbent upon the Respondent to call him as a witness, before the Board. Having failed to do so, Counsel submitted that the Board erred in not inferring that the calling of Mr Bryers would not have assisted the Respondent's case.
3. Counsel further criticised the Respondent's indication before the Tribunal that it proposed to call Mr Bryers, for the purpose of asking him to confirm that he had been interviewed on four occasions by the Stewards but not asking him to attest to the truth or accuracy of his answers.
4. Counsel submitted that the position of the Respondent was akin to the obligations upon the prosecution to call a relevant witness in a criminal trial,[3] and there was no proper basis advanced as to the Respondent's failure to call him.
5. In my view, Ground 1 is without any foundation. The inquiries conducted by the Stewards, in each case, were open and transparent. Interviews with all relevant parties were recorded, transcribed and made available to the Applicant. As indicated in the final reasons for decision by the Board, no particular reliance was made upon the evidence of Mr Bryers, as recorded in the various transcripts of interview. Furthermore, there is no property in a witness such as would have prevented the Applicant calling Mr Bryers himself. Curiously, the Applicant appeared to have endorsed the evidence of Mr Bryers, at the Stewards' Inquiry on 1 May, when he had produced to Mr Bryers a brief typewritten statement of what he expected Mr Bryers to say [referred to further below].

1. The Applicant was denied procedural fairness in that the Board refused to exercise its discretion to exclude the tape-recorded interviews of Bryers.
2. Counsel referred the Tribunal to various Rules[4] relating to the conduct of inquiries by the Stewards and laying of charges and the conduct of proceedings before the Board. While Counsel acknowledged that the Board and the Tribunal are not bound by the rules of evidence, the proceedings in both instances 'ought be informed by the rules of evidence'.[5] Furthermore, the Applicant was either not present or unable to question Mr Bryers when he was interviewed.
3. Accordingly, Counsel submitted that the Board erred in not excluding all evidence of Mr Bryers and for the same reasons the Tribunal should exclude such evidence.
4. In my view, Ground 2 is also without any foundation for similar reasons as described above. In the conduct of its inquiries, it is imperative that Stewards are at liberty to act quickly to interview relevant parties and otherwise obtain relevant forensic evidence. The conduct of the Stewards' Inquiry was entirely unexceptional and indeed followed standard procedures. Neither the Board nor this Tribunal are bound by the strict rules of evidence and are at liberty to respectively be informed in the best manner in which they see fit. As indicated by Counsel, in appropriate circumstances this may warrant an adherence to strict rules of evidence. However, this does not necessitate the conduct of an entire hearing on such basis. Hearsay evidence may be admitted as relevant, but ultimately discarded or given little to no weight, as in the case of Mr Bryers, before the Board.
5. In my view, it was not incumbent upon the Respondent to call and examine Mr Bryers, in the manner contended by Applicant's Counsel. In particular:

1. Bryers was engaged to perform work for the Applicant, there is no evidence of a falling out or animosity between the two and evidence of Bryers before the Stewards supported the position taken by the Applicant. In these circumstances it could be expected that the Applicant would call Bryers to give evidence on his own behalf; 2. Bryers was an unreliable witness who could not be expected to clarify issues for the Respondent; and

1. The Respondent did not rely upon the truth of any evidence of Bryers not otherwise the subject of evidence from the direct observation of the Stewards or admissions of the Applicant.
2. In any event, Mr Bryers was made available for cross-examination by the Applicant and his Counsel, on instructions, elected not to take that opportunity. There is no procedural unfairness demonstrated.

1. The Board erred in refusing to hold that the Respondent's case, as advanced, precluded a finding of guilt on either charge against the Applicant.
2. Counsel submitted to the effect that the case postulated by the Respondent was not sustainable because it was predicated upon one scenario based upon the truthfulness of Mr Bryers and an alternative scenario based upon the untruthfulness of Mr Bryers, in each case relying upon the same factual circumstances.
3. Counsel submitted that the Respondent erroneously assumed that the Applicant was guilty and construed the evidence to support that presumption.
4. Counsel submitted that it is incumbent upon the Respondent to assert whether Bryers was telling the truth or not and identify which scenario it seeks to prove. Counsel submitted that the Applicant has been disadvantaged by the failure of the Respondent to apply the rules of evidence, as appropriate.[6]
5. Counsel further submitted that, if Bryers arrived at the stables about 10 minutes prior to the arrival of the Stewards, as he indicated in his answers to Stewards, then on the evidence of Dr Ledger there would not have been time for him to administer the white slurry to Uncle Keithy and for it to have dried.
6. In my view, for the reasons more fully set out below, there is no merit in these contentions.

1. Respondent's Counsel confirmed that the case against the Applicant essentially remains as stated before the Board, namely that on the morning of 18 April 2015 the slurry comprising an alkalinising agent was administered to Uncle Keithy, either by the Applicant personally, or by Bryers or another unknown person, in either case, upon the Applicant's instruction.
2. The Respondent submits that:
   1. It only has to prove that the substance on Uncle Keithy's mouth and nose as observed by the Stewards and identified in the tendered photo was the same as the slurry mixture which Bryers was carrying and which was subsequently tested to comprise, more than likely, sodium bicarbonate; and
   2. It does not have to prove whether Bryers or the Applicant or [less likely] another person, administered the slurry to Uncle Keithy because the 'overwhelming inference' which can be drawn is that it was administered with the knowledge and instruction of the Applicant.
3. The Respondent principally relies upon:

1. The evidence of Stewards Scarlett and Melville; 2. The inferences which the Respondent submits can be reasonably drawn from the answers given by the Applicant to the Stewards and before the Board;

1. The photo of Uncle Keithy, taken when the Stewards conducted the pre-race inspection at the stables on 18 April 2015;

1. The photo of the plastic container and two, 60 ml syringes, all appearing to contain residue of a white mixture; and 2. The email of Paul Zahra Scientific Manager Racing Analytical Services Limited dated 13 May 2015 addressed to Steward Melville which states:

Laboratory No. RS15/05487 Description 2 x 50ml syringes containing a white pasty residue. Sample RS15/05487 has been analysed for the presence of alkalinising reagents and prohibited substances. The pasty residue is more than likely sodium bicarbonate, no other prohibited substances screened for by RASL were detected.

1. I note that the test report produced by RASL and contained in the above email, was presented to and apparently accepted by the Board as evidence of the results which it purported to contain, although it is not in the form of an RASL Certificate of Analysis.[7] At the hearing before the Board, Counsel for the Respondent, in presenting such evidence, said ...'There is no issue on the fact that at least in part, the powder contained an alkalinising agent, sodium bicarbonate'; to which Applicant's Counsel responded 'That concession, just so it's clear, is made on what Maund said, not on that certificate'.
2. During the hearing before the Board no other complaint or challenge was made in relation to the above RASL testing results. However, before the Tribunal, Counsel for the Applicant rejected the email of Mr Zahra as admissible evidence and rejected that there was any evidence upon which the Tribunal could rely as to what was contained in the syringes.
3. The Tribunal, in its discretion, admits the evidence of the above email and its contents, having regard to the following circumstances:

1. There is no evidence which has caste any doubt upon the accuracy or reliability of the test results as reported by the above email; 2. The email purports to advise the results of a testing procedure conducted by an otherwise approved testing authority; and

1. The contents of the email are relevant to the identity of the white dried paste observed on the mouth and nose of Uncle Keithy; and

1. The results are consistent with admissions made by the Applicant as to the nature of the white powder left in the plastic container, for mixing and dispensing via a syringe.

1. In my view, the following facts and circumstances appear to be uncontested:

1. Stewards Melville and Scarlett, members of the Racing Victoria Compliance Assurance Team attended stables to carry out an inspection at approximately 11.55 am on 18 April 2015; 2. At the relevant time the stables housed four horses, including Kunzite and Uncle Keithy;

1. Luke Bryers was engaged by the Applicant (employed or otherwise hired) to strap and ride horses as well as drive a horse truck;

1. Upon entering the stables, the Stewards witnessed Bryers coming out of the pen which housed the horse Kunzite. Bryers was carrying a container of white slurry and a syringe, which upon examination by the Stewards, contained remnants of the same slurry; 2. Bryers admitted to having administered the white substance to the horse Kunzite, as instructed by the Applicant; 3. Steward Melville noticed that Uncle Keithy displayed a dry white substance around his lips, and two 10 cent sized patches on his nose; and Bryers also pointed out the same substance appeared on the horse's foreleg as well; 4. The Stewards observed Bryers take the container and syringe to the bin area where a second syringe had already been placed and which appeared to contain moisture around the top of the syringe; 5. There is no suggestion of interference by a third party or breach of security on the day; 6. Dr Ledger gave evidence that: 1. In regard to the photo of Uncle Keithy 'it looks like somebody has administered some form of paste or slurry to the horse. It looks like the horse has had its lower jaw held with - whether those are finger marks, wet finger marks, that have left a dried residue on the horse's muzzle or whether those are drips of residue, that's what it appears to be'; was consistent with the administration of a white slurry mixture or a mixture of Sulprim, which is also made up from a white powder; 2. The white slurry mixture, when applied to the horse, would likely take up to 20 minutes to dry; 3. Sulprim would ordinarily be given as a course over 4 to 5 days; 4. If a paste of Sulprim had been administered on 17 April [as alleged by the Applicant] then it would not have remained on the mouth of Uncle Keithy when the horse was watered and fed subsequent to such administration; 5. Uncle Keithy had been hosed and shampooed on the morning of 18 April in preparation for the race; and 6. In relation to the treatment of Kunzite following an early morning gallop, there would have been little point or benefit in administering the white slurry so long after the workout.
2. Bryers gave a number of conflicting or confusing answers in the inquiries conducted on 18 April and 1 May:

1. He initially told the Stewards that the substance was glucose, but would not say how he knew that; however, on 1 May he said that the Applicant told him it was glucose when Bryers asked the Applicant 'what is it?' when the Applicant rang him in the morning to give him instructions;[8] 2. He understood that 'bicarb' was an illegal race day treatment but he did not believe that glucose was illegal;[9]

1. He told Stewards that the horse [Kunzite] he had just administered the substance to was racing that day; whereas when interviewed later that day, when asked about this response, he said that he had 'just kind of panicked';[10] and when interviewed at the Inquiry on 1 May he said 'I didn't think I was doing anything wrong... That's just a bad reaction';[11]

1. He told the Stewards that he had only put a head collar on Uncle Keithy; however, on 1 May he said he did not do that and had not been into Uncle Keithy's box; 2. Steward Melville said that when he first spoke to Bryers on 18 April, he 'was adamant that it [the slurry] was already pre-made, that he was just told to give it to the horses...he didn't elaborate.'[12] However, later that day Bryers told the Inquiry that '... just powder was in there. I was just told to add water and give it a stir and give it to that horse...in the corner box. I got the names wrong';[13] and on 1 May, he could not explain why he said he got the names wrong;[14] 3. On 1 May, Bryers insisted that he only used one syringe and when asked to explain why there were two syringes he said 'they were both just sitting there' and then he suggested 'maybe it's been used before. Both of them looked like they'd being used before';[15] 1. On 1 May, Bryers said he was first instructed at the race track in the morning by the Applicant and then the Applicant also rang him later to remind him; he understood that the horse was injured, because the Applicant told him it had pulled up sore, but did not know why glucose would help; 2. At one stage in his answers, he said he was told to treat Kunzite; and then later, when he referred to the reminder telephone call, he said that the Applicant referred to 'Ollie' the stable name for the horse General Truce, which was also running that day;[16] and 3. On 1 May, Bryers said that when he arrived at the stable, he found the powder in the container and two plungers (syringes); he threw one plunger in the bin.
2. Ms Jaye Siggs gave evidence at the inquiry on 1 May.[17] In summary, she said:

1. She has worked as a part time strapper for the Applicant for a few months or more and previously worked for him for six months a few years ago; 2. She also performs full time track work (4.15 am to 9.30 am) for another trainer;

1. The Applicant had never asked her to treat a horse and she said 'I wouldn't be educated enough to do that';

1. The other person who worked for the Applicant, Harley Ricketts, was not working at the stables on 18 April;[18] 2. She said that when she comes to the stables the Applicant will usually be there to supervise on race day, however, on 18 April he had arranged for Bryers to drive a horse truck, so he did not need to be there also; 3. She had never witnessed race day treatment at the Applicant's stables and had never been asked to administer or assist in any such treatment; 4. On 18 April, the horses would have been hosed after track work that morning and she assumed they would also have been shampooed and probably rugged and put in their boxes clean, until she got there 3 hours or so later; and 5. She saw 'stuff' on Uncle Keithy's face and legs, before he was taken to the race track.
2. The Applicant gave answers to the Stewards' Inquiry on 18 April as follows:

1. The substance left for Bryers was potassium chloride and bicarbonate but 'I am not instructed to let any of my staff know exactly - I can tell em it's glucose or whatever...';[19] [the Applicant did not explain why he could not tell staff]; 2. On 18 April he postulated various explanations as to the appearance of the white substance on Uncle Keithy: snot or coughing from the horse in an adjoining pen; and at the 1 May Inquiry, added bird droppings as another possible source;[20] significantly, there was no mention of Sulprim as a possible source;

1. The treatment [referring to the slurry] was given to Kunzite 'for the special purpose of his gallop this morning';[21]

1. Kunzite had been track ridden by the Applicant that morning about 6 or 6.30 [although there was no record made in the work book that day, which normally records such events; Bryers said he did not ride him and Ms Siggs does not ride 'gallops';][22] 2. Kunzite pulled up sore after his run and the Applicant decided to administer the substance to him as a recovery mechanism. He instructed Bryers at the track to administer the slurry to Kunzite, who was not racing that day; 3. He attended the stables at about 8.30 am for about 10 minutes when he put the white powder in the fridge and later telephoned Bryers to reinforce his direction to treat Kunzite; 4. He said he did not administer the treatment to Kunzite at the track, immediately after he had pulled up sore, because he did not want to draw attention and have to explain to the Stewards; and 5. Before the Board, for the first time, he suggested that Sulprim was responsible for the appearance on Uncle Keithy's mouth and nose, as it had been administered to the horse from 13 April for 5 successive days, namely, up until 17 April.
2. The Applicant gave answers at the Stewards' Inquiry on 1 May as follows:
   1. He confirmed that he had galloped Kunzite at the race track on 18 April when he spoke to Bryers and he was not sure but could have spoken to him by phone also:

...but I spoke to him at the track and then just made sure he just did that paste, the mixture that I'd mixed up.[23]

1. In my view, the Applicant did not give any reasonable explanation as to why:
   1. he did not instruct Bryers to treat Kunzite straight after his track work; or
   2. why the Applicant did not treat the horse himself, either at the track or back at the stables, although he said that the bulk of such administrations would be done by himself;
   3. why the particular paste mixture was being used as an after gallop treatment; [the Applicant merely referred to 'personal preference' but conceded that he did not have any advice or recommendation]; or
   4. why there was a delay of about 6 hours before treatment was applied.

1. He would usually apply 95% of treatments himself, and the remainder would generally be given by his stable foreman Harley Ricketts, who was not available on 18 April;

1. He confirmed that all the treatment and gallops for Kunzite would be recorded in his treatment book or work book ... 'we keep a pretty good treatment book...;[24]
2. He could not account for why Kunzite's track work or treatment with the slurry did not appear in the treatment book and could not account for by whom or when the 'IV but.' [recorded in the book] was administered to Kunzite;[25]
3. He could not explain Uncle Keithy's appearance, as depicted in the photo ... 'it's a mystery to me';[26] and
4. He referred to treatment like Sulprim paste, but not in the context of any treatment which had recently been applied to Uncle Keithy and he agreed that 'no horse was on that paste [that is Sulprim] in or around the 18th'.[27]

1. However, it is noted that:
   1. For 18 April 2015, the Applicant's record book:
      1. did not record that Kunzite had been ridden in the morning, whereas it did record the work performed on other horses, such as 'swim' or 'trot'; and
      2. records '12 mil IV but. for Tyson' the stable name for Kunzite, but does not record the application of potassium or bicarbonate on that day;
   2. The Applicant's treatment book:
      1. did not record the treatment given to Kunzite on 18 April [which the Applicant conceded on 1 May]; and
      2. records the administration of Sulprim to Uncle Keithy on 13 April only.

1. confirmed that the Applicant's workbook, to which reference was made in the Stewards' Inquiries, was removed from the stable in the afternoon of 18 April, so that the Applicant could not have interfered with it. The Applicant subsequently produced to the Stewards, a green book which he referred to as his treatment book. However, treatments are also recorded in the workbook as well as giving a track record; 2. said that the bicarbonate paste 'dries fairly quickly because of the saltiness, for want of a better term'.[28] The paste was also quite thin on the horse's mouth and nose and he formed the opinion that he could not take a scraping of it. Whereas the paste was thicker and still moist in the syringes; and

1. agreed that he did not look at Uncle Keithy's legs when Bryers referred to something being on his legs as well, as it seemed to Melville that Bryers was merely avoiding his question when he asked Bryers about the appearance of white paste on the horse's lips and nose.[29]
2. Steward Scarlett confirmed that when he attended the stables on the afternoon of 18 April 2015, he collected a book that was called a 'track work diary' which he assumed was also the treatment book because it did record certain medications in it. The Applicant subsequently supplied a second book which he referred to as his 'treatment book'.

1. Dr Ledger, is the veterinary services manager at Racing Victoria. In relation to the photo taken of Uncle Keithy, when the Stewards first attended the stables on 18 April 2015, Dr Ledger said:[30]

... it looks like a whitish residue on the upper lip of the horse, as well as two smaller residues in my opinion consistent with a horse having received an oral paste or slurry.

1. In relation to the two marks on the jaw of the horse, Dr Ledger said that they look like fingerprint transfer marks.... by somebody holding the horse's mouth open to administer an oral paste. However, under cross-examination, Dr Ledger conceded that, having regard only to the photo, the markings could also be spray droplets.[31] Dr Ledger gave her opinion as to the likely origin of the markings having regard to the totality of the evidence.

[The material on the upper lip] ... Would be from the horse ingesting the paste or eating the paste. They often get it all over their mouths

... I had a taste of it myself when presented with it on course and I said it tasted to me like salty bicarbonate[32] and I believed that that was confirmed during the inquiry [referring to the white paste in the container presented to her by the Stewards].

1. In relation to the horse Kunzite and its treatment with a mixture of potassium chloride and bicarbonate, assuming that the horse had pulled up sore that morning, Dr Ledger said that there was no value or veterinary reason to administer such a mixture to a horse 5 to 6 hours post-gallop:

It would be a common practice to administer an electrolyte to a horse in the immediate post-work period. Horses can lose significant amounts of electrolytes, including potassium and sodium and chloride in their sweat, as well as large amounts of fluids and in the immediate post-exercise period, it can be useful to give them a paste orally to replace those electrolytes. However, by 4 to 6 hours post exercise, those electrolytes have come back to normal with the body's normal homeostatic mechanisms anyway and usually if they consume any feed or water post exercise, then those electrolytes are back to normal.[33]

1. In relation to Sulprim, Dr Ledger confirmed that this is an antibiotic paste which should normally be administered to the horse over the tongue or in the feed over a number of days. She further confirmed that the appearance of a white oral paste or slurry on the lips and nose of Uncle Keithy is also consistent with Sulprim being administered as an oral paste. However, if it were assumed that Sulprim had been administered up to 17 April and the horse was fed and watered in the intervening period between 17 April and the morning of 18 April, then the evidence of the white paste would not appear on the horse's lips.[34]

1. On the morning of 18 April 2015, he first attended the track at approximately 5.30 am. He then attended the stables, at approximately 7.30 am, which is about 1 km from the track, where he remained for approximately 10 minutes. He then returned home; 2. While at the stables he left a plastic container comprising the powder mixture of potassium chloride and bicarbonate and two sealed 60 mil syringes, in the fridge;

1. He keeps potassium and bicarbonate at home, not at the stables and took a mixture with him on the morning of 18 April;

1. He denied treating or asking anyone else to treat Uncle Keithy; 2. His treatment book records that Sulprim paste was administered to horses Turbo and Dash [stable name for Uncle Keithy] on 13 April. However, he said that it was intended to be administered right through until the Friday, being the day before the next race day. He or anybody else could have given it and he cannot remember now who administered the Sulprim paste in the week commencing 13 April.
2. Under cross-examination:
   1. After initially denying any knowledge, he then agreed that his office had typed up the following note and presented it to Bryers before he gave evidence at the Stewards' Inquiry on 1 May 2015:

I honestly told you the truth at Caulfield races on 18 April 2015. I was ordered to treat 1 horse (Kunzite) and that's the only treatment that I did on Ricky's orders and that is all and I have nothing further to add.

The Applicant denied attempting to put words into Bryers mouth in an attempt to ensure that he gave evidence consistent with what he had originally told the Stewards. He added:

I handed him that document. It was only just to help an individual along and whatever else he said prior to that or after that, well, that was up to him.[35]

1. In relation to race preparation, the Applicant said that Uncle Keithy would have been half washed [which is not consistent with the description given by strapper Siggs]. The Applicant suggested that as Ms Siggs does not work in his stables but only helps at the races, she would have been surmising;[36]

1. In relation to his treatment book, the Applicant was referred to the following entries [Dash is highlighted]:

15 April Hippiron Dash [and five other hoses named]

1. He could give no explanation as to why he did not alert the Stewards on 18 April or 1 May as to the use of Sulprim, despite his alleged clear recollection that it was used every day from 13 to 17 April inclusive, merely suggesting that he did not remember until he saw the treatment book;
2. In relation to his riding of Kunzite at the track on the morning of 18 April, he suggested that it was not recorded in the workbook because he was short-staffed and did not need to record workouts which he performed;[37]
3. The workbook records that Kunzite had intra-articular injections into both knees on 14 April and upon follow-up examination on 21 April he was suffering from pain and there was palpation of his suspensory ligament. When asked why he would subject such a horse to a gallop on 18 April, the Applicant replied that 'he would have felt alright on that morning and that's why I galloped him';
4. On 18 April, the horse Kunzite was described as 'a horse out of racing' and that was why he was given the paste treatment. In my view, the Applicant gave vague and confusing answers concerning Kunzite; [38]
5. In relation to why he left 2 syringes for Bryers, when only one horse was to be treated, again, the Applicant gave vague and somewhat evasive answers;[39]
6. In relation to instructing Bryers a second time, by phone, in my view, the Applicant gave vague and non-responsive answers as to when and whether he telephoned Bryers or vice versa and why it was so important to administer the paste to Kunzite approximately 5 ½ hours after his gallop, by which time, the horse's electrolyte balance would have been restored;[40]
7. The Applicant also did not give a convincing explanation as to why he could not have administered the paste himself to Kunzite, at the track, suggesting that he had to protect himself from a steward who might be walking by;[41]
8. The Applicant insisted that after being advised of the Stewards' inspection at the stables and a possible irregularity with his horse, he did not talk to Bryers, when Ms Siggs spoke to him by phone, although they were both travelling in the same truck to the races;[42]

1. He could not explain why Bryers told Stewards on 1 May that he thought the Applicant used a nickname when referring to the horse he was to treat and that 'maybe, yes it was Ollie' being the stable name for General Truce, which was also racing that day; and

1. He agreed that he had told Bryers that the substance he was to administer was glucose and said that he did so because Bryers was not a full-time employee and he did not have to know.[43]

1. At all relevant times, the Applicant was the licensed trainer of Uncle Keithy. There was no suggestion that anyone other than the Applicant was responsible for the administration of all medication or other substances to the horse. Equally, it follows that any administration of such substances would not occur without his knowledge and instruction.
2. I note that Applicant's Counsel sought to invoke authorities in the context of the criminal law for the purpose of identifying the relevant approach which should be adopted by the Tribunal, particularly in the context of drawing inferences. I do not propose to address these submissions in any detail. In my view, they confuse principles applicable to the criminal or civil jurisdiction, as the case may be and fail to adequately take account of the jurisdiction of the Tribunal, its practices and procedures.
3. As already indicated, there is no question that an inquiry conducted by the Stewards must be fair, open and transparent and that any licensee charged with a breach of the Rules must be appraised of all evidence upon which the Stewards propose to rely. In the conduct of a hearing before the Board, or upon review by the Tribunal, the Board or the Tribunal, may inform itself in any manner in which it sees fit, subject always to conducting a fair hearing, affording natural justice and having regard to such rules of evidence as may be appropriate in the circumstances.[44]
4. The Tribunal was referred to various authorities by both Counsel as to the relevant burden of proof applicable in disciplinary cases such as the present one. In my view, the approach to be adopted by the Tribunal is well settled and need not be further articulated in these reasons.
5. The case against the Applicant is clearly based upon circumstantial evidence. The question for the Tribunal is whether such evidence is sufficiently cogent and compelling to prove that the Applicant administered an alkalinising agent to Uncle Keithy, either personally or through his agent, on the day and in the manner alleged. In order to be comfortably satisfied as to the guilt of the Applicant, in the circumstances of this case, the Tribunal must be able to exclude any reasonable alternative explanation raised on the evidence on behalf of the Applicant.
6. In my view, for reasons further developed below, I am comfortably satisfied that:

1. The circumstantial evidence against the Applicant is compelling; 2. The evidence of both the Applicant and Mr Bryers was, in significant respects, evasive, contradictory and/or improbable; and

1. There is no reasonable alternative explanation or scenario available on the evidence to explain the appearance of Uncle Keithy, as depicted in the photo.
2. The relevant circumstantial evidence can be summarised as follows:

1. During the early morning of 18 April 2015, Uncle Keithy was trotted and washed; 2. In the morning of 18 April 2015, the Applicant left a mixture of potassium chloride and bicarbonate powder together with two sealed syringes, in a container in the fridge at the stable;

1. Bryers attended the stables sometime before the attendance of the Stewards; he said that the two syringes were not in wrappers and looked used; he mixed the powder with water; and administered the slurry using only one syringe;

1. Bryers was observed by the Stewards, emerging from Kunzite's box, bearing a container of residue slurry and a syringe; 2. Bryers responded to the Stewards, to the effect that the horse he had just treated was running that day, but the treatment was only glucose, which he believed was not a problem; 3. Bryers was observed by the Stewards to place the container and syringe on top of an open bin, in the stable area; 4. The Stewards found a second syringe with residue moisture already on top of the same bin; 5. The Stewards described the slurry as a white paste and the appearance on the lips and nose of Uncle Keithy as a dried white substance; 6. Dr Ledger, looking at the photo in context of other evidence, described the appearance as a paste or a slurry and the two marks on the horse's nose as consistent with finger marks and manual administration of a mixture into the horse's mouth; 7. Excluding the initial explanations given by the Applicant, which the Tribunal also agrees with the Board, are fanciful, the white powder could not have found its way onto the horse's mouth without human intervention; 8. The Applicant said that he was responsible for giving 95% of administrations at his stable of horses and his stable foreman was not available;

1. The residue contained in the two syringes was subsequently tested to comprise 'more likely sodium bicarbonate', an alkalinising agent;

1. The Applicant relied upon the administration of the antibiotic Sulprim, also administered orally as a white paste, on five consecutive days commencing 14 April, 2015, as being the most likely source of the dried white substance on Uncle Keithy; and 2. The Applicant's treatment book recorded administration of Sulprim to Dash (Uncle Keithy's stable name) on 13 April only; whereas there are administrations of vitamin supplements to Dash recorded on 14 and 15 April; and 'IV Bute and after race paste' to Turbo on 17 April.
2. The explanations given by the Applicant, as to omissions in his work book and treatment book, were confused and unconvincing. In particular, the timing of his recollection that Sulprim had in fact been administered to Uncle Keithy between 13 and 17 April inclusive, is rejected for the following reasons:

1. The Applicant had the opportunity on 18 April, at the Stewards' Inquiry, to advise of such administration. In my view, the Applicant's explanation that he did not recall until he subsequently examined the treatment book, is unbelievable in circumstances where he was responsible for administering or directing the administration of any treatment; 2. The Applicant did make reference to Sulprim, before the Stewards on 1 May 2015.[45] However, this reference was not in the context of it having been given to Uncle Keithy;

1. The accurate recording of treatments administered in the treatment book is imperative, not only for the benefit and welfare of the horse but also to ensure the integrity of a trainer's compliance with the Rules; and

1. Even if an administration of Sulprim or bicarbonate paste had been administered to the horse on the day before race day, the normal feeding and watering of the horse subsequently could be reasonably expected to remove such paste from the mouth of the horse, as confirmed by Dr Ledger. Furthermore, given that Uncle Keithy attended the track on the morning of 18 April to be trotted with other horses racing that day, evidence of residual paste from a prior day's treatment would have been readily apparent at that stage, if it had in fact still persisted by the time the Stewards attended for their inspection later that morning.
2. The evidence of the Applicant in regard to his management of the horse Kunzite, was also confused and unconvincing. In particular:

1. The Applicant's answers as to when and by whom the horse was galloped on the morning of 18 April; 2. The explanation for why such horse was galloped at all, given his previous and subsequent treatment and presentation, which included recent injections into its knees;

1. The significant delay in providing post-gallop treatment to the horse; and

1. The admitted delay in recording track work of the horse in the work book.
2. The Applicant's evidence in regard to Kunzite, and the confused answers given by Bryers and his apparent confusion as to the name of the horse being treated and whether he was in fact racing, together render the evidence of both witnesses highly problematic.
3. The Applicant suggested a number of possible sources for the appearance on the lips and nose of Uncle Keithy, including contamination from the horse in the adjoining box, by coughing or nasal discharge; bird droppings or rubbing his head on contaminated legs. In my view, consistent with the findings of the Board and evidence of Dr Ledger, in context, all of these suggestions are highly speculative and without foundation.
4. The Applicant's credibility is further brought into question by the following evidence:

1. His initial denial that he or his office had prepared the typed statement for Bryers at the Stewards' Inquiry on 1 May, which effectively confirmed what he had told Stewards on 18 April; 2. His denial of speaking to Bryers by phone, when he spoke to Ms Siggs after being made aware of the Stewards' inspection, while both Bryers and Siggs were on their way to the race track; and

1. His explanation as to why he left two syringes.
2. Having particular regard to: the observations of the Stewards; the photograph taken of Uncle Keithy; the fact that the horse was hosed and likely shampooed after track work on the morning of 18 April; such admissions as have been made by the Applicant; the evidence of Dr Ledger; and the test results of the residue in the syringes, I am comfortably satisfied that:

1. The dried white paste which appeared on the lips and nose of Uncle Keithy was an alkalinising agent supplied by the Applicant (the 'Agent'); 2. Bryers administered the Agent to Uncle Keithy, upon instruction by the Applicant, and put on the headstall for that purpose, as he first told the Stewards; and

1. Bryers had been told that the substance he was to administer was glucose and he mistakenly believed that it was not a prohibited substance.
2. Furthermore, although not crucial to the above findings, I am further satisfied that the administration of the Agent to Kunzite, as a post-track treatment, in the circumstances, is unconvincing and more consistent with Bryers initial answer to the Stewards that he had been instructed to administer the slurry 'to the horses' and that he confused Kunzite for the horse General Truce (Ollie), which was also racing that day.

1. For the reasons stated, I am comfortably satisfied that the Applicant was responsible for the administration of an alkalinising agent to the horse Uncle Keithy on 18 April 2015, when such horse was entered to race at the Caulfield races.
2. Accordingly, I find the Applicant guilty of Charge 1 and Charge 2.
3. The decision of the Board as to findings and determination as to penalty are both affirmed.

[1] Section 83OH Racing Act 1958.

[2] William Galea v Harness Racing Victoria VCAT 3 September 2013 at para 12.

[3] Counsel referred to Dyers v R [2002] HCA 45; (2002) 210 CLR 285 per Gaudron & Hayne JJ at 292.

[4] Specifically, Rule 175(f) and (g); Local Rule 6D and 6C(3).

[5] Counsel referred to ss 4, 31, 59, 64 and 83 of the Evidence Act 2008.

[6] Counsel referred to Golem v TAC 2002 VCAT 319 per Bowman J at 4 and 9 under point (v).

[7] Pursuant to Rule 191, a Certificate of Analysis from an approved drug testing authority is prima facie evidence of the matters certified.

[12] Transcript 1 May 2015, p 3. Under cross-examination before the Board Steward Melville agreed that he did not question Bryers further to clarify his statement, Transcript 15 July 2015, p 39.

[16] Transcript 1 May 2015, p 14 and 18.

[25] Transcript 1 May 2015, p 58; the Applicant also noted that the writing in the book appeared to be Harley's.

[28] Board Transcript of hearing, p 26.

[29] Board Transcript of hearing, p 41.

[30] Board Transcript of hearing, p 49-50.

[31] Board Transcript of hearing, p 58.

[32] Dr Ledger then agreed this was consistent with a mixture of sodium chloride and bicarbonate, p 53.

[33] Board hearing transcript at p 53-54.

[34] Board hearing transcript at p 61-62.

[35] Board hearing Transcript, p 86-87.

[37] The Applicant did not explicitly state that he rode Kunzite until the Stewards' Inquiry of 1 May 2015.

[38] Refer in particular to Transcript, p 96-97.

[39] Refer in particular to Transcript, p 98.

[40] Evidence of Dr Ledger, with which the Applicant appeared to agree, Transcript p 101.

[43] Transcript, p 105-106. In his evidence before the Stewards, Bryers said he asked the Applicant and was told that the substance was glucose, Transcript 1 May at p 21 and 28.

[44] Refer in particular to ss 98, 102 and 105 of the VCAT Act.