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Racing NSW Stewards today handed down their findings in respect to charges issued against former Managing Director of Godolphin Australia Mr Henry Plumptre and Licensed Trainer Mr John O’Shea relative to an inquiry opened on 27 June 2017, in respect to the racehorse Polemic being infected with the notifiable disease or condition strangles in August 2016. Barrister Mr Matthew Stirling assisted Mr O’Shea and Barrister Mr Peter Braham SC assisted Mr Plumptre and represented the interests of Godolphin Australia. Final written submission were received from Mr Stirling, on behalf of Mr O’Shea, on 11 August 2017.

Mr Plumptre – Penalty Consideration Mr Plumptre pleaded guilty to a charge under AR64K(2), in that he did not report as soon as possible by the quickest means of communication available to Racing NSW, the Principal Racing Authority in NSW, that the racehorse Polemic was confirmed as being infected with the notifiable disease or condition strangles as required by AR64K(2) when he became aware that the racehorse Polemic was so infected, on 5 August 2016.

In consideration of penalty, the relevant factors taken into account by the Stewards included, but are not limited to, the following:

1. The guilty plea entered at the first available opportunity and the assistance Mr Plumptre provided during the inquiry. This included Mr Plumptre recognising that his conduct in the circumstances was wrong and not in keeping with the high standards set by the industry. 2. Mr Plumptre is of good character and has no previous history of such conduct. There were a number of impressive references submitted testifying to Mr Plumptre’s contribution to the thoroughbred industry and good character. 3. Contrition shown by Mr Plumptre 4. Objective seriousness of the offence and potential ramifications of not reporting the disease or condition. In this respect, the Stewards were satisfied that appropriate bio-security measures were put in place to prevent the disease being transferred to other horses. 5. Precedent penalties under the Rules of Racing.

The Stewards feel it important to make comment in respect to the precedent in the decision of the Victorian Racing Appeals and Disciplinary Board, constituted by Judge Bowman, in the case of Racing Victoria Stewards and Matthew Cumani 16 May 2017 whereby Mr Cumani’s trainers licence was suspended for a period of 11 weeks in addition to a fine of $20,000. The Stewards identify several distinguishing features of the Cumani case as compared to the offence of Mr Plumptre, noting that there are also a number of common issues in both.

The Racing NSW Stewards determined that, due to the distinguishing features of Mr Cumani’s case that the appropriate penalty issued to Mr Plumptre be a fine rather than a period of disqualification. The Stewards have also considered the fact that Godolphin Australia is one of the major racing operations in Australia and there is an expectation that the Godolphin Australia operates a highest possible standards and to promote compliance with the Rules of Racing.

Further, the Racing NSW Stewards have had regard to the Reasons for Decision of the NSW Racing Appeals Tribunal, constituted by Mr D Amarti, in the 2014 appeal by NSW licensed trainer, Darren Smith:

6. To the extent that criminal law principles such as deterrence are considered, they are not relevant. To the extent that proportionality of sentencing is said to be considered, it is not relevant. In respect of the first of those, the Tribunal in determining what order is appropriate has regard to what message is to be given to this individual trainer to ensure that in the future this type of conduct is not repeated, but to ensure that there is an appropriate penalty imposed to indicate the response of the community to integrity and welfare issues. In addition, it is a question of what general message is required to be sent to the community at large to indicate to those who might be like-minded to engage in such conduct, what the likely consequences are, and, secondly, to indicate to the broader community who are not likely to engage in the type of conduct that, should it be detected, they, whether they be wagerers or people just generally interested in the individual code, will know that it is operating at the highest possible standards.

And also to the Reasons for Decision of the Racing NSW Appeal Panel, chaired by Mr T Hale SC, in the 2017 appeal by NSW licensed trainer, Con Karakatsanis:

43. In our view, by analogy these principles concerning deterrence are apposite to determining penalty for breach of the rules of racing. It will be noted that in Foreman the role of deterrence was considered in relation to the protection of the public. Deterrence will have a broader application in relation to the rules of racing. The principles will extend not only to the protection of the public but also the promotion of the safety or horses and jockeys as well as the integrity of racing. In determining penalty, consideration may be given to the deterrent effect that the penalty might achieve in deterring a repetition of the offence and in deterring others who might be tempted to fall short of the high standards required of them under the rules of racing. The penalty may also be seen as publicly marking the seriousness of the offence.”

Accordingly, after consideration of the above matters, the Stewards have determined that the appropriate penalty for the offence is a $20,000 fine. Having regard to Mr Plumptre’s co-operation with the Stewards and his guilty plea entered at the first available opportunity, the Stewards determine that Mr Plumptre is entitled to a 25% reduction of that penalty and accordingly issue Mr Plumptre with a fine of $15,000.

Mr Plumptre has been advised of his right of appeal.

Mr O’Shea Mr O’Shea pleaded not guilty to the following two charges:

Charge 1 - AR175(l) of being a party to Mr Plumptre committing a breach of AR64K(2) for not reporting as soon as possible by the quickest means of communication available to Racing NSW, the Principal Racing Authority in NSW, that the racehorse Polemic was confirmed as being infected with the notifiable disease or condition strangles as required by AR64K(2) when he became aware that the racehorse Polemic was so infected, on 4 August 2016.

Charge 2 - AR175(g) of providing false and/or misleading evidence at a Stewards interview on 16 June 2017 and Stewards inquiry on 26 June 2017 relative to his knowledge that Polemic was confirmed as having tested positive to the notifiable disease or condition strangles.

It is not the standard practice of the Stewards to give detailed written reasons nor is there any requirement to do so. These written reasons outline the findings of fact by the Stewards and are not intended to exhaustively detail all of the reasons for the findings of the Stewards. There is commonality of evidence in respect to both charges and accordingly the Stewards make the following general findings.

Evidence

Phone and Email Records

1. A number of email and phone records were tendered at the Stewards inquiry. These records establish the following factual matters a. The evidence establishes that there was an email group including Godolphin employees Mr O’Shea, Dr Robson, Dr Adams and Mr Reid (Email Group), that received emails from Vetnostics providing the results of blood and swab samples taken from Godolphin horses. b. On 2 August 2016, Dr Adams took a swab sample from the submandibular swelling of Polemic and submitted it to Vetnostics for analysis for strangles. c. At 10:12am or 10.16am (noted as 10.12am in the recipient’s inbox but 10.16am on the email) on 4 August 2016, the Email Group received an email from Vetnostics reporting that the results of the interim culture were that Polemic had tested positive to Beta-haem. Streptococcus. d. At or around 1:41pm or 1.46pm (noted as 1.41pm in the recipient’s inbox but 1.46pm on the email) on 4 August 2016, the Email Group received a further email from Vetnostics reporting that the results of the interim culture were that Polemic had tested positive to Strep. equi subsp. equi (strangles). e. At 10:41am on 5 August 2016, the Email Group received a further email from Vetnostics reporting that the results of the final culture were that Polemic had tested positive to strangles. f. The evidence establishes that Mr O’Shea received and accessed the emails as detailed in paragraphs c. to e., however Mr O’Shea advised he did not read these emails as Polemic was not in the racing population. There is no evidence before the Stewards that establishes Mr O’Shea read the said emails. g. On 4 August 2016, the mobile phone records of Godolphin veterinarian’s Dr Trevor Robson and Dr Graeme Adams show that that the vets communicated soon after the emails listed in paragraphs c. and d. were received. In particular: i. at 10:58am (being a little over 40 minutes after receipt of the email detailed in paragraph c. above), Dr Adams called Dr Robson with a call duration of 2 seconds (which suggests that the call did not go through); ii. at 11:04am (being 6 minutes later), Dr Adams again called Dr Robson and they spoke for 7 minutes, 52 seconds; iii. at 1:56pm (being 10 minutes after receipt of the email detailed in paragraph d. above), Dr Adams again called Dr Robson with a call duration of 3 seconds (which suggests that the call did not go through); and iv. at 2:09pm (being 13 minutes later), Dr Robson called Dr Adams (which suggests he returned Dr Adams call) and they spoke for 16 minutes, 49 seconds. h. The mobile phone records of Dr Robson establish he was present at Warwick Farm on 4 August 2016, between 3:34pm and 5:50pm and in the Agnes Banks region on the morning of 5 August 2016. i. The mobile phone records of Mr O’Shea establish he was at Warwick Farm on the afternoon of 4 August 2016 and at Agnes Banks on the morning of 5 August 2016.

Interviews and Stewards Inquiry

2. The evidence of Dr Robson in his interview with investigators on 19 June 2017 and before the Stewards on 26 June 2017, was that he had a conversation with Mr O’Shea at the Crown Lodge Stables at Warwick Farm on the afternoon of 4 August 2016, after speaking with Dr Adams who had notified him of the swab result. Dr Robson said he advised Mr O’Shea that Polemic had tested positive to strangles, whereby Mr O’Shea said to him during that conversation that “I don’t want to tell the Stewards”.

3. Dr Robson’s evidence is that he then said to Mr O’Shea “Unfortunately I can’t let it end there. I’ll have to talk to people higher than you in the company to see if that can be approved, that decision you want to make.”

4. Dr Robson said that the following day 5 August 2016, outside Barn 3 at the Osborne Park stables of Godolphin Australia at Agnes Banks he was involved in a group discussion with Mr Plumptre, Mr O’Shea and Assistant Trainer Mr Paul Reid, whereby his evidence is that he told Mr Plumptre that Mr O’Shea didn’t want to notify the Stewards. During his interview on 19 June 2017, Dr Robson gave the following evidence.

Q: Don’t notify?

A: John stated why he didn’t want to tell the Stewards. Henry said, “Okay, then don’t tell them.”

5. On 23 June 2017, in a further interview Dr Robson provided evidence that on 5 August 2016, he ordered the 2 in 1 strangles and tetanus toxoid vaccine. He said at that time Mr O’Shea made the decision to “vaccinate our best horses very early on”. He provided further evidence that Mr O’Shea “gave us a list of the horses he wanted vaccinated”. Dr Robson said the decision to vaccinate was in response to the positive strangles swab result. Exhibit 17E before the Stewards confirmed 40 vaccines were ordered by Godolphin Australia.

6. In respect to the vaccination of horses following the notification of Polemic’s positive finding, further evidence was presented to the Stewards in an email from veterinarian Dr Ben Mason to Mr O’Shea on 8 August 2016 titled “Strangles SOP”. Included in that email was an attachment authored by Dr Christine Demery MVB, MANZCVS dated 8 August 2016, titled “Recommendations on control of a strangles outbreak in a vaccinated population (where strangles is endemic and not notifiable)”. The Stewards note the Dr Mason’s opening paragraph of the email states “Hi John, Christine put together a plan for preventing any further cases in Godolphin (attached). She has great deal of experience with this disease limiting and resolving a huge outbreak 2 years ago in Gippsland”.

7. The evidence of Mr Plumptre in his written statement to the Stewards on 15 June 2017, stated “There was an apparent reluctance by the Head Trainer John O’Shea to report and Robson said it would be discussed with myself as he was not able to make that decision himself. I recall a conversation at Osborne Park, between Robson, assistant trainer Paul Reid and myself who came to me at the stables to discuss it”.

8. When interviewed by the Stewards on 15 June 2017, Mr Plumptre said

“…it was my understanding in the discussion with Trevor Robson and John O’Shea in particular that it was likely that there was going to be a shutdown and that was probably the prime driver for their reluctance or John’s reluctance to say anything about it.” ….

“Only we know that it was under John O’Shea’s tenure. If I said it has been a difficult three years for us, that’s all I’m going to say on the subject, but on this sort of issue he was fairly blunt about what we needed to do and that is no way an excuse for me to back away.” ….. “I went to war with him on a number of other issues relating workplace and that sort of thing, which was a long, drawn out, tiring process and I just probably took the view that it was a matter I didn’t really need to have and, had I been thinking in the best interests of the company the racing population at large, I should have come up with another answer.”

9. Godolphin Assistant Trainer Mr Paul Reid during an interview of 19 June 2017 said that he was present on the 5 August 2016, when the group discussion took place at Osborne Park that morning. His evidence was that, whilst he was also attending to other duties when the discussion took place, he recollected the following;

A: We had completed our trot ups and Trevor had mentioned to John and Henry that we had a horse that’s come back tested positive to strangles, that Graham had done the test and he had come back positive. Q: Were you just standing outside, were you, or in the barn? A: Yeah. No, we were in the spine. Where [sic] walked out of that barn there, we were just to the right there, just after we finished the trot ups. There was no one else around. There was just us and Trevor. Trevor let them know of the results of the blood tests, yes. …….

A: Yeah, there was definitely a conversation. Trevor informed them of ewhat was happening. As in the discussion between who made the final call, I’d be – even though I was there, I would be guessing if I’m to state one of the other. So that was a discussion between Henry, John and Trevor who made the final call there.

10. Dr Adams in his interview of 19 June 2017 stated;

Q: That email, that confirmation came back on 5 August for the positive to strangles. Do you recall any conversation or what action was taken by yourself once you received that notification? A: It’s a bit – yeah, I made it – I had a conversation with Trevor about it, saying that it’s strangles. He didn’t see the original email, so he then checked it and yeah, and conferred with me, you know, it was strangles and had a conversation about it with John, I believe.

11. At an interview conducted by Racing NSW Stewards on 16 June 2017 and before a Stewards inquiry on 26 June 2017, Mr O’Shea provided evidence that he was never advised by Dr Robson or any other person that Polemic had tested positive to strangles. He indicated that he received advice that the gelding was displaying symptoms of the disease or condition and as a result he said to Mr Plumptre “did you want me to report that to the Stewards or let them know?”

12. Further Mr O’Shea’s evidence is that he never told Mr Plumptre not to report the matter.

13. Mr O’Shea tendered a statutory declaration from Dr Michael Robinson, who was Mr O’Shea’s veterinarian in 2008, when Mr O’Shea was training at Randwick racecourse. Dr Robinson provided evidence in his statutory declaration that in 2008 two horses entered Mr O’Shea’s stables that were displaying symptoms of strangles. He said Mr O’Shea’s response was to remove the horse to a quarantine facility and report the suspected cases to Racing NSW Senior Official Veterinarian Dr Craig Suann. Dr Suann said whilst he did not specifically recall the report from Dr Robinson, he couldn’t dispute that Dr Robinson made such report.

Submissions

AR175(l)

14. Mr Stirling’s submissions, on behalf of Mr O’Shea, state that Mr O’Shea should not be found guilty of the charge for being a party to Mr Plumptre’s breach of AR64K for the following reasons

a. Mr Plumptre has not stated in his evidence that Mr O’Shea “advised [him] not to report the disease or condition; b. A finding that Mr O’Shea was a party to Mr Plumptre’s breach is completely inconsistent with Mr Plumptre’s signed testimony; c. Mr O’Shea denies giving the advice; d. Mr O’Shea has a longstanding record of good character; e. When faced with the same circumstances in 2008 the matter was reported to Racing NSW; f. Dr Robson’s evidence does not establish that Mr O’Shea directly asked Mr Plumptre not to report the matter; g. The charge is inconsistent with Mr Reid’s evidence; h. Absence of proof that Mr Plumptre’s decision not to report was influenced by Mr O’Shea; i. The Stewards case is inconsistent with the positons of employment that Mr Plumptre and Mr O’Shea held at Godolphin Australia.

AR175(g)

15. Mr Stirling’s submissions, on behalf of Mr O’Shea, state that Mr O’Shea should not be found guilty of the charge of providing false and/or misleading evidence for the following reasons; a. The High Court authority of Smith v NSW Bar Association (1992) 176 CLR 256 at [39] which states it is inappropriate to make findings a person has deliberately lied on the single oath of another man and without the strongest circumstantial evidence; b. The charge relates to conversations that took place over a year ago; c. Dr Robson is a problematic witness; d. The evidence of Mr Plumptre does not support a guilty finding; e. Mr Reid conceded that he was not really part of the group conversation on 5 August 2016; f. Mr O’Shea’s version of events is equally plausible; g. Mr O’Shea is supported by his 20-year long record as a trainer of integrity; h. Mr O’Shea had no motivation to lie; i. The rejection of his evidence is different to a finding of false evidence; j. Inherit inconsistency in the Stewards case, in that although he [Mr O’Shea] thought Polemic had strangles, he is lying to the Stewards when he says he did not know Polemic had strangles and k. No reason to reject Dr Adams evidence.

Findings

AR175(l)

16. The Stewards find that Dr Robson was unrelenting in his evidence in respect to advice he received from Dr Adams that Polemic had tested positive to strangles prior to the conversation with Mr O’Shea on 4 August 2016 and the meeting on 5 August 2016. This evidence was given prior to additional evidence being presented to the Stewards, which, as detailed above, confirmed that the initial positive strangles advice was originally emailed to the Godolphin Email Group on 4 August 2016 and not the 5 August 2016 as the initial evidence originally suggested. Further having regard to the phone and email evidence, the Stewards accept Dr Robson’s evidence that he advised Mr O’Shea that Polemic had tested positive to strangles and that Mr O’Shea told Dr Robson that he didn’t want to report the matter to Racing NSW.

17. The Stewards find that at this point in time Mr O’Shea should have reported the positive test result immediately to Mr Plumptre.

18. The Stewards find that on the morning of 5 August 2016, a group discussion (5 August Group Discussion) took place at Osborne Park Agnes Banks in respect to the Polemic positive test result. The evidence of Dr Robson is that Mr O’Shea “stated why he didn’t want Henry [Plumptre] to tell the Stewards.”

19. Further the evidence of Mr Plumptre in respect to the 5 August 2016 Group Discussion at Osborne park was that “he [Mr O’Shea] was fairly blunt about what we needed to do” and that “it was likely that there was going to be a shutdown and that was probably the prime driver for their reluctance or John’s reluctance to say anything about it.” The Stewards find that these statements from Mr Plumptre should be viewed as meaning that Mr O’Shea advised Mr Plumptre not to report the strangles positive.

20. Having considered all the evidence and submissions, the Stewards find Mr O’Shea guilty of the charge issued under AR175(l).

AR175(g)

21. The Stewards find that on two occasions, firstly on the afternoon of 4 August 2016 and secondly on the morning of 5 August 2016, Mr O’Shea was advised by Dr Robson that Polemic had tested positive to strangles. In making these findings the Stewards accept the evidence of Dr Robson, Mr Plumptre and Mr Reid having regard to Mr Stirlings submissions in respect to the High Court decision in Smith (as referred to above) and R v Hook (1858), Dears. & Bell 606 at 42.

22. Further, the Stewards have considered the submissions made in respect to Smith (as referred to above) which held at [37] that:

“There is a difference between the rejection of a person’s evidence and finding that he or she deliberately lied….as a matter of logic and common sense, something more than a rejection of a person’s evidence is necessary before there can be a finding that he or she deliberately lied in giving of the evidence”

23. After considering all the evidence and submissions, the Stewards are satisfied to the requisite standard, the Briginshaw standard, that when Mr O’Shea provided the evidence particularised in the charge, that he gave such evidence in the knowledge that it was false and/or misleading. In arriving at that finding, the Stewards are of the view that it is not a case of the oath of a single man but the evidence of Dr Robson, Mr Reid and Mr Plumptre as to the purpose and substance of the 5 August Group Discussion, and the phone and email records as to the positive results that had been received the previous day. Accordingly, the Stewards find Mr O’Shea guilty of the charge under AR175(g).

Penalty

24. Stewards shall set a date to hear submissions on the matter of penalty.