HRNSW doesn't contest McCarthy appeal

02:30 AM 13 Nov 2012 NZDT
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Luke McCarthy
Luke McCarthy

Acting on the advice from its legal representatives, and based on the evidence of experts at a joint experts conference on 12 November 2012, Harness Racing NSW (HRNSW) did not contest today's appeal of Mr Luke McCarthy.

Background:

On 1 February 2012 HRNSW was advised by the Australian Racing Forensic Laboratory (ARFL) that a urine sample taken from MACH WIPER on 9 December 2011 had recorded a level of boldenone in excess of the threshold prescribed by the Australian Harness Racing Rules.

Accordingly, on 10 February 2012, the "B" sample was sent to the Racing Laboratory of the Hong Kong Jockey Club (HKJC) whereby it was confirmed that the urine sample associated with MACH WIPER had a boldenone level in excess of the prescribed threshold.

HRNSW commenced an inquiry into these results based on the two (2) certificates provided by the individual laboratories and conducted hearings on 19 March, 26 April, 21 and 22 May 2012.

At the completion of the inquiry Mr Luke McCarthy was found guilty of an offence pursuant to Australian Harness Racing Rule 190. Mr McCarthy was issued with a penalty of nine (9) months disqualification.

On 30 May 2012, Mr McCarthy lodged an appeal against the decision of HRNSW. On 7 June 2012 Mr McCarthy was granted a stay of proceeding by the Racing Appeals Tribunal.

Facts:

Since the lodging of the appeal, Mr McCarthy's representatives tendered further evidence in relation to the defence of the charge. This included evidence from experts not only from within Australia but also overseas.

HRNSW also engaged the services of numerous experts during the appeal including those from both the ARFL and HKJC.

Mr McCarthy's experts submitted that there could be an increase in the level of boldenone in urine after collection due to a number of factors. As a result of these submissions, HKJC conducted a further re-analysis of the Mach Wiper "B" sample in late October 2012. The result of this test showed that for whatever reason there had been an increase in the level of boldenone detected.

The results of the re-analysis were in direct contrast with all the previously published scientific literature and previous experiments conducted. As such the HKJC conducted a number of further controlled analytical studies, which determined that for whatever reason there was on the evidence of their experiments a conversion of testosterone sulphate to boldenone sulphate.

As Mach Wiper is an entire it is expected that the urine sample would contain a high level of testosterone.

Given this evidence, HRNSW in its role as a prosecutor in the appeal sought a further re-analysis of the Mach Wiper "A" sample by the ARFL. ARFL subsequently reported that upon re-quantification the level of boldenone had increased.

Despite this evidence, and the many variables which could have contributed to these results a conference of experts was held on Monday 12 October 2012.

There were eight (8) experts present during the conference, four representing HRNSW and four representing Mr McCarthy. At the conclusion of this conference the experts signed a document outlining the agreed facts and the areas of agreement included:

(1)

he re-testing of both the A and B samples has demonstrated that Boldenone and/or its metabolites have been generated ex vivo within the A and B urine samples. The most likely explanation is enzymatic activity by microbial contamination.

(4)

he original readings of Boldenone from both samples can in no way be indicative of the Boldenone level in the urine sample from Mach Wiper at the time of collection after the race at Newcastle on 9 December 2011.

Given this expert report and acting on the advice from its legal counsel Dr Clifford Pannam QC, the Board of HRNSW constituted an immediate meeting at 5.30pm on Monday 12 November 2012.

It was resolved at that meeting, given the balance of the evidence; in particular the recent joint expert report, procedural fairness to Mr Luke McCarthy and the prospects of success at the appeal despite the Rules and the onus placed upon Mr McCarthy by them, HRNSW would not contest the appeal.

HRNSW acknowledges that this has been an extremely long process for both Mr Luke McCarthy and HRNSW, but for whatever reason the sample and associated level of boldenone increased outside of the horses system, which has not been seen in any other sample, including other samples taken from this horse.

It should be noted that the peculiarity of the science involving this particular sample is unique to this case and remains the first and only one of its kind Worldwide.

HRNSW will undertake a review of the analytical protocols and procedures from any laboratory that carries out anabolic analysis on its behalf in the future.

COURTESY OF HARNESS RACING NEW SOUTH WALES

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