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Racing Victoria is arguing it proved horses trained by Danny O’Brien and Mark Kavanagh had elevated cobalt levels.

The governing body has taken its long-running cobalt case against the Flemington trainers to the Court of Appeal.

The Victorian Civil and Administrative Tribunal in March dismissed the charges against O’Brien and Kavanagh, overturning their respective four and three-year disqualifications for administering cobalt to racehorses.

VCAT president Justice Greg Garde concluded that while there was no doubt cobalt was administered to four O’Brien horses and one Kavanagh racehorse in late 2014, the trainers had no knowledge of it.

He also ruled test results were inadmissible as evidence against the trainers because Racing Victoria’s procedure for testing for cobalt from April 2014 to August 2015 substantially departed from the racing rules.

On Friday, Racing Victoria argued in the Court of Appeal there was ample evidence to prove the horses had elevated cobalt levels beyond the testing certificates.

Racing Victoria also wants the court to determine the appropriate level of responsibility a trainer must have to sustain a charge of administering a prohibited substance.

Justice Garde found O’Brien and Kavanagh were victims of veterinarian Dr Tom Brennan and the two Flemington trainers had not committed any offence under the rules of racing.

The judge said he would have found O’Brien and Kavanagh guilty of the lesser charge of presentation if the test results were admissible.

 
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