Tribunal finds no evidence of ‘top-ups’ given to Pop ‘N’ Scotch

LIAM Birchley’s success in his appeal against a one-year disqualification came down to the Victorian Civil and Administrative Tribunal not being satisfied any of his horses had been treated illegally.

Birchley, one of Queensland’s most successful trainers of the past decade, was charged as part of the Aquanita doping scandal that involved the alleged use of illegal sodium bicarbonate “top-ups” on race day.

VCAT deputy president Heather Lambrick said there was no evidence Birchley’s horse Pop ‘ N’ Scotch was administered anything on Melbourne Cup Day in 2015.

“While it is no credit to Mr Birchley that I do not find the particular proven, I am ultimately not satisfied that an actual administration has been proven,” Lambrick said. “In these circumstances, I am therefore not satisfied that the charge against Mr Birchley has been proven.”

Lambrick described the text exchange between Birchley and top-up perpetrator Greg Nelligan on November 2, 2015 in which Birchley said “can u org a top up for tomorrow pls” as “damning”.

“I am satisfied that in the text exchange, Mr Birchley requested Mr Nelligan to organise a top up for the next day when he had a horse running,” she said.

“I am satisfied that the text message exchange was one in which Mr Birchley directly authorised, directed and requested Mr Nelligan to top up a horse.

“The only live question for my consideration then was whether an actual administration took place. I am not satisfied that it did.” Lambrick noted Nelligan did not agree to perform the “top up” in the text exchange.

She accepted the opportunity to top up Pop ‘N’ Scotch “may have been limited” but disagreed it would have been “impossible”.

“I do agree that there were potential impediments that once again raise real questions as to whether Mr Nelligan would have gone through with the administration,” she said. Earlier in her judgment, Lambrick noted the charge and particulars do not extend to include “attempted” or “planned” administration, and that is why Birchley’s appeal was successful.

“What was alleged is an actual administration. The particulars as framed do not and cannot on any reading of them include planned or attempted administration,” she said.