The Referrals Committee Dr. Gordon A. Holmes (in the Chair), Edward Flannery and Neville O’Byrne met in the Turf Club, The Curragh, Co. Kildare on 11th February and 11th March 2010 to consider the referral of James Ferry, owner of Cybersnow (USA), by Denis Egan, Chief Executive of the Turf Club, in relation to possible breaches of rules as a result of this horse’s alleged participation in an unrecognised meeting at Magheraboy, Co. Donegal on 28th June 2009 under the name of Man About Town. James Ferry denied that Cybersnow (USA) under the name of Man About Town took part in an unrecognised meeting at Magheraboy on the above date and also denied that Cybersnow (USA) and Man About Town was the same horse.
Evidence was heard from Terry Smith, Turf Club Veterinary Officer and James P. Johnston, Turf Club Head of Security on behalf of the Turf Club.
Evidence on behalf of James Ferry was given by himself, Paul Traynor, Veterinary Surgeon, Patrick McCooey, Veterinary Surgeon, Joseph Campbell, Veterinary Surgeon, Adrian Browne, owner Man About Town and Seamus Fahey, trainer Cybersnow (USA).
The Committee also considered written submissions from Ben Brain, Veterinary Surgeon who said that he examined Cybersnow (USA) on 23rd April 2009 for a respiratory problem. He also said that the horse was presented with a severe lameness to the left fore which was consistent with an alleged pedal bone fracture which was radiographed by James Ferry’s vet on 18th April 2009. They also considered photographs of Man About Town which were taken at Magheraboy on 28th June 2009 and Cybersnow (USA) which were taken at Galway on 1st August 2009 as well as pictures taken by Vincent McNamee, on behalf of James Ferry, of Cybersnow (USA) and Man About Town standing side by side at James Ferry’s premises in December 2009.
Terry Smith, Turf Club Veterinary Officer, told the Committee that he identified Cybersnow (USA) on 19th November 2009 at a location near Falcarragh, Co. Donegal in the company of James P. Johnston, Martin Healy, Turf Club Security Officers and James Ferry. He also said that he believed that the horse he identified at Mr. Ferry’s property as Cybersnow (USA) and the horse identified in the pictures from Magheraboy as Man About Town was the same horse.
In his evidence James P. Johnston, Turf Club Head of Security, confirmed details of the visit to Falcarragh in November. The Committee also noted the contents of a statement given by James Ferry to James P. Johnston on 19th November. In that statement Mr. Ferry agreed that the horse in the picture at Magheraboy on 28th June 2009 appeared to be the same horse as the picture shown to him of Cybersnow (USA), which was taken at Galway on 1st August 2009. Mr. Johnston also told the Committee that Martin Healy and he travelled to Letterkenny on 9th December to meet Adrian Browne, owner of Man About Town, to discuss his association with Man About Town, but that shortly before the meeting Mr. Browne contacted them and refused the meeting.
James Ferry confirmed meeting with the Turf Club Officials on 19th November and agreed that he signed the statement given to James P. Johnston. He said that Cybersnow (USA) was not at Magheraboy on 28th June 2009, but that he was in his yard as a result of an injury sustained in April. He told the Committee that Cybersnow (USA) sustained a stress fracture of the dorsal proximal pastern and that he was advised to give the horse six weeks box rest followed by four weeks walking and that the horse was to be reassessed after that. He also told the Committee that when he asked Adrian Browne about the Magheraboy race Mr. Browne told him that Cybersnow (USA) wasn’t at Magheraboy but that he (Adrian Browne) had a horse similar to Cybersnow (USA). He said that Adrian Browne subsequently brought down his horse (Man About Town) and photographs were taken of both horses standing side by side. (These pictures were shown to the committee). However, when he (Mr. Ferry) asked Adrian Browne to allow the Turf Club Officials to come and identify his horse, he refused. Mr. Ferry then told the Committee that Man About Town was now dead as a result of an injury sustained in January. Andrew Coonan (Mr. Ferry’s solicitor) confirmed that evidence would be produced to this effect.
Paul Traynor, Veterinary Surgeon on behalf of Mr. Ferry, told the Committee that he was unable to make a positive identification from the photographs taken at Magheraboy and Galway even though he admitted that both horses looked quite similar. In relation to the injury sustained by Cybersnow (USA) in April, he said that in his opinion it was possible that a horse could win a race 18 days after being confined to his box for six weeks and walking for four weeks having suffered the injury outlined by Mr. Ferry’s vet but that it would be a very strong performance. He made this comment in relation to Cybersnow’s (USA) win in the Killarney Europe Hotel and Resort Handicap at Killarney on 16th July 2010.
Patrick McCooey, Veterinary Surgeon on behalf of James Ferry, gave evidence that he examined a horse on 18th April 2009 which he was told was Cybersnow (USA) and that following an x-ray on the animal, he diagnosed an injury to the horse’s dorsal proximal pastern. He confirmed the recommended treatment as outlined by Mr. Ferry in his evidence. He also said that he never saw the horse subsequently for reassessment.
Joseph Campbell, Veterinary Surgeon told the Committee that he acts as Adrian Browne’s veterinary surgeon and that he euthanased a chestnut horse in January 2010 which had suffered a fracture of the left fore cannon. He gave details of the microchip number of that horse which was the same as the microchip number of the horse identified as Man About Town by the North-West Horse and Pony Racing Board on 24th May 2009 but was not the same microchip number as Cybersnow (USA).
Adrian Browne told the Committee that he was the owner of Man About Town and that Cybersnow (USA) and Man About Town was not the same horse. He also confirmed that Man About Town was put down in January 2010 as a result of sustaining an injury. In relation to the race at Magheraboy on 28th June 2009, he confirmed that Man About Town was the horse in the picture and that he was standing with the horse. He confirmed that the race was sponsored by Ferry Refuse Collection and that he told James Ferry next day that his horse (Man About Town) had won the race.
Adrian Browne went on to outline the procedures that are used by the North West Horse and Pony Racing Association (NWHPRA) to identify horses and said that the microchip number is the primary indicator of identity. When asked by Conal Boyce, solicitor on behalf of the Turf Club, as to why the markings that he had given to the committee which had been prepared by the marker from the NWHPRA differed from those on Man About Town in the picture at Magheraboy he said that the marker had obviously made an error with the result that the white mark on the horse’s front leg was transposed. Mr. Browne also told the Committee that while Man About Town was a thoroughbred he did not have a passport and that he originally bought the horse from a trainer about 12 months previously.
In relation to the photographing of Man About Town with Cybersnow (USA) in December, Dr. Gordon Holmes asked Mr. Browne why he didn’t show his horse to the Turf Club as one sight of the horse would have ended the enquiry, in reply he said that that he saw no reason to show the horse to the Turf Club as his horse only took part in pony racing. In conclusion Adrian Browne told the committee that Man About Town didn’t run again after Magheraboy on 28th June as he became jarred on the firm ground.
Seamus Fahey (licensed trainer) told the Committee that Cybersnow (USA) was delivered to him on 30th June 2009. He said that the horse was in good condition and that he was over the injury. He referred to the race that he won in Killarney on 16th July as being a moderate race and that the horse was not fully fit. He said the horse’s main aim was the Galway festival. He also said that he didn’t know the horse’s history when he got him. While he accepted that the pictures of Cybersnow (USA) and Man About Town looked similar though he was surprised that the Turf Club investigators were claiming that both horses were the same. He concluded by saying that he had been told by Emmet Butterly, who looked after Cybersnow (USA) when he was injured, that one of the reasons that the horse was in such good condition when he was sent to him in June 2009 was that the horse had been swimming.
Closing submissions were made by Conal Boyce on behalf of the Turf Club and Andrew Coonan on behalf of James Ferry.
Having considered the evidence and the submissions the Committee initially reserved its decision which was subsequently published on 11th May as follows:
DECISION
1. This matter came for hearing before the Referrals Committee of the Turf Club and were heard on the 11th February 2010 and then adjourned and heard again on the 11th of March 2010 when the hearing was completed.
2. The hearing involved the holding of an enquiry into the issue as to whether or not a horse named Cybersnow (USA), a registered race horse and the property of a Mr. James Ferry, who was a respondent in the principle charge, was one and the same horse who purported to be named a ‘Man About Town’ and took part in an unregistered pony race in Magheraboy in County Donegal which was a meeting not run under the auspices of the Governing Body of Racing in Ireland, but, what is referred to in the Rules, as an unrecognised meeting and, if the horse, Cybersnow (USA) was the same as the horse named Man About Town, then a breach of the Rules of Racing occurred with serious consequences. The enquiry, therefore, was dealing with the issue of whether Cybersnow (USA) was the same horse who ran and won the Magheraboy Pony Race. If it was found that they were identical then what was the involvement of Mr Ferry who it is common case was the owner of Cybersnow (USA).
3. Photographs were produced which were of considerable assistance to us in the matter and these were admitted and assisted us in our enquiries.
4. It was argued by Andrew Coonan on behalf of Mr Ferry that whilst it seems settled law that on enquiries such as this, decisions should be made based on the balance of probabilities that under the circumstances of this case Mr Coonan alleged we would require a preponderance of evidence. Mr Coonan has made this argument in a number of other cases and it is quite difficult to say that such principle can be applied to this case as the argument was not material to our deliberations.
5. The principle witness on behalf of the Governing Body was Mr Terry Smith a most experienced veterinary surgeon, whose experience and expertise were unchallenged. No verification of Mr Smith’s credentials was required and Mr Coonan on behalf of Mr Ferry very fairly and very properly accepted this.
Mr Smith saw the horse Cybersnow (USA) at Mr Ferry’s yard in Donegal. He took markings of the horse and from this visual inspection and from inspection of the photographs of the horse that won the race at Magheraboy and the horse that won at Galway, he concluded they were one and the same horse.
6. On the question relating to the identification of horses, the ideal evidence would have been visual inspection by the expert (in this case Mr Smith) for reasons which are emphasised thereafter, this never happened and Mr Smith was never afforded an opportunity of visual inspection of the animal alleged to have been Man About Town. Mr Smith, therefore, based his opinion on the photographs to which we have referred. Two photographs were produced to us one of Cybersnow (USA) and another photographs produced to us of Man About Town who had won the Pony Race in Magheraboy. It was the firm opinion of Mr Smith and his positive evidence was to the effect that these animals were one and the same. His positive identification was taken from the photographs both at the Magheraboy Pony Race and at Galway Race Course where it was common case Cybersnow (USA) won a race on the 1/08/2009. Mr Smith positively identified these horses as being one and the same.
7. Cybersnow (USA) was pointed out to Mr Smith by Mr Ferry and identified to him. (see questions 40 and 41 on the transcript).
8. Mr Smith was cross-examined in great detail by Andrew Coonan on the precise markings of Cybersnow (USA) and the precise markings of Man About Town who had won the Pony Race at Magheraboy. As this was the vital issue in the case it is understandable that Mr Coonan’s cross-examination was as long and detailed as it was. Mr Smith whose evidence was formidable and unshaken under cross-examination and whose expertise is beyond reproach formed a very definite opinion in the matter and identified Cybersnow (USA) and Man About Town from the photographs as being one and the same.
9. The next witness called was James Johnson, the Turf Club Security Officer who accompanied Mr Smith to Falcarragh for the purposes of conducting an investigation into the matter and he was present when Mr Ferry, the owner of Cybersnow (USA) identified Cybersnow (USA) to Mr Smith. Mr Johnson took a statement from Mr Ferry which was produced to us and to which we refer. In that statement Mr. Ferry indicated that he thought that both Cybersnow (USA), a horse which he owned and the horse in Magheraboy were one and the same and he said he had no idea how Cybersnow (USA) got to Magheraboy to run in the Pony Race which it is alleged too place on the 28th of June 2009 and that he had nothing whatever to do with it. On cross-examination Mr Johnson confirmed that Mr Ferry was both co-operative and helpful.
10. He confirmed that when he took the statement from Mr Ferry it was in a jeep and that the persons present in addition to Mr Ferry and Mr Johnson were Mr Smith and another Turf Club Security Officer, Martin Healy whose importance arises later.
11. Mr Ferry indicated that one, Adrian Browne was a person who worked for him at his Waste Recycling Business, although it was only in cross-examination that it emerged that Mr Johnson travelled with Martin Healy for the purpose of interviewing Adrian Browne about his association with Man About Town or with Cybersnow (USA). Before he arrived in Letterkenny, County Donegal, however, he received a phone call from a man who purported to be Adrian Browne and who refused to meet him. On receipt of this, Mr Johnson telephoned Mr Ferry to ascertain the authenticity of this phone call but one hour later Mr Ferry confirmed that the phone call was in fact from Adrian Browne and was genuine. We, therefore, have the position that Adrian Browne would not meet with Mr Johnson and, therefore, did not avail of the first opportunity or indeed any opportunity of producing to Mr Johnson the horse which they now say was Man About Town. This is of considerable importance in considering the facts which later emerged.
12. This, effectively was the Turf Club case and after this had concluded, this being an enquiry, Mr Coonan called Mr Ferry and the other witnesses available to him to give evidence on their behalf.
13. Andrew Coonan for the defence first called Mr James Ferry who is named in these proceedings to give evidence effectively on his own behalf. He explained how his statement was made to Mr Johnson and he made mention of the photographs which show the similarity between Cybersnow (USA) and another animal of similar colouring. He gave important evidence that the vet, Mr McCooey certified that Cybersnow (USA) was examined by him on the 18th of April for a left fore limb lameness, that x-ray revealed a stress fracture of the dorsal proximal pastern. The date of Mr McCooey’s report is irrelevant but it seems clear that the horse was lame on the 18th of April and in question to No 219, Mr Ferry indicated that he was satisfied that it was not his horse in Magheraboy because the horse was off for ten weeks. Ten weeks was the recommended treatment of the stress fracture which involved six weeks in his box followed by four weeks walking. The exercising of the horse was done by Adrian Browne (see question 224). Mr Ferry specifically stated at question 232 that he was advised to give him six weeks box rest followed by four weeks walking and that that is what he did. He said that this would have brought him up to a date at the end of June. In an exchange with Edward Flannery, a member of the Committee, Mr Ferry agreed that the horse did not come out of the stable for six weeks and he then did walking exercise up to the 27th of June and won in Killarney on the 16th of July. Later on in examination he said that when he asked Mr Browne whether the horse had run at Magheraboy he actually laughed. He also (which was important), indicated that he was very anxious to get the money which HRI owed to him ie the winnings which Cybersnow (USA) had won at Killarney and at Galway. It came to approximately €10,000 and he was very anxious to get this as the money was being held by them pending this enquiry. In question 265 he indicated that in a discussion with Mr Browne, he said “Ring the boys now and tell them that the horse is here, because they will be wanting to see the horse”. He went on to add that Browne told him he was not going to show no horse which we took as meaning that Browne would not produce the horse for the Turf Club (the production of the horse at this or any stage would one way or another have brought this enquiry to a conclusion). We were surprised that since Browne worked for Mr Ferry and Ferry owned the horse and he paid Mr Browne for working on behalf of his Waste Company, he did not himself take any further initiative in telling either the Turf Club what the position was nor did he direct Mr Browne to show the horse to the Turf Club Officials.
14. There was then evidence given about the horse being inspected by Professor Ben Brain, an expert on respiratory problems but these do not appear to arise in this particular case because without any treatment whatsoever Cybersnow (USA) later won two races and this is common case.
15. Mr Ferry was very adamant on saying (see question 357) that all the horse did was to walk during the ten weeks.
16. Mr Ferry’s other evidence dealt with identification and dealt with the issues that are repeated in the transcript. It is to be noted that in question 476 he referred to Mr Browne and said “why don’t you ring the Turf Club now, they’ll be looking to see this horse” and again Mr Browne replied “I am not going to let them see the horse, it’s my horse”.
17. The answers he gave to that question were to put it mildly unsatisfactory.
18. The next witness was Mr Paul Traynor, a veterinary surgeon whose evidence was probably not germane to the issues but can be summed up thus; (a) outlining the difficulties of making a positive identification from photographs and (b) to deal with the issue of the recovery of a horse from an injury such as is suggested Cybersnow (USA) had. He indicated that a very minor stress fracture could heal in the time as outlined but a more serious fracture could not, when questioned by Edward Flannery, a member of the Committee about the fact that the horse went in to training with Mr Fahey on the 1st of July and was able to win a National Hunt race sixteen days later.
19. The next witness was a Mr Patrick McCooey and he was the veterinary surgeon who attended Cybersnow (USA). He confirmed the presence of a stress fracture and indicated that he recommended six weeks in a box followed by four weeks walking as treatment. He indicated that sometimes in these cases if recovery was slow, he would see horses again but if they were making a reasonable recovery he would not.
20. He was asked about the ability of a horse winning a flapping race on the 28th of June bearing in mind its condition on the 28th of April and he indicated that it was unlikely. In question 537 he said “ I don’t know a lot about training horses. It seems quite short but it is quite possible”. We accepted his evidence. He did not work regularly for Mr Browne.
21. Joseph Campbell, veterinary surgeon was the next witness and he said he was the regular veterinary surgeon for Adrian Browne. He received a call from Mr Browne with regard to a horse of his that had been injured. He saw the horse.
22. There was an awful lot of ice throughout the month of January. There was what he described as a big covering of ice. He discovered that the horse which was in Mr Browne’s yard had received an injury and had a fractured cannon from which he would not recover. Conditions were very icy and he euthanized the horse. He had read the microchip and the horse was a chestnut. Mr Campbell indicated he didn’t pay a great detail of attention to the look of the horse but it was a chestnut horse with a stripe on his face. He had no evidence as to how this rather convenient accident actually happened.
23. The next witness called was Adrian Browne whom we were satisfied was very experienced in dealing with ponies which he had owned since he was a child. He said he was the owner of Man About Town who was a successful horse who had won a couple of times before he won a race at Magheraboy and that he was not the same horse as Cybersnow (USA). He said he would go all around Donegal going to different places each week.
24. Mr Browne dealt with the issue of micro chipping ponies and the manner in which it is done which, of course, lacks the detail and precision of micro chipping conducted under the auspices of the Governing Bodies. He also dealt with the photographs of the horses on which really there was no contest – that is to say that there is no contest that the photographs were taken and that they represented the winner in Galway and the winner in Magheraboy were two similar horses, which the defence claimed were Cybersnow (USA) and Man About Town photographed together. The Turf Club did not and would not accept this.
25. It should be noted that a previous witness had indicated that a horse could actually have more than one microchip. All the systems seem somewhat uncertain. Mr Browne then dealt with his failure to meet with Jimmy Johnson the Turf Club’s security officer. Mr Browne forcefully said that the statement made by Jimmy Johnson that he had arrangements to make to meet with Adrian Browne were lies. He refused to meet with Jimmy Johnson and telephoned that message as evidence to this effect. At question 39, however, Mr Browne gives an extraordinary explanation for failing to meet with Mr Johnson. He says that the main reason he didn’t show the Turf Club the horse was Mr Johnson and Mr Healy were travelling to Donegal. Mr Healy had been a family friend of my family for years and he thought out of courtesy he could have rang me. He couldn’t understand why a man sitting in the car working for the Turf Club couldn’t contact me. He said that that was the reason he didn’t co-operate with the Turf Club and for no other reason. He was hurt by it because he had met Mr Healy and his wife in Sligo. He says that if Martin Healy who knew him well had gone to talk to him there would have been no problem.
26. Before the meeting in Sligo it was twenty years since he had met him, and thus, this seems to us to be an extraordinary explanation.
27. He indicated that he did not have a passport for Man About Town as he did not have a passport for many of his horses.
28. He confirmed that he had called Mr Campbell the vet to come and treat a horse which had slipped and fallen and that he wasn’t there when Mr Campbell came and that the horse was badly injured and that Mr Campbell had put him down. He confirmed that that horse was Man About Town. He dealt with the issue of the microchip and confirmed a person called Ernie Moore had the charge of dealing with this. He confirmed that if a horse moved around the Country, he was supposed to have a passport (see question 102) and confirmed that he didn’t have it (see question 103).
29. There was controversy of the white flash on the near or the off leg of the horse and Mr Browne confirmed that this must be a mistake (see question 119). Mr Boyce suggested to Mr Browne that in fact the horse was not Man About Town and that is why the white flash appeared on the other leg. He confirmed that there was no central registration of microchips and took exception when it was suggested that this was not being accepted by Mr Boyce. He agreed that the microchip which was put on Man About Town was never registered with anybody except people who took Mr Browne’s word for it (see question 131). He agreed that the horse was never permitted to be examined by anybody, most particularly, the Turf Club. He disingenuously said (see question 132) “why would the Turf Club want to”.
30. In answer to the Chairman at question 135 he said that the horse was pony racing and had nothing to do with the Turf Club. The Turf Club were never afforded the opportunity of seeing this animal.
31. Although, he confirmed that the horse was euthanised by Mr Campbell. He confirmed that the race in Magheraboy was the Magheraboy Derby and he confirmed that it was sponsored by Mr Ferry or by Mr Ferry’s company, Ferrys Refuse. In answer to questions 204 where it was suggested that his evidence was a tissue of lies, he said “my opinion is my horse was Man About Town and Jim Ferry’s horse was Cybersnow (USA)”. The dead body of the horse was taken away by Northwest Animal Collection Service referred to in the proceedings as ‘a knacker’. The receipt for the body of the animal was produced confirming that an animal was collected on the 7th January 2010.
32. In answer to the Chairman at question 236 he said that at the time he refused to meet Mr Johnson, he was aware that the Turf Club were investigating Cybersnow (USA). (see question 238) the Chairman inadvertently referred to the pony race as being a Point to Point and then dealt with the issue of the photograph. Although, naively at question 242 he said he didn’t think the Turf Club had any reason to see my horse because he was into pony racing. In answer to question 259 he said that after the horse was put down all he was interested in was getting the horse taken away and that, although, the horse’s markings wouldn’t have changed when he died he did not ring the Turf Club. At that stage he knew that the horse was the subject of an investigation when his somewhat convenient death occurred.
33. It then turned out (question 264) that Jim Johnson told him that both he and Mr Healy were coming to see him (this is at variance with Mr Browne’s earlier evidence).
34. The next witness was Mr Seamus Fahey and he said that he had been introduced to Mr Ferry at Leopardstown and sometime after Mr Ferry phoned him and said he was sending a horse to him. He was very pleased with that and said it was fine. When the horse, (Cybersnow (USA)) was delivered to him he was in good condition. He wasn’t over heavy and he was perfectly sound. Mr Fahey was told he had an injury but he was also told that he was to kick on with him and he expressed an interest in sending Cybersnow (USA) to Galway.
35. It is to be noted that when Mr Fahey got the horse, they were doing a little bit with him at home. This had not been mentioned by Mr Ferry or Mr Browne and, indeed, there was no evidence that any work whatever was being done on this horse up to that time.
36. There was discussion on the merits of the race in Killarney which Cypersnow won within a very short time (sixteen days) of going to Mr Fahey’s yard to be trained. Mr Fahey had indicated that he was in reasonable condition and then question 298 Mr Fahey said that when the horse was sent to him, he said he was told that there was a good bit done with him and he could kick on with him and do whatever he wanted. Later he said (see question 298) “there’s a good bit done with him and we were swimming Cybersnow (USA) before he came to you and I said how come he didn’t swim, he said there’s a big difference between this time of year in the sea in Donegal and in May and June. I think that may have been overlooked the last time”.
37. From this we deduced that there was an amount of work done on Cybersnow (USA) before he was sent to Mr Fahey and that he had also been exercised in the sea off Donegal. Furthermore, it appeared that after the race in Killarney which he won, he went up six pounds. That is the handicapper to put his weight up six pounds thinking that the run in Killarney was a run of merit.
38. In answer to question 304 he said that the horse was walked on the strand occasionally and walked him into the sea and swimming for a little bit and back in.
39. That concluded the evidence and we then heard submissions from both Mr Boyce and Mr Coonan. These submissions are contained in the Transcript of Evidence.
40. A number of factors were clear. First a lot of work had been done on Cybersnow (USA) before he was sent to Mr Fahey. Work had been done on him. He looked quite forward, quite well and work had been done on him on the strand and he had gone swimming. None of these matters were mentioned to us by any of the other witnesses until Mr Fahey gave his evidence. Mr Fahey’s evidence we found truthful and accepted it.
41. The race in Magheraboy was sponsored by Mr Ferry and whether or not there was an added incentive to try and win a race that one has sponsored we did not take into account.
42. The evidence given by Mr Browne was unsatisfactory in the extreme. Quite frankly, we could not accept it. The reason given for not meeting Mr Johnson we did not accept. The obvious reason why Mr Browne did not want the Turf Club to come and inspect the horse that he claims was a Man About Town was that it would have brought this enquiry to an end one way or another. Mr Browne’s failure to inform the Turf Club to come and inspect the horse is logical if and only if Mr Browne did not want the Turf Club inspection to take place.
43. Similarly, the Turf Club were not invited to inspect the horse after he had been put down, of course, his markings would not have changed.
44. It is to be noted that had the Turf Club inspected the horse and if as Mr Browne alleges Man About Town was a different animal from Cybersnow (USA), then Mr Ferry’s cash in HRI would have been immediately released. Mr Ferry gave evidence to the effect that he wanted this cash urgently and, furthermore, application was made to us at the conclusion of the evidence to release these funds to Mr Ferry – which we did not do. Mr Browne, therefore, would be under pressure from Mr Ferry to permit the inspection to take place and his failure to do so together with the excuses given for this failure are all indicative of one explanation and one explanation only.
45. Furthermore, the case made by Mr Coonan that Cybersnow (USA) would have been incapable because of his injury of running in Magheraboy, this argument we rejected. It is common case that sixteen days after joining Mr Fahey’s yard, on the 1st of July the horse was capable of winning under the Rules of Racing and that in winning his handicap was put up by the handicapper by six pounds.
46. If he was able to win a race under Rules, sixteen days after Mr Fahey got him, it is perfectly clear that he would have been able to win a pony race some two weeks previously, the standard of such pony racing being lower than the standard of racing under Rules. We are fortified in this decision by the fact that evidence came out in the wash, so to speak, that the horse was straighter and more fit than we had been led to believe and that he had being doing some work and that he had exercised in the strand and been swimming before he went to Mr Fahey. Since all of this is around the time of the Magheraboy race, it is perfectly clear that all the other witnesses who were aware of his condition, hid from us the fact that this exercise had been done and that the condition of the animal was far more advanced than had been represented to us.
47. Whilst, therefore, the evidence of Mr Smith in identifying positively Cybersnow (USA) as being one and the same as Man About Town would have been more definitive had he been able to see two animals the reason why he was not able to see the so called second animal was entirely the fault of Mr Browne, an employee of Mr Ferry and Mr Ferry was under pressure to have the enquiry ended so that his cash would be released to him. Mr Browne’s failure to request an inspection by the Turf Club under those circumstances is mildly a very significant piece of evidence indeed.
48. For these reasons, we are of opinion that Cybersnow (USA) was the animal who ran and won at the pony race in Magheraboy and that, therefore, at an unrecognised meeting with consequences that that entails.
49. Having so found we, therefore, direct that the persons entitled to the winnings for the races in Killarney or in Galway and that the appropriate order should be made, whereby, the second horse in each of those races is placed first and all animals that would be entitled in view of this finding to participate in the prize money have their placings altered accordingly.
50. This brings us to the issue of Mr Ferry. The charge against Mr Ferry is not to do with the conduct of the enquiry but has to do with Mr Ferry’s role in Cybersnow (USA)’s actually running in Magherboy. His own statement, voluntarily made to Mr Johnson suggests that he was innocent of any wrongdoing because he was unaware that this happened. Subsequent events and subsequent failure by Mr Ferry to indicate the work that had been done on Cybersnow (USA), the training he had received etc are suspicious but they do no more than that. He is charged specifically with participating in the running of the horse in Magherboy and we accept the arguments of Mr Coonan in this respect and we hold that the Turf Club had not discharged the onus of establishing that Mr Ferry was involved in permitting this to happen. Whilst, therefore, Mr Ferry did not assist in this enquiry as he might, he is not charged with that. He is charged with the participation of his horse Cybersnow (USA) in an unregistered race, and we must have, on the evidence sufficient doubt to lead to acquitting him of this charge.
51. To sum up, therefore, we find that Cybersnow (USA) ran in an unregistered meeting at Magheraboy on the 28th June 2009 and in pursuance of Rule 275(ii) is disqualified from any races in which he ran subsequent to that date and we further find he is not from that date to be entered or run in any race for two years. As a consequence the results of all such races he ran in subsequent to that date be adjusted accordingly. We further find that we are not satisfied that there was a breach of the Rules of Racing by its owner, Mr Ferry and accordingly, he is entitled to be acquitted of the charge brought against him.
52. Since the penalties imposed are obligatory and are the minimum set out in the rules, we did not require to hear representation in that regard but should any issue arise regarding the penalties or their application or any clarification whatever be required or to hear any submissions regarding them, there will be liberty to apply to us within seven days of the date of publication of this decision.
The case was presented by Conal Boyce, Solicitor, Wilkinson & Price Solicitors, Naas, Co. Kildare. James Ferry was represented by Andrew Coonan, Coonan Cawley Solicitors, Naas, Co. Kildare.