BEFORE THE JUDICIAL CONTROL AUTHORITY
BEFORE THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
AND IN THE MATTER of the New Zealand Rules of Racing
BETWEEN BRYAN F McKENZIE
Racecourse Inspector
Informant
AND LISA KATHRYN CROPP
Defendant
JUDICIAL COMMITTEE: Prof G Hall Chairman
Mr P Welch Member
HEARING DATES: 3, 4, 5, 9 & 10, 18, 19, 22, 23, & 24 August 2005; 16 January 2007; 8 October, 11, 13, 26 & 27 November 2008
APPEARING: Mr S Moore SC and Mr B Dickey for the Informant
Mr B Hart (until 2 October 2008) and Mr A Shaw for the Defendant
DECISION OF JUDICIAL COMMITTEE DATED 11 MARCH 2009
Table of Contents
para
1 The background 1
2 The charges 13
3 The Rule 18
4 The ingredients of the charge: onus and standard of proof 20
5 The informant’s evidence 25
6 The defendant’s evidence 107
7 The informant’s final submissions 148
8 The defendant’s final submissions 150
9 This Committee’s findings 162
(a) The sample’s ultra-high reading 163
(b) Contamination 172
(c) The failure to wash hands / Finger in pottle 182
(d) Could the presence of any other drug or substance account for the positive readings? 190
(e) The possibility of adulteration 193
(f) The break in the chain of custody 194
(g) Were the bottles out of Ms Palmer’s sight? 207
(h) Is the drug testing protocol inadequate and unfair? 220
(i) The waiver of the “right” to a “B” sample 239
(j) Was the protocol followed? 264
(k) Does possession of a Rulebook with an incorrect reference to the Misuse of Drugs Act in R 528 provide a defence to the charge? 272
10 Is a breach of R 528 proved? 275
(a) The defendant is a rider 277
(b) The rider was required by a Racecourse Inspector to supply a sample of her urine 280
(c) The sample taken from the rider is found upon analysis to contain any controlled drug 289
11 Conclusion 291
1 The background
It is appropriate to commence this decision by way of a summary outlining the various steps in the hearing of the matter of whether or not the informations against the defendant, Ms Lisa Cropp, licensed jockey, filed in May 2005, have been proved by the informant, that have resulted in this Judicial Committee not delivering a decision until March 2009.
On 7 May 2005, Ms Cropp presented herself at Te Rapa racecourse for the purpose of riding at the Waikato Racing Club meeting that day. Upon her arrival, she was requested by a New Zealand Thoroughbred Racing (NZTR) Racecourse Inspector, Mr Bryan McKenzie, to provide a sample of her urine. The defendant reported to the nurse, Ms Palmer, but was unable to provide a urine sample. She left and returned at approximately 1.30 pm. She then passed a sample of 28 ml. The NZTR drug testing protocol, which was prepared by Work Place Testing of the Institute of Environmental Science and Research Ltd (ESR) in consultation with NZTR and was adopted by the Board of NZTR on 12 July 2002, states that for the sample to be split, 30 ml or more is required. The sample was forwarded to the ESR for analysis. On 12 May 2005 the ESR reported that the defendant's sample was positive for methamphetamine and amphetamine.
The defendant was charged with a breach of R 528 of the Rules of Racing by Mr B McKenzie, in two informations, laid in the alternative, on 18 and 23 May 2005, respectively.
The hearing commenced in Auckland on 3 August 2005. At the end of the informant’s case the defendant submitted there was no case to answer as the informant had not produced written authority from the Chief Executive of NZTR, Mr A Fenwick, to file an information against Ms Cropp and, as a consequence, this Committee did not have jurisdiction to hear the matter. After hearing from both parties, we delivered a ruling on 9 August 2005 that this Committee had jurisdiction.
This was followed immediately by a further ground, with the submission being primarily directed to whether the Racecourse Inspector had received written consent from the Chief Executive to file the informations. A second ruling was delivered on 18 August 2005, which held that written consents had been received by Mr B McKenzie.
A further submission of no case was made by the defendant. Despite assurances that the defendant’s oral submissions would be brief, these continued over a period of more than four days with a number of discrete issues being raised for the consideration of this Committee. The hearing adjourned on 24 August 2005 in order for us to consider and to rule on the no case submission.
When issues arose during the defendant’s no case submission relating to the prescription of non-raceday informations and the appointment of Mrs M Stanbury to receive them, we requested on 19 August 2005 that Mr J Grant, the then Chairman of the Judicial Control Authority (JCA), provide any relevant information or documentation to this Committee. Mr Grant responded to that request by way of a memorandum dated 28 September 2005 (exhibit F). The defendant then requested that Mr Grant be formally called before this Committee to give evidence. A further issue as to the validity of the appointment of the Member of this Committee, Mr P Welch, had arisen during the course of the defendant’s oral submissions as to no case. This Committee was of the view that Mr Grant could assist us with evidence as to this issue. In Ruling No. 3 on 18 October 2005 we required Mr Grant also give evidence with respect to this matter and, in Ruling No. 4 on 29 November 2005, we refused an application by the defendant that Mr Welch disqualify himself or that a separate independent committee be established to determine the matter.
The defendant then filed an application to the High Court for judicial review. The defendant further requested that the hearing before this Committee be adjourned pending the decision of the High Court. This was delivered on 7 November 2006 by Baragwanath J who stated that the decision of this Committee to exercise the subpoena power was neither irrational nor disproportionate: see Cropp v Welch & Ors (HC, Auckland CIV 2005-404-7040, 7 November 2006, Baragwanath J).
The learned Judge also concluded that Mr Welch was validly appointed, and counsel for the defendant at a telephone conference on 20 December 2006 indicated they had not lodged an appeal against His Honour’s decision nor did they continue to challenge Mr Welch’s appointment. Thus no ruling was required from this Committee in respect of whether Mr Welch was lawfully appointed as the Member of this Committee. At that telephone conference, counsel for the defendant repeated their request that Mr Grant be called. On 20 December 2006, pursuant to R 1115(8)(a), we issued an amended summons requiring Mr Grant to appear before us to answer questions put to him and to produce to this Committee any relevant documents relating to the form of the non-raceday information currently prescribed by the JCA, and the authority of the then Executive Officer of the JCA, Mrs Stanbury, to receive an information, where that information is filed other than during a race meeting.
The hearing reconvened on 16 January 2007 when Mr Grant gave oral evidence and produced written documentary evidence and was cross-examined by the defendant. Counsel were permitted to make written submissions in response to Mr Grant’s evidence. The defendant’s further submissions as to “no case”, which were directed first at matters that could be described as jurisdictional and technical issues, and secondly, the application of the New Zealand Bill of Rights Act 1990, were considered by this Committee in Ruling No. 5 delivered on 7 February 2007. This Ruling was considered in the High Court in Cropp v Judicial Committee [2007] NZAR 465 by Andrews J who dismissed Ms Cropp’s application for judicial review. Her Honour’s decision was appealed unsuccessfully to both the Court of Appeal and the Supreme Court: see Cropp v A Judicial Committee [2008] NZAR 50 (CA); Cropp v A Judicial Committee [2008] 3 NZLR 774 (SC). The Supreme Court in its decision of 17 June 2008 confirmed the validity of the random drug-testing regime for jockeys contained in the Rules of Racing.
Mr B Hart, who together with Mr Shaw, had initially appeared for the defendant sought and was granted leave to withdraw from the case at a telephone conference held on 2 October 2008. Mr Shaw continued to represent Ms Cropp.
This Committee reconvened in October and November 2008, at which time Ms Cropp presented her defence to the charges and counsel made their closing submissions.
2 The charges
The defendant faces two informations. Information number 62182 was laid on 18 May 2005 and charges as follows:
“That on Saturday 7 May 2005 being a rider licensed under the New Zealand Rules of Racing you did commit a breach of Rule 528(1) of the said Rules in that you presented yourself to ride and did ride in races at the race meeting conducted by the Waikato Racing Club at Te Rapa Racecourse whilst you had in your urine the controlled drugs namely methamphetamine and amphetamine, being previously administered to you which drugs were found in the urine sample obtained from you on that date pursuant to the provisions of Rule 226(2)(d) of the New Zealand Rules of Racing and that you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 1003(1) of the said Rules."
The second information, numbered 64994, was laid on 23 May 2005 and charges as follows:
"That on Saturday 7 May 2005, at Te Rapa Racecourse, at the race meeting conducted by the Waikato Racing Club, being a rider who, having been requested by a Racecourse Inspector to supply a sample of her urine which was found, upon analysis, to contain the controlled drugs methamphetamine and amphetamine as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 528(1) of the Rules of Racing and you are hereby liable to the penalty or penalties which may be opposed upon you pursuant to the provisions of Rule 1003(1) of the said Rules."
On the first day of the hearing, 3 August 2005, counsel for the informant opened on the basis that while both informations were before this Committee for determination, these should be treated as alternatives, and the informant would seek a finding of guilt in relation to one only. It was further submitted that we should hear all of the evidence and submissions before electing which charge, if either, we found proved.
Counsel for the informant also submitted that information number 64994 was more simply expressed. As we stated in Ruling No. 5, we agree.
This Committee is of the view that information number 64994 more accurately recites the breach prescribed in R 528(1). On that basis, we intend to examine the evidence and make determinations of fact in relation to that charge.
3 The Rule
Rule 528(1) provided in 2005 (it was amended on 1 January 2007):
“Every rider or stablehand who, having been required by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance commits a breach of this Rule.”
The maximum penalty for a breach of R 528 is 12 months’ disqualification, or 12 months’ suspension of the defendant’s jockey licence, and/or a fine of $10,000: R 1003(1).
4 The ingredients of the charge: onus and standard of proof
The ingredients of a charge under R 528 that are required to be proved by the informant are:
• The defendant was a rider;
• The defendant was required by a Racecourse Inspector to supply a sample of her urine;
• On analysis the defendant’s sample was found to contain a controlled drug as defined in the Misuse of Drugs Act 1975.
The leading case in regard to disciplinary procedures for tribunals involving a profession is Z v Complaints Assessment Committee [2008] 1 NZLR 65 (CA). This case considered the standard to be applied in such proceedings. It is authority for the proposition that although the civil standard is appropriate, it operates so that the more serious the charges, the stronger the proof needs to be for those charges.
The Court in Z, at paras [27] and [28], approved the statement of Tipping J in Guy v Medical Council of New Zealand [1995] NZAR 67 (HC) that regulatory disciplinary proceedings are not criminal or even quasi criminal in character. On appeal to the Supreme Court, the decision of the Court of Appeal in relation to the applicable burden of proof was upheld 4-1 (Elias CJ dissenting): see Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1, paras [118] and [145].
The same analysis applies to the regulatory disciplinary procedures of this Committee under the Rules of Racing.
We now set out the evidence as presented first by the informant’s witnesses and then by those called by the defendant. Where possible, we will endeavour to present this as a chronological account of the events.
5 The informant’s evidence
Mr Robert Bevege, a Racecourse Inspector employed by NZTR, stated that on 20 January 2005 he was carrying out jockey drug testing at a race meeting at Hastings. The defendant was one of a number of jockeys that had been selected to supply a sample of urine. He said that the defendant went to the testing station but was unable to urinate. She was advised to return later in the day. On her second visit she was also unable to provide a sample and explained that this was because she had been wasting for an upcoming ride and she doubted that she would in fact be able to give a sample. By the conclusion of the race meeting the defendant was still unable to supply a sample of her urine. Mr Bevege said that after consultation by telephone with the Chief Racecourse Inspector, Mr John McKenzie, he released the defendant. Mr Bevege stated this was the only occasion that he had released a jockey from an obligation to supply a sample.
We divert briefly from the chronological account to summarise the further evidence of Mr Bevege. He stated that on 12 May 2005, while travelling to the Egmont Race meeting, being conducted at Hawera racecourse, he was advised by NZTR management that the defendant had returned a positive test to methamphetamine after being tested at Te Rapa on 7 May.
On arrival at the racecourse, Mr Bevege arranged to speak to the defendant in the Judicial Room. She acknowledged that she had been drug tested at Te Rapa. He advised her that the ESR had notified NZTR that she had returned a positive test to the drug, methamphetamine, and as a consequence the Chief Executive of NZTR had withdrawn her jockey’s licence and she would be unable to fulfil her riding engagements that day.
The defendant was also advised that her licence had been withdrawn until she was able to supply a clear sample. Mr Bevege gave the defendant the option of supplying a urine sample to him at the time or to Racecourse Inspector, Mr Bryan McKenzie, at a later date or time. She was advised that she could consult a solicitor if she wished.
Mr Bevege said that the defendant told him she had not taken any illegal drugs and the result had to have been from prescribed drugs that she was taking for weight loss purposes.
Mr Bevege then took a written statement from the defendant (exhibit 12) in which she reiterated she had not taken any illegal drugs and the only drugs she had taken were the diet pills, Duramine and Sudomyl, to get her weight down. She added that she had been using Penicillin for the previous two and a half weeks. These prescribed drugs were the only explanation the defendant offered to account for the methamphetamine in her urine sample. She also stated that she had not been to any parties and had not associated with any persons whom she knew were using illegal drugs.
Mr Bevege served a copy of the ESR analyst’s report on the defendant as well as the notice of withdrawal of licence and a document headed “Jockey Testing Programme” (exhibits 13 and 14). The defendant declined the invitation to provide Mr Bevege with a urine sample at that time, stating she wished to get all the prescription medicine from her body first.
The informant, Racecourse Inspector, Mr Bryan McKenzie, gave evidence that he was officiating at the Waikato Racing Club’s meeting at Te Rapa on 7 May 2005. He decided to drug test 17 riders: these included all riders engaged in jumping events; riders not previously tested; a rider who had previously tested positive; and the defendant, whom Mr McKenzie knew had been unable to supply a urine sample when requested to do so by Mr Bevege at Hastings earlier that year. He stated Ms Cropp had been tested once before in New Zealand, at Waikato on 8 September 2004.
Mr McKenzie explained that in readiness for testing he set up the drug testing station and he described the layout of the area, which this Committee has subsequently viewed by way of a scene visit. He said he provided latex gloves, hygiene items and relevant equipment. He described securing the toilet cubicle by placing tinfoil over the washbasin and placing Bluo in the toilet cistern. He said he engaged the services of enrolled nurse, Ms Deborah Palmer, to be the authorised person pursuant to the Rules.
Mr McKenzie said that he gave Ms Palmer a quantity of the biological specimen kits provided by the ESR and a list of the riders selected for testing. He also provided her with several copies of the NZTR drug testing protocol for riders (exhibit 3) as well as forms in order for her to maintain her own record of any comments that she considered appropriate or necessary for the collection process.
Mr McKenzie said that at approximately 10.30 am he was in the weigh-in room when he saw the defendant walk in and enter the female jockeys’ room. She was dressed in her street clothes and was holding her riding gear. He said she went out of his sight. He said he went to the open door and called her using her first name. She came to the door immediately. He explained that he had been given a letter for her to sign and asked her to accompany him. She agreed to do so but said words to the effect, “Can you just wait a minute, I need to go to the toilet first”. (p 2)
Conscious of the fact that many jockeys have difficulty providing sufficient urine for drug testing because of fasting and dehydrating, and knowing she had been unsuccessful in providing a sample at Hastings, Mr McKenzie told the defendant she had been selected for drug testing that day and requested her to accompany him to the drug testing station to go to the toilet there. The defendant responded, “Just hang on a minute” and then, according to Mr McKenzie, she walked away from the door and disappeared from his sight. He said there were no other female riders in the vicinity at that time.
Mr McKenzie waited outside the jockey room for the defendant to re-appear. From the position in which he was standing he was able to view access to the toilets. The defendant did not enter these but remained in the area into which he was unable to see.
Mr McKenzie remained in this location for several minutes. He said he became increasingly concerned as there appeared no logical reason for the defendant failing to appear. He called out to Ms Cropp to ascertain whether she was coming. She replied, “Hang on”. Mr McKenzie remained in this position for a further two or three minutes, assuming that she was changing into her riding gear. He repeated his call, following which she re-appeared, still dressed in her street clothes. Mr McKenzie then handed her the drug testing request form (exhibit 10). At the bottom of this exhibit, Mr McKenzie endorsed the words: “Served personally at Te Rapa on 7-5-05 at approximately 10.30 am”. He accompanied the defendant to the drug testing station and introduced her to Ms Palmer. He was later told by Ms Palmer that the defendant had been unable to give a sample.
Mr McKenzie said that the defendant’s actions when he gave her the notice and told her she was to be drug tested caused suspicion in his mind that there was a problem, and that suspicion was multiplied when, having taken her to the testing station, she left there not having gone to the toilet.
Mr McKenzie described his actions when he became aware the defendant had returned to the drug testing station at about 1.30 pm:
“I verified she was still in there, that’s when I chose to walk around on the other side of the curtain because I wanted to determine whether or not we were going to get a sample off her, bearing in mind that at Hawkes Bay she had failed to supply a sample. All of those things gave rise in my mind to a suspicion that [sic] with regards to the conduct of jockey Lisa Cropp, and that’s why I stood there.” (p 35)
Mr McKenzie said when he was standing just inside the ambulance room door he was out of sight of persons in the drug testing station, being separated by the curtain. From where he was standing, he became aware that the defendant had supplied a sample because he could hear Ms Palmer telling Ms Cropp there was only 28 mls and that was not enough for the sample to be split. He said she told Ms Cropp what the protocol said about a split sample. He heard her tell Ms Cropp that if she wanted a split sample she could come back during the day and provide another sample. He heard Lisa Cropp make a reply indicating that she was happy with the one sample. He stated:
“I am prepared to swear on oath before any Tribunal that I was standing there a short distance away and I heard exactly what I have said” [that the defendant said to Ms Palmer when told there was not enough to split, words to the effect that “It’ll be all right” or words to similar effect signifying a casual acceptance of what the nurse had said.] (p 35)
Mr McKenzie said he then moved away from the ambulance room. He stayed within a few metres of the door. A short time later the defendant left the drug testing station and walked past him. He spoke to her briefly and he informed her of the report that she had been a 1/2 kg over-weight when weighing-in after the previous race. He went to the drug testing station and spoke with Ms Palmer who at that stage had just finished writing up her notes, which she showed him. The NZTR portion of the ESR employment drug testing form showed that Lisa Cropp had the specimen ID number recorded by the nurse as being 276963.
At the conclusion of the day’s racing, samples had been obtained from 17 jockeys. Mr McKenzie said he took possession of the independently sealed samples that were contained in a large sealed plastic bag. They were placed in a refrigerator in his locked office where they remained until Monday morning 9 May 2005 when he arranged for them to be uplifted from Te Rapa and dispatched by Skyroad Couriers to the ESR in Wellington.
By letter dated 12 May 2005, the ESR advised NZTR of the fact that the urine sample of Lisa Cropp, ID number 276963, had tested positive to methamphetamine and amphetamine (exhibit 11).
Mr Bryan McKenzie said that on 12 May 2005, at approximately 6.15 pm, at the request of the defendant he met with her in his office at Te Rapa, and Ms Palmer obtained a further urine sample for drug analysis purposes. This sample was forwarded to the ESR on 13 May 2005 and subsequently tested negative.
Ms Deborah Palmer gave evidence that she was an Enrolled Nurse pursuant to the provisions of the Nurses Act 1977. She stated, and we observe, that her Practising Certificate makes reference to her being registered under the Health Practitioners Competence Assurance Act 2003 (exhibit 1). She said she was recruited by Racecourse Inspector, Mr Bryan McKenzie, to undertake drug testing at Te Rapa on 7 May 2005. She said she was experienced in the field, having been engaged by NZTR as an authorised person to collect urine samples since 1997. She said she was also an infection control nurse.
Ms Palmer told this Committee that by the time she arrived at the drug testing station on 7 May the toilet area had already been prepared, with the basin covered in tinfoil and with Bluo in the toilet cistern. She described being given copies of the NZTR drug testing protocol for riders by Mr McKenzie. She said she read this and also retained copies on her desk should any jockey request information on the drug testing procedures.
Ms Palmer described the testing area and stated that the toilet cubicle has an outward opening door specifically to enable the excretion act to be witnessed as required in the protocol.
Ms Palmer stated she had learned from her experience over the years that it could be very difficult for jockeys to supply a sufficient amount of urine at any one time. On the rare occasion a jockey was unable to urinate, a decision for release would made by the Racecourse Inspector. She read from para [9] of her brief:
“It is for that reason that I am familiar with that part of the protocol that deals with the minimum amount of urine that must be obtained before a sample is split. I am aware that the protocol states in paragraph 10 that if the urine excreted is less than 30 mls then the sample is not split and shall be placed in the one sample bottle.
The same paragraph states that the rider shall be given the opportunity to return to the drug testing station no later than the time stipulated to supply a further sample of sufficient quantity.”
Ms Palmer said the first jockey to arrive at the drug testing station that morning was the defendant, who handed her the drug testing notification form. Ms Palmer described the steps that she undertook at that time in terms of the preparation of the collection materials. She said that the defendant went into the toilet and was there for a minute or so before indicating that she was unable to pass urine and that she would return later. Ms Palmer handed her back the request form and the defendant left. As was the normal procedure with all unobtained samples, the unused collection devices were discarded in the rubbish.
At 1.32 pm the defendant re-presented herself at the drug testing station. Ms Palmer said that she took her to the bench and unsealed and opened the biological specimen kit in front of her. She removed the pottle into which the urine sample was to be excreted. She removed the seal from the pottle and took out the two capped sample bottles, which it contained, plus the paperwork. She handed the pottle to the defendant.
Ms Palmer said the defendant entered the toilet cubicle. Ms Palmer went to the door and advised the defendant in a similar fashion to earlier that day, that she was required to observe her. Under cross-examination, Ms Palmer stated, “I stand right in the doorway and I apologise for the lack of privacy with me watching, that I know how difficult it is to pass urine with somebody watching you, but it is part of the protocol. That’s what I say.” (p 45)
Ms Palmer said that after approximately two minutes she became aware the defendant had provided a sample. The defendant passed the pottle to Ms Palmer and dressed herself. Ms Palmer said that she and the defendant went to the bench, which she described as being about two paces from the toilet cubicle.
Ms Palmer checked the temperature of the sample and noted it to be within the normal range. She saw that the amount was 28 mls, which she knew to be below the level stated in the protocol for the sample to be split. Ms Palmer said that she told the defendant the amount was insufficient to split but was acceptable as a specimen (as it was over 10 mls). She said she explained the protocol to the defendant and said to her that it was “unable to be split” and she had the opportunity to return during the course of the day to give another specimen if she wished. (p 15) She said the defendant made it clear to her that she was happy with the specimen obtained. She said the defendant indicated this was “all right, OK” to her by assent of the head. (p 16) She said she did not get an indication that the defendant was going to return.
Ms Palmer saw debris in the pottle handed to her by the defendant. The defendant commented that it had come from her stockings. Ms Palmer described the debris as a hair, mucus and “bits”. Under cross examination, Ms Palmer said she was not qualified to say what the “bits” were but described the hair as looking like a pubic hair rather than head hair (p 51). She said there was also mucus, which she had seen once before, also in a sample from a female. She said she was not qualified to say the “bits” were straw. She had never previously seen hair or “bits” in a rider’s sample.
Ms Palmer recorded on her drug testing record (exhibit 5):
“Urine normal colour and temp. On antibiotics - Penicillin. 28mls. Not split. Procedure explained - OK — Contained debris (hair, bits) mucus, she said it was from stockings. I watched her”
Ms Palmer said that the defendant went to put her finger in the pottle at which point Ms Palmer said, “No, don't do that”. She said that she did not see the defendant’s finger touch the urine and noted that there was “a big space” between the urine and the rest of the pottle. (pp 78, 79)
Ms Palmer stated she poured the 28 ml urine sample from the pottle into one of the sample bottles. She closed the cap and had the defendant sign the sample bottle documentation. Ms Palmer and the defendant each signed the red fold-over seal on each of the sample bottles. This was both the one containing urine and the empty one. Ms Palmer then completed the Employment Urine Drug Testing Form (exhibit 6). She recorded the unique specimen identification number 276963.
As the specimen identification number was recorded on exhibit 6, Ms Palmer asked the defendant to check that the biological specimen kit box bore the same, corresponding, number. She said the defendant indicated that this was the case.
Ms Palmer also gave evidence that she asked the defendant if she wished to declare any medication. The defendant stated she was on Sudomyl, Penicillin and Imovane. Ms Palmer wrote these on the drug testing form.
Ms Palmer then stated she went through the drug testing form with the defendant and had her, again, verify the correspondence of the unique specimen identification number and that the details were all correct. The defendant signed the drug testing form, and Ms Palmer counter-signed as the collector.
Under cross-examination, Ms Palmer was questioned whether she got jockeys “to sign a document that makes it clear that they are waiving their right? In other words they’re giving it away, saying, ‘I won’t need, won’t come back for that. We’ll just rely on the one sample’. Do you get them to sign something?” She replied, “The ESR form [the Employment Urine Drug Testing Form] is the actual signing of all the procedure that’s gone on beforehand. I would think, I would interpret that as their acknowledgement.” (p 68)
Ms Palmer then pulled the five copies of the form apart and handed the defendant the white donor copy. In the presence of the defendant, Ms Palmer placed the paperwork in the pouch that now contained the two sample bottles, sealed the pouch and placed it in the biological specimen kit, which was also sealed in the defendant’s presence. The defendant then left the testing station.
Ms Palmer returned to the desk and wrote the notes (as set out in para [56]) on the form previously provided to her for the purpose of note taking by Mr McKenzie (exhibit 5). She said that where she had written “Procedure explained - OK” that was her notation of the fact that she had explained the protocol to Ms Cropp about not being able to split her sample because of the fact it was 28 mls and the OK was her notation of the defendant saying she was happy with the one sample and that she made no request to return.
At the end of the day, Ms Palmer handed all of the biological specimen kits, which had been placed in a large security bag, to the Chief Racecourse Inspector, Mr John McKenzie. She was present when he sealed the bag. She then accompanied him to the office of Racecourse Inspector, Mr Bryan McKenzie.
Mr John Oatham gave evidence that he was employed by NZTR and was on duty as a Stipendiary Steward at Te Rapa on 7 May 2005. He said after riding the horse Sonatina in race 4, which was run at 1.10 pm, the defendant was weighed-in by the Clerk of the Scales, Mr Sanders, as 0.5 kg over the authorised weigh-out weight of 55.5 kg, at 56.0 kgs. He said he witnessed this himself and noted it in his race book. He said it was extremely unusual for her to be over-weight, particularly by the amount of 0.5 kg, which was a substantial difference. He said he had been observing the defendant on the scales at race meetings since July 2004 and could not recall another occurrence of this nature involving Miss Cropp when she had been riding in fine conditions as were prevailing on this particular day. The event was sufficiently significant, in Mr Oatham’s view, that he reported the overweight occurrence to the duty Race Course Inspector, Mr Bryan McKenzie, shortly afterwards. None of the other riders in that race had weighed in overweight. This incident, he stated, was immediately prior to the defendant presenting herself for drug testing, at about 1.30 pm. He also observed that in his experience the defendant could ride at weights “quite considerably less” than 54.5 kgs and she did ride later that day at 2 kg less.
Ms Shelli Turner, the Programme Manager for the Workplace Drug Testing programme at the ESR gave evidence that she was responsible for the development of the drug testing protocol with NZTR. She said the workplace drug testing laboratories of the ESR were accredited by International Accreditation New Zealand (IANZ).
Ms Turner gave evidence of the receipt of the sample and the movement of the sample through the ESR, relying on documentation generated by that organisation as part its business records. She stated that the laboratory records showed that on 10 May 2005 the ESR received from Skyroad Couriers a urine sample from Lisa Cropp in a sealed collection kit, containing two specimen bottles with the unique specimen identification number 276963. This number was recorded at the bottom of the Employment Urine Drug Testing Form (exhibit 6) that had been completed by Ms Palmer and which had accompanied the samples to Wellington. According to this associated documentation the sample was collected at 13.32 hours on 7 May 2005. The sample was for a random drug test as part of the NZTR drug testing protocol and two specimen bottles were received. One bottle contained the urine sample, and the other bottle was empty. Both bottles were sealed with a tamper proof seal as per the correct collection procedures. The specimen bottle containing the urine sample was given an ESR reference number WDT0529131 and a label was placed on the lid with these details.
The total sample volume was less than 30 mls and therefore there was an insufficient volume to be split into two specimen bottles. Ms Turner said the ESR requires a minimum of 15 mls of urine in each of the bottles. It was also noticed that the urine sample appeared to have debris in it, which appeared to be straw and hair. The presence of such debris, she said, did not affect the analysis of the sample for the presence of drugs.
Sample WDT0529131 was analysed for a number of drugs. Ms Turner said this involves a sub-sample being transferred to a tube with a bar code with the ESR reference number. The initial test was an immunoassay screening test, which is performed on an automatic-analyser. This determines if any drugs may be present at levels at or above the cut-off level for a particular drug class, as defined in AS/NZS 4308:2001. If the sample is found to have no drugs tested at or above the defined cut-off level, then no further analysis is required and the sample is reported as being negative for the drug classes tested for. If the sample screens positive, then further confirmation analysis is required. A second sub-sample is transferred to another tube for the further analysis. The sample is stored in a refrigerator in a secure laboratory until the analysis is completed, when it is then transferred to a locked freezer in the same secure laboratory.
Ms Turner gave evidence that the sample received from Ms Cropp WDT0529131 screened positive for amphetamines, also referred to as sympathomimetic amines, and so required further analysis by gas chromatography / mass spectrometry (GCMS). This confirmed the presence of methamphetamine and amphetamine at levels greater than the defined cut-off level of 300 nanograms per millilitre.
Ms Turner stated that she was involved in reviewing the NZTR drug testing protocol to ensure that it met the ESR’s requirements and was also capable of being used in a practical context in the racing industry. She said on average the ESR would conduct annually about 34,000 drug tests, including approximately 200 drug tests for NZTR.
With reference to the requirement of 30 ml before splitting, Ms Turner said that if all the screening tests proved positive, then they required about 15 ml to be able to complete the analysis.
Ms Turner agreed with Mr Hart, in cross-examination, that a core part of the protocol was the procedures for the collection, detection and quantification of drugs in urine. She further agreed that it was an important part of the process for a donor to wash his or her hands before providing a sample, but she did not accept it was fundamental to the process.
Ms Turner said in over four years of involvement with workplace testing at the ESR, this was the first time she had encountered straw or hair in a sample. However, the presence of foreign bodies in the sample did not suggest that it would not be analysed. She explained this was because “our understanding is that a lot of things that might be floating around in there, which is very rare, will not actually affect the, the actual analysis…. Something like hair or straw would not affect the integrity of the sample…. I would go ahead with the testing because we are just testing the urine and what’s dissolved in the urine, anything that is actually debris in there, we are not actually testing that.” (p 20)
Ms Turner observed that the ESR procedures, as did a lot of other chain of custody procedures, allowed for one sample. This had to be at the agreement of the donor. This was part of the ESR procedures and was also in the drug testing protocol for the riders. She said:
“That they are aware, they are given the choice, that there isn’t enough for two samples, and I do recall that there is something, I think in the standards, that refers to if there is insufficient volume then they can be asked to do another one. We put it into our protocol because the second sample, we don’t actually open, it actually belongs to the donor, so therefore they have to be happy that there’s not another sample. If they are not, then they have to repeat sampling.” (p 29)
Ms Turner agreed that it was desirable that the donor sign a statement to the effect that there is “insufficient for two samples”. She said a lot of companies that the ESR worked with had devised a form and a few of them used the form that came with the sample. They made a note on that form, “insufficient for two samples”. She said, “What we often recommend is that it’s noted on the form that comes with the sample and the person signs it, or that there is some other signature recorded somewhere else.” (p 31) Earlier she said it was the donor’s right to say to proceed with the analysis with the one sample, if there was not enough to split, as that was all the ESR required.
When re-examined by Mr Moore, with respect to contamination, she said:
“If the theory was that the sample was contaminated with say methamphetamine, to have amphetamine there as well it would have also had to be contaminated with amphetamine. If the methamphetamine was in the urine, coming out of the body, methamphetamine metabolises to amphetamine and that is the most probable explanation why there was amphetamine and methamphetamine, but that’s probably about as far as I can go.” (p 45)
Ms Turner agreed, if there was contamination, it would require contamination of the sample not only by methamphetamine but also amphetamine. She drew a distinction between an adulterant and a foreign body. An adulterant was something a donor could add to the sample or could actually be taken, that could affect the nature of the sample in that it affected the testing, so it was specifically directed at the part the ESR was testing. A foreign body was just something that was in the sample. She re-iterated that if there was a foreign body in the sample, it was not going to affect the drug testing.
Dr Sarah Russell gave evidence that she was a forensic toxicologist employed by the ESR. She stated the workplace drug testing laboratories of the ESR were accredited by IANZ and that the ESR based its drug testing laboratory procedures on the AS/NZS 4308:2001 standard entitled “Procedures for the collection, detection and quantitation of drugs of abuse in urine.” (exhibit M)
Dr Russell stated that the ESR laboratory records showed that a set of two bottles, sample identification number 276963, relating to Lisa Cropp was receipted on 10 May 2005 according to standard laboratory procedure. Only one bottle contained any urine. The other bottle was empty and was consequently destroyed on receipt. The bottle that contained urine was labelled on the top with the unique Workplace Drug Testing reference number WDT0529131.
Laboratory records showed that, amongst other things, sample WDT0529131 was analysed for the presence of sympathomimetic amine drugs as per AS/NZS 4308:2001. The first test, an immunoassay screen, carried out on the sample returned a positive test for sympathomimetic amines.
A second test, involving GCMS, was carried out to determine which of the sympathomimetic amine(s) were present in the sample. The sample was found to contain more than 300 nanograms of amphetamine and more than 300 nanograms of methamphetamine per millilitre of urine. Sample WDT0529131 was positive for methamphetamine and amphetamine as per AS/NZS 4308:2001. Ms Russell checked the GCMS results for the sample before the results were reported.
Dr Russell stated that amphetamine can be present in urine as a breakdown product of methamphetamine use. Amphetamine did not form methamphetamine in the body. She understood amphetamine was a class B controlled drug listed in Part 2 of the Second Schedule of the Misuse of Drugs Act 1975. Methamphetamine (‘P’ or ‘Speed’) was a stimulant drug, which was illegal in New Zealand. She believed it was a Class A controlled drug for the purposes of that Act. She stated that none of the various drugs that the defendant indicated to Mr Bevege on 12 May 2005 (exhibit 12) and Ms Palmer on 7 May 2005 (exhibit 5) that she had taken by way of medication could be metabolised or affected in such a way that it could produce a positive result for methamphetamine or amphetamine in urine.
Dr Russell stated:
“At the cut-off levels stated in AS/NZS4308:2001, I expect to detect methamphetamine for up to 2 to 4 days after use. The metabolism of the methamphetamine to amphetamine in the body accounts for at least some of the amphetamine found in the sample and possibly for all the amphetamine found in the sample. It is not possible to determine whether or not some of the amphetamine found in the urine sample would have originated from separate amphetamine use.” (p 4)
Dr Russell said that in her opinion, as a forensic toxicologist, the only way that methamphetamine and amphetamine could be found in urine would be because methamphetamine had been consumed. She said it was very important to find both because amphetamine is a metabolite of methamphetamine; it was one of the breakdown compounds formed in the body after the use of methamphetamine. In a urine sample both would be expected to be seen, because urine is the waste product of the body. She said amphetamine may not necessarily be at the cut-off level but there would be some present.
Dr Russell stated that the methamphetamine level was so far above the ESR top calibration standard, she could only estimate it, and she estimated it to be in the vicinity of 20,000 to 30,000 nanograms per millilitre. The cut-off level was 300 on the confirmatory test. The amphetamine was above the top calibration standard, and was estimated it to be in the vicinity of 4,000. The cut-off level was again 300.
Dr Russell told this Committee she had overseen and peer reviewed the testing and the results of sample WDT0529131. She said that she particularly remembered it coming in because a technical assistant working under her supervision, Ms Nicholson, had called her into the laboratory, and she had observed that it contained debris that appeared to be hair or straw. Under cross-examination, Dr Russell described the hair as “short, straight, fine” (p 48). She said she did not see mucus in the sample and concluded that it may have been dissolved. Dr Russell also gave evidence that the ESR’s workplace drug testing programme receives about 35,000 samples per year and that she had never encountered a sample with straw or hair in it before.
Dr Russell said that she did not detect any contamination of the sample that might have affected the validity of the result.
She agreed that 28 mls could have been enough for analysis but this depended on the protocol of the company, in this case NZTR, and the quality of the person who was analysing the samples. She accepted there was no 30 ml cut-off point in the standards. The 30 ml cut-off was based on a number of things. It was a common one that the ESR used.
Mr Harold Brown, an analyst employed in the Specialised Analytical Services Group of the ESR, who completed the confirmatory test in relation to the defendant’s sample, gave oral evidence. He stated he had worked in the ESR’s Workplace Drug Testing Team since 1997. His duties included the analysis of human urine samples for drugs of abuse.
Mr Brown stated on the morning of 11 May 2005 he commenced his duties as confirmation analyst for the workplace urine drug testing programme. He continued and completed the workplace drug testing standard laboratory procedure for the amphetamines confirmation analysis.
This standard laboratory procedure had been started the previous day by analyst Ms Nicholson. This confirmation analysis involved the preparation of samples and standards for GCMS. The analysis he continued, included a known drug-free urine sample, calibration standards of known concentration and identity, low and high quality control samples, and four urine samples that had screened positive for amphetamines by immunoassay on 10 May 2005. The WDT sample numbers of these four urine samples matched those on the test tubes with which he continued the amphetamines analysis. He transferred the prepared extracts for GCMS analysis to corresponding numbered sample vials.
Mr Brown stated he placed these vials on the GCMS sample carousel in the correct positions as detailed in the sampling sequence. His positioning of the sample vials on the GCMS sample carousel was checked by analyst, Ms Nicholson, who then signed the printout of the sampling sequence. He then commenced the GCMS analysis.
Also on 11 May 2005 Mr Brown observed the appearance of urine sample WDT0529131 and checked Ms Nicholson’s additional analyses regarding this sample’s composition.
On 12 May 2005 Mr Brown performed the data analysis on amphetamines confirmation samples. He identified methamphetamine and amphetamine to be in sample WDT0529131 and the amounts present were greater than the confirmation cut-off levels as laid out in AS/NZS 4308:2001 (300 nanograms per millilitre). Accordingly, he reported sample WDT0529131 to have confirmed positive for both methamphetamine and amphetamine on the amphetamine confirmation worksheet.
Mr Brown said Dr Russell peer checked all his data analysis calculations and conclusions, and agreed they were correct. Therefore sample WDT0529131 was reported as positive for methamphetamine and amphetamine.
Mr Brown further stated that he signed a urine drug test report for sample WDT0529131 sample ID 276963 received 10 May 2005, person’s name Lisa Cropp. This report stated the sample was positive for methamphetamine and amphetamine as defined by AS/NZS 4308:2001. This signed report dated 12 May 2005 (exhibit 11) was sent to NZTR, Wellington.
Mr Brown said, with respect to contamination:
“When methamphetamine is metabolised in the body, the amphetamine levels are produced as a metabolite of methamphetamine. The ratio of the amphetamine to methamphetamine is very important to determine that the methamphetamine has been metabolised…. And therefore it is not just possible contamination". (p 7)
Mr Brown continued by explaining:
“Well methamphetamine, when it has been absorbed into the body, is metabolised and excreted from the body. Part of that metabolism and excretion process involves the production of amphetamine and the level of amphetamine to methamphetamine is important to show that the methamphetamine has been taken into the body and metabolised and is not a, just a, an addition of methamphetamine to a urine sample by contamination”.
Mr Brown stated that the amphetamine level relative to methamphetamine is normally of the order of 10% to 20%, and confirmed that that ratio was consistent with the ratios detected in the defendant’s urine sample. When asked what that indicated in the present case, he replied:
“It indicates our belief that the methamphetamine was metabolised within the body and what we have detected has come from use of the methamphetamine by a person.” (p 8)
With reference to the levels detected in sample WDT0529131, Mr Brown stated:
“They are estimates because the levels exceeded the top standard of our computation, but an approximate level of say 3,800 for amphetamine relative to an estimated average of 27,000 for methamphetamine, and that falls within that percent ratio percentage.” (p 8)
Later during further cross-examination, Mr Brown stated:
“From the results found the ratio of amphetamine to methamphetamine would indicate that it was metabolised within the body and the two drugs found, amphetamine and methamphetamine are metabolised from methamphetamine.” (p 27)
In response a question from the Chair as to whether it was unusual for a methamphetamine level to be as high as the defendant’s level, Mr Brown stated, “No…. Certainly nothing unusual.” (p 57)
Cross-examined by Mr Hart, Mr Brown was questioned were he collecting such a sample in an ideal situation, would he be inclined to ask for a further sample if someone ended up putting their hand or fingers in the vicinity of the sample itself. Mr Brown replied:
“I’m not a urine collector, but I’d have to be convinced that the sample was contaminated. If I believed that it wasn’t contaminated I would just continue with the procedure…. As a collector I would keep that sample, because I would say to myself, well why would somebody perhaps contaminate that sample, why would they have wanted to contaminate that sample.” (p 32)
When further questioned as to what he would do on observing straw, hair and mucus in the sample, Mr Brown said if that was the sample presented to him by the donor, and the donor was prepared to sign the form saying this was his or her sample, then it should be collected and sent for analysis.
The informant also called Mr Alan Fenwick, the Chief Executive of NZTR, Mr John McKenzie, Chief Racecourse Inspector, and Mr Bryan McKenzie (a second time) to give evidence. Their evidence related to the matters of the consent by Mr Fenwick to file an information against the defendant and whether the Racecourse Inspector had received written consent from the Chief Executive to file the informations. These matters were dealt with in Rulings on 9 August 2005 and 18 August 2005, to which reference has already been made in paras [4] and [5]. This evidence is thus not recounted in this decision.
6 The defendant’s evidence
The defendant gave evidence on her own behalf and then called four other witnesses. Ms Susan Nolan, Dr Ronald Couch and Ms Anne-Louise Weaver gave oral evidence, and Mr Trevor McKee gave evidence by way of an affidavit.
Ms Cropp stated that on 7 May 2005 she was a licensed jockey contracted by NZTR. She said she arrived at Te Rapa racecourse just before 11 am that day. She said she had the sensation of her period coming on and proceeded quickly to the jockey’s room because she did not want to have a leakage. She unpacked her gear hurriedly, looking for protection.
The defendant stated Mr McKenzie opened the door and said, “Lisa, I need to see you for a moment.” She responded, “No problem. I need to go to the bathroom first.” Mr McKenzie told her they were doing drug testing that day and asked her to come to the toilet in the testing station with him. She told him that she needed “to take care of a personal problem first”, and went back to where her gear was. (pp 5-6) She eventually found a tampon in her gear. She said she had to deal with her personal matter in the jockey’s room itself, otherwise Mr McKenzie would have been suspicious as to why she went to the toilet. She then answered a cellphone call from an owner. After that she went to the testing station, with Mr McKenzie following her.
The defendant said she was wearing her street clothes at this time and had a bandage on the index finder of her right hand. She was asked to provide a sample, but could not pass sufficient urine. She was told by the nurse it was “not enough” and the sample was disposed of. She was told she could come back later. She remembered there was movement behind the curtain that divided the room from the ambulance area.
Ms Cropp rode Sonatina for Mr McKee in race 4. She described the horse as “a young, very fast, brilliant filly. She’s highly strung… so she gets quite nervous…. She had sweat across her breastplate, she had sweat up her legs, white sweat.” (p 12) She said she used her towel to wipe the horse’s reins and neck for safety reasons. She said she used two towels and they were getting wet. This was not unusual. She also said she weighed out “a lazy 1/4 over”. She said when she took her gear back to “the winning stall…. [I]t was a little bit heavier than usual.” When she was told she was a 1/2 kg over-weight “[t]here was no problem. I got off the scales and I went to the jockeys’ room and that was the last I heard of it.” (p 14)
Ms Cropp said she arrived at the testing room around 1.30 pm wearing her racing clothes. The ambulance room was busy and the curtain was pulled 3/4 up. There was approximately 1/4 of no curtain, which, she said, meant a person could see into the testing room if standing at the ambulance room door.
The defendant said the nurse filled in a form and then picked up a box from the table and tipped out the contents. The nurse stood the two specimen bottles up, arranged some plastic bags, picked up the pottle, peeled it back, and then gestured the defendant to the toilet.
The nurse never asked the defendant to wash her hands. The defendant said she had in fact never washed her hands at all that day.
The defendant described the process of giving the sample in the following terms:
“I went to the jockeys door - - to the toilet door, and I could see people in the ambulance room then. And when she came in this time the nurse pulled the door shut, which I was rapt because last time she only held it closed, she just sort of pulled it to a little ajar, but this time -
Pulled it fully closed, is that what you’re saying? ….. That's right. Because there was people around.
And you said you were “rapt”, could you explain what you mean by that? ….. Well, it was a little bit more pleasant because I was hoping that nobody would see me go in, because it’s embarrassing, and I didn't want anyone see me doing what I was doing. Except for the nurse.
So do I take it that the nurse came into the toilet room as in the first occasion? ….. That's right. And she pulled the door closed behind her.
Well, she gave it to me and I’ve now got it - - we’re both in the toilet and I put the pottle on the floor, and I undress. So the pottle’s there and I just undress, my riding silks, my stockings and my panties, yeah.
And after you’d undressed what did you do? ….. I picked up the pottle off the ground and proceeded to try and get myself relaxed to do the sample for the nurse.
Now, approximately how long did it take before you were able to provide the first part of your sample? ….. It’s a good few minutes, it’s very difficult - - for a woman it is very difficult because you’re straddled across the toilet and you have a woman watching you. So it takes a good long time to get your body to sort of - - sort of blind her out and relax. If I’d reached over I could have touched her.
How long was it before you gave the sample that you did provide? ….. It took a good few minutes. Three minutes, I suppose, three to four minutes. I handed it to her, the sample, as I was on the toilet and she stayed with me until I was dressed and had my clothes back on. Then she went out and opened the door and shut the door behind her. But, yeah, she waited until I was dressed and then she went out. And how long would that take, the dressing part? ….. Just another minute or so.” (pp 19-20)
116] The nurse then proceeded to write on the form. As the defendant was sitting there, she could see there was a hair in the sample. The defendant said in evidence:
“I said to the nurse, oh, look, there’s a hair in it and I went and put my finger in the urine to flick it out. And as I got and touched the urine she goes, don't touch that, and I snapped it back out of the urine and wiped it on my pants….
Which finger did you put into the urine? …. The one that I had bandaged.... It was just a natural instinct….” (p 21)
117] The defendant explained that it was the tip of her finger, not the bandage that had gone into the urine, and that what she wiped on her silks was the tip of her finger, not a bandage that was saturated with urine.
118] Ms Cropp said that the nurse acknowledged the hair and then poured the sample into the bottle. The evidence from the defendant concerning the ensuing conversation is as follows:
“Then she says to me there is not enough to split and I just said, oh, I didn't know anything about splitting, I said surely there's enough.
Did you know what split it means? ….. No.
And what were your words when she said there's not enough to split? ….. I just sort of said well surely there's enough to split. I said surely that's alright. Yeah. Surely that's alright.
And what did she say when you said surely that's alright? ….. She started to seal - - she had the empty bottle and she sealed the one that had the urine in, and I think I marked that. She puts a little tape over it and then gets the other one, puts something on it, then tapes it and [sic] sign that as well. And those two bottles I think they go into a bag, sealed, yeah.
Did she say anything about coming back? ….. No.
Could you have come back? ….. I had a full book of rides during the day but could have come back after the last I suppose. The last race was just after four, so.
I think you said 4.10 approximately? ….. 4.10, yeah. So I could have come back after the last, yes.
Was there any discussion between you and the nurse about coming back after the last? ….. No. She never indicated that was--” (pp 21-22)
The defendant said she gave a negative test on 12 May and had tested negative numerous times since.
Ms Cropp stated she had never seen the drug testing protocol prior to 7 May 2005 and was unaware of its existence. She said she knew nothing about the drug testing regime.
The defendant denied that the entry in the drug testing record (exhibit 5), “28 mls not split, procedure explained”, which the nurse had maintained was a contemporaneous note, had been written in front of her. The defendant accepted the proposition that the nurse had written the note, stating, “But she could have done that, what, yesterday, for all we know.” (p 45)
Under cross examination, the defendant stated:
“Did she advise you that the sample has not been split because of the insufficient amount. Did she say that? ….. She said that.
Did she say, and you shall be given the opportunity to return to the drug testing station. Did she say that? ….. No.
What did she say? ….. Well, I just - - I didn't understand the split or anything, I just said it should be alright.
You said it should be alright? ….. Should be alright, yeah.” (p 51)
Ms Nolan also gave evidence for the defendant. She stated she was a director of a consultancy company that specialises in workplace drug and alcohol programmes, and had been in that position since November 2007. Part of the work of that company was to provide policy advice, training modules for managers and staff, and testing systems that meet the legal requirements of international standards.
Prior to establishing her own business she had been employed by the ESR and its predecessor, DSIR Chemistry, since 1971. Until 1995 she was a forensic toxicologist and illicit drugs specialist, reaching the position of managing scientist. She was an independent observer for the World Anti-Doping Agency (WADA) and a member of that body’s subcommittee for sports drug testing laboratory accreditation and proficiency testing.
Ms Nolan said in evidence that since 1995 she had been a member of the joint ANZ Standards Technical Committee CHO36, which was the committee that was responsible for preparing and promulgating the AS/NZS 4308:2001 standard (exhibit M).
In 1995 in her capacity as marketing manager, health sciences, for the ESR, Ms Nolan was involved in advising the New Zealand Racing Conference on the issue of drug testing for jockeys. In the course of that involvement she gave advice on the content of a protocol for urine drug testing for jockeys.
Dr Couch gave evidence for the defendant and stated that since 1982 he had been the scientific officer in the Department of Chemical Pathology, Auckland District Health Board. In terms of his laboratory accreditation, he was required to meet the AS/NZS 4308:2001 standard. He acknowledged, under cross-examination, that he had had nothing to do with the development of the standard.
Dr Couch said he had familiarised himself with the NZTR drug testing protocol for riders. He was critical of the NZTR protocol because it did not incorporate the AS/NZ standard’s recommendation that the donor’s hands should be washed prior to collection. He said it was “extremely essential” for a donor to wash his or her hands prior to giving the sample; substances could be put under the fingernails of a person’s hands, so the possibility of contamination or the possibility of adulterants going into urine specimens was very high if the donor’s hands were not washed.
Dr Couch was also critical of the fact there was no requirement to inspect the urine to look for any indication of contaminants, nor to record such findings on the chain of custody document. It was his understanding that exhibit 5 was a record that the collector takes at the time of the collection, and he was not sure whether the information written down there was communicated to the laboratory. This, he said, was a necessity, as it was important to know whether the urine had been contaminated.
The substance that Ms Palmer had described as mucus concerned Dr Couch. He said there would not have been any biochemical or analytical procedure to prove that it was mucus. It was not clear what it might have been. This information, he said, should have been conveyed on the chain of custody form. He accepted it would be very unlikely for both methamphetamine and amphetamine to be attached to the straw in the sample, and even less likely in relation to the hair. He acknowledged he had never personally come across a sample that contained a contaminant. He stated he did not know of any contaminant or substance where both methamphetamine and amphetamine would be found.
Dr Couch was also critical of the fact that the drug testing protocol made no demand that the donor should not interfere with the urine once it was in the collection vessels. Under cross-examination, he accepted there was no such requirement in the AS/NZ standard either. He also identified the failure in the protocol to provide information concerning the necessity to split the urine collect. And there was no comment to the effect that a departure from the procedures might invalidate the legality of the reported results.
Dr Couch said, knowing what he did about the circumstances in which the defendant’s sample was collected, he did not regard the ESR certificate as valid because of the deficiencies in the collect. He said the ESR was claiming to work within the criteria of its accreditation, the AS/NZ 4308:2001 standard, and that had not been the case.
Dr Couch said at his laboratory, Lab Plus, their documents state that while 30 mls in each container is preferred, a minimum of 15 mls is acceptable. His laboratory would require about 1 ml of urine to do the initial screening procedure. He said if he had been doing the collect, he would have split the specimen, as 30 mls was far more than the laboratory needed to do the analysis. But, he added: “to be fair, I would have had the knowledge of what volumes of urine I needed back at the laboratory. To be fair on the lady, Palmer, doing the collect, she would have not had that knowledge. So in actual fact she did essentially exactly what the protocol said and put the 30 mls in one container.” (p 21) Whereas Ms Palmer was adhering to the protocol, Dr Couch acknowledged, in so splitting the sample, he would have been acting in breach of it. He said his actions would have been justified because of his own personal knowledge that 28 mls was sufficient for analysis. He agreed his laboratory’s own 2007 protocol (exhibit O) recommended that a sample of 60 mls be taken before splitting, with a minimum of 30 mls.
Dr Couch said there was no room for any latitude in respect of departures from the AS/NZ standard in terms of the peculiarities of any industry. The standard had to be applied “across the board”. (p 36) If a jockey could not provide 30 mls, he said that jockey should be required to return later. Under cross-examination, he agreed that if a jockey could not provide a sample through dehydration and wasting, there was nothing that could be done. He also agreed that none of the organisations for which his laboratory conducted tests had employees who would fast and dehydrate themselves as conditions of their ability to perform their functions.
With reference to the level of the defendant’s reading, Dr Couch said that of the approximately 25 confirmation samples of methamphetamine and amphetamine his laboratory had dealt with in the previous two years, one was at a level of 3,000 nanograms and another was 8,300. He said he had never had a level above that from any workplace testing (which he estimated at 5,000 specimens) and a usual level was around 1,000.
Dr Couch cited from a textbook by Baselt R, Disposition of Toxic Drugs and Chemicals in Man, 6th ed (2002) (Exhibit Q). He concluded that a level of 28,000 nanograms was: “a very high concentration for a person to excrete those drugs.” (p 26) He said it was difficult to reconcile Mr Brown’s evidence that 28,000 was not an unusual level with the literature where there were those values that were causing deaths.
Under cross-examination, Dr Couch stated that the ESR procedures looked fine, with the exception he believed that when testing their equipment, they should have used a commercial blank. He agreed this did not make the analysis suspect and earlier he agreed that any departure, if there was any from the AS/NZ standard or the drug testing protocol, would not invalidate the finding of methamphetamine
Ms Weaver was called by the defendant and stated that she was a consultant and director of Inscience Limited. She had worked with major pathology laboratories for over 25 years assisting in establishing drug testing in the workforce and had been an active member since 1997 of the ANZ Standards committee CH-036 responsible for the revisions of AS/NZS 4308:2001.
Ms Weaver said she had expertise in the practical application of the standards and protocols for workplace drug testing and on-site collection. In her opinion there were some essential prerequisites for a collection to be in compliance with the 2001 standard, namely: a prescriptive protocol; a secure area for the collection; a knowledge by the collector of the requirements of the standard; an understanding of the chain of custody; knowledge of ways and means of adulteration, and ways to avoid that; and training and experience in performing the process.
Ms Weaver said she had read the 2002 NZTR drug testing protocol and had serious concerns as to its contents, omissions and fitness for purpose. It was her clear view that its usefulness as a standard operating procedure and/or a training manual was woefully inadequate. She said she was concerned about the nature of the instructions that were given to the person who was about to conduct the test. She said the protocol failed to provide a checklist for the collector. An example of an omission, she said, was that if it were to be an observed collect, more information as to how to ensure that the sample came from the actual person supplying the specimen, yet still affording that person privacy, would have been appropriate. She also said a reference in the protocol to the AS/NZ standard would assist the collector to better understand the protocol.
In the training that she conducted, Ms Weaver always emphasised that the collector was the start of the process and was instrumental in determining the quality of the end result. She said laboratories should take measures to satisfy themselves that the collection process has been performed in accordance with AS/NZS 4308:2001 if it was to be reported as in compliance. In the event they could not satisfy themselves of that compliance, they should report the results as not in compliance or not test the specimen at all.
Ms Weaver said after the seal was broken on the box that contained all of the paraphernalia for conducting the collection, if any of those components that were going to contain the urine, including the bottles, were unsighted, then the chain of custody had been broken and the collect should not progress. The collector should open up a new pack.
Ms Weaver strongly refuted the proposition that the necessary implication of her evidence was that the ESR had fallen below an acceptable standard in the accepting and testing of this sample because of the deficiencies in the protocol that she had identified. She said she was critical of the protocol if it was the sole training document and if the ESR “were told of the security on that particular site and all of those things and they approved it and they said it was okay, then, yes, I'm being critical of that. But I'm not being critical of - - in a blanket form. You can't make me say that I'm criticising ESR for accepting something if they didn’t know all of the details.” (p 96)
Ms Weaver said she had concern about Ms Cropp having not washed her hands, as it related to the application of the standard, but this was not likely to have caused the positive methamphetamine result.
Ms Weaver was also concerned about contamination having occurred as she had been told that the sample bottles were left for a brief period of time unsupervised. She said that would be a breach of the chain of custody. She also understood the area was fairly insecure in that it had two or three means of egress, and there were other people in the room, partitioned by a curtain. She said a possible scenario was that someone had taken the lid off, spat in a bottle (which later happened to contain the A sample), and then ran away before the nurse came out of the toilet. She agreed there was no actual evidence of somebody doing that. She also agreed that if the nurse was in fact supervising, because she was at the door of the toilet rather than in the toilet, with the bottles in her sight, then that would exclude this possibility. She agreed, under cross-examination, that the scenario she had portrayed was very fanciful.
Ms Weaver accepted counsel for the informant’s proposition that the protocol was not unreasonable because it required 30 mls before splitting. However, she said that, given the opportunity, there could have been a protocol that was more specifically geared to the needs of the jockeys and of NZTR, in that there could have been strategies for dealing with smaller samples.
Under cross-examination, Ms Weaver accepted it was the defendant’s right to indicate that she did not want to come back to provide another sample. She agreed the failure to have a B sample did not negate the ESR’s ability to report the results of the testing as being in compliance with the standard. The protocol was not unreasonable for allowing just the one sample. However, she was critical of it “insofar as there should have been information up front for the jockey about it and also an ability for them to sign away that right.” (p 101) She said if she was advising someone on this particular protocol and persons were expected to agree to their right to a reference sample being removed, then they should sign a document to that effect. That would be more robust as a protocol.
7 The informant’s final submissions
The informant submitted there was a proper and adequate body of evidence to support each of the three elements of the charge: first, proof that the defendant was a rider; secondly, that she was required by a Racecourse Inspector to supply a sample of her urine; and thirdly, on analysis that sample was found to contain a controlled drug as defined by the Misuse of Drugs Act.
On the basis of that evidence alone, counsel said, the charge was proved. The informant thus not only refuted the contention by the defendant that the NZTR drug testing protocol and the actual procedures adopted by Ms Palmer on 7 May 2005 were flawed and as a consequence the subsequent analysis by the ESR was unreliable and should be disregarded, but also questioned whether this Committee need in fact consider the submission.
8 The defendant’s final submissions
We now outline the defendant’s submissions. We do so by way of a brief summary before considering our response to them.
The defendant first submitted that the charges before this Committee should be dismissed because the ultra-high level reading raised a serious risk that the defendant’s sample was contaminated and/or adulterated. The defendant referred to the research evidence introduced by Dr Couch (exhibit Q) which Mr Shaw said confirmed that at the defendant’s levels non-P addicts would most probably be dead, and submitted there was no evidence that the defendant was a P addict.
The collector, Ms Palmer, had also allegedly failed to convey, on or attached to the chain of custody form, crucial information to the ESR relating to mucus and “bits” having been found in the sample, which indicated contamination and/or adulteration of the sample. Mr Shaw also said information relating to the “finger in the urine/pottle aperture” incident should have been recorded and conveyed to the ESR. Had this crucial information been provided to the ESR, the defendant submitted that as a certified AS/NZS laboratory, ESR personnel would have been bound not to analyse the sample and would have been bound to require a resample.
The defendant further submitted that there was a break in the chain of custody which was such that an opportunity was created for contamination or adulteration of the sample to such an extent that the subsequent analysis should not be relied upon. With reference to this, it was alleged that there was a fundamental breach in the collection part of the chain of custody when Ms Palmer left the two sample bottles unattended on a table for several minutes.
The NZTR drug testing protocol for riders was alleged to be inadequate and unfair to all stakeholders (including the donor) in terms of its collection procedures.
It was further submitted that there was no legally effective waiver of her right to a B sample by the defendant, or informed consent. Any such waiver, or informed consent, had to be in writing. Accordingly, the defendant’s sample results should not be received by this Committee and could not be relied upon to prove either of the charges.
The drug testing protocol’s provisions, the defendant submitted, amounted to an unreasonable search and seizure in breach of s 21 of the New Zealand Bill of Rights Act 1990.
The specific collection of the defendant’s sample, purportedly under the protocol, was said by the defendant to amount to an unreasonable search and seizure in breach of s 21. The defendant’s sample results, obtained in breach of the Bill of Rights, should not be received by this Committee and could not be relied upon to prove either of the charges.
The integrity of the defendant’s sample result, the defendant argued, was materially compromised because of fundamental deficiencies in the collection procedure. It followed that the collection was unfair and the ESR’s analysis of the sample was unsafe and could not be relied upon to prove either of the charges.
As a final matter, the defendant pointed to the fact that the Rulebook she possessed at the time of the testing contained a reference in R 528 to the Misuse of Drugs Act 1971, when it should have been the Misuse of Drugs Act 1975.
We have heard oral and written submissions from the defendant on these matters. In setting out our findings below we have adopted headings that we believe will assist us to focus on the key matters raised in the defendant’s submissions. These are not headings that counsel for the defendant identified in his final submissions but we trust we do him and his arguments no disservice by breaking down and ordering his extensive and wide-ranging oral submissions in such a fashion.
Notwithstanding the informant’s submission (as noted at para [149]), we will consider both whether the elements of the charge under R 528 have been established by the informant to the enhanced civil standard, and whether the alleged breaches of the drug testing protocol and alleged lapses in procedure are such as to render as unreliable the evidence obtained as a consequence of the analysis by the ESR of the defendant’s sample, and therefore that this evidence should be disregarded by this Committee.
9 This Committee’s findings
We turn now to consider the defendant’s submission that the informant has failed to prove, to the requisite legal standard, the charge under information 64994. Counsel emphasises that the defendant has consistently and continuously denied ever taking methamphetamine.
(a) The sample’s ultra-high reading
The defendant’s first submission related to what the defendant described as the sample’s “ultra-high reading”: the levels of methamphetamine found in the defendant’s urine were recorded as 20,000 to 30,000 in exhibit 11 and were so stated in the evidence of Dr Russell and Mr Brown. It was contended that this reading alone raised a very high and serious risk that the defendant’s sample was contaminated and/or adulterated.
It is by no means common ground between the parties that the defendant’s level is unusually high. Mr Brown, the ESR confirmation analyst, said in evidence that it was not unusual for a level to be that high. He stated that he undertakes testing on a daily basis for the ESR. His response has to be considered in the context that there is evidence before us that the ESR is undertaking workplace drug testing, dealing with over 35,000 samples a year.
Dr Couch said he disagreed with Mr Brown’s statement that the defendant’s level was not unusually high. He cited from a textbook by Baselt R, Disposition of Toxic Drugs and Chemicals in Man, 6th ed, (2002), 646-647 (exhibit Q), which considered research evidence relating to levels of methamphetamine use. (We note in passing that we do not consider the dispute between counsel, as to whether Dr Couch was qualified to give this evidence or whether the 6th or 7th edition of Baselt should be cited, to be of any great moment with respect to this particular issue.)
The particular extract from Baselt, at 647, that was cited to us was: “Methamphetamine concentrations of 4.3 and 5.6 mg/L in blood and 28 and 320 mg/L in urine were measured postmortem in 2 cases of death by oral ingestion of the drug (Patterson & Peat, 1976; Kojima et al, 1984).” Dr Couch explained that these equated to 28,000 nanograms per ml, and 320,000 nanograms per ml. We note earlier on that page it is stated: “Methamphetamine concentrations of 24-333 mg/L (average, 142) and amphetamine concentrations of 1-90 mg/L (average, 18) were observed in the urine of methamphetamine abusers (Lebish et al 1970)”.
In determining the weight we give to this evidence, we note the research cited by Baselt is somewhat dated, being from the 1970s and 1980s. There is one exception. Baselt refers to 1998 research with respect to a range of 0.09 to 18 (average 0.96 mg/L) in a series of 13 deaths attributed to methamphetamine over-dosage. The Table “Drug Concentrations in a Methamphetamine Fatality” to which reference was made by counsel for the defendant, we observe described the author’s own measurements made in 1986 of one particular fatality after nasal insufflation of methamphetamine.
We do not accept that the research recorded in Baselt states that a non-P addict with the level returned by the defendant would be dead, as was alleged by the defendant in final submissions. The conclusion reached by Dr Couch was: “What that [the text] told me is that levels of 28,000 nanograms per ml in perhaps people who weren’t drug addicts or under any drug rehabilitation programme that these people died with such a concentration in their urine…. I would look upon 28,000 nanograms per ml as a very high concentration for a person to excrete those drugs.” (p 26) The text simply refers to the fact certain levels were found in post-mortem analyses in cases where death was as a consequence of methamphetamine use or overdose. We also note that Dr Russell, who has the requisite expertise in this area, was never asked by the defendant to comment on whether there was anything untoward, exceptional or life-threatening in the levels of methamphetamine found in the defendant’s urine.
We accept, of course, that there is no evidence that the defendant was a “P” addict and that she has consistently denied taking methamphetamine. There were no concerns with respect to Ms Cropp’s riding performance on the day. She rode three winners and had a second placing. We also observe the defendant gave a clear sample on 12 May, the day that she was notified of the result of the 7 May test, and she has given numerous clear samples subsequently.
Any application to New Zealand of these research findings recorded by Baselt, in our opinion, should be treated with care. There was no evidence before this Committee as to the relevance of this research to methamphetamine use in New Zealand in 2005. Dr Couch, under cross-examination, stated he was not aware of any New Zealand studies on the toxic levels or toxicity of the local product.
We are satisfied that the defendant’s level of methamphetamine was high, but not so high that this Committee would have concerns that this somehow affected the integrity of the sample or the validity of the result.
(b) Contamination
The defendant’s second submission is that the sample is contaminated. This is not disputed. What is in dispute is whether that contamination has affected the integrity of the sample to such an extent that the result is in error, and that the evidence is unreliable and should therefore be disregarded by us.
As we say, the parties agree that the defendant’s urine specimen ID number 276963 was contaminated. It is accepted that the sample contained at least one hair and “bits” (most probably straw). Ms Palmer indicated on her drug testing record (exhibit 5) that it also contained “mucous” (sic). This mucus was not detected when the specimen was analysed.
The source of the contamination is not clear. The informant’s position was that the contamination was a deliberate ploy by the defendant to frustrate the testing process. We are not satisfied to the necessary standard that this was the case. When questioned by this Committee, the defendant explained that when entering the toilet she had placed the pottle on the ground because she needed two hands to undress. She said she had put the pottle directly in front of her and she believed that this was when the hair and straw had dropped in. She said she had not noticed them before she urinated. It was not until the nurse divided the specimen that they came to her attention.
As the informant notes in their final submissions, the position of the pottle on the floor of the lavatory cubicle was never put to Ms Palmer for her comment. However, we are satisfied that the straw and hair may have entered the pottle as a consequence of them falling as a residue from the defendant’s clothing or person. This is a perfectly reasonable explanation, which we accept, although we do note that despite there being over 200 samples from jockeys tested each year by the ESR, Dr Russell’s evidence was that the presence of debris was very unusual. She had been working for the ESR since 1993 and debris of this nature (hair and what appeared to be straw) had never been present in a sample. In a similar vein, Ms Turner told us that the ESR was then analysing approximately 34,000 workplace drug testing samples per annum and she was not aware of any other instance where the ESR had encountered a sample containing contaminants of this sort.
Ms Palmer also stated that she had never encountered such debris in her eight years of experience of taking samples for NZTR and 30 years of general experience of taking samples. Significantly, in our view, under cross-examination Ms Palmer stated that she did not see the defendant deliberately tampering with the sample.
There is no evidence that anyone other than the defendant or Ms Palmer, who stated she was wearing gloves, which she changed after each collect, may have touched the inside surfaces of the collection pottle after it had been unsealed. We discount any third party contamination of the pottle by this means.
No expert witness has stated that the presence of hair or “bits” in Ms Cropp’s urine sample was likely to have affected the integrity of the sample or the reliability of the result of the testing. Dr Couch, who was the least certain on this point, accepted it would be unlikely that methamphetamine and amphetamine would be introduced in the particular ratios through either of these sources.
Dr Couch was critical of the fact that the ESR was not made aware of the mucus observed by Ms Palmer. We observe that this issue was never put to any of the informant’s expert witnesses for comment and, in particular, they were never questioned as to whether they would have continued with the analysis had they known of the presence of mucus.
Dr Couch was of the view that this mucus was a possible source of contamination and could have affected the integrity of the result. As no other drug or substance can explain the presence of both methamphetamine and amphetamine, this mucus would need to have contained metabolised methamphetamine. There has been no evidence to suggest the pottle was contaminated, so the source of the mucus must have been Ms Cropp herself. As she had just urinated into the pottle, the strong inference is that it was passed during the defendant’s act of urination. We note that Dr Couch’s one line comment that it might have been horse mucus has no foundation in the evidence.
We emphasise again that no expert witness, with the exception of Dr Couch’s reference to the mucus, was of the view that the contaminants, in themselves, would invalidate any subsequent analysis.
(c) The failure to wash hands / Finger in pottle
Another source of unspecified contamination, Mr Shaw alleged, was the failure by the defendant to wash her hands prior to the collect. The drug testing protocol does not require hand washing and Ms Palmer did not require the defendant to do so on either of the occasions she presented herself at the testing station. Dr Couch gave evidence that the washing of hands was essential to the integrity of the collect, and Ms Weaver said that a failure to wash hands would affect the full application of the AS/NZ standard. We note that one, at least, of the persons involved in establishing the protocol, Ms Turner, was also involved in formally reviewing this standard. As we note at para [232], the protocol has to be considered in the context of the particular needs of the racing industry. The omission of this requirement is readily understandable. Significantly, there has been no evidence placed before us to the effect that there was any contamination by way of metabolised methamphetamine from this source.
It is common ground between the parties that the defendant either attempted to put her finger in the urine sample or did, in fact, do so.
The defendant said she and the nurse were both sitting down after the collect when she noticed a hair in the urine sample and she went to put her finger in the urine to flick it out. Ms Cropp said, “And as I got and touched the urine she goes, don't touch that, and I snapped it back out of the urine and wiped it on my pants.” (pp 20- 21)
Ms Palmer was cross-examined on this issue. She said that she saw the defendant put her finger in the pottle but did not see it touch the urine. She said there was a big gap between the urine and the rest of the pottle. She told the defendant not to touch the straw.
We are satisfied that the defendant’s bandaged right index finger did enter the aperture of the pottle, but on Ms Palmer instructing her to remove her finger, Ms Cropp did so before she actually touched the urine. We thus accept Ms Palmer’s evidence on this issue. We find there was quite a gap between the urine and the top of the pottle. Significantly, Ms Palmer was never asked in cross-examination whether she remembered the defendant wiping her finger on her silks, as the defendant states she did.
Any contamination involving the introduction of methamphetamine and amphetamine by means of the defendant’s finger when she put it into the mouth of the pottle, would have required her to have come into contact with material which would have had amphetamine and methamphetamine in metabolised ratios. This would then have had to be transferred to the sample. This was described by the informant as being a fanciful scenario. We agree.
We accept the defendant’s evidence that she reached into the pottle instinctively to remove the debris, and we refuse the informant’s invitation to conclude that she did so deliberately in the hope that it would render the sample useless for evaluative purposes.
We believe the failure of Ms Palmer to notify the ESR of the foreign matter in the sample (she had merely recorded this on her drug testing record) or that the defendant’s finger entered the aperture of the pottle has had no impact on the reliability of the testing of the sample. The ESR scientist, Ms Nicholson, who was undertaking the immunoassay part of the test, observed and noted the foreign matter, with the exception of the mucus, which may have dissolved by this time. The evidence from the three ESR witnesses for the informant was to the effect that the ESR would have continued with the analysis even if they had been notified of the foreign bodies. And indeed the ESR elected to continue to test the sample and to report the results of the analysis on an evidential basis, despite the fact they were aware there were contaminants in the sample. It is evident that the ESR did not believe that this would affect the integrity of the sample and render the results unreliable.
(d) Could the presence of any other drug or substance account for the positive readings?
We turn to the possibility of some other drug or substance accounting for the positive methamphetamine and amphetamine readings.
Dr Russell told this Committee that none of the drugs listed by the defendant in her statements to Mr Bevege or Ms Palmer could account for the positive result for methamphetamine or amphetamine found in the sample. And this was never contended by the defendant to be the case.
Dr Couch, under cross-examination, accepted it would be very unlikely for both methamphetamine and amphetamine to be attached to the straw in the sample and even less likely in relation to the hair. On the issue of whether there was any drug or substance that might account for the presence of amphetamine and methamphetamine from a source other than metabolism, he said, in response to a question from the Chairman, he could not identify any substance which could account for this.
(e) The possibility of adulteration
The informant asked us to draw the inference that the defendant had deliberately taken on water in order to dilute her urine sample. We refuse to do this, as we believe any such conclusion would be speculative. We note also that in his written affidavit, Mr McKee, licensed trainer, stated the filly Sonatina, which was the defendant’s mount in race 4, sweats up a lot, and had done so on this occasion. This supports similar evidence given by the defendant and assists in accounting for the 1/2 kg over when the defendant weighed in after the race with her gear, (including saddle and two towels). We also note that, under cross-examination, Mr Oatham stated he could not exclude this possibility.
(f) The break in the chain of custody
We indicated in Ruling No. 5 that we were satisfied that there were no breaks in the chain of custody and stated we would give our reasons in full in our final decision.
Counsel for the defendant submitted as part of a no case submission that there were gaps in the chain of custody such that there was no sufficient proof that the sample taken from the defendant was, in fact, the same sample attributed to her and tested at the ESR in Wellington. We note that Mr Shaw in his final submissions primarily refers to an alleged break when the sample bottles were left unattended whilst the nurse was taking the observed collect from the defendant.
We first trace the general chain of custody utilising the informant’s submissions, which we believe accurately recounts the evidence with respect to this particular issue. We then consider carefully under heading 9(g) the defendant’s submission that the bottles were left unattended, thereby breaking the chain.
Ms Palmer gave evidence that at 1.32 pm (13.32 hours) the defendant presented herself for sample collection. Ms Palmer obtained the collection kit, unsealed it and removed the two capped specimen bottles. Each bore the same unique reference number (and a bar code) of 276963. She also recorded this number on the Employment Drug Testing Form (exhibit 6).
The defendant provided a sample of her urine. It was only 28 mls, and so was not split. The “A” specimen bottle held the urine. The “B” bottle was empty. Ms Palmer asked the defendant to check the number from the specimen box and to satisfy herself that it corresponded. This was done twice. The defendant signed the drug testing form in verification of having done so.
The defendant was present when the specimen bottles were re-sealed and placed in the plastic pouch and sealed. Ms Palmer filled in the drug testing record and wrote in the same unique identification number 276963. She placed the specimen bottles into the security bag and watched as Racecourse Inspector, Mr Bryan McKenzie, sealed the bag and took it through to his office.
Mr Bryan McKenzie stated he put the sealed bag in a refrigerator in his locked office. He then arranged for the sealed bag to be uplifted from Te Rapa and dispatched by Skyroad Couriers to the ESR in Wellington.
Ms Turner gave evidence that the ESR laboratory records show on 10 May 2005 the ESR at Wellington received a sealed collection kit with a urine sample with the unique identification number 276963. The sample was delivered by Skyroad Couriers. It bore the name of Lisa Cropp and both specimen bottles were sealed.
Dr Russell stated that two specimen bottles were received by the ESR, Wellington. The sample identification number was 276963. Only one bottle, bottle “A”, contained urine. It also contained pieces of straw and hair.
Thus the specimen bottles at Te Rapa and at Wellington bore the same name, date and were signed by the defendant. Each bottle shared the same unique identification number 276963. The documentation the ESR received were duplicate originals of the same document filled out by Ms Palmer at Te Rapa. In relation to the sample bottles received in Wellington, the specimen seals were intact, as were the tamper proof seals on the bottles. The “A” specimen bottle contained urine, the “B” bottle was empty. The specimen bottle containing urine contained 28 mls. The same courier, Skyroad couriers, were involved. The “A” sample received at the ESR and analysed contained remnants of straw and hair. (This was stated by the three witnesses from the ESR to be an extremely rare occurrence, and this further reinforces that the sample analysed was the same sample as that taken from the defendant at Te Rapa).
We also note the evidence of Ms Turner to the effect that “Laboratory records show a urine sample was received from Lisa Cropp on 10 May 2005.” This statement was not challenged in cross-examination.
Mr Shaw raised two further matters in his final submissions. He stated there was no evidence as to when Ms Palmer unsealed the bottles, nor that the refrigerator into which the sealed package was placed was locked. On the second point, we note that Mr McKenzie’s office, in which the refrigerator was located, was expressly stated by Mr McKenzie to be locked and there is absolutely no evidence to suggest that the sealed package or samples had been tampered with.
As to the former point, neither Ms Palmer nor Ms Cropp, in giving evidence, state when the seals on the two bottles were broken. However, Ms Palmer states that she unsealed the pottle before accompanying Ms Cropp to the toilet. Mr Shaw is asking us to infer that the bottles were also unsealed at this time. Ms Cropp’s evidence is helpful in this regard. When questioned by Mr Shaw as to what Ms Palmer did with the two bottles, she replies, “She stands them upright, then she picks up a pottle and she peels the lid off like a yoghurt thing.” Any suggestion Ms Cropp may have been confusing bottle and pottle is dispelled by her reply to the further question, “What did the nurse do with the pottle once the seal had been removed?” The defendant says, “She then handed it to me and she gestured towards the toilet area.” There is simply no evidence before this Committee to the effect that the bottles were opened before the defendant went to the toilet.
(g) Were the bottles out of Ms Palmer’s sight?
As we said at para [195], a principal plank of the defendant’s submission that there is a break in the chain of custody is that the bottles were allegedly left unattended by Ms Palmer when she undertook an observed collect of the defendant’s urine sample.
We accept Ms Palmer’s evidence that after the defendant arrived at the drug testing station at 1.32 pm (13.32 hours) she went to the bench and unsealed and opened a biological specimen kit (exhibit 9). She took out the pottle, removed the seal, emptied out the two capped, sealed sample bottles and paperwork, and handed the defendant the urine collection pottle. She said the defendant entered the toilet, and that she went to the door and explained that she was required to observe the defendant. After approximately two minutes, Ms Palmer said, she became aware the defendant had provided a sample. The defendant passed the pottle to her before dressing. They both went to the bench and the balance of the process was completed in the defendant’s presence.
This evidence was supplemented by Ms Palmer demonstrating to this Committee the manner in which she unsealed the biological specimen kit. She emphasised the sample bottles have flick up tops with seals and these need to be opened before the urine sample from the pottle is placed inside the specimen bottle.
There is conflicting evidence as to whether Ms Palmer placed herself in the doorway of the toilet cubicle so that she could observe the defendant providing a urine sample, and whether she had thereby positioned herself in such a way that she would also have seen anyone who might have come into the drug testing station and tampered with the specimen bottles on the bench.
Ms Palmer said that it was her practice to “stand right in the doorway” and watch the jockey. She said that she was not “in the room around the bowl. I am at the door. So I am looking that they are doing the act without any tampering." (p 45) She said that she did this on every occasion and did not move from her position at the door.
The defendant gave evidence on this matter and made certain assertions of fact, which contradicted Ms Palmer’s evidence. The defendant said that the nurse came into the toilet and pulled the door closed behind her. The defendant said she undressed and after “a good few minutes” provided a sample. She said that Ms Palmer was standing close enough to her that she could have reached over and touched her. The defendant said that after she had provided the sample, Ms Palmer stayed with her until she was dressed and then “she went out and opened the door and shut the door behind her....” (p 20).
In assessing the reliability of Ms Cropp’s evidence, we note that she gave differing accounts of the nurse’s actions with respect to the first occasion she was in the toilet cubicle. Early in her evidence, when describing her first attempt at urination, she says, “[The nurse] followed me in. She did say something about I’m sorry I have to view or have to watch. She then closed the door and I went to the toilet.” In response to the question where was the nurse at this time, she replied, “She’s only like an arm’s length behind me, I suppose …. Well, if I’d reached over she was - - I could touch her probably, I could reach her.” (p 9)
Later in her evidence, she contrasts the actions of Ms Palmer on the second occasion with those on the first, stating, “And when she came in this time the nurse pulled the door shut, which I was rapt because last time she only held it closed, she just sort of pulled it to a little ajar, but this time - - - Pulled it fully closed, is that what you’re saying? …. That's right. Because there was people around.” (p 19)
The defendant’s description of events in the toilet cubicle is a significantly different account of the facts from the unchallenged version given by Ms Palmer. We note in determining the weight that we give to the defendant’s evidence on this matter that her differing version had not been put to Ms Palmer in cross-examination for her comment, and that this is in breach of the well-recognised convention that requires the defence to fairly put its case to any witness capable of comment (see s 92(2)(b) of the Evidence Act 2006). There was no cross-examination of Ms Palmer to suggest that the opportunity to observe simultaneously Ms Cropp’s act of urination and the bottles on the table did not in fact exist.
We do not accept the defendant’s evidence that Ms Palmer entered the cubicle and closed the door whilst the defendant took several minutes to disrobe and produce a sample. We accept that it was an observed collect, but Ms Palmer was very clear in her evidence as to how she invariably did this by standing with the door pulled semi-closed. We note this was an out-swinging door and the table with the bottles was only a couple of paces away from the nurse at all times. We simply do not believe Ms Cropp’s evidence that the nurse shut herself in the cubicle with the defendant.
We thus find that Ms Palmer was standing beside the toilet door that she was pulling closed to give privacy to the defendant, and the bottles were very close by. We are satisfied that she would have been aware had any malicious third party entered the testing area with the intent of contaminating the defendant’s sample by adding metabolised methamphetamine.
We would add that Mr McKenzie has given evidence that during the time of the defendant’s testing he was standing behind the curtain. Whilst he was never asked whether he heard anyone else enter or saw any legs under the curtain that were not those of the defendant or the nurse, he has not given evidence that there was anyone else in the testing area.
We are not satisfied that there was a period when the specimen bottles were left unattended or unobserved by Ms Palmer while the defendant was in the toilet cubicle providing a sample. We do not find there was any break in the chain of custody.
(h) Is the drug testing protocol inadequate and unfair? Significance of AS/NZS 4308:2001 and compliance with its standards
Dr Couch, Ms Nolan, and particularly, Ms Weaver gave evidence as to the importance of the AS/NZ standards and of the necessity of strict compliance with the collection procedures laid down in AS/NZS 4308:2001 (exhibit M). We note that the ESR protocols are written around that standard. We accept as accurate the statement of counsel for the informant that it appeared to be common ground between the informant and the defendant that AS/NZS 4308:2001 was something of a “gold standard against which other protocols may be measured”.
Ms Weaver gave evidence that in her view the usefulness of the NZTR drug testing protocol for riders (exhibit 3) as a standard operating procedure and/or training manual was “woefully inadequate” (p 81), and Dr Couch said it was “unfair and unreasonable” (p 21). Significantly, there is evidence before this Committee that not only was the protocol measured against the AS/NZ standard but persons who were involved in the development of the NZTR protocols had also been involved in the development of the 2001 standard. For example, Ms Nolan, who, like Ms Weaver, was on the joint ANZ Standards Technical Committee, which formulated the 2001 standard, stated she gave advice to the New Zealand Racing Conference on the content of the protocol for urine drug testing for jockeys, although her evidence was to the effect that this was in respect to the predecessor to the 2002 protocol, the 1995 protocol (exhibit N), which we observe to be more prescriptive in some respects than is the 2001 one (eg provision is made for the washing of hands prior to the collect); Ms Turner said she had been involved in reviewing the AS/NZ Standard.
In our assessment of the weight we attach to the evidence of Dr Couch and Ms Weaver on this matter, we place more weight on that of Ms Weaver as she was involved in the development of the 2001 standard, although not the NZTR protocol. We note also that many of Ms Weaver’s specific criticisms related to the use of the protocol as an educative tool to ensure compliance by the collector with the 2001 standard. We observe Dr Couch was not involved in the development of either of these documents and cannot claim even broadly comparable experience or expertise in this particular area to that of Ms Turner and Ms Nolan. We comment elsewhere (at para [230]) on our perception that Dr Couch lacked the objectivity we would have expected from an expert witness.
Ms Turner has given evidence that there are departures in the NZTR protocol from the 2001 standard. She said she believed the principles in the protocol were based on the standard but there were peculiarities, which needed to be accounted for in the racing industry. Ms Turner said that the NZTR protocol was formally reviewed by her before its adoption. She described the ESR’s involvement in both the formulation of the protocol and the application of the collection procedures:
“Because we are contracted by New Zealand Thoroughbred Racing to do their drug testing and part of the drug testing is ... we have some responsibility in providing the collection kits and how the sample was collected etc. So it is quite normal for us to actually have that sort of input into the collection part of it as well.
So it was really to make sure that any protocol that was put in place ... was something that met our requirements at ESR but was also capable of being used in the racing industry practical context? ... That is correct. All our testing needs to be what is known as evidential so we needed to have some sort of input.” (p 4)
Ms Turner, when cross-examined as to whether the ESR procedures were based on the AS/NZ standard, said:
“You weren't developing a drug testing protocol for... riders ... on a lesser standard. You modelled it on the high standard that ...you need to comply with? ...all our procedures are based on this standard.
And finally, the drug testing protocol for riders doesn't actually depart from your own standard does it? ...No it doesn't
It may not be expressed as eloquently and as specifically? ... I think the principles of it are based on the standard.
Well if you are going to do an audit you would be doing the audit based on that but using that as the practical guide but this is ... the main one isn't it? ... Yes.” (p 42)
Ms Weaver accepted in her evidence that there had to be some degree of flexibility when dealing with different industries. She cited the example of the timber industry, and the fact that in this context it was impossible to adopt, without some modification, the AS/NZ standard and apply it there. The specific example she gave was the requirement for hands to be washed prior to giving the sample. We observe Ms Weaver does not do any testing herself but is involved primarily in advice and training.
In contrast, Dr Couch said that there was no scope to deviate from the AS/NZ standard no matter what the industry nor the specific peculiarities that might attach to workers in that industry. He was critical of the NZTR protocol because it did not incorporate the AS/NZ standard’s recommendation that the donor’s hands should be washed prior to collection.
We believe a further obvious example in the present case of an industry peculiarity is the inability of jockeys to provide samples of 30 mls because of wasting and dehydration. Dr Couch, however, stated if there was not enough urine to split a sample, the jockey should be asked to return until sufficient urine was voided. He had no suggestions as to how the difficulty that a jockey might continue to be unable to provide 30 mls of urine might be overcome. We note there is no requirement in the AS/NZ standard that the sample must always be split. A failure to have a B sample, as Ms Weaver said in evidence, does not negate the ESR’s ability to report the testing as being in compliance with that standard. We find we are in agreement with her assessment that the protocol was not unreasonable because it allowed just the one sample as a consequence of 30 mls of urine being required before splitting.
Dr Couch was also critical of the failure of the protocol to specify that the urine be inspected for contaminants and to record the findings in the chain of custody document. The latter requirement is not in the AS/NZ standard. In the present case, Ms Palmer not only inspected the sample, but recorded her findings in her drug testing record. The fact that she failed to communicate this to the ESR is considered at para [189] of this judgment.
Dr Couch was also critical of the fact the protocol did not contain an instruction to the effect that the donor should be told not to interfere with the urine once it was collected. When cross-examined, Dr Couch acknowledged that the AS/NZ standard itself, did not have this requirement, and that it was fair comment to say it was self-evident. He also agreed there would be no way of preventing a person from putting their finger in the pottle, or interfering with a sample in some other way, should a person be “hell bent” on so doing. He also criticised the failure of the protocol to state that a departure from the procedures might invalidate the legality of the reported results.
Dr Couch was unbending in his assertion that there was a need for the protocol to include all the requirements of the 2001 standard. We formed the view that, unfortunately, Dr Couch’s evidence often had an air of unrealism attached to it, and he lacked the dispassionate view that we would expect from an expert witness. He admitted, under cross-examination, that he has had little experience as an expert witness. He also has had no experience of analysing samples taken from jockeys and appears to have little understanding of the needs of the racing industry. We are also cognisant of the disproportionate level of expertise that resides in the ESR in terms of workplace drug testing compared to the laboratory in which Dr Couch works. The ESR undertakes 34,000 to 35,000 tests per annum; Lab Plus conducts 5000.
We evaluate these criticisms of the drug testing protocol, originally expounded by Dr Couch, and expanded upon by the defendant in final submissions, against the informant’s contention that the protocol is a document that has been developed in recognition of the need for a degree and level of practicality in the process of the collection of samples.
We agree with the informant that the protocol is a sensible, useful and practical document, which recognises the peculiarities of the industry to which it is applied. We believe that it is not appropriate to simply transplant the requirements of a broad technical document designed to cover all industries and then to seek to apply it to a narrow industry where some of the peculiarities mean that the standard, and indeed perhaps, on occasion, the protocol, cannot be applied in a strict and rigorous way. An example of this (as the Supreme Court notes in Cropp below) is the wasting and the dehydration of jockeys and the recognition that there inevitably will be situations where a jockey will be unable to supply an acceptable sample (10 mls) or a sample that can be split (30 mls). The provision of an opportunity for a jockey to return to the testing station is, in our view, a sensible compromise. We would add that the omission of the requirement that the donor wash his or her hands prior to a collect is a further example of a concession to the conditions that prevail within the racing industry. It would appear to be deliberate and industry-based.
We note also that counsel for the defendant accepted the need to take a commonsense approach to the protocol in his final submissions, as the Chairman observed at the time, when counsel said:
“In my respectful submission, the drug testing protocol has to be read on one level in accordance with its strict language, but on another level in full appreciation that it has to be worked out in the real world as a practical document. And what my submissions are focusing on is that whilst the actual language of the document may not specify all the matters that I'm referring to, when it comes to its practical application common sense would require certain other things to take place.” (p 87)
The status of the protocol was considered by the Supreme Court in Cropp v A Judicial Committee & Ors (SC 68/2007, 17 June 2008, Blanchard, Tipping, McGrath, Anderson and Gault JJ) [2008] NZSC 46 where the Court said at para [38]:
“It was not made pursuant to the rules and therefore cannot be regarded as a qualification to them which amounts to a restriction. It does no more than to set out a procedure intended to be followed in the normal situation.”
The need to allow for the intricacies of racing was also recognised by the Supreme Court when it said, at para [46]:
“The suggestion that the protocol is deficient because of potential inconsistency [of treatment as between jockeys] has no merit. A minimum quantity of urine is presumably needed for reliable testing. It is desirable and fair that a jockey should also have available a sufficient part of the sample so as to be able to have his or her own testing carried out as a check on the accuracy of the result reported to NZTR by the ESR. Hence the figure of 30 mls, which apparently does provide enough for the division. But it has to be recognised that the jockey may be physically unable to produce that amount of urine following energetic riding during a day of racing, preceded perhaps by fasting. Any sensible testing procedure must allow for that situation and, in the absence of evidence to the contrary, the arrangements sanctioned by the protocol seem to be entirely reasonable in this respect.”
We are satisfied after considering all of the evidence that the NZTR drug testing protocol was developed by the ESR in consultation with its then client, the New Zealand Racing Conference. The protocol was based on the AS/NZ standard but with necessary modifications to recognise the unique peculiarities of the thoroughbred racing industry and, more particularly, the issues arising out of the need for jockeys to waste and dehydrate as part of their professional responsibilities.
We can identify deficiencies in the protocol. One, in particular, has been of concern to us. This is the failure to require jockeys to acknowledge in writing that they are aware that the fact that the sample they have given is less than 30 ml and cannot be split, and that they have been told they may return before the end of the day, but choose not to.
Nonetheless, we are not satisfied that the protocol itself is unreasonable or is such a departure from the AS/NZ standard as to require us to hold that a sample taken in accordance with the protocol, has been collected in such a manner that the analysing laboratory (in this case the ESR) cannot certify that it been analysed in accordance with AS/NZS 4308:2001.
(i) Waiver of the “right” to a “B” sample
Counsel for the defendant focused on the fact that there had been no legally effective waiver by the defendant to the taking of a B sample and/or no informed consent to the waiving of a B sample. The thrust of Mr Shaw’s submission was that to be legally effective, in public law terms, a written waiver was required. It followed, Mr Shaw said, that if the defendant did not waive her right to a B sample, only an A and a B sample should have been given to the ESR.
The issue of whether there was in fact a right to a B sample was raised by us during counsel for the defendant’s final submissions. In response, Mr Shaw took us to cl 10 of the protocol which states “and [the jockey] shall be given the opportunity to return to the drug testing station … to supply a further sample of sufficient quantity.”
The informant’s written submissions in reply helpfully addressed this issue, questioning not only whether there is a right to a B sample but whether the protocol is in fact capable of conferring any rights, which in turn require waiver by the defendant before they can be dispensed with. We believe the informant is correct with respect to both these matters.
In particular, we are of the opinion that cl 10 of the drug testing protocol does not create any right to a B specimen that may then be waived. Clause 10 requires that a jockey be told of the opportunity to return later in the day to provide a further sample. The waiver of that “right” is in the jockey not returning.
Ms Palmer gave clear and repeated evidence that the defendant was told that the sample was not able to be split because it was 28 mls. She said the defendant physically acknowledged this. Mr Bryan McKenzie said in evidence, when standing on the other side of the curtain from the defendant and the nurse, that he overheard the words of the advice and their acknowledgment.
These accounts are corroborated by Ms Palmer’s own notations on the drug testing record. Ms Palmer said that the notation on the drug-testing record “okay” was because the defendant had indicated she was happy with the one sample and made no request to return later.
We have previously observed that he protocol was considered by the Supreme Court in Cropp (above), which rejected the suggestion that the protocol was deficient because of potential inconsistency in the treatment of jockeys due to the 30 ml cut-off point. It emphasised that any sensible testing procedure has to make provision for that situation and, in the absence of evidence to the contrary, the arrangements sanctioned by the protocol appeared to the Court to be “entirely reasonable” in this respect.
The informant submits that the defendant’s argument tries to go behind that by asserting that the protocol confers legal rights in the way that the Bill of Rights Act, or other empowering legislation, such as the corrections legislation referenced by the defendant in final submissions, does. We agree.
The authorities cited by the defendant (viz R v Mallinson [1993] 1 NZLR 528 (CA), Police v Kohler [1993] 3 NZLR 129 (CA), Clarkson v R [1986] 1 SCR 383 (SC, Can), R v Borden [1994] 3 SCR 145 (SC, Can), and McAvena v R [1987] 34 CCC (3rd ed) 461) and the defendant’s argument itself, are premised on the assumption of a legal right. The protocol confers no such “rights”. The legal process is that prescribed by the Rules of Racing, which the Supreme Court in Cropp (above) has ruled are legal. The protocol is a secondary guide to the carrying out of testing. As the Supreme Court said at para [35]:
“[Drug] [t]esting must be related to racing. It must be for the purpose of safety at race meetings and must be carried out in a reasonable manner. That is clear from the existence of the Drug Testing Protocol for Riders which the Board of NZTR adopted under s 11 of its constitution on 12 July 2002 and pursuant to which Ms Cropp was dealt with. It does no more than to set out a procedure intended to be followed in the normal situation.”
We accept, however, that reference to the protocol is appropriate when determining whether there has been an unreasonable search and seizure for the purposes of the Bill of Rights. We consider this issue under heading 9(j).
The protocol is clear: where the specimen is less than 30 ml there is no right for it to be divided (split). The right (to the extent the protocol confers rights) is to be told it is insufficient to split and to be able to return at any time before the end of the day’s testing and give a further sample.
The defendant has said she had no knowledge of the protocol and did not understand what was meant by splitting. We accept that the defendant was not in New Zealand when the protocol was promulgated (12 July 2002), but she had returned to New Zealand in 2003 and had been riding since that time. By signing her application for a jockey’s licence, she indicated she was both bound by the Rules of Racing and that she could be required to provide a sample upon request by a Racecourse Inspector (R 310). We further note that she had previously been tested in 2004.
Mr Bevege produced notices dated 14 April 1998 and 10 March 2004 (exhibits 14 & 15), which he said had been promulgated by NZTR and distributed amongst jockeys. These notices inform jockeys of the operation of the drug testing programme, and we observe that the 2004 notice makes specific reference to the drug testing protocol and states that a copy of the protocol will be made available to a jockey, on request, at any time. When cross-examined as to the manner in which the 2004 notice had been disseminated, Mr Bevege said he believed that it had been posted to every jockey and it could also have been put in jockey rooms at the various racecourses. However, he agreed did not know for sure how the notice had been distributed. We would have expected the defendant, as one of New Zealand’s most senior jockeys, to have been aware of the protocol. She clearly had had ample opportunity from the time the protocol was promulgated to when she was tested on 7 May 2005 to have become familiar with its requirements.
As to splitting, it is clear that this encompasses dividing the sample in two. We find it improbable, indeed most unlikely, that the defendant did not realise that this would enable the testing process to be conducted independently with respect to each sample. Significantly, we do not accept the defendant’s evidence that she told Ms Palmer she did not understand what splitting meant. Ms Palmer was never questioned on this point, despite counsel for the defendant having had ample opportunity to do so. We refer again to s 92(2)(b) of the Evidence Act 2006. Ms Palmer has given evidence that copies of the protocol were close by. Had the circumstances alerted her that it was necessary to so do, we are satisfied she would have been both able to explain matters further to the defendant and to give her time to peruse the protocol. We are not satisfied that Ms Cropp’s response or her behaviour required Ms Palmer to take any further steps with respect to explaining the protocol or the procedures. In so finding, we also give weight to the fact that the defendant was content to proceed despite her professed ignorance as to what opportunity she was declining, and the fact that she accepted all was in order was recorded by her signature on the drug testing form and on the seals of the bottles.
As we have noted, the defendant’s argument is premised on an assumption that the protocol grants or confers an entitlement to “the taking of a B sample”.
There is no such wording, or its like, to be found in the protocol. The protocol provides at cl 10 that “the rider shall be advised the sample has not been split because of the insufficient amount and shall be given the opportunity to return to the drug testing station no later than by a time stipulated by the registered medical practitioner or authorised person to supply a further sample of sufficient quantity.” The protocol thus simply provides that the opportunity for a jockey to return to provide a further sample, which may be capable of being split, must be given. That opportunity is important, but that does not elevate it to a legal right.
To summarise our view. Where a sample of less than 30 ml is excreted, the protocol calls for advice to be given to a jockey that the sample has not been split because of insufficient quantity, and that the jockey has the opportunity to return to provide a further sample before the end of the day’s racing. There is no entitlement to a B sample, which can or cannot then be waived. We accept the informant’s contention that we are to consider and apply the actual words of the protocol rather than a construct of it.
A jockey needs to be made aware of the opportunity to return later in the day to try to provide a further sample of sufficient quantity (ie 30 mls or more) that can then be split. We are satisfied that this is what has occurred on this occasion. A jockey is not required to waive any right; he or she either chooses to return later or not. We accept the evidence of Ms Palmer and find as a fact that the defendant was so advised and she chose not to return.
We make this finding notwithstanding the fact that the defendant gave evidence that she had not been told that she could return later in the day to a give a further sample. There is initially an apparent conflict in the informant’s evidence on this issue. While both Ms Palmer and Mr McKenzie state the defendant was so informed, Ms Palmer states the defendant acknowledged this by a nod of the head and Mr McKenzie says the defendant said, “It’ll be all right” or words to similar effect, signifying a casual acceptance. Ms Palmer’s statement she told the defendant she could return is supported by a contemporaneous note to this effect that Ms Palmer made on the drug testing record. It is highly likely, in our view, that at the time the defendant acknowledged verbally she knew she could return, she simultaneously assented with her head. This would explain the differing accounts by the witnesses.
We believe it is appropriate at this point to comment on the credibility of the defendant as a witness and the reliability of her evidence. We were able to observe the defendant while she gave her evidence-in-chief and while under cross-examination. It was apparent to this Committee that the defendant had an arrogant attitude towards the seriousness of the predicament in which she found herself. She was not a convincing witness. Significantly, we believe that the defendant was prepared to tailor her answers, when questioned, to minimise the culpability of her actions and to give evidence, which she believed strengthened her case, in particular, when referring to the actions or omissions of others. For example, she gave inconsistent evidence as to whether the toilet door was closed on the first occasion she attempted to donate a sample; she was evasive in her response to questioning — eg on the issue of her riding weight, under cross-examination she initially appeared to suggest that she did not require any artificial appetite suppressants, saying that she was “a natural lightweight”. (p 47) She then confirmed that she was using diet pills “quite a bit” at that time to assist in weight loss. She later acknowledged that if she had said in a written statement to Mr Bevege (exhibit 12) that she was taking diet pills, she must have been taking them. We also note that the written record of her comments to Ms Palmer on the drug testing record state she had told Ms Palmer she was taking Duramine and Sudomyl.
The defendant also raised hypothetical possibilities, eg Ms Palmer’s notes of the testing being written up long after the event, stating “she could have done that, what, yesterday, for all we know” (p 45). She also tried in her answers to deflect the case from the real issues, such as in her cross-examination concerning the number of rides and winners she had had in the 2005/2006 season, when she gave flippant, obtuse and sometimes evasive responses.
The following cross-examination by Mr Moore with respect to the weight issue demonstrates the evasive attitude of the defendant to questioning:
“Well, you told racecourse inspector Bevege on 12 May, when he spoke to you after you got the positive result, that you were taking Duramine and Sudomyl, which are both diet pills. That was what you told him, isn't it? ….. I must have.
If you don't agree with me I’ll show you your statement. Do you want to have a look at your statement? ….. I'm saying if I said I was on diet pills, yes.
Mr Registrar, can we show the witness that please. I’ve highlighted the relevant passage for you. Is that what you said on 12 May just a few days after 7 May on the same day that you returned a positive result for methamphetamine in your urine? ….. This is in Bevege’s writing, yes.
You’ve signed it, for goodness sake. Are we going to play these games are we? ….. I'm just suggesting, I didn't write it.
Is that what you said or is it not what you said? ….. Most likely I would have probably been on diet pills, yes.
You told us a short time ago that you have a wonderful memory for the events of this time and yet you seem to be having difficulty telling us what medication you were on at that time to reduce weight. What do you say to that? ….. Well, - -
Have you got a good memory or a bad memory? ….. Yeah, I haven't - - I probably would have been on diet pills, yes, definitely. Sudomyl. Because - - -
So you were concerned about your weight in May 2005, weren't you? ….. I know why. There was a horse I was riding on the next day after this race day and it was a real lightweight in the weight for age. The 13th, yeah.
So you were having weight concerns in May 2005, weren't you? ….. It’s not concerns. It’s to keep it so that you get it down, yeah.
You were taking medication to control your weight. Let’s put it that way. Is that correct? ….. Yeah.
Can I have that back please. I mean, you did sign this statement, didn't you? ….. Yeah, I know, I see that. I thought you said that I wrote it.” (p 48)
Ultimately, our decision as to whether or not the defendant was told she could return later in the day and give a further sample, is a matter of determining whether the informant’s witnesses or the defendant, in giving her evidence, was the more credible. We accept the informant’s evidence on this point. Whether words or gestures were used, or both, we do not accept the defendant’s evidence that she was not told she could return. We are satisfied and find as a fact that the defendant was informed she could return and that she understood this.
We are unaware whether NZTR practice has altered since the defendant was tested. We would recommend that provision be made, where a sample is insufficient to be split, for the jockey to be informed both orally and by written notice of this fact, and that the jockey be required to confirm in writing his or her acknowledgement of this and an appreciation of his or her ability to return at any later time in the day.
It was acknowledged by the parties and the expert witnesses that jockeys have particular difficulty on raceday in providing a sample due to the effects of wasting. There was differing evidence before us as to whether 30 mls of urine was necessary, given recent developments in technology, before a sample was able to be split. This is a matter that we believe NZTR and their specialist advisors could investigate further.
(j) Was the protocol followed?
Counsel for the defendant questioned whether the actual steps taken pursuant to the drug testing protocol, and followed on the day in question for the collection of the defendant’s sample, were reasonable. We observe it is said in the Supreme Court in Cropp (above), at para [18]:
“A requirement to supply a bodily sample, and the analysis of that sample, constitutes a search. Even when a contract exists between the body requiring the sample and the person required to supply it, or to submit to its being taken, if that body is exercising a public function the very entitlement to conduct any search and also the manner in which a particular search is conducted will be subject to scrutiny under s 21 of the Bill of Rights.”
Mr Shaw submitted that as a consequence of the multiple breaches of the protocol, reasonable process was not followed. He said that the integrity of the sample result was irretrievably compromised by the major deficiencies in the collection process and procedures. These deficiencies, he stated, were such that the ESR could not confirm the results as complying with the AS/NZ standard. He referred to a number of breaches of, or deficiencies in, the protocol, many of which he acknowledged were technical.
We now proceed to consider the breaches of or deficiencies in the protocol, as submitted by counsel for the defendant in broad ranging oral submissions:
• The failure to designate the site as a drug testing site. We note no confusion appears to have arisen from this fact and there is no evidence of any member of the public or a licence holder blundering into the testing area, in error, whilst the defendant was being tested, or indeed at any time during the day.
• Inadequate training for the collector, in that Ms Palmer had not received training from the ESR. We note that Ms Palmer had been briefed by Mr McKenzie, was a very experienced infectious diseases nurse, and had eight years’ experience of taking jockey samples. We are satisfied that she followed the protocol and the absence of ESR training in collection procedure has not affected the integrity of the sample result.
• The failure by Ms Palmer to identify the defendant. There is no evidence that the defendant was mistaken for someone else or that someone else was mistaken for Ms Cropp. We have already indicated that we have found no breach of the chain of custody.
• The failure of the nurse to report the presence of debris, as noted in her drug testing record (exhibit 5), to the ESR on the chain of custody form (exhibit 2). Dr Couch stated that if his laboratory had been doing the test, and had he been told of the mucus-like substance, he would have requested a resample or, at least, consulted with the collecting organisation (in this case NZTR) for advice. The analyst conducting the immunoassay analysis saw the debris, and Dr Russell, after being called to observe this feature, said that she noted it by way of a “stickie” on her report, and continued with the test of the sample, and reported the results. This observation was evident on the ESR drug testing form (exhibit 6). There was clear evidence before this Committee that the ESR did not believe the foreign matter rendered the sample unreliable. The ESR witnesses called by the informant were not questioned as to what their response might have been were they alerted to the presence of mucus. There is certainly no evidence before this Committee to the effect that the ESR would have aborted the testing due to concerns as to the reliability of the result. We have already commented on the improbability of the mucus being from a third party, and the need for it to have contained metabolised methamphetamine.
• The failure of the nurse to report to the ESR the fact that the defendant had placed a finger in the aperture of the pottle. We do not accept that this “voids” a sample, as Dr Couch suggests, and a retest is compulsory, as any jockey could thereby ensure a sample would not be tested. Moreover, a finger in the aperture, as previously noted, does not explain the presence of metabolised methamphetamine in the defendant’s sample.
• The failure to exclude other jockeys from the testing area whilst the defendant was being tested. We note a jockey did enter the area, but this was whilst Ms Palmer was completing the paper work after the defendant had given her sample, and that this jockey was told to come back later. Again we note that we have already indicated that we have found no breach of the chain of custody.
• The failure of Ms Palmer to split the sample, as raised in Dr Couch’s evidence. This has been referred to at para [227], and we re-iterate this is not a requirement of the accredited testing laboratory, the ESR, and we attach no criticism to the collector, Ms Palmer and, by implication, to NZTR because of this fact.
• The untidy or dirty nature of the collection surfaces in the drug testing station as alleged by the defendant in her evidence. This was not the evidence of Ms Palmer, who as an infectious diseases nurse, stated she was conscious of the need for conditions to be sterile, so that there was no room for contamination or cross-referential infection. We also note Mr McKenzie’s evidence that he carefully prepared the testing area early in the day, which included his wiping down the surfaces of the bench and toilet. We again accept the evidence of the informant’s witnesses and do not find any evidential foundation for counsel for the defendant’s description of the testing station as being some kind of “unhygienic shambles”.
• The failure by Ms Palmer to ensure that the defendant did not bring personal items into the testing area. Ms Cropp stated that she was wearing a necklace and her watch at the time of testing. There was no evidence either of these items came into contact with the urine sample or that they somehow affected the reliability of the sample result.
• The failure by Ms Palmer to afford the defendant privacy when excreting her sample. On the defendant’s evidence, we note the toilet cubicle door had been fully closed when Ms Cropp provided a sample on her second visit. We have already indicated we accept Ms Palmer’s evidence that she merely pulled the door to, while she stood in the doorway. It was an outward swinging door. The requirement in the protocol is that privacy be given, so far as is practicable. We believe this was satisfied in this instance.
• The failure of Ms Palmer to inform the defendant that she could return later in the day and donate another sample because the 28 ml was below the 30 ml threshold for splitting. We have dealt with this at subheading 9(i). We find as a fact that Ms Cropp was told she could return later in the day and chose not to do so.
• The defendant was not told a specific time by Ms Palmer when she could come back and provide another sample. There is no evidence the defendant was misled by this or presented herself for a test only to find the nurse had left. We believe it was clear to the defendant that she could return at any time up until a reasonable period had elapsed after the conclusion of the last race on the day’s card. (We have held in Ruling No. 5 that the failure by Mr B McKenzie to specify a time in the defendant’s request form (exhibit 10) is not a breach of R 226(2)(d).)
• Further matters raised (eg absence of written waiver, no knowledge of the testing regime) have been covered in our discussion of these issues under the earlier sub-headings to Part 9 of this decision.
We give weight to these matters to the extent that they were raised in evidence and formed part of the defendant’s submission that there was a sufficient departure from the collection procedures to invalidate the legality of the reported results.
We also consider under this heading the defendant’s submission that the specific collection of the defendant’s sample, purportedly under the protocol, amounted to an unreasonable search and seizure in breach of s 21 of the Bill of Rights Act and, as a consequence, the defendant’s sample results should not be received by this Committee and should not be relied upon to prove either of the charges.
In rejecting the defendant’s submissions on this issue, we note that many of the breaches that have been identified by the defendant and considered by us were minor (“technical” to use Mr Shaw’s words) and inconsequential, although Mr Shaw described their cumulative effect to be that Ms Cropp’s collection process was not in compliance with the protocol, not reasonable, not in accordance with natural justice or fairness, and shambolic. We are satisfied that a proper process has been followed in this instance: the actions of Mr McKenzie, Ms Palmer and the ESR laboratory were both lawful and reasonable, and in general accordance with the protocol.
We believe the crucial question is: Is the integrity of the sample result sufficiently discredited by these alleged deficiencies or breaches, such that this Committee is unable to accept the defendant’s positive readings as reliable? We are clearly of the view that this question must be answered in the negative. The alleged breaches or deficiencies, neither singularly nor cumulatively, are of such moment as to render the testing process unlawful or unreasonable, nor are they such as to give an incorrect reading or to prevent an accurate reading. If we had any doubt about this matter, to the standard established in Z, we would have given the defendant the benefit of that doubt.
We thus find that a request was lawfully made of the defendant by Mr McKenzie, Racecourse Inspector, pursuant to R 226(2)(d), to provide a sample of her urine to Ms Palmer and that Ms Palmer conducted the test in accordance with the provisions of the NZTR drug testing protocol. We do not believe the actions of Mr McKenzie and/or Ms Palmer to be an unreasonable search and seizure for the purpose of the Bill of Rights nor to be in breach of natural justice or fairness.
(k) Does possession of a Rulebook with an incorrect reference to the Misuse of Drugs Act in R 528 provide a defence to the charge?
Mr Shaw has submitted that information 64994 was defective because it referred to the Misuse of Drugs Act 1975, whereas the defendant’s version of the Rules of Racing referred to the Misuse of Drugs Act 1971. There is and has been no 1971 Act. The defendant gave evidence that when she was first told she had returned a positive sample, she had ripped the page, which contained the text of R 528, out of her Rulebook. This page was introduced as exhibit L. No evidence was put before us that this was the version of the Rules of Racing in force at the time the sample was taken from Ms Cropp.
We do not accept that this reference to a 1971 Act invalidates the charge as against the defendant. The law at the relevant time was as set out in R 528 as it is expressed at para [18] of this decision. It had not changed since this version of the Rules commenced with the Constitution on 1 April 1999. The notation to R 528 indicates that exhibit L is an extract from an earlier version of the Rules of Racing. It is unfortunate that the defendant held an outdated version of the Rules, but we fail to see that she has suffered any detriment as a consequence. There has been no evidence placed before this Committee demonstrating that she has been misled or prejudiced in her defence to the charge.
The Rules of Racing were not erroneous as at the date of the testing of the defendant. We do not accept that the fact the defendant may have held an outdated version of the Rules provides a defence to the charge.
10 Is a breach of R 528 proved?
The defendant, Ms Lisa Cropp, licensed jockey, presented herself at the Te Rapa racecourse on 7 May 2005 to ride in a number of races. The issue that this Committee must consider is whether the informant has proved to the required standard, as explained in Z, that a sample of urine taken from the defendant at that time contained the prohibited drugs methamphetamine and amphetamine.
We now turn to consider the evidence supportive of the three elements which the informant must prove.
(a) The defendant is a rider
The first element is that the defendant is a rider. The word “rider” is defined in the interpretation section of the Rules of Racing, R 105, as:
"Rider" means a person authorised by these Rules, whether as a Jockey, Apprentice Jockey, Amateur Rider, or Emergency Rider, or otherwise howsoever to ride a horse in a race and for the purposes of the drug testing provisions in these Rules, includes a person who rides or presents himself to ride a horse in track work and/or trials at any racecourse or training centre under the control or jurisdiction of a registered Club."
There is a deeming provision that requires the defendant to give notice to the informant in advance of the hearing if she intends to rely upon a challenge that the defendant was a rider. We understand that no such notice of challenge was received by the informant.
In addition, exhibit 8 is a copy of the defendant’s application for a jockey’s licence for the 2004/2005 season. This document was referred to by the defendant in the course of her evidence and she confirmed it was her application. The defendant also admitted in evidence that, as at 7 May 2005, she was a rider, as that term is defined in the Rules of Racing. We thus find this element proved. (We also note in passing that the application for a jockey’s licence contains a condition that the defendant will permit samples of urine or blood be taken for drug testing purposes. In addition R 310(2) and (3) provide that every licence contains a condition that the licence holder permits a urine sample to be obtained whenever required by a Racecourse Inspector, and licence holders are deemed to accept all conditions imposed on their licences.)
(b) The rider was required by a Racecourse Inspector to supply a sample of her urine
The second element, which the informant is required to prove is that the defendant was required by a Racecourse Inspector to supply a sample of her urine. Rule 226(2)(d) provides that every Racecourse Inspector shall have the power to require a rider to provide a sample of urine under the supervision of an authorised person at such time and place as the Racecourse Inspector shall nominate.
The defendant admitted in evidence she was requested by a Racecourse Inspector to supply a sample of urine. The question of the authority and the vires of a Racecourse Inspector to make the requisition under R 226(2)(d) was determined in the informant’s favour in the Supreme Court in Cropp (above).
Authorised persons are defined in R 105(1)(b) as meaning “a nurse registered or enrolled under the Nurses Act 1977”. Racecourse Inspector, Mr Bryan McKenzie has stated that he made a requisition on 7 May 2005 for the defendant to supply a sample of urine. The nurse recruited for this purpose was Ms Palmer.
Ms Palmer gave evidence that she was an Enrolled Nurse pursuant to the provisions of the Nurses Act 1977. She also produced a copy of her practising certificate, issued by the Nursing Council of New Zealand, as evidence of this.
The defendant challenged whether Ms Palmer was qualified as an authorised person in terms of the definition, because of the fact that on the date when the defendant’s testing was done, the Nurses Act 1977 had been repealed by the Health Practitioners Competence Assurance Act 2003.
We believe this issue is determined by s 22(2) of the Interpretation Act 1999, which states:
A reference in an enactment to a repealed enactment is a reference to an enactment, that, with or without modification replaces, or that corresponds to, the enactment repealed.
In addition, s 184(1) of the Health Practitioners Competence Assurance Act 2003 reads:
Every person who, immediately before the commencement of this section, was registered or enrolled as a nurse under the Nurses Act 1977 (including a person who, immediately before that commencement, was so registered or enrolled by virtue of a provisional certificate of registration or enrolment or a certificate of temporary registration or enrolment under that Act) is, on the commencement of this section, deemed to be registered, under this Act, with the Nursing Council as a practitioner of the profession of nursing.
Under the 1977 Act there was both a register and a roll of nurses. Under the 2003 Act this has become simply a register, and nurses enrolled under the 1977 Act are now deemed to be registered under the 2003 Act, in accordance with the provisions of s 184.
Exhibit 1 is evidence of Ms Palmer’s valid registration as a nurse under the Health Practitioners Competence Assurance Act. We are thus satisfied that Ms Palmer is an authorised person for the purpose of the Rules.
(c) The sample taken from the rider is found upon analysis to contain any controlled drug as defined by the Misuse of Drugs Act 1975
The third matter, which the informant must establish, is that the sample of urine was found upon analysis to contain a controlled drug. Methamphetamine is a Class A controlled drug; it is defined as such in the First Schedule to the Misuse of Drugs Act 1975. It was reclassified as a Class A controlled drug in an Amendment to the First Schedule, with effect from May 2003. Amphetamine is a Class B controlled drug, listed in Part 2 of the Second Schedule to the Act.
The ESR witnesses, Ms Turner, Dr Russell and Mr Brown described the receipt, testing and analysis of the sample WDT0529131, Ms Lisa Cropp, received by the ESR from Ms Palmer, and gave evidence of these results. This was that the defendant’s urine sample was found to contain very high levels of both methamphetamine and amphetamine at a level well above the 300 nanogram threshold.
11 Conclusion
The informant has discharged the burden of proof. The allegation contained in information number 64994 that Ms Cropp was in breach of R 528 is proved. In so determining, we have accepted counsel for the defendant’s submission with reference to Z (above) that the standard of proof to which we must be satisfied is “an exacting and high standard of proof because of the serious nature of the charges and the inevitable effects on conviction upon the defendant’s reputational and livelihood interests.”
As information number 62182 is laid in the alternative, it is dismissed.
The issues of penalty and costs need to be determined. We direct that a telephone conference be held a week after the delivery of this judgment at which time a date will fixed for consideration of these matters.
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