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Non Raceday Inquiry - L K Cropp 11 March 09 pt 4


[260]       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)

[261]       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.

[262]       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.

[263]       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?

[264]       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.”

[265]       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.

[266]       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.

[267]       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. 

[268]       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.

[269]       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. 

[270]       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.

[271]       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?

[272]       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. 

[273]       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.

[274]       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?

[275]       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.

[276]       We now turn to consider the evidence supportive of the three elements which the informant must prove.

(a) The defendant is a rider

[277]       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."

[278]       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.

[279]       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

[280]       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.

[281]       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).

[282]       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.

[283]       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.

[284]       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.

[285]       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.

[286]       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.

[287]       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. 

[288]       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

[289]       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. 

[290]       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

[291]       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.” 

[292]       As information number 62182 is laid in the alternative, it is dismissed.

[293]       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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