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Non Raceday Inquiry - L K Cropp 11 March 09 pt 3

8 The defendant’s final submissions  

[150]       We now outline the defendant’s submissions.  We do so by way of a brief summary before considering our response to them. 

[151]       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.

[152]        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.

[153]       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.

[154]       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. 

[155]       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.

[156]       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. 

[157]       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.

[158]       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.

[159]       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. 

[160]       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.

[161]        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

[162]       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

[163]       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 11and were sostated 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. 

[164]       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. 

[165]        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.) 

[166]       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)”. 

[167]       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. 

[168]       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.

[169]       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.

[170]       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 awareof any New Zealand studies on the toxic levels or toxicity of the local product.

[171]       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

[172]       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.

[173]       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. 

[174]       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. 

[175]       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.

[176]       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.

[177]       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.

[178]       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.

[179]       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.

[180]       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. 

[181]       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

[182]       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.

[183]       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.

[184]       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)

[185]       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.

[186]       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.

[187]       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. 

[188]       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.

[189]       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'

[190]       We turn to the possibility of some other drug or substance accounting for the positive methamphetamine and amphetamine readings.

[191]       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.

[192]       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

[193]       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

[194]       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. 

[195]       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.

[196]       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.

[197]        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).

[198]       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. 

[199]       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.

[200]       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.

[201]       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.

[202]       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.

[203]       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). 

[204]       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.

[205]       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.

[206]       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?

[207]       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.

[208]       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.

[209]       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.

[210]       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.

[211]       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.

[212]       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). 

[213]       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)

[214]       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)

[215]       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.

[216]       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.

[217]       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. 

[218]       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.

[219]       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

[220]       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”.

[221]       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.

[222]       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.

[223]       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 dotheir 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)

[224]       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 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)

[225]       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.

[226]       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. 

[227]       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. 

[228]       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. 

[229]       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.

[230]       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.

[231]       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.

[232]       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.

[233]       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)

[234]       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.”

[235]       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.”

[236]       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.

[237]       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.

[238]         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

[239]       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.

[240]       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.”

[241]       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. 

[242]       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.

[243]       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.

[244]       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. 

[245]       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.

[246]       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.

[247]       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.”

[248]       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).

[249]       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. 

[250]       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. 

[251]       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.

[252]       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. 

[253]       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”.

[254]       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.

[255]       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. 

[256]       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.

[257]       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.

[258]       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.

[259]       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.

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