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Non Raceday Inquiry - L K Cropp 11 March 09 pt 2




6 The defendant’s evidence



[107]       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. 

[108]       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.

[109]       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. 

[110]       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.

[111]       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)

[112]       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.

[113]       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.

[114]       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.

[115]       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)

[119]       The defendant said she gave a negative test on 12 May and had tested negative numerous times since.

[120]       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.

[121]       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)

[122]       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)

[123]       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. 

[124]       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. 

[125]       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).

[126]       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. 

[127]        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.

[128]       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.

[129]       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.

[130]       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. 

[131]       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.

[132]       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.

[133]       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. 

[134]       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.

[135]       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.

[136]       Dr Couchcited 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.

[137]       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 

[138]       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. 

[139]       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. 

[140]       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.

[141]       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.

[142]       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. 

[143]       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)

[144]       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. 

[145]       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.

[146]       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.

[147]       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

[148]       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. 

[149]       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. 

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