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Non Raceday Inquiry - L K Cropp 11 March 09 pt 1



1115.8.a
50.ca
774.sc
528.1
226.2.d
1003.1
65.ca
67.hc

BEFORE THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Racing

BETWEEN BRYAN F McKENZIE

Racecourse Inspector

Informant

AND LISA KATHRYN CROPP

Defendant

JUDICIAL COMMITTEE:Prof G Hall Chairman

Mr P Welch Member

 

HEARING DATES:  3, 4, 5, 9 & 10, 18, 19, 22, 23, & 24 August 2005; 16 January 2007; 8 October, 11, 13, 26 & 27 November 2008

 

APPEARING:   Mr S Moore SC and Mr B Dickey for the Informant

Mr B Hart (until 2 October 2008) and Mr A Shaw for the Defendant

DECISION OF JUDICIAL COMMITTEE DATED 11 MARCH 2009



Table of Contents

 

para

1 The background ...........................................................................................................  1

2 The charges ................................................................................................................ 13

3 The Rule...................................................................................................................... 18

4 The ingredients of the charge: onus and standard of proof.............................................. 20

5 The informant’s evidence ............................................................................................  25

6 The defendant’s evidence .......................................................................................... 107

7 The informant’s final submissions................................................................................ 148

8 The defendant’s final submissions................................................................................ 150

9 This Committee’s findings........................................................................................... 162

(a) The sample’s ultra-high reading....................................................................... 163

(b) Contamination ................................................................................................. 172

(c) The failure to wash hands / Finger in pottle..................................................... 182

(d) Could the presence of any other drug or substance account for the positive readings'         190

(e) The possibility of adulteration........................................................................... 193

(f) The break in the chain of custody..................................................................... 194

(g) Were the bottles out of Ms Palmer’s sight?...................................................... 207

(h) Is the drug testing protocol inadequate and unfair?........................................ 220

(i) The waiver of the “right” to a “B” sample....................................................... 239

(j) Was the protocol followed?............................................................................... 264

(k) Does possession of a Rulebook with an incorrect reference to the Misuse of Drugs Act in R 528 provide a defence to the charge?........................................................................................... 272

10 Is a breach of R 528 proved?................................................................................... 275

(a) The defendant is a rider.................................................................................... 277

(b) The rider was required by a Racecourse Inspector to supply a sample of her urine    280

(c) The sample taken from the rider is found upon analysis to contain any controlled drug        289

11 Conclusion .............................................................................................................  291

 


1 The background

[1]               It is appropriate to commence this decision by way of a summary outlining the various steps in the hearing of the matter of whether or not the informations against the defendant, Ms Lisa Cropp, licensed jockey, filed in May 2005, have been proved by the informant, that have resulted in this Judicial Committee not delivering a decision until March 2009.

[2]               On 7 May 2005, Ms Cropp presented herself at Te Rapa racecourse for the purpose of riding at the Waikato Racing Club meeting that day.  Upon her arrival, she was requested by a New Zealand Thoroughbred Racing (NZTR) Racecourse Inspector, Mr Bryan McKenzie, to provide a sample of her urine.  The defendant reported to the nurse, Ms Palmer, but was unable to provide a urine sample.  She left and returned at approximately 1.30 pm.  She then passed a sample of 28 ml.  The NZTR drug testing protocol, which was prepared by Work Place Testing of the Institute of Environmental Science and Research Ltd (ESR) in consultation with NZTR and was adopted by the Board of NZTR on 12 July 2002, states that for the sample to be split, 30 ml or more is required.  The sample was forwarded to the ESR for analysis.  On 12 May 2005 the ESR reported that the defendant's sample was positive for methamphetamine and amphetamine.

[3]               The defendant was charged with a breach of R 528 of the Rules of Racing by Mr B McKenzie, in two informations, laid in the alternative, on 18 and 23 May 2005, respectively.

[4]               The hearing commenced in Auckland on 3 August 2005.  At the end of the informant’s case the defendant submitted there was no case to answer as the informant had not produced written authority from the Chief Executive of NZTR, Mr A Fenwick, to file an information against Ms Cropp and, as a consequence, this Committee did not have jurisdiction to hear the matter.  After hearing from both parties, we delivered a ruling on 9 August 2005 that this Committee had jurisdiction. 

[5]               This was followed immediately by a further ground, with the submission being primarily directed to whether the Racecourse Inspector had received written consent from the Chief Executive to file the informations.  A second ruling was delivered on 18 August 2005, which held that written consents had been received by Mr B McKenzie. 

[6]               A further submission of no case was made by the defendant.  Despite assurances that the defendant’s oral submissions would be brief, these continued over a period of more than four days with a number of discrete issues being raised for the consideration of this Committee.  The hearing adjourned on 24 August 2005 in order for us to consider and to rule on the no case submission.

[7]               When issues arose during the defendant’s no case submission relating to the prescription of non-raceday informations and the appointment of Mrs M Stanbury to receive them, we requested on 19 August 2005 that Mr J Grant, the then Chairman of the Judicial Control Authority (JCA), provide any relevant information or documentation to this Committee.  Mr Grant responded to that request by way of a memorandum dated 28 September 2005 (exhibit F).  The defendant then requested that Mr Grant be formally called before this Committee to give evidence.  A further issue as to the validity of the appointment of the Member of this Committee, Mr P Welch, had arisen during the course of the defendant’s oral submissions as to no case.  This Committee was of the view that Mr Grant could assist us with evidence as to this issue.  In Ruling No. 3 on 18 October 2005 we required Mr Grant also give evidence with respect to this matter and, in Ruling No. 4 on 29 November 2005, we refused an application by the defendant that Mr Welch disqualify himself or that a separate independent committee be established to determine the matter. 

[8]               The defendant then filed an application to the High Court for judicial review.  The defendant further requested that the hearing before this Committee be adjourned pending the decision of the High Court.  This was delivered on 7 November 2006 by Baragwanath J who stated that the decision of this Committee to exercise the subpoena power was neither irrational nor disproportionate: see Cropp v Welch & Ors (HC, Auckland CIV 2005-404-7040, 7 November 2006, Baragwanath J).

[9]               The learned Judge also concluded that Mr Welch was validly appointed, and counsel for the defendant at a telephone conference on 20 December 2006 indicated they had not lodged an appeal against His Honour’s decision nor did they continue to challenge Mr Welch’s appointment.  Thus no ruling was required from this Committee in respect of whether Mr Welch was lawfully appointed as the Member of this Committee.  At that telephone conference, counsel for the defendant repeated their request that Mr Grant be called.  On 20 December 2006, pursuant to R 1115(8)(a), we issued an amended summons requiring Mr Grant to appear before us to answer questions put to him and to produce to this Committee any relevant documents relating to the form of the non-raceday information currently prescribed by the JCA, and the authority of the then Executive Officer of the JCA, Mrs Stanbury, to receive an information, where that information is filed other than during a race meeting.

[10]           The hearing reconvened on 16 January 2007 when Mr Grant gave oral evidence and produced written documentary evidence and was cross-examined by the defendant.  Counsel were permitted to make written submissions in response to Mr Grant’s evidence. The defendant’s further submissions as to “no case”, which were directed first at matters that could be described as jurisdictional and technical issues, and secondly, the application of the New Zealand Bill of Rights Act 1990, were considered by this Committee in Ruling No. 5 delivered on 7 February 2007.  This Ruling was considered in the High Court in Cropp v Judicial Committee [2007] NZAR 465 by Andrews J who dismissed Ms Cropp’s application for judicial review.  Her Honour’s decision was appealed unsuccessfully to both the Court of Appeal and the Supreme Court: see Cropp v A Judicial Committee [2008] NZAR 50 (CA); Cropp v A Judicial Committee [2008] 3 NZLR 774 (SC).  The Supreme Court in its decision of 17 June 2008 confirmed the validity of the random drug-testing regime for jockeys contained in the Rules of Racing.

[11]           Mr B Hart, who together with Mr Shaw, had initially appeared for the defendant sought and was granted leave to withdraw from the case at a telephone conference held on 2 October 2008.  Mr Shaw continued to represent Ms Cropp.

[12]           This Committee reconvened in October and November 2008, at which time Ms Cropp presented her defence to the charges and counsel made their closing submissions.

2 The charges

[13]           The defendant faces two informations.  Information number 62182 was laid on 18 May 2005 and charges as follows:

“That on Saturday 7 May 2005 being a rider licensed under the New Zealand Rules of Racing you did commit a breach of Rule 528(1) of the said Rules in that you presented yourself to ride and did ride in races at the race meeting conducted by the Waikato Racing Club at Te Rapa Racecourse whilst you had in your urine the controlled drugs namely methamphetamine and amphetamine, being previously administered to you which drugs were found in the urine sample obtained from you on that date pursuant to the provisions of Rule 226(2)(d) of the New Zealand Rules of Racing and that you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 1003(1) of the said Rules."

[14]           The second information, numbered 64994, was laid on 23 May 2005 and charges as follows:

"That on Saturday 7 May 2005, at Te Rapa Racecourse, at the race meeting conducted by the Waikato Racing Club, being a rider who, having been requested by a Racecourse Inspector to supply a sample of her urine which was found, upon analysis, to contain the controlled drugs methamphetamine and amphetamine as defined in the Misuse of Drugs Act 1975, committed a breach of Rule 528(1) of the Rules of Racing and you are hereby liable to the penalty or penalties which may be opposed upon you pursuant to the provisions of Rule 1003(1) of the said Rules."

[15]           On the first day of the hearing, 3 August 2005, counsel for the informant opened on the basis that while both informations were before this Committee for determination, these should be treated as alternatives, and the informant would seek a finding of guilt in relation to one only.  It was further submitted that we should hear all of the evidence and submissions before electing which charge, if either, we found proved.

[16]           Counsel for the informant also submitted that information number 64994 was more simply expressed.  As we stated in Ruling No. 5, we agree.

[17]           This Committee is of the view that information number 64994 more accurately recites the breach prescribed in R 528(1).  On that basis, we intend to examine the evidence and make determinations of fact in relation to that charge. 

3 The Rule

[18]           Rule 528(1) provided in 2005 (it was amended on 1 January 2007):

“Every rider or stablehand who, having been required by a Stipendiary Steward or Racecourse Inspector or Judicial Committee to supply a sample of his blood, breath, urine, saliva or sweat (or more than one thereof), which is found upon analysis to contain any controlled drug as defined in the Misuse of Drugs Act 1975 or other illicit substance commits a breach of this Rule.”

[19]          The maximum penalty for a breach of R 528 is 12 months’ disqualification, or 12 months’ suspension of the defendant’s jockey licence, and/or a fine of $10,000: R 1003(1).

4 The ingredients of the charge: onus and standard of proof

[20]           The ingredients of a charge under R 528 that are required to be proved by the informant are:

•   The defendant was a rider;

•   The defendant was required by a Racecourse Inspector to supply a sample of her urine;

•   On analysis the defendant’s sample was found to contain a controlled drug as defined in the Misuse of Drugs Act 1975.

[21]                The leading case in regard to disciplinary procedures for tribunals involving a profession is Z v Complaints Assessment Committee [2008] 1 NZLR 65 (CA).  This case considered the standard to be applied in such proceedings.  It is authority for the proposition that although the civil standard is appropriate, it operates so that the more serious the charges, the stronger the proof needs to be for those charges.

[22]                The Court in Z, at paras [27] and [28], approved the statement of Tipping J in Guy v Medical Council of New Zealand [1995] NZAR 67 (HC) that regulatory disciplinary proceedings are not criminal or even quasi criminal in character.  On appeal to the Supreme Court, the decision of the Court of Appeal in relation to the applicable burden of proof was upheld 4-1 (Elias CJ dissenting): see Z v Dental Complaints Assessment Committee[2009] 1 NZLR 1, paras [118] and [145].

[23]                The same analysis applies to the regulatory disciplinary procedures of this Committee under the Rules of Racing. 

[24]           We now set out the evidence as presented first by the informant’s witnesses and then by those called by the defendant.  Where possible, we will endeavour to present this as a chronological account of the events.

5 The informant’s evidence

[25]           Mr Robert Bevege, a Racecourse Inspector employed by NZTR, stated that on 20 January 2005 he was carrying out jockey drug testing at a race meeting at Hastings.  The defendant was one of a number of jockeys that had been selected to supply a sample of urine.  He said that the defendant went to the testing station but was unable to urinate.  She was advised to return later in the day.  On her second visit she was also unable to provide a sample and explained that this was because she had been wasting for an upcoming ride and she doubted that she would in fact be able to give a sample.  By the conclusion of the race meeting the defendant was still unable to supply a sample of her urine.  Mr Bevege said that after consultation by telephone with the Chief Racecourse Inspector, Mr John McKenzie, he released the defendant.  Mr Bevege stated this was the only occasion that he had released a jockey from an obligation to supply a sample.

[26]           We divert briefly from the chronological account to summarise the further evidence of Mr Bevege.  He stated that on 12 May 2005, while travelling to the Egmont Race meeting, being conducted at Hawera racecourse, he was advised by NZTR management that the defendant had returned a positive test to methamphetamine after being tested at Te Rapa on 7 May.

[27]            On arrival at the racecourse, Mr Bevege arranged to speak to the defendant in the Judicial Room.  She acknowledged that she had been drug tested at Te Rapa.  He advised her that the ESR had notified NZTR that she had returned a positive test to the drug, methamphetamine, and as a consequence the Chief Executive of NZTR had withdrawn her jockey’s licence and she would be unable to fulfil her riding engagements that day.

[28]           The defendant was also advised that her licence had been withdrawn until she was able to supply a clear sample.  Mr Bevege gave the defendant the option of supplying a urine sample to him at the time or to Racecourse Inspector, Mr Bryan McKenzie, at a later date or time.  She was advised that she could consult a solicitor if she wished.

[29]           Mr Bevege said that the defendant told him she had not taken any illegal drugs and the result had to have been from prescribed drugs that she was taking for weight loss purposes. 

[30]          Mr Bevege then took a written statement from the defendant (exhibit 12) in which she reiterated she had not taken any illegal drugs and the only drugs she had taken were the diet pills, Duramine and Sudomyl, to get her weight down.  She added that she had been using Penicillin for the previous two and a half weeks.  These prescribed drugs were the only explanation the defendant offered to account for the methamphetamine in her urine sample.  She also stated that she had not been to any parties and had not associated with any persons whom she knew were using illegal drugs.

[31]          Mr Bevege served a copy of the ESR analyst’s report on the defendant as well as the notice of withdrawal of licence and a document headed “Jockey Testing Programme”(exhibits 13 and 14).  The defendant declined the invitation to provide Mr Bevege with a urine sample at that time, stating she wished to get all the prescription medicine from her body first.

[32]                The informant, Racecourse Inspector, Mr Bryan McKenzie, gave evidence that he was officiating at the Waikato Racing Club’s meeting at Te Rapa on 7 May 2005.  He decided to drug test 17 riders: these included all riders engaged in jumping events; riders not previously tested; a rider who had previously tested positive; and the defendant, whom Mr McKenzie knew had been unable to supply a urine sample when requested to do so by Mr Bevege at Hastings earlier that year.  He stated Ms Cropp had been tested once before in New Zealand, at Waikato on 8 September 2004. 

[33]           Mr McKenzie explained that in readiness for testing he set up the drug testing station and he described the layout of the area, which this Committee has subsequently viewed by way of a scene visit.  He said he provided latex gloves, hygiene items and relevant equipment.  He described securing the toilet cubicle by placing tinfoil over the washbasin and placing Bluo in the toilet cistern.  He said he engaged the services of enrolled nurse, Ms Deborah Palmer, to be the authorised person pursuant to the Rules.

[34]           Mr McKenzie said that he gave Ms Palmer a quantity of the biological specimen kits provided by the ESR and a list of the riders selected for testing.  He also provided her with several copies of the NZTR drug testing protocol for riders (exhibit 3) as well as forms in order for her to maintain her own record of any comments that she considered appropriate or necessary for the collection process.

[35]           Mr McKenzie said that at approximately 10.30 am he was in the weigh-in room when he saw the defendant walk in and enter the female jockeys’ room.  She was dressed in her street clothes and was holding her riding gear.  He said she went out of his sight.  He said he went to the open door and called her using her first name.  She came to the door immediately.  He explained that he had been given a letter for her to sign and asked her to accompany him.  She agreed to do so but said words to the effect, “Can you just wait a minute, I need to go to the toilet first”. (p 2)

[36]          Conscious of the fact that many jockeys have difficulty providing sufficient urine for drug testing because of fasting and dehydrating, and knowing she had been unsuccessful in providing a sample at Hastings, Mr McKenzie told the defendant she had been selected for drug testing that day and requested her to accompany him to the drug testing station to go to the toilet there.  The defendant responded, “Just hang on a minute” and then, according to Mr McKenzie, she walked away from the door and disappeared from his sight.  He said there were no other female riders in the vicinity at that time.

[37]          Mr McKenzie waited outside the jockey room for the defendant to re-appear.  From the position in which he was standing he was able to view access to the toilets.  The defendant did not enter these but remained in the area into which he was unable to see.

[38]          Mr McKenzie remained in this location for several minutes.  He said he became increasingly concerned as there appeared no logical reason for the defendant failing to appear.  He called out to Ms Cropp to ascertain whether she was coming.  She replied, “Hang on”.  Mr McKenzie remained in this position for a further two or three minutes, assuming that she was changing into her riding gear.  He repeated his call, following which she re-appeared, still dressed in her street clothes.  Mr McKenzie then handed her the drug testing request form (exhibit 10).  At the bottom of this exhibit, Mr McKenzie endorsed the words: “Served personally at Te Rapa on 7-5-05 at approximately 10.30 am”.  He accompanied the defendant to the drug testing station and introduced her to Ms Palmer.  He was later told by Ms Palmer that the defendant had been unable to give a sample.

[39]          Mr McKenzie said that the defendant’s actions when he gave her the notice and told her she was to be drug tested caused suspicion in his mind that there was a problem, and that suspicion was multiplied when, having taken her to the testing station, she left there not having gone to the toilet. 

[40]          Mr McKenzie described his actions when he became aware the defendant had returned to the drug testing station at about 1.30 pm:

“I verified she was still in there, that’s when I chose to walk around on the other side of the curtain because I wanted to determine whether or not we were going to get a sample off her, bearing in mind that at Hawkes Bay she had failed to supply a sample.  All of those things gave rise in my mind to a suspicion that [sic] with regards to the conduct of jockey Lisa Cropp, and that’s why I stood there.” (p 35)

[41]          Mr McKenzie said when he was standing just inside the ambulance room door he was out of sight of persons in the drug testing station, being separated by the curtain.  From where he was standing, he became aware that the defendant had supplied a sample because he could hear Ms Palmer telling Ms Cropp there was only 28 mls and that was not enough for the sample to be split.  He said she told Ms Cropp what the protocol said about a split sample.  He heard her tell Ms Cropp that if she wanted a split sample she could come back during the day and provide another sample.  He heard Lisa Cropp make a reply indicating that she was happy with the one sample. He stated:

“I am prepared to swear on oath before any Tribunal that I was standing there a short distance away and I heard exactly what I have said” [that the defendant said to Ms Palmer when told there was not enough to split, words to the effect that “It’ll be all right” or words to similar effect signifying a casual acceptance of what the nurse had said.] (p 35)

[42]          Mr McKenzie said he then moved away from the ambulance room.  He stayed within a few metres of the door.  A short time later the defendant left the drug testing station and walked past him.  He spoke to her briefly and he informed her of the report that she had been a 1/2 kg over-weight when weighing-in after the previous race.  He went to the drug testing station and spoke with Ms Palmer who at that stage had just finished writing up her notes, which she showed him.  The NZTR portion of the ESR employment drug testing form showed that Lisa Cropp had the specimen ID number recorded by the nurse as being 276963. 

[43]          At the conclusion of the day’s racing, samples had been obtained from 17 jockeys.  Mr McKenzie said he took possession of the independently sealed samples that were contained in a large sealed plastic bag.  They were placed in a refrigerator in his locked office where they remained until Monday morning 9 May 2005 when he arranged for them to be uplifted from Te Rapa and dispatched by Skyroad Couriers to the ESR in Wellington. 

[44]          By letter dated 12 May 2005, the ESR advised NZTR of the fact that the urine sample of Lisa Cropp, ID number 276963, had tested positive to methamphetamine and amphetamine (exhibit 11).

[45]          Mr Bryan McKenzie said that on 12 May 2005, at approximately 6.15 pm, at the request of the defendant he met with her in his office at Te Rapa, and Ms Palmer obtained a further urine sample for drug analysis purposes.  This sample was forwarded to the ESR on 13 May 2005 and subsequently tested negative.

[46]           Ms Deborah Palmer gave evidence that she was an Enrolled Nurse pursuant to the provisions of the Nurses Act 1977.  She stated, and we observe, that her Practising Certificate makes reference to her being registered under the Health Practitioners Competence Assurance Act 2003 (exhibit 1).  She said she was recruited by Racecourse Inspector, Mr Bryan McKenzie, to undertake drug testing at Te Rapa on 7 May 2005.  She said she was experienced in the field, having been engaged by NZTR as an authorised person to collect urine samples since 1997.  She said she was also an infection control nurse.

[47]            Ms Palmer told this Committee that by the time she arrived at the drug testing station on 7 May the toilet area had already been prepared, with the basin covered in tinfoil and with Bluo in the toilet cistern.  She described being given copies of the NZTR drug testing protocol for riders by Mr McKenzie.  She said she read this and also retained copies on her desk should any jockey request information on the drug testing procedures. 

[48]            Ms Palmer described the testing area and stated that the toilet cubicle has an outward opening door specifically to enable the excretion act to be witnessed as required in the protocol.

[49]            Ms Palmer stated she had learned from her experience over the years that it could be very difficult for jockeys to supply a sufficient amount of urine at any one time.  On the rare occasion a jockey was unable to urinate, a decision for release would be made by the Racecourse Inspector.  She read from para [9] of her brief:

“It is for that reason that I am familiar with that part of the protocol that deals with the minimum amount of urine that must be obtained before a sample is split.  I am aware that the protocol states in paragraph 10 that if the urine excreted is less than 30 mls then the sample is not split and shall be placed in the one sample bottle. 

The same paragraph states that the rider shall be given the opportunity to return to the drug testing station no later than the time stipulated to supply a further sample of sufficient quantity.”

[50]            Ms Palmer said the first jockey to arrive at the drug testing station that morning was the defendant, who handed her the drug testing notification form.  Ms Palmer described the steps that she undertook at that time in terms of the preparation of the collection materials.  She said that the defendant went into the toilet and was there for a minute or so before indicating that she was unable to pass urine and that she would return later.  Ms Palmer handed her back the request form and the defendant left.  As was the normal procedure with all unobtained samples, the unused collection devices were discarded in the rubbish.

[51]            At 1.32 pm the defendant re-presented herself at the drug testing station.  Ms Palmer said that she took her to the bench and unsealed and opened the biological specimen kit in front of her.  She removed the pottle into which the urine sample was to be excreted.  She removed the seal from the pottle and took out the two capped sample bottles, which it contained, plus the paperwork.  She handed the pottle to the defendant.

[52]            Ms Palmer said the defendant entered the toilet cubicle.  Ms Palmer went to the door and advised the defendant in a similar fashion to earlier that day, that she was required to observe her.  Under cross-examination, Ms Palmer stated, “I stand right in the doorway and I apologise for the lack of privacy with me watching, that I know how difficult it is to pass urine with somebody watching you, but it is part of the protocol.  That’s what I say.” (p 45)

[53]            Ms Palmer said that after approximately two minutes she became aware the defendant had provided a sample.  The defendant passed the pottle to Ms Palmer and dressed herself.  Ms Palmer said that she and the defendant went to the bench, which she described as being about two paces from the toilet cubicle.

[54]            Ms Palmer checked the temperature of the sample and noted it to be within the normal range.  She saw that the amount was 28 mls, which she knew to be below the level stated in the protocol for the sample to be split.  Ms Palmer said that she told the defendant the amount was insufficient to split but was acceptable as a specimen (as it was over 10 mls).  She said she explained the protocol to the defendant and said to her that it was “unable to be split” and she had the opportunity to return during the course of the day to give another specimen if she wished. (p 15)  She said the defendant made it clear to her that she was happy with the specimen obtained.  She said the defendant indicated this was “all right, OK” to her by assent of the head.  (p 16)  She said she did not get an indication that the defendant was going to return.

[55]            Ms Palmer saw debris in the pottle handed to her by the defendant.  The defendant commented that it had come from her stockings.  Ms Palmer described the debris as a hair, mucus and “bits”.  Under cross examination, Ms Palmer said she was not qualified to say what the “bits” were but described the hair as looking like a pubic hair rather than head hair (p 51).  She said there was also mucus, which she had seen once before, also in a sample from a female.  She said she was not qualified to say the “bits” were straw.  She had never previously seen hair or “bits” in a rider’s sample.

[56]           Ms Palmer recorded on her drug testing record (exhibit 5):

“Urine normal colour and temp.  On antibiotics - Penicillin.  28mls.  Not split.  Procedure explained - OK — Contained debris (hair, bits) mucus, she said it was from stockings. I watched her”

[57]           Ms Palmer said that the defendant went to put her finger in the pottle at which point Ms Palmer said, “No, don't do that”.  She said that she did not see the defendant’s finger touch the urine and noted that there was “a big space” between the urine and the rest of the pottle.  (pp 78, 79) 

[58]           Ms Palmer stated she poured the 28 ml urine sample from the pottle into one of the sample bottles.  She closed the cap and had the defendant sign the sample bottle documentation.  Ms Palmer and the defendant each signed the red fold-over seal on each of the sample bottles.  This was both the one containing urine and the empty one.  Ms Palmer then completed the Employment Urine Drug Testing Form (exhibit 6).  She recorded the unique specimen identification number 276963.

[59]           As the specimen identification number was recorded on exhibit 6, Ms Palmer asked the defendant to check that the biological specimen kit box bore the same, corresponding, number.  She said the defendant indicated that this was the case.

[60]           Ms Palmer also gave evidence that she asked the defendant if she wished to declare any medication.  The defendant stated she was on Sudomyl, Penicillin and Imovane.  Ms Palmer wrote these on the drug testing form.

[61]           Ms Palmer then stated she went through the drug testing form with the defendant and had her, again, verify the correspondence of the unique specimen identification number and that the details were all correct.  The defendant signed the drug testing form, and Ms Palmer counter-signed as the collector.

[62]            Under cross-examination, Ms Palmer was questioned whether she got jockeys “to sign a document that makes it clear that they are waiving their right?  In other words they’re giving it away, saying, ‘I won’t need, won’t come back for that.  We’ll just rely on the one sample’.  Do you get them to sign something?”  She replied, “The ESR form [the Employment Urine Drug Testing Form] is the actual signing of all the procedure that’s gone on beforehand.  I would think, I would interpret that as their acknowledgement.” (p 68)

[63]           Ms Palmer then pulled the five copies of the form apart and handed the defendant the white donor copy.  In the presence of the defendant, Ms Palmer placed the paperwork in the pouch that now contained the two sample bottles, sealed the pouch and placed it in the biological specimen kit, which was also sealed in the defendant’s presence.  The defendant then left the testing station.

[64]           Ms Palmer returned to the desk and wrote the notes (as set out in para [56]) on the form previously provided to her for the purpose of note taking by Mr McKenzie (exhibit 5).  She said that where she had written “Procedure explained - OK” that was her notation of the fact that she had explained the protocol to Ms Cropp about not being able to split her sample because of the fact it was 28 mls and the OK was her notation of the defendant saying she was happy with the one sample and that she made no request to return.

[65]          At the end of the day, Ms Palmer handed all of the biological specimen kits, which had been placed in alarge security bag, to the Chief Racecourse Inspector, Mr John McKenzie.  She was present when he sealed the bag.  She then accompanied him to the office of Racecourse Inspector, Mr Bryan McKenzie. 

[66]           Mr John Oatham gave evidence that he was employed by NZTR and was on duty as a Stipendiary Steward at Te Rapa on 7 May 2005.  He said after riding the horse Sonatina in race 4, which was run at 1.10 pm, the defendant was weighed-in by the Clerk of the Scales, Mr Sanders, as 0.5 kg over the authorised weigh-out weight of 55.5 kg, at 56.0 kgs.  He said he witnessed this himself and noted it in his race book.  He said it was extremely unusual for her to be over-weight, particularly by the amount of 0.5 kg, which was a substantial difference.  He said he had been observing the defendant on the scales at race meetings since July 2004 and could not recall another occurrence of this nature involving Miss Cropp when she had been riding in fine conditions as were prevailing on this particular day.  The event was sufficientlysignificant, in Mr Oatham’s view, that he reported the overweight occurrence to the duty Race Course Inspector, Mr Bryan McKenzie, shortly afterwards.  None of the other riders in that race had weighed in overweight.  This incident, he stated, was immediately prior to the defendant presenting herself for drug testing, at about 1.30 pm.  He also observed that in his experience the defendant could ride at weights “quite considerably less” than 54.5 kgs and she did ride later that day at 2 kg less. 

[67]           Ms Shelli Turner, the Programme Manager for the Workplace Drug Testing programme at the ESR gave evidence that she was responsible for the development of the drug testing protocol with NZTR.  She said the workplace drug testing laboratories of the ESR were accredited by International Accreditation New Zealand (IANZ).

[68]           Ms Turner gave evidence of the receipt of the sample and the movement of the sample through the ESR, relying on documentation generated by that organisation as part its business records.  She stated that the laboratory records showed that on 10 May 2005 the ESR received from Skyroad Couriers a urine sample from Lisa Cropp in a sealed collection kit, containing two specimen bottles with the unique specimen identification number 276963.  This number was recorded at the bottom of the Employment Urine Drug Testing Form (exhibit 6) that had been completed by Ms Palmer and which had accompanied the samples to Wellington.  According to this associated documentation the sample was collected at 13.32 hours on 7 May 2005.  The sample was for a random drug test as part of the NZTR drug testing protocol and two specimen bottles were received.  One bottle contained the urine sample, and the other bottle was empty.  Both bottles were sealed with a tamper proof seal as per the correct collection procedures.  The specimen bottle containing the urine sample was given an ESR reference number WDT0529131 and a label was placed on the lid with these details.

[69]           The total sample volume was less than 30 mls and therefore there was an insufficient volume to be split into two specimen bottles. Ms Turner said the ESR requires a minimum of 15 mls of urine in each of the bottles.  It was also noticed that the urine sample appeared to have debris in it, which appeared to be straw and hair.  The presence of such debris, she said, did not affect the analysis of the sample for the presence of drugs.

[70]            Sample WDT0529131 was analysed for a number of drugs.  Ms Turner said this involves a sub-sample being transferred to a tube with a bar code with the ESR reference number.  The initial test was an immunoassay screening test, which is performed on an automatic-analyser.  This determines if any drugs may be present at levels at or above the cut-off level for a particular drug class, as defined in AS/NZS 4308:2001.  If the sample is found to have no drugs tested at or above the defined cut-off level, then no further analysis is required and the sample is reported as being negative for the drug classes tested for.  If the sample screens positive, then further confirmation analysis is required.  A second sub-sample is transferred to another tube for the further analysis.  The sample is stored in a refrigerator in a secure laboratory until the analysis is completed, when it is then transferred to a locked freezer in the same secure laboratory. 

[71]           Ms Turner gave evidence that the sample received from Ms Cropp WDT0529131 screened positive for amphetamines, also referred to as sympathomimetic amines, and so required further analysis by gas chromatography / mass spectrometry (GCMS).  This confirmed the presence of methamphetamine and amphetamine at levels greater than the defined cut-off level of 300 nanograms per millilitre.

[72]           Ms Turner stated that she was involved in reviewing the NZTR drug testing protocol to ensure that it met the ESR’s requirements and was also capable of being used in a practical context in the racing industry.  She said on average the ESR would conduct annually about 34,000 drug tests, including approximately 200 drug tests for NZTR. 

[73]           With reference to the requirement of 30 ml before splitting, Ms Turner said that if all the screening tests proved positive, then they required about 15 ml to be able to complete the analysis.

[74]           Ms Turner agreed with Mr Hart, in cross-examination, that a core part of the protocol was the procedures for the collection, detection and quantification of drugs in urine.  She further agreed that it was an important part of the process for a donor to wash his or her hands before providing a sample, but she did not accept it was fundamental to the process.

[75]           Ms Turner said in over four years of involvement with workplace testing at the ESR, this was the first timeshe had encountered straw or hair in a sample.  However, the presence of foreign bodies in the sample did not suggest that it would not be analysed.  She explained this was because “our understanding is that a lot of things that might be floating around in there, which is very rare, will not actually affect the, the actual analysis….  Something like hair or straw would not affect the integrity of the sample….  I would go ahead with the testing because we are just testing the urine and what’s dissolved in the urine, anything that is actually debris in there, we are not actually testing that.” (p 20)

[76]           Ms Turner observed that the ESR procedures, as did a lot of other chain of custody procedures, allowed for one sample.  This had to be at the agreement of the donor.  This was part of the ESR procedures and was also in the drug testing protocol for the riders.  She said:

“That they are aware, they are given the choice, that there isn’t enough for two samples, and I do recall that there is something, I think in the standards, that refers to if there is insufficient volume then they can be asked to do another one.  We put it into our protocol because the second sample, we don’t actually open, it actually belongs to the donor, so therefore they have to be happy that there’s not another sample.  If they are not, then they have to repeat sampling.” (p 29)

[77]           Ms Turner agreed that it was desirable that the donor sign a statement to the effect that there is “insufficient for two samples”.  She said a lot of companies that the ESR worked with had devised a form and a few of them used the form that came with the sample.  They made a note on that form, “insufficient for two samples”.  She said, “What we often recommend is that it’s noted on the form that comes with the sample and the person signs it, or that there is some other signature recorded somewhere else.” (p 31)  Earlier she said it was the donor’s right to say to proceed with the analysis with the one sample, if there was not enough to split, as that was all the ESR required.

[78]           When re-examined by Mr Moore, with respect to contamination, she said:

“If the theory was that the sample was contaminated with say methamphetamine, to have amphetamine there as well it would have also had to be contaminated with amphetamine.  If the methamphetamine was in the urine, coming out of the body, methamphetamine metabolises to amphetamine and that is the most probable explanation why there was amphetamine and methamphetamine, but that’s probably about as far as I can go.” (p 45)

[79]           Ms Turner agreed, if there was contamination, it would require contamination of the sample not only by methamphetamine but also amphetamine.  She drew a distinction between an adulterant and a foreign body.  An adulterant was something a donor could add to the sample or could actually be taken, that could affect the nature of the sample in that it affected the testing, so it was specifically directed at the part the ESR was testing.  A foreign body was just something that was in the sample.  She re-iterated that if there was a foreign body in the sample, it was not going to affect the drug testing.  

[80]           Dr Sarah Russell gave evidence that she was a forensic toxicologist employed by the ESR.  She stated the workplace drug testing laboratories of the ESR were accredited by IANZ and that the ESR based its drug testing laboratory procedures on the AS/NZS 4308:2001 standard entitled “Procedures for the collection, detection and quantitation of drugs of abuse in urine.” (exhibit M)

[81]           Dr Russell stated that the ESR laboratory records showed that a set of two bottles, sample identification number 276963, relating to Lisa Cropp was receipted on 10 May 2005 according to standard laboratory procedure.  Only one bottle contained any urine.  The other bottle was empty and was consequently destroyed on receipt.  The bottle that contained urine was labelled on the top with the unique Workplace Drug Testing reference number WDT0529131.

[82]           Laboratory records showed that, amongst other things, sample WDT0529131 was analysed for the presence of sympathomimetic amine drugs as per AS/NZS 4308:2001.  The first test, an immunoassay screen, carried out on the sample returned a positive test for sympathomimetic amines. 

[83]            A second test, involving GCMS, was carried out to determine which of the sympathomimetic amine(s) were present in the sample.  The sample was found to contain more than 300 nanograms of amphetamine and more than 300 nanograms of methamphetamine per millilitre of urine.  Sample WDT0529131 was positive for methamphetamine and amphetamine as per AS/NZS 4308:2001.  Ms Russell checked the GCMS results for the sample before the results were reported. 

[84]           Dr Russell stated that amphetamine can be present in urine as a breakdown product of methamphetamine use.  Amphetamine did not form methamphetamine in the body.  She understood amphetamine was a class B controlled drug listed in Part 2 of the Second Schedule of the Misuse of Drugs Act 1975.  Methamphetamine (‘P’ or ‘Speed’) was a stimulant drug, which was illegal in New Zealand.  She believed it was a Class A controlled drug for the purposes of that Act.  She stated that none of the various drugs that the defendant indicated to Mr Bevege on 12 May 2005 (exhibit 12) and Ms Palmer on 7 May 2005 (exhibit 5) that she had taken by way of medication could be metabolised or affected in such a way that it could produce a positive result for methamphetamine or amphetamine in urine.

[85]           Dr Russell stated:

 “At the cut-off levels stated in AS/NZS4308:2001, I expect to detect methamphetamine for up to 2 to 4 days after use.  The metabolism of the methamphetamine to amphetamine in the body accounts for at least some of the amphetamine found in the sample and possibly for all the amphetamine found in the sample.  It is not possible to determine whether or not some of the amphetamine found in the urine sample would have originated from separate amphetamine use.” (p 4)

[86]           Dr Russell said that in her opinion, as a forensic toxicologist, the only way that methamphetamine and amphetamine could be found in urine would be because methamphetamine had been consumed.  She said it was very important to find both because amphetamine is a metabolite of methamphetamine; it was one of the breakdown compounds formed in the body after the use of methamphetamine.  In a urine sample both would be expected to be seen, because urine is the waste product of the body.  She said amphetamine may not necessarily be at the cut-off level but there would be some present.

[87]           Dr Russell stated that the methamphetamine level was so far above the ESR top calibration standard, she could only estimate it, and she estimated it to be in the vicinity of 20,000 to 30,000 nanograms per millilitre.  The cut-off level was 300 on the confirmatory test.  The amphetamine was above the top calibration standard, and was estimated it to be in the vicinity of 4,000.  The cut-off level was again 300.

[88]           Dr Russell told this Committee she had overseen and peer reviewed the testing and the results of sample WDT0529131.  She said that she particularly remembered it coming in because a technical assistant working under her supervision, Ms Nicholson, had called her into the laboratory, and she had observed that it contained debris that appeared to be hair or straw.  Under cross-examination, Dr Russell described the hair as “short, straight, fine”(p 48).  She said she did not see mucus in the sample and concluded that it may have been dissolved.  Dr Russell also gave evidence that the ESR’s workplace drug testing programme receives about 35,000 samples per year and that she had never encountered a sample with straw or hair in it before.

[89]           Dr Russell said that she did not detect any contamination of the sample that might have affected the validity of the result.

[90]           She agreed that 28 mls could have been enough for analysis but this depended on the protocol of the company, in this case NZTR, and the quality of the person who was analysing the samples.  She accepted there was no 30 ml cut-off point in the standards.  The 30 ml cut-off was based on a number of things.  It was a common one that the ESR used.

[91]           Mr Harold Brown, an analyst employed in the Specialised Analytical Services Group of the ESR, who completed the confirmatory test in relation to the defendant’s sample, gave oral evidence.  He stated he had worked in the ESR’s Workplace Drug Testing Team since 1997.  His duties included the analysis of human urine samples for drugs of abuse. 

[92]           Mr Brown stated on the morning of 11 May 2005 he commenced his duties as confirmation analyst for the workplace urine drug testing programme.  He continued and completed the workplace drug testing standard laboratory procedure for the amphetamines confirmation analysis.

[93]           This standard laboratory procedure had been started the previous day by analyst Ms Nicholson.  This confirmation analysis involved the preparation of samples and standards for GCMS.  The analysis he continued, included a known drug-free urine sample, calibration standards of known concentration and identity, low and high quality control samples, and four urine samples that had screened positive for amphetamines by immunoassay on 10 May 2005.  The WDT sample numbers of these four urine samples matched those on the test tubes with which he continued the amphetamines analysis.  He transferred the prepared extracts for GCMS analysis to corresponding numbered sample vials. 

[94]           Mr Brown stated he placed these vials on the GCMS sample carousel in the correct positions as detailed in the sampling sequence.  His positioning of the sample vials on the GCMS sample carousel was checked by analyst, Ms Nicholson, who then signed the printout of the sampling sequence.  He then commenced the GCMS analysis. 

[95]           Also on 11 May 2005 Mr Brown observed the appearance of urine sample WDT0529131 and checked Ms Nicholson’s additional analyses regarding this sample’s composition. 

[96]           On 12 May 2005 Mr Brown performed the data analysis on amphetamines confirmation samples.  He identified methamphetamine and amphetamine to be in sample WDT0529131 and the amounts present were greater than the confirmation cut-off levels as laid out in AS/NZS 4308:2001 (300 nanograms per millilitre).  Accordingly, he reported sample WDT0529131 to have confirmed positive for both methamphetamine and amphetamine on the amphetamine confirmation worksheet. 

[97]           Mr Brown said Dr Russell peer checked all his data analysis calculations and conclusions, and agreed they were correct.  Therefore sample WDT0529131 was reported as positive for methamphetamine and amphetamine. 

[98]           Mr Brown further stated that he signed a urine drug test report for sample WDT0529131 sample ID 276963 received 10 May 2005, person’s name Lisa Cropp.  This report stated the sample was positive for methamphetamine and amphetamine as defined by AS/NZS 4308:2001.  This signed report dated 12 May 2005 (exhibit 11) was sent to NZTR, Wellington. 

[99]           Mr Brown said, with respect to contamination:

“When methamphetamine is metabolised in the body, the amphetamine levels are produced as a metabolite of methamphetamine.  The ratio of the amphetamine to methamphetamine is very important to determine that the methamphetamine has been metabolised….  And therefore it is not just possible contamination".  (p 7)

Mr Brown continued by explaining:

“Well methamphetamine, when it has been absorbed into the body, is metabolised and excreted from the body.  Part of that metabolism and excretion process involves the production of amphetamine and the level of amphetamine to methamphetamine is important to show that the methamphetamine has been taken into the body and metabolised and is not a, just a, an addition of methamphetamine to a urine sample by contamination”.

[100]       Mr Brown stated that the amphetamine level relative to methamphetamine is normally of the order of 10% to 20%, and confirmed that that ratio was consistent with the ratios detected in the defendant’s urine sample.  When asked what that indicated in the present case, he replied:

“It indicates our belief that the methamphetamine was metabolised within the body and what we have detected has come from use of the methamphetamine by a person.” (p 8)

[101]       With reference to the levels detected in sample WDT0529131, Mr Brown stated:

“They are estimates because the levels exceeded the top standard of our computation, but an approximate level of say 3,800 for amphetamine relative to an estimated average of 27,000 for methamphetamine, and that falls within that percent ratio percentage.” (p 8)

[102]        Later during further cross-examination, Mr Brown stated:

“From the results found the ratio of amphetamine to methamphetamine would indicate that it was metabolised within the body and the two drugs found, amphetamine and methamphetamine are metabolised from methamphetamine.”  (p 27)

[103]       In response a question from the Chair as to whether it was unusual for a methamphetamine level to be as high as the defendant’s level, Mr Brown stated, “No…. Certainly nothing unusual.” (p 57) 

[104]       Cross-examined by Mr Hart, Mr Brown was questioned were he collecting such a sample in an ideal situation, would he be inclined to ask for a further sample if someone ended up putting their hand or fingers in the vicinity of the sample itself.  Mr Brown replied:

“I’m not a urine collector, but I’d have to be convinced that the sample was contaminated.  If I believed that it wasn’t contaminated I would just continue with the procedure….  As a collector I would keep that sample, because I would say to myself, well why would somebody perhaps contaminate that sample, why would they have wanted to contaminate that sample.” (p 32)

[105]         When further questioned as to what he would do on observing straw, hair and mucus in the sample, Mr Brown said if that was the sample presented to him by the donor, and the donor was prepared to sign the form saying this was his or her sample, then it should be collected and sent for analysis.

[106]       The informant also called Mr Alan Fenwick, the Chief Executive of NZTR, Mr John McKenzie, Chief Racecourse Inspector, and Mr Bryan McKenzie (a second time) to give evidence.  Their evidence related to the matters of the consent by Mr Fenwick to file an information against the defendant and whether the Racecourse Inspector had received written consent from the Chief Executive to file the informations.  These matters were dealt with in Rulings on 9 August 2005 and 18 August 2005, to which reference has already been made in paras [4] and [5].  This evidence is thus not recounted in this decision. 

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