Non-Raceday Inquiry – LK Cropp (Ruling)
ID: JCA21230
Hearing Type (Code):
thoroughbred-racing
Decision:
On Saturday 7 May 2005, New Zealand Thoroughbred Racing (NZTR) conducted a race meeting at Te Rapa Racecourse. The Racecourse Inspector, Mr Bryan McKenzie, decided to conduct routine drug tests on a number of riders
--
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
--________________________________________________________________
--RULING No.5 (14 FEBRUARY 2007) IN RESPECT OF
--SUBMISSION OF NO CASE TO ANSWER
--________________________________________________________________
--Table of Contents:
--Page
--1 Background 3
--2 Determining a No Case Submission 6
----3 Further Challenges to the Jurisdiction of the Committee to Hear the Informations Laid Against the Defendant 8
--3(a) Are the written permissions from the Chief Executive defective in that they refer to "laying" not "filing" an information? 8
--3(b) Are the written permissions from the Chief Executive sufficiently particularised 10
--3(c) Are the charges alternatives' 11
--3(d) Was the information in the prescribed form? 13
--3(e) Was the Executive Officer of the JCA authorised to receive non-raceday informations' 15
----4 Alleged Failure to Lawfully Require the Defendant to Give a Urine Sample 17
--4(a) Failure to specify a time: R 226(2)(d) 17
--4 (b) Was Ms Palmer an authorised person under the Rules' 19
----5 Alleged Errors in the Collection of the Defendant's Urine Sample 20
--5(a) Racecourse Inspector Mr B McKenzie as informant 20
--5(b) Chain of custody 21
--5(c) Failure to comply with AS/NZS 4308:2001 Standard 22
----6 NZTR Drug Testing Protocol 22
----7 Application of the New Zealand Bill of Rights Act 25
----8 Conclusion 36
----1 Background
--- --
- On Saturday 7 May 2005, New Zealand Thoroughbred Racing (NZTR) conducted a race meeting at Te Rapa Racecourse. The Racecourse Inspector, Mr Bryan McKenzie, decided to conduct routine drug tests on a number of riders. The defendant, Ms Lisa Cropp, was requested to provide a sample because she had previously been unable to supply a sample at a Hawkes Bay race meeting on 20 January 2005. Mr McKenzie stated in evidence that it was usual practice, when a jockey failed to give a sample, for that jockey to be tested the next time they rode at a meeting where testing was being conducted. At about 10.30 am the defendant was advised by Mr McKenzie that he required her to undergo a test and she was handed a drug testing notification form (exhibit 2). ------
- The defendant reported to the nurse, Ms Palmer, at the drug testing station, 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 states that for the sample to be split, 30 ml or more is required. Ms Palmer stated that in accordance with the protocol she advised the defendant that her sample was insufficient to split but was acceptable as a sample. The defendant was given the opportunity to return later to produce a sample of sufficient volume to be split, but she did not avail herself of this. The sample was forwarded to ESR for analysis. On 12 May 2005 ESR reported that the defendant's sample was positive for amphetamine and methamphetamine. ------
- The defendant was charged by Mr B McKenzie (with two informations, one being filed on 18 May 2005 (No. 62182), and the other on 23 May 2005 (No. 64994)) with a breach of R 528 of the Rules of Racing, in that she supplied a sample of urine which upon analysis contained a controlled drug in terms of the Misuse of Drugs Act 1975, namely methamphetamine and amphetamine. ------
- Rule 528(1) provided (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."
---- - 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, the Committee did not have jurisdiction to hear the matter. After hearing from both parties, the Committee delivered a ruling on 9 August 2005 that the Committee had jurisdiction. This was followed immediately by a further ground, with the submission being primarily directed to whether the Racecourse Inspector had received written consent from the Chief Executive to file the informations. A second ruling was delivered on 18 August 2005 which held that written consents had been received by Mr B McKenzie. ------
- A further submission of no case was made by the defendant. Despite assurances that the defendant's oral submissions would be brief, these continued over a period of more than four days with a number of discrete issues being raised for the consideration of the Committee. We raised with the defendant the difficulty that might arise with the determination of some of the matters raised in the no case submissions, especially the Bill of Rights issues, without the benefit of defence evidence. We deal with the matters raised on the basis of the informant's evidence and written legal submissions, and the defendant's oral submissions and written synopsis on all issues other than the prescription of the informations and the appointment of Mrs M Stanbury to receive non-raceday informations, in respect of which we received full written submissions. ------
- When issues arose relating to the prescription of non-raceday informations and the appointment of Mrs Stanbury to receive them, the Committee, at the request of the defendant, on 19 August 2005 requested that Mr J Grant, Chairman of the Judicial Control Authority (JCA), provide any relevant information or documentation. 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 the Committee to give evidence. A further issue as to the validity of the appointment of the Member of the Committee, Mr P Welch, had arisen during the course of the defendant's oral submissions. The Committee was of the view that Mr Grant could assist the Committee with evidence as to this issue. In Ruling No.3 on 18 October 2005 we required Mr Grant also give evidence with respect to this matter, and in Ruling No. 4 on 29 November 2005 we refused an application by the defendant that Mr Welch disqualify himself or that a separate independent committee be established to determine the matter. The defendant then filed an application to the High Court for judicial review. The defendant further requested that the hearing before the 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 the Committee to exercise the subpoena power was neither irrational nor disproportionate. ------
- 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 is required from the Committee in respect of whether Mr Welch was lawfully appointed as the Member of the 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), the Committee issued an amended summons requiring Mr Grant to appear before the Committee to answer questions put to him and to produce to the Committee any relevant documents relating to the form of the non-raceday information currently prescribed by the JCA, and the authority of the Executive Officer of the JCA, Mrs M Stanbury, to receive an information, where that information is filed other than during a race meeting. ------
- The hearing reconvened on 16 January 2007 when Mr Grant gave oral evidence and produced written documentary evidence and was cross-examined by the defendant. Counsel were permitted to make written submissions in response to Mr Grant's evidence. ------
- The defendant's further submissions as to "no case" 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. We deal with matters in this order, but first briefly consider the law relating to "no case". ----
2 Determining a No Case Submission
---- - In Auckland City Council v Jenkins [1981] 2 NZLR 363, at 365, Speight J identified that the correct approach to be taken to a submission of no case had been set out in a Practice Note of the Divisional Court of the Queen's Bench Division at [1962] 1 All ER 448; [1962] 1 WLR 227. Lord Parker CJ, in discussing this issue, said: ----
"A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
--Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."
---- - Speight J determined that this was applicable to New Zealand, and added at 365, himself: ----
"A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is "prima facie" ? a well understood phrase. A ruling that there is a prima facie case does not mean that of necessity if there is no evidence by way of rebuttal that a conviction must follow. It is merely that a conviction can properly follow and not be upset as being one which could not be made by a fact finding tribunal acting reasonably."
---- - With respect to a Judge Alone trial His Honour said: ----
"[A]t the stage where this matter comes for consideration the Judge is not required to ask himself "If no defence evidence is given am I going to convict?" He is not required to analyse the evidence and make a preliminary conclusion on such a hypothesis. He is entitled to defer his consideration, perhaps to re-examine the evidence, perhaps to hear further final submissions from counsel. All he is saying at that stage in ruling that there is a case to answer is that on the present state of affairs it would be open to him, after properly directing himself on law, to convict if on mature examination of the evidence he thinks it proper to do so, but he is not binding himself to any conclusions as to what evidence he will in fact accept. Having made such a ruling different courses may follow. The defence may or may not call evidence. If evidence is called then that becomes part of the total material fit for consideration. If, as here, no evidence is called, then the tribunal is required to listen to such submissions as counsel may wish to make, give consideration to the evidence which has been produced, and come to a final conclusion. And even in the face of a previous ruling of an answerable case, it still may be the dismissal of the information."
---- - In their written submissions as to jurisdictional challenges under Rule 1103, the defendant raises for the first time that the requisite standard to be met by the informant is that of beyond reasonable doubt, which applies at all stages of the proceeding, including collateral and technical challenges to process. In rejecting this submission we need only to refer to the cases cited above and to R v Flyger [2001] 2 NZLR 721, where the Court of Appeal said at para [23]: ----
"In a Judge alone trial the interests of justice indicate that, as a generality, the Judge should not form a view, possibly that the Crown evidence is conclusive of guilt, without the benefit of considered argument on the whole of the case, and before evidence adduced by an accused has been heard. There is an unacceptable risk of injustice, and certainly of the appearance of it, in a Judge forming and declaring a settled view on proof of guilt, at a premature, or potentially premature, stage of the trial."
---- - We thus do not apply the standard of beyond reasonable doubt but rather, having regard to the seriousness of the nature of the charge, whether we are satisfied, on the basis of credible evidence, of any particular matter that we have been required to determine. Ultimately, this will be whether the alleged breach of the Rules has been proved. (As the informant has suggested in their submissions, it may be, because of the seriousness nature of the breach of the Rules that is alleged, that this may be a standard approaching or even reaching the standard of beyond reasonable doubt. But that matter does not need to be determined in this no case ruling.) ----
3 Further Challenges to the Jurisdiction of the Committee to Hear the Informations Laid Against the Defendant
--3(a) Are the written permissions from the Chief Executive defective in that they refer to "laying" not "filing" an information?
---- - Rule 1103(1) provides: ----
"All proceedings shall be commenced by way of filing an information?."
---- - Rule 1103(4)(d) refers to an authority having to be given to "file" an information rather than "lay" an information. The defendant submits that the written permissions (exhibits 16 and 17) do not comply with the requirements of this Rule in that they refer to the laying of an information and are therefore defective and not an effective authority, with the consequence being "fatal", in that any information filed is a nullity. ------
- In response, the informant submits that the Rules of Racing do not require any form to be stipulated or prescribed for the written permission. All they say is required is that the written permission to commence the proceedings by means of an information be properly conveyed to the Racecourse Inspector. The technical wording of how that is to be achieved is not significant. ------
- We accept the informant's submission that the Rules of Racing do not require the written permission of the Chief Executive to be stipulated or prescribed in any particular form or manner. The key requirement under the Rules is that the written permission of the Chief Executive of NZTR to commence the proceedings by means of an information be received by the Racecourse Inspector. ------
- Commencement of proceedings is by means of filing an information. It is clear from the face of the written permissions of 17 May 2005 (exhibit 16) and 23 May 2005 (exhibit 17) that the Chief Executive is conveying to the Racecourse Inspector his authority to commence the proceedings against Ms Cropp by way of information. Each written permission from the Chief Executive correctly refers to R 1103(4)(d). There is no prejudice to the defendant as a consequence of the reference in each of the written permissions to "laying", nor is there any evidence before the Committee that this has confused or misled any person. ------
- We also note that the word "lay" in the context of an information is a frequently used expression in the context of commencing criminal proceedings under the Summary Proceedings Act 1957. We are satisfied that the Chief Executive, in using that expression, was intending to, and in fact has, conveyed his authority to commence proceedings. ------
- In addition, we find that the use of the word "lay" rather than "file" would fall within the purview of Rule 1119 in that it would be a minor defect, irregularity, omission or want of form. There is no miscarriage of justice. ----
3(b) Are the written permissions from the Chief Executive sufficiently particularised?
---- - Counsel for the defendant has submitted that the written permissions (exhibits 16 and 17) are defective because they fail to state or fully particularise the nature of the allegation made against Ms Cropp. They are insufficiently specific to constitute lawful authority. In support of the proposition that in cases requiring prior written consent there must be sufficient particularity to inform the Court that there were reasonable grounds to commence prosecution, the defendant cited R v Breckenridge (1905) 10 OLR 459; 10 CCC 180, R v Grant (1968) CCC 346 and R v Downey [1971] NI 224. These cases are decided with reference to different legislative requirements to those in the provisions in the Rules of Racing under consideration by the Committee, and with different factual bases. Consequently, they are of little assistance. ------
- What particularisation is given by the written permissions in this case? Each permission identifies the defendant and expressly refers to R 528(1) ? the provision in the Rules of Racing which creates the breach referred to in each of the informations filed by Mr McKenzie. ------
- An obvious reason for the requiring of a written permission from the Chief Executive is to ensure that prosecutions are commenced in good faith and on a sound evidential basis. We are satisfied that the Chief Executive did not "rubber stamp" his authorisation. Mr Fenwick has given evidence that prior to signing the written permissions, he perused the file prepared for his attention by NZTR employees and independently satisfied himself on each occasion that there were grounds for an information to be filed against the defendant for a breach of R 528. In each case, Mr Fenwick stated that he received not only the relevant files with supporting documents provided by his field staff, but also copies of the proposed charges. We are thus satisfied that Mr Fenwick was in an informed position in which to be able to exercise his power to authorise the prosecutions by way of his written permission. ------
- We do not believe that there is a defect or want of form in terms of the authorisation, but if there was, it would be cured by resort to R 1119 ? there being no miscarriage of justice. ----
3(c) Are the charges alternatives'
---- - Two informations have been filed alleging a breach of R 528 by the defendant. The first (No. 61282), filed on 18 May 2005, states: ----
"That on Saturday the 7th day of 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 day pursuant to the provisions of Rule 226(2)(d) of the New Zealand Rules of Racing and that you are thereby liable to the penalty or penalties which may be imposed upon you pursuant to the provisions of Rule 1003(1) of the said Rules."
---- - The second information (No. 64994), which is perhaps more simply expressed, was filed on 23 May 2005, and it reads: ----
"That on Satur
--
Decision Date: 01/01/2001
Publish Date: 01/01/2001
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: 7fc0e5c94e8ca32eae719f68fd30aac3
informantnumber:
horsename:
hearing_racingtype: thoroughbred-racing
startdate: 01/01/2001
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Non-Raceday Inquiry - LK Cropp (Ruling)
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
On Saturday 7 May 2005, New Zealand Thoroughbred Racing (NZTR) conducted a race meeting at Te Rapa Racecourse. The Racecourse Inspector, Mr Bryan McKenzie, decided to conduct routine drug tests on a number of riders
--
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
--________________________________________________________________
--RULING No.5 (14 FEBRUARY 2007) IN RESPECT OF
--SUBMISSION OF NO CASE TO ANSWER
--________________________________________________________________
--Table of Contents:
--Page
--1 Background 3
--2 Determining a No Case Submission 6
----3 Further Challenges to the Jurisdiction of the Committee to Hear the Informations Laid Against the Defendant 8
--3(a)
Are the written permissions from the Chief Executive defective in that they refer to "laying" not "filing" an information? 8--3(b) Are the written permissions from the Chief Executive sufficiently particularised
10--3(c) Are the charges alternatives'
11--3(d) Was the information in the prescribed form?
13--3(e) Was the Executive Officer of the JCA authorised to receive non-raceday informations'
15----4 Alleged Failure to Lawfully Require the Defendant to Give a Urine Sample 17
--4(a) Failure to specify a time: R 226(2)(d)
17--4 (b) Was Ms Palmer an authorised person under the Rules'
19----5 Alleged Errors in the Collection of the Defendant's Urine Sample 20
--5(a) Racecourse Inspector Mr B McKenzie as informant
20--5(b) Chain of custody
21--5(c) Failure to comply with AS/NZS 4308:2001 Standard
22----6 NZTR Drug Testing Protocol 22
----7 Application of the New Zealand Bill of Rights Act 25
----8 Conclusion 36
----1 Background
----
"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."
----2 Determining a No Case Submission
----"A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
--Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer."
----"A tribunal deciding whether or not there is a case to answer must decide whether a finding of guilt could be made by a reasonable jury or a reasonable judicial officer sitting alone on the evidence thus far presented. He is ruling in fact whether it is "prima facie" ? a well understood phrase. A ruling that there is a prima facie case does not mean that of necessity if there is no evidence by way of rebuttal that a conviction must follow. It is merely that a conviction can properly follow and not be upset as being one which could not be made by a fact finding tribunal acting reasonably."
----"[A]t the stage where this matter comes for consideration the Judge is not required to ask himself "If no defence evidence is given am I going to convict?" He is not required to analyse the evidence and make a preliminary conclusion on such a hypothesis. He is entitled to defer his consideration, perhaps to re-examine the evidence, perhaps to hear further final submissions from counsel. All he is saying at that stage in ruling that there is a case to answer is that on the present state of affairs it would be open to him, after properly directing himself on law, to convict if on mature examination of the evidence he thinks it proper to do so, but he is not binding himself to any conclusions as to what evidence he will in fact accept. Having made such a ruling different courses may follow. The defence may or may not call evidence. If evidence is called then that becomes part of the total material fit for consideration. If, as here, no evidence is called, then the tribunal is required to listen to such submissions as counsel may wish to make, give consideration to the evidence which has been produced, and come to a final conclusion. And even in the face of a previous ruling of an answerable case, it still may be the dismissal of the information."
----"In a Judge alone trial the interests of justice indicate that, as a generality, the Judge should not form a view, possibly that the Crown evidence is conclusive of guilt, without the benefit of considered argument on the whole of the case, and before evidence adduced by an accused has been heard. There is an unacceptable risk of injustice, and certainly of the appearance of it, in a Judge forming and declaring a settled view on proof of guilt, at a premature, or potentially premature, stage of the trial."
----3 Further Challenges to the Jurisdiction of the Committee to Hear the Informations Laid Against the Defendant
--3(a)
Are the written permissions from the Chief Executive defective in that they refer to "laying" not "filing" an information?"All proceedings shall be commenced by way of filing an information?."
----3(b) Are the written permissions from the Chief Executive sufficiently particularised?
----3(c) Are the charges alternatives'
----"That on Saturday the 7th day of 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 day 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."
----"That on Satur
sumissionsforpenalty:
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hearing_type: Old Hearing
Rules: 226.2.d, 528.1, 1115.8.a, 1103.1, 1103.4.d, 1003.1, 1103.2, 1103.1.b, 226.2, 105.1
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