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

hearingid: cbff747727d7316323a566d44ce98e41

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

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

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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, 6^th 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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