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

hearingid: 2709538b674fa231f5e04aa0b3d50d16

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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 1

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Decision:

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

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hearing_type: Old Hearing

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

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