Non Raceday Inquiry – L K Cropp 11 March 09 pt 3
ID: JCA20601
Hearing Type (Code):
thoroughbred-racing
Decision:
8 The defendant’s final submissions
[150] We now outline the defendant’s submissions. We do so by way of a brief summary before considering our response to them.
--[151] The defendant first submitted that the charges before this Committee should be dismissed because the ultra-high level reading raised a serious risk that the defendant’s sample was contaminated and/or adulterated. The defendant referred to the research evidence introduced by Dr Couch (exhibit Q) which Mr Shaw said confirmed that at the defendant’s levels non-P addicts would most probably be dead, and submitted there was no evidence that the defendant was a P addict.
--[152] The collector, Ms Palmer, had also allegedly failed to convey, on or attached to the chain of custody form, crucial information to the ESR relating to mucus and “bits” having been found in the sample, which indicated contamination and/or adulteration of the sample. Mr Shaw also said information relating to the “finger in the urine/pottle aperture” incident should have been recorded and conveyed to the ESR. Had this crucial information been provided to the ESR, the defendant submitted that as a certified AS/NZS laboratory, ESR personnel would have been bound not to analyse the sample and would have been bound to require a resample.
--[153] The defendant further submitted that there was a break in the chain of custody which was such that an opportunity was created for contamination or adulteration of the sample to such an extent that the subsequent analysis should not be relied upon. With reference to this, it was alleged that there was a fundamental breach in the collection part of the chain of custody when Ms Palmer left the two sample bottles unattended on a table for several minutes.
--[154] The NZTR drug testing protocol for riders was alleged to be inadequate and unfair to all stakeholders (including the donor) in terms of its collection procedures.
--[155] It was further submitted that there was no legally effective waiver of her right to a B sample by the defendant, or informed consent. Any such waiver, or informed consent, had to be in writing. Accordingly, the defendant’s sample results should not be received by this Committee and could not be relied upon to prove either of the charges.
--[156] The drug testing protocol’s provisions, the defendant submitted, amounted to an unreasonable search and seizure in breach of s 21 of the New Zealand Bill of Rights Act 1990.
--[157] The specific collection of the defendant’s sample, purportedly under the protocol, was said by the defendant to amount to an unreasonable search and seizure in breach of s 21. The defendant’s sample results, obtained in breach of the Bill of Rights, should not be received by this Committee and could not be relied upon to prove either of the charges.
--[158] The integrity of the defendant’s sample result, the defendant argued, was materially compromised because of fundamental deficiencies in the collection procedure. It followed that the collection was unfair and the ESR’s analysis of the sample was unsafe and could not be relied upon to prove either of the charges.
--[159] As a final matter, the defendant pointed to the fact that the Rulebook she possessed at the time of the testing contained a reference in R 528 to the Misuse of Drugs Act 1971, when it should have been the Misuse of Drugs Act 1975.
--[160] We have heard oral and written submissions from the defendant on these matters. In setting out our findings below we have adopted headings that we believe will assist us to focus on the key matters raised in the defendant’s submissions. These are not headings that counsel for the defendant identified in his final submissions but we trust we do him and his arguments no disservice by breaking down and ordering his extensive and wide-ranging oral submissions in such a fashion.
--[161] Notwithstanding the informant’s submission (as noted at para [149]), we will consider both whether the elements of the charge under R 528 have been established by the informant to the enhanced civil standard, and whether the alleged breaches of the drug testing protocol and alleged lapses in procedure are such as to render as unreliable the evidence obtained as a consequence of the analysis by the ESR of the defendant’s sample, and therefore that this evidence should be disregarded by this Committee.
--9 This Committee’s findings
--[162] We turn now to consider the defendant’s submission that the informant has failed to prove, to the requisite legal standard, the charge under information 64994. Counsel emphasises that the defendant has consistently and continuously denied ever taking methamphetamine.
--(a) The sample’s ultra-high reading
--[163] The defendant’s first submission related to what the defendant described as the sample’s “ultra-high reading”: the levels of methamphetamine found in the defendant’s urine were recorded as 20,000 to 30,000 in exhibit 11and were sostated in the evidence of Dr Russell and Mr Brown. It was contended that this reading alone raised a very high and serious risk that the defendant’s sample was contaminated and/or adulterated.
--[164] It is by no means common ground between the parties that the defendant’s level is unusually high. Mr Brown, the ESR confirmation analyst, said in evidence that it was not unusual for a level to be that high. He stated that he undertakes testing on a daily basis for the ESR. His response has to be considered in the context that there is evidence before us that the ESR is undertaking workplace drug testing, dealing with over 35,000 samples a year.
--[165] Dr Couch said he disagreed with Mr Brown’s statement that the defendant’s level was not unusually high. He cited from a textbook by Baselt R, Disposition of Toxic Drugs and Chemicals in Man, 6th ed, (2002), 646-647 (exhibit Q), which considered research evidence relating to levels of methamphetamine use. (We note in passing that we do not consider the dispute between counsel, as to whether Dr Couch was qualified to give this evidence or whether the 6th or 7th edition of Baselt should be cited, to be of any great moment with respect to this particular issue.)
--[166] The particular extract from Baselt, at 647, that was cited to us was: “Methamphetamine concentrations of 4.3 and 5.6 mg/L in blood and 28 and 320 mg/L in urine were measured postmortem in 2 cases of death by oral ingestion of the drug (Patterson & Peat, 1976; Kojima et al, 1984).” Dr Couch explained that these equated to 28,000 nanograms per ml, and 320,000 nanograms per ml. We note earlier on that page it is stated: “Methamphetamine concentrations of 24-333 mg/L (average, 142) and amphetamine concentrations of 1-90 mg/L (average, 18) were observed in the urine of methamphetamine abusers (Lebish et al 1970)”.
--[167] In determining the weight we give to this evidence, we note the research cited by Baselt is somewhat dated, being from the 1970s and 1980s. There is one exception. Baselt refers to 1998 research with respect to a range of 0.09 to 18 (average 0.96 mg/L) in a series of 13 deaths attributed to methamphetamine over-dosage. The Table “Drug Concentrations in a Methamphetamine Fatality” to which reference was made by counsel for the defendant, we observe described the author’s own measurements made in 1986 of one particular fatality after nasal insufflation of methamphetamine.
--[168] We do not accept that the research recorded in Baselt states that a non-P addict with the level returned by the defendant would be dead, as was alleged by the defendant in final submissions. The conclusion reached by Dr Couch was: “What that [the text] told me is that levels of 28,000 nanograms per ml in perhaps people who weren’t drug addicts or under any drug rehabilitation programme that these people died with such a concentration in their urine…. I would look upon 28,000 nanograms per ml as a very high concentration for a person to excrete those drugs.” (p 26) The text simply refers to the fact certain levels were found in post-mortem analyses in cases where death was as a consequence of methamphetamine use or overdose. We also note that Dr Russell, who has the requisite expertise in this area, was never asked by the defendant to comment on whether there was anything untoward, exceptional or life-threatening in the levels of methamphetamine found in the defendant’s urine.
--[169] We accept, of course, that there is no evidence that the defendant was a “P” addict and that she has consistently denied taking methamphetamine. There were no concerns with respect to Ms Cropp’s riding performance on the day. She rode three winners and had a second placing. We also observe the defendant gave a clear sample on 12 May, the day that she was notified of the result of the 7 May test, and she has given numerous clear samples subsequently.
--[170] Any application to New Zealand of these research findings recorded by Baselt, in our opinion, should be treated with care. There was no evidence before this Committee as to the relevance of this research to methamphetamine use in New Zealand in 2005. Dr Couch, under cross-examination, stated he was not awareof any New Zealand studies on the toxic levels or toxicity of the local product.
--[171] We are satisfied that the defendant’s level of methamphetamine was high, but not so high that this Committee would have concerns that this somehow affected the integrity of the sample or the validity of the result.
--(b) Contamination
--[172] The defendant’s second submission is that the sample is contaminated. This is not disputed. What is in dispute is whether that contamination has affected the integrity of the sample to such an extent that the result is in error, and that the evidence is unreliable and should therefore be disregarded by us.
--[173] As we say, the parties agree that the defendant’s urine specimen ID number 276963 was contaminated. It is accepted that the sample contained at least one hair and “bits” (most probably straw). Ms Palmer indicated on her drug testing record (exhibit 5) that it also contained “mucous” (sic). This mucus was not detected when the specimen was analysed.
--[174] The source of the contamination is not clear. The informant’s position was that the contamination was a deliberate ploy by the defendant to frustrate the testing process. We are not satisfied to the necessary standard that this was the case. When questioned by this Committee, the defendant explained that when entering the toilet she had placed the pottle on the ground because she needed two hands to undress. She said she had put the pottle directly in front of her and she believed that this was when the hair and straw had dropped in. She said she had not noticed them before she urinated. It was not until the nurse divided the specimen that they came to her attention.
--[175] As the informant notes in their final submissions, the position of the pottle on the floor of the lavatory cubicle was never put to Ms Palmer for her comment. However, we are satisfied that the straw and hair may have entered the pottle as a consequence of them falling as a residue from the defendant’s clothing or person. This is a perfectly reasonable explanation, which we accept, although we do note that despite there being over 200 samples from jockeys tested each year by the ESR, Dr Russell’s evidence was that the presence of debris was very unusual. She had been working for the ESR since 1993 and debris of this nature (hair and what appeared to be straw) had never been present in a sample. In a similar vein, Ms Turner told us that the ESR was then analysing approximately 34,000 workplace drug testing samples per annum and she was not aware of any other instance where the ESR had encountered a sample containing contaminants of this sort.
--[176] Ms Palmer also stated that she had never encountered such debris in her eight years of experience of taking samples for NZTR and 30 years of general experience of taking samples. Significantly, in our view, under cross-examination Ms Palmer stated that she did not see the defendant deliberately tampering with the sample.
--[177] There is no evidence that anyone other than the defendant or Ms Palmer, who stated she was wearing gloves, which she changed after each collect, may have touched the inside surfaces of the collection pottle after it had been unsealed. We discount any third party contamination of the pottle by this means.
--[178] No expert witness has stated that the presence of hair or “bits” in Ms Cropp’s urine sample was likely to have affected the integrity of the sample or the reliability of the result of the testing. Dr Couch, who was the least certain on this point, accepted it would be unlikely that methamphetamine and amphetamine would be introduced in the particular ratios through either of these sources.
--[179] Dr Couch was critical of the fact that the ESR was not made aware of the mucus observed by Ms Palmer. We observe that this issue was never put to any of the informant’s expert witnesses for comment and, in particular, they were never questioned as to whether they would have continued with the analysis had they known of the presence of mucus.
--[180] Dr Couch was of the view that this mucus was a possible source of contamination and could have affected the integrity of the result. As no other drug or substance can explain the presence of both methamphetamine and amphetamine, this mucus would need to have contained metabolised methamphetamine. There has been no evidence to suggest the pottle was contaminated, so the source of the mucus must have been Ms Cropp herself. As she had just urinated into the pottle, the strong inference is that it was passed during the defendant’s act of urination. We note that Dr Couch’s one line comment that it might have been horse mucus has no foundation in the evidence.
--[181] We emphasise again that no expert witness, with the exception of Dr Couch’s reference to the mucus, was of the view that the contaminants, in themselves, would invalidate any subsequent analysis.
--(c) The failure to wash hands / Finger in pottle
--[182] Another source of unspecified contamination, Mr Shaw alleged, was the failure by the defendant to wash her hands prior to the collect. The drug testing protocol does not require hand washing and Ms Palmer did not require the defendant to do so on either of the occasions she presented herself at the testing station. Dr Couch gave evidence that the washing of hands was essential to the integrity of the collect, and Ms Weaver said that a failure to wash hands would affect the full application of the AS/NZ standard. We note that one, at least, of the persons involved in establishing the protocol, Ms Turner, was also involved in formally reviewing this standard. As we note at para [232], the protocol has to be considered in the context of the particular needs of the racing industry. The omission of this requirement is readily understandable. Significantly, there has been no evidence placed before us to the effect that there was any contamination by way of metabolised methamphetamine from this source.
--[183] It is common ground between the parties that the defendant either attempted to put her finger in the urine sample or did, in fact, do so.
--[184] The defendant said she and the nurse were both sitting down after the collect when she noticed a hair in the urine sample and she went to put her finger in the urine to flick it out. Ms Cropp said, “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.” (pp 20- 21)
--[185] Ms Palmer was cross-examined on this issue. She said that she saw the defendant put her finger in the pottle but did not see it touch the urine. She said there was a big gap between the urine and the rest of the pottle. She told the defendant not to touch the straw.
--[186] We are satisfied that the defendant’s bandaged right index finger did enter the aperture of the pottle, but on Ms Palmer instructing her to remove her finger, Ms Cropp did so before she actually touched the urine. We thus accept Ms Palmer’s evidence on this issue. We find there was quite a gap between the urine and the top of the pottle. Significantly, Ms Palmer was never asked in cross-examination whether she remembered the defendant wiping her finger on her silks, as the defendant states she did.
--[187] Any contamination involving the introduction of methamphetamine and amphetamine by means of the defendant’s finger when she put it into the mouth of the pottle, would have required her to have come into contact with material which would have had amphetamine and methamphetamine in metabolised ratios. This would then have had to be transferred to the sample. This was described by the informant as being a fanciful scenario. We agree.
--[188] We accept the defendant’s evidence that she reached into the pottle instinctively to remove the debris, and we refuse the informant’s invitation to conclude that she did so deliberately in the hope that it would render the sample useless for evaluative purposes.
--[189] We believe the failure of Ms Palmer to notify the ESR of the foreign matter in the sample (she had merely recorded this on her drug testing record) or that the defendant’s finger entered the aperture of the pottle has had no impact on the reliability of the testing of the sample. The ESR scientist, Ms Nicholson, who was undertaking the immunoassay part of the test, observed and noted the foreign matter, with the exception of the mucus, which may have dissolved by this time. The evidence from the three ESR witnesses for the informant was to the effect that the ESR would have continued with the analysis even if they had been notified of the foreign bodies. And indeed the ESR elected to continue to test the sample and to report the results of the analysis on an evidential basis, despite the fact they were aware there were contaminants in the sample. It is evident that the ESR did not believe that this would affect the integrity of the sample and render the results unreliable.
--(d) Could the presence of any other drug or substance account for the positive readings'
--[190] We turn to the possibility of some other drug or substance accounting for the positive methamphetamine and amphetamine readings.
--[191] Dr Russell told this Committee that none of the drugs listed by the defendant in her statements to Mr Bevege or Ms Palmer could account for the positive result for methamphetamine or amphetamine found in the sample. And this was never contended by the defendant to be the case.
--[192] Dr Couch, under cross-examination, 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. On the issue of whether there was any drug or substance that might account for the presence of amphetamine and methamphetamine from a source other than metabolism, he said, in response to a question from the Chairman, he could not identify any substance which could account for this.
--(e) The possibility of adulteration
--[193] The informant asked us to draw the inference that the defendant had deliberately taken on water in order to dilute her urine sample. We refuse to do this, as we believe any such conclusion would be speculative. We note also that in his written affidavit, Mr McKee, licensed trainer, stated the filly Sonatina, which was the defendant’s mount in race 4, sweats up a lot, and had done so on this occasion. This supports similar evidence given by the defendant and assists in accounting for the 1/2 kg over when the defendant weighed in after the race with her gear, (including saddle and two towels). We also note that, under cross-examination, Mr Oatham stated he could not exclude this possibility.
--(f) The break in the chain of custody
--[194] We indicated in Ruling No. 5 that we were satisfied that there were no breaks in the chain of custody and stated we would give our reasons in full in our final decision.
--[195] Counsel for the defendant submitted as part of a no case submission that there were gaps in the chain of custody such that there was no sufficient proof that the sample taken from the defendant was, in fact, the same sample attributed to her and tested at the ESR in Wellington. We note that Mr Shaw in his final submissions primarily refers to an alleged break when the sample bottles were left unattended whilst the nurse was taking the observed collect from the defendant.
--[196] We first trace the general chain of custody utilising the informant’s submissions, which we believe accurately recounts the evidence with respect to this particular issue. We then consider carefully under heading 9(g) the defendant’s submission that the bottles were left unattended, thereby breaking the chain.
--[197] Ms Palmer gave evidence that at 1.32 pm (13.32 hours) the defendant presented herself for sample collection. Ms Palmer obtained the collection kit, unsealed it and removed the two capped specimen bottles. Each bore the same unique reference number (and a bar code) of 276963. She also recorded this number on the Employment Drug Testing Form (exhibit 6).
--[198] The defendant provided a sample of her urine. It was only 28 mls, and so was not split. The “A” specimen bottle held the urine. The “B” bottle was empty. Ms Palmer asked the defendant to check the number from the specimen box and to satisfy herself that it corresponded. This was done twice. The defendant signed the drug testing form in verification of having done so.
--[199] The defendant was present when the specimen bottles were re-sealed and placed in the plastic pouch and sealed. Ms Palmer filled in the drug testing record and wrote in the same unique identification number 276963. She placed the specimen bottles into the security bag and watched as Racecourse Inspector, Mr Bryan McKenzie, sealed the bag and took it through to his office.
--[200] Mr Bryan McKenzie stated he put the sealed bag in a refrigerator in his locked office. He then arranged for the sealed bag to be uplifted from Te Rapa and dispatched by Skyroad Couriers to the ESR in Wellington.
--[201] Ms Turner gave evidence that the ESR laboratory records show on 10 May 2005 the ESR at Wellington received a sealed collection kit with a urine sample with the unique identification number 276963. The sample was delivered by Skyroad Couriers. It bore the name of Lisa Cropp and both specimen bottles were sealed.
--[202] Dr Russell stated that two specimen bottles were received by the ESR, Wellington. The sample identification number was 276963. Only one bottle, bottle “A”, contained urine. It also contained pieces of straw and hair.
--[203] Thus the specimen bottles at Te Rapa and at Wellington bore the same name, date and were signed by the defendant. Each bottle shared the same unique identification number 276963. The documentation the ESR received were duplicate originals of the same document filled out by Ms Palmer at Te Rapa. In relation to the sample bottles received in Wellington, the specimen seals were intact, as were the tamper proof seals on the bottles. The “A” specimen bottle contained urine, the “B” bottle was empty. The specimen bottle containing urine contained 28 mls. The same courier, Skyroad couriers, were involved. The “A” sample received at the ESR and analysed contained remnants of straw and hair. (This was stated by the three witnesses from the ESR to be an extremely rare occurrence, and this further reinforces that the sample analysed was the same sample as that taken from the defendant at Te Rapa).
--[204] We also note the evidence of Ms Turner to the effect that “Laboratory records show a urine sample was received from Lisa Cropp on 10 May 2005.” This statement was not challenged in cross-examination.
--[205] Mr Shaw raised two further matters in his final submissions. He stated there was no evidence as to when Ms Palmer unsealed the bottles, nor that the refrigerator into which the sealed package was placed was locked. On the second point, we note that Mr McKenzie’s office, in which the refrigerator was located, was expressly stated by Mr McKenzie to be locked and there is absolutely no evidence to suggest that the sealed package or samples had been tampered with.
--[206] As to the former point, neither Ms Palmer nor Ms Cropp, in giving evidence, state when the seals on the two bottles were broken. However, Ms Palmer states that she unsealed the pottle before accompanying Ms Cropp to the toilet. Mr Shaw is asking us to infer that the bottles were also unsealed at this time. Ms Cropp’s evidence is helpful in this regard. When questioned by Mr Shaw as to what Ms Palmer did with the two bottles, she replies, “She stands them upright, then she picks up a pottle and she peels the lid off like a yoghurt thing.” Any suggestion Ms Cropp may have been confusing bottle and pottle is dispelled by her reply to the further question, “What did the nurse do with the pottle once the seal had been removed?” The defendant says, “She then handed it to me and she gestured towards the toilet area.” There is simply no evidence before this Committee to the effect that the bottles were opened before the defendant went to the toilet.
--(g) Were the bottles out of Ms Palmer’s sight?
--[207] As we said at para [195], a principal plank of the defendant’s submission that there is a break in the chain of custody is that the bottles were allegedly left unattended by Ms Palmer when she undertook an observed collect of the defendant’s urine sample.
--[208] We accept Ms Palmer’s evidence that after the defendant arrived at the drug testing station at 1.32 pm (13.32 hours) she went to the bench and unsealed and opened a biological specimen kit (exhibit 9). She took out the pottle, removed the seal, emptied out the two capped, sealed sample bottles and paperwork, and handed the defendant the urine collection pottle. She said the defendant entered the toilet, and that she went to the door and explained that she was required to observe the defendant. After approximately two minutes, Ms Palmer said, she became aware the defendant had provided a sample. The defendant passed the pottle to her before dressing. They both went to the bench and the balance of the process was completed in the defendant’s presence.
--[209] This evidence was supplemented by Ms Palmer demonstrating to this Committee the manner in which she unsealed the biological specimen kit. She emphasised the sample bottles have flick up tops with seals and these need to be opened before the urine sample from the pottle is placed inside the specimen bottle.
--[210] There is conflicting evidence as to whether Ms Palmer placed herself in the doorway of the toilet cubicle so that she could observe the defendant providing a urine sample, and whether she had thereby positioned herself in such a way that she would also have seen anyone who might have come into the drug testing station and tampered with the specimen bottles on the bench.
--[211] Ms Palmer said that it was her practice to “stand right in the doorway” and watch the jockey. She said that she was not “in the room around the bowl. I am at the door. So I am looking that they are doing the act without any tampering." (p 45) She said that she did this on every occasion and did not move from her position at the door.
--[212] The defendant gave evidence on this matter and made certain assertions of fact, which contradicted Ms Palmer’s evidence. The defendant said that the nurse came into the toilet and pulled the door closed behind her. The defendant said she undressed and after “a good few minutes” provided a sample. She said that Ms Palmer was standing close enough to her that she could have reached over and touched her. The defendant said that after she had provided the sample, Ms Palmer stayed with her until she was dressed and then “she went out and opened the door and shut the door behind her....” (p 20).
--[213] In assessing the reliability of Ms Cropp’s evidence, we note that she gave differing accounts of the nurse’s actions with respect to the first occasion she was in the toilet cubicle. Early in her evidence, when describing her first attempt at urination, she says, “[The nurse] followed me in. She did say something about I’m sorry I have to view or have to watch. She then closed the door and I went to the toilet.” In response to the question where was the nurse at this time, she replied, “She’s only like an arm’s length behind me, I suppose …. Well, if I’d reached over she was - - I could touch her probably, I could reach her.” (p 9)
--[214] Later in her evidence, she contrasts the actions of Ms Palmer on the second occasion with those on the first, stating
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.
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hearing_racingtype: thoroughbred-racing
startdate: 01/01/2001
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Non Raceday Inquiry - L K Cropp 11 March 09 pt 3
charge:
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appealdecision:
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submissionsfordecision:
reasonsfordecision:
Decision:
8 The defendant’s final submissions
[150] We now outline the defendant’s submissions. We do so by way of a brief summary before considering our response to them.
--[151] The defendant first submitted that the charges before this Committee should be dismissed because the ultra-high level reading raised a serious risk that the defendant’s sample was contaminated and/or adulterated. The defendant referred to the research evidence introduced by Dr Couch (exhibit Q) which Mr Shaw said confirmed that at the defendant’s levels non-P addicts would most probably be dead, and submitted there was no evidence that the defendant was a P addict.
--[152] The collector, Ms Palmer, had also allegedly failed to convey, on or attached to the chain of custody form, crucial information to the ESR relating to mucus and “bits” having been found in the sample, which indicated contamination and/or adulteration of the sample. Mr Shaw also said information relating to the “finger in the urine/pottle aperture” incident should have been recorded and conveyed to the ESR. Had this crucial information been provided to the ESR, the defendant submitted that as a certified AS/NZS laboratory, ESR personnel would have been bound not to analyse the sample and would have been bound to require a resample.
--[153] The defendant further submitted that there was a break in the chain of custody which was such that an opportunity was created for contamination or adulteration of the sample to such an extent that the subsequent analysis should not be relied upon. With reference to this, it was alleged that there was a fundamental breach in the collection part of the chain of custody when Ms Palmer left the two sample bottles unattended on a table for several minutes.
--[154] The NZTR drug testing protocol for riders was alleged to be inadequate and unfair to all stakeholders (including the donor) in terms of its collection procedures.
--[155] It was further submitted that there was no legally effective waiver of her right to a B sample by the defendant, or informed consent. Any such waiver, or informed consent, had to be in writing. Accordingly, the defendant’s sample results should not be received by this Committee and could not be relied upon to prove either of the charges.
--[156] The drug testing protocol’s provisions, the defendant submitted, amounted to an unreasonable search and seizure in breach of s 21 of the New Zealand Bill of Rights Act 1990.
--[157] The specific collection of the defendant’s sample, purportedly under the protocol, was said by the defendant to amount to an unreasonable search and seizure in breach of s 21. The defendant’s sample results, obtained in breach of the Bill of Rights, should not be received by this Committee and could not be relied upon to prove either of the charges.
--[158] The integrity of the defendant’s sample result, the defendant argued, was materially compromised because of fundamental deficiencies in the collection procedure. It followed that the collection was unfair and the ESR’s analysis of the sample was unsafe and could not be relied upon to prove either of the charges.
--[159] As a final matter, the defendant pointed to the fact that the Rulebook she possessed at the time of the testing contained a reference in R 528 to the Misuse of Drugs Act 1971, when it should have been the Misuse of Drugs Act 1975.
--[160] We have heard oral and written submissions from the defendant on these matters. In setting out our findings below we have adopted headings that we believe will assist us to focus on the key matters raised in the defendant’s submissions. These are not headings that counsel for the defendant identified in his final submissions but we trust we do him and his arguments no disservice by breaking down and ordering his extensive and wide-ranging oral submissions in such a fashion.
--[161] Notwithstanding the informant’s submission (as noted at para [149]), we will consider both whether the elements of the charge under R 528 have been established by the informant to the enhanced civil standard, and whether the alleged breaches of the drug testing protocol and alleged lapses in procedure are such as to render as unreliable the evidence obtained as a consequence of the analysis by the ESR of the defendant’s sample, and therefore that this evidence should be disregarded by this Committee.
--9 This Committee’s findings
--[162] We turn now to consider the defendant’s submission that the informant has failed to prove, to the requisite legal standard, the charge under information 64994. Counsel emphasises that the defendant has consistently and continuously denied ever taking methamphetamine.
--(a) The sample’s ultra-high reading
--[163] The defendant’s first submission related to what the defendant described as the sample’s “ultra-high reading”: the levels of methamphetamine found in the defendant’s urine were recorded as 20,000 to 30,000 in exhibit 11and were sostated in the evidence of Dr Russell and Mr Brown. It was contended that this reading alone raised a very high and serious risk that the defendant’s sample was contaminated and/or adulterated.
--[164] It is by no means common ground between the parties that the defendant’s level is unusually high. Mr Brown, the ESR confirmation analyst, said in evidence that it was not unusual for a level to be that high. He stated that he undertakes testing on a daily basis for the ESR. His response has to be considered in the context that there is evidence before us that the ESR is undertaking workplace drug testing, dealing with over 35,000 samples a year.
--[165] Dr Couch said he disagreed with Mr Brown’s statement that the defendant’s level was not unusually high. He cited from a textbook by Baselt R, Disposition of Toxic Drugs and Chemicals in Man, 6th ed, (2002), 646-647 (exhibit Q), which considered research evidence relating to levels of methamphetamine use. (We note in passing that we do not consider the dispute between counsel, as to whether Dr Couch was qualified to give this evidence or whether the 6th or 7th edition of Baselt should be cited, to be of any great moment with respect to this particular issue.)
--[166] The particular extract from Baselt, at 647, that was cited to us was: “Methamphetamine concentrations of 4.3 and 5.6 mg/L in blood and 28 and 320 mg/L in urine were measured postmortem in 2 cases of death by oral ingestion of the drug (Patterson & Peat, 1976; Kojima et al, 1984).” Dr Couch explained that these equated to 28,000 nanograms per ml, and 320,000 nanograms per ml. We note earlier on that page it is stated: “Methamphetamine concentrations of 24-333 mg/L (average, 142) and amphetamine concentrations of 1-90 mg/L (average, 18) were observed in the urine of methamphetamine abusers (Lebish et al 1970)”.
--[167] In determining the weight we give to this evidence, we note the research cited by Baselt is somewhat dated, being from the 1970s and 1980s. There is one exception. Baselt refers to 1998 research with respect to a range of 0.09 to 18 (average 0.96 mg/L) in a series of 13 deaths attributed to methamphetamine over-dosage. The Table “Drug Concentrations in a Methamphetamine Fatality” to which reference was made by counsel for the defendant, we observe described the author’s own measurements made in 1986 of one particular fatality after nasal insufflation of methamphetamine.
--[168] We do not accept that the research recorded in Baselt states that a non-P addict with the level returned by the defendant would be dead, as was alleged by the defendant in final submissions. The conclusion reached by Dr Couch was: “What that [the text] told me is that levels of 28,000 nanograms per ml in perhaps people who weren’t drug addicts or under any drug rehabilitation programme that these people died with such a concentration in their urine…. I would look upon 28,000 nanograms per ml as a very high concentration for a person to excrete those drugs.” (p 26) The text simply refers to the fact certain levels were found in post-mortem analyses in cases where death was as a consequence of methamphetamine use or overdose. We also note that Dr Russell, who has the requisite expertise in this area, was never asked by the defendant to comment on whether there was anything untoward, exceptional or life-threatening in the levels of methamphetamine found in the defendant’s urine.
--[169] We accept, of course, that there is no evidence that the defendant was a “P” addict and that she has consistently denied taking methamphetamine. There were no concerns with respect to Ms Cropp’s riding performance on the day. She rode three winners and had a second placing. We also observe the defendant gave a clear sample on 12 May, the day that she was notified of the result of the 7 May test, and she has given numerous clear samples subsequently.
--[170] Any application to New Zealand of these research findings recorded by Baselt, in our opinion, should be treated with care. There was no evidence before this Committee as to the relevance of this research to methamphetamine use in New Zealand in 2005. Dr Couch, under cross-examination, stated he was not awareof any New Zealand studies on the toxic levels or toxicity of the local product.
--[171] We are satisfied that the defendant’s level of methamphetamine was high, but not so high that this Committee would have concerns that this somehow affected the integrity of the sample or the validity of the result.
--(b) Contamination
--[172] The defendant’s second submission is that the sample is contaminated. This is not disputed. What is in dispute is whether that contamination has affected the integrity of the sample to such an extent that the result is in error, and that the evidence is unreliable and should therefore be disregarded by us.
--[173] As we say, the parties agree that the defendant’s urine specimen ID number 276963 was contaminated. It is accepted that the sample contained at least one hair and “bits” (most probably straw). Ms Palmer indicated on her drug testing record (exhibit 5) that it also contained “mucous” (sic). This mucus was not detected when the specimen was analysed.
--[174] The source of the contamination is not clear. The informant’s position was that the contamination was a deliberate ploy by the defendant to frustrate the testing process. We are not satisfied to the necessary standard that this was the case. When questioned by this Committee, the defendant explained that when entering the toilet she had placed the pottle on the ground because she needed two hands to undress. She said she had put the pottle directly in front of her and she believed that this was when the hair and straw had dropped in. She said she had not noticed them before she urinated. It was not until the nurse divided the specimen that they came to her attention.
--[175] As the informant notes in their final submissions, the position of the pottle on the floor of the lavatory cubicle was never put to Ms Palmer for her comment. However, we are satisfied that the straw and hair may have entered the pottle as a consequence of them falling as a residue from the defendant’s clothing or person. This is a perfectly reasonable explanation, which we accept, although we do note that despite there being over 200 samples from jockeys tested each year by the ESR, Dr Russell’s evidence was that the presence of debris was very unusual. She had been working for the ESR since 1993 and debris of this nature (hair and what appeared to be straw) had never been present in a sample. In a similar vein, Ms Turner told us that the ESR was then analysing approximately 34,000 workplace drug testing samples per annum and she was not aware of any other instance where the ESR had encountered a sample containing contaminants of this sort.
--[176] Ms Palmer also stated that she had never encountered such debris in her eight years of experience of taking samples for NZTR and 30 years of general experience of taking samples. Significantly, in our view, under cross-examination Ms Palmer stated that she did not see the defendant deliberately tampering with the sample.
--[177] There is no evidence that anyone other than the defendant or Ms Palmer, who stated she was wearing gloves, which she changed after each collect, may have touched the inside surfaces of the collection pottle after it had been unsealed. We discount any third party contamination of the pottle by this means.
--[178] No expert witness has stated that the presence of hair or “bits” in Ms Cropp’s urine sample was likely to have affected the integrity of the sample or the reliability of the result of the testing. Dr Couch, who was the least certain on this point, accepted it would be unlikely that methamphetamine and amphetamine would be introduced in the particular ratios through either of these sources.
--[179] Dr Couch was critical of the fact that the ESR was not made aware of the mucus observed by Ms Palmer. We observe that this issue was never put to any of the informant’s expert witnesses for comment and, in particular, they were never questioned as to whether they would have continued with the analysis had they known of the presence of mucus.
--[180] Dr Couch was of the view that this mucus was a possible source of contamination and could have affected the integrity of the result. As no other drug or substance can explain the presence of both methamphetamine and amphetamine, this mucus would need to have contained metabolised methamphetamine. There has been no evidence to suggest the pottle was contaminated, so the source of the mucus must have been Ms Cropp herself. As she had just urinated into the pottle, the strong inference is that it was passed during the defendant’s act of urination. We note that Dr Couch’s one line comment that it might have been horse mucus has no foundation in the evidence.
--[181] We emphasise again that no expert witness, with the exception of Dr Couch’s reference to the mucus, was of the view that the contaminants, in themselves, would invalidate any subsequent analysis.
--(c) The failure to wash hands / Finger in pottle
--[182] Another source of unspecified contamination, Mr Shaw alleged, was the failure by the defendant to wash her hands prior to the collect. The drug testing protocol does not require hand washing and Ms Palmer did not require the defendant to do so on either of the occasions she presented herself at the testing station. Dr Couch gave evidence that the washing of hands was essential to the integrity of the collect, and Ms Weaver said that a failure to wash hands would affect the full application of the AS/NZ standard. We note that one, at least, of the persons involved in establishing the protocol, Ms Turner, was also involved in formally reviewing this standard. As we note at para [232], the protocol has to be considered in the context of the particular needs of the racing industry. The omission of this requirement is readily understandable. Significantly, there has been no evidence placed before us to the effect that there was any contamination by way of metabolised methamphetamine from this source.
--[183] It is common ground between the parties that the defendant either attempted to put her finger in the urine sample or did, in fact, do so.
--[184] The defendant said she and the nurse were both sitting down after the collect when she noticed a hair in the urine sample and she went to put her finger in the urine to flick it out. Ms Cropp said, “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.” (pp 20- 21)
--[185] Ms Palmer was cross-examined on this issue. She said that she saw the defendant put her finger in the pottle but did not see it touch the urine. She said there was a big gap between the urine and the rest of the pottle. She told the defendant not to touch the straw.
--[186] We are satisfied that the defendant’s bandaged right index finger did enter the aperture of the pottle, but on Ms Palmer instructing her to remove her finger, Ms Cropp did so before she actually touched the urine. We thus accept Ms Palmer’s evidence on this issue. We find there was quite a gap between the urine and the top of the pottle. Significantly, Ms Palmer was never asked in cross-examination whether she remembered the defendant wiping her finger on her silks, as the defendant states she did.
--[187] Any contamination involving the introduction of methamphetamine and amphetamine by means of the defendant’s finger when she put it into the mouth of the pottle, would have required her to have come into contact with material which would have had amphetamine and methamphetamine in metabolised ratios. This would then have had to be transferred to the sample. This was described by the informant as being a fanciful scenario. We agree.
--[188] We accept the defendant’s evidence that she reached into the pottle instinctively to remove the debris, and we refuse the informant’s invitation to conclude that she did so deliberately in the hope that it would render the sample useless for evaluative purposes.
--[189] We believe the failure of Ms Palmer to notify the ESR of the foreign matter in the sample (she had merely recorded this on her drug testing record) or that the defendant’s finger entered the aperture of the pottle has had no impact on the reliability of the testing of the sample. The ESR scientist, Ms Nicholson, who was undertaking the immunoassay part of the test, observed and noted the foreign matter, with the exception of the mucus, which may have dissolved by this time. The evidence from the three ESR witnesses for the informant was to the effect that the ESR would have continued with the analysis even if they had been notified of the foreign bodies. And indeed the ESR elected to continue to test the sample and to report the results of the analysis on an evidential basis, despite the fact they were aware there were contaminants in the sample. It is evident that the ESR did not believe that this would affect the integrity of the sample and render the results unreliable.
--(d) Could the presence of any other drug or substance account for the positive readings'
--[190] We turn to the possibility of some other drug or substance accounting for the positive methamphetamine and amphetamine readings.
--[191] Dr Russell told this Committee that none of the drugs listed by the defendant in her statements to Mr Bevege or Ms Palmer could account for the positive result for methamphetamine or amphetamine found in the sample. And this was never contended by the defendant to be the case.
--[192] Dr Couch, under cross-examination, 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. On the issue of whether there was any drug or substance that might account for the presence of amphetamine and methamphetamine from a source other than metabolism, he said, in response to a question from the Chairman, he could not identify any substance which could account for this.
--(e) The possibility of adulteration
--[193] The informant asked us to draw the inference that the defendant had deliberately taken on water in order to dilute her urine sample. We refuse to do this, as we believe any such conclusion would be speculative. We note also that in his written affidavit, Mr McKee, licensed trainer, stated the filly Sonatina, which was the defendant’s mount in race 4, sweats up a lot, and had done so on this occasion. This supports similar evidence given by the defendant and assists in accounting for the 1/2 kg over when the defendant weighed in after the race with her gear, (including saddle and two towels). We also note that, under cross-examination, Mr Oatham stated he could not exclude this possibility.
--(f) The break in the chain of custody
--[194] We indicated in Ruling No. 5 that we were satisfied that there were no breaks in the chain of custody and stated we would give our reasons in full in our final decision.
--[195] Counsel for the defendant submitted as part of a no case submission that there were gaps in the chain of custody such that there was no sufficient proof that the sample taken from the defendant was, in fact, the same sample attributed to her and tested at the ESR in Wellington. We note that Mr Shaw in his final submissions primarily refers to an alleged break when the sample bottles were left unattended whilst the nurse was taking the observed collect from the defendant.
--[196] We first trace the general chain of custody utilising the informant’s submissions, which we believe accurately recounts the evidence with respect to this particular issue. We then consider carefully under heading 9(g) the defendant’s submission that the bottles were left unattended, thereby breaking the chain.
--[197] Ms Palmer gave evidence that at 1.32 pm (13.32 hours) the defendant presented herself for sample collection. Ms Palmer obtained the collection kit, unsealed it and removed the two capped specimen bottles. Each bore the same unique reference number (and a bar code) of 276963. She also recorded this number on the Employment Drug Testing Form (exhibit 6).
--[198] The defendant provided a sample of her urine. It was only 28 mls, and so was not split. The “A” specimen bottle held the urine. The “B” bottle was empty. Ms Palmer asked the defendant to check the number from the specimen box and to satisfy herself that it corresponded. This was done twice. The defendant signed the drug testing form in verification of having done so.
--[199] The defendant was present when the specimen bottles were re-sealed and placed in the plastic pouch and sealed. Ms Palmer filled in the drug testing record and wrote in the same unique identification number 276963. She placed the specimen bottles into the security bag and watched as Racecourse Inspector, Mr Bryan McKenzie, sealed the bag and took it through to his office.
--[200] Mr Bryan McKenzie stated he put the sealed bag in a refrigerator in his locked office. He then arranged for the sealed bag to be uplifted from Te Rapa and dispatched by Skyroad Couriers to the ESR in Wellington.
--[201] Ms Turner gave evidence that the ESR laboratory records show on 10 May 2005 the ESR at Wellington received a sealed collection kit with a urine sample with the unique identification number 276963. The sample was delivered by Skyroad Couriers. It bore the name of Lisa Cropp and both specimen bottles were sealed.
--[202] Dr Russell stated that two specimen bottles were received by the ESR, Wellington. The sample identification number was 276963. Only one bottle, bottle “A”, contained urine. It also contained pieces of straw and hair.
--[203] Thus the specimen bottles at Te Rapa and at Wellington bore the same name, date and were signed by the defendant. Each bottle shared the same unique identification number 276963. The documentation the ESR received were duplicate originals of the same document filled out by Ms Palmer at Te Rapa. In relation to the sample bottles received in Wellington, the specimen seals were intact, as were the tamper proof seals on the bottles. The “A” specimen bottle contained urine, the “B” bottle was empty. The specimen bottle containing urine contained 28 mls. The same courier, Skyroad couriers, were involved. The “A” sample received at the ESR and analysed contained remnants of straw and hair. (This was stated by the three witnesses from the ESR to be an extremely rare occurrence, and this further reinforces that the sample analysed was the same sample as that taken from the defendant at Te Rapa).
--[204] We also note the evidence of Ms Turner to the effect that “Laboratory records show a urine sample was received from Lisa Cropp on 10 May 2005.” This statement was not challenged in cross-examination.
--[205] Mr Shaw raised two further matters in his final submissions. He stated there was no evidence as to when Ms Palmer unsealed the bottles, nor that the refrigerator into which the sealed package was placed was locked. On the second point, we note that Mr McKenzie’s office, in which the refrigerator was located, was expressly stated by Mr McKenzie to be locked and there is absolutely no evidence to suggest that the sealed package or samples had been tampered with.
--[206] As to the former point, neither Ms Palmer nor Ms Cropp, in giving evidence, state when the seals on the two bottles were broken. However, Ms Palmer states that she unsealed the pottle before accompanying Ms Cropp to the toilet. Mr Shaw is asking us to infer that the bottles were also unsealed at this time. Ms Cropp’s evidence is helpful in this regard. When questioned by Mr Shaw as to what Ms Palmer did with the two bottles, she replies, “She stands them upright, then she picks up a pottle and she peels the lid off like a yoghurt thing.” Any suggestion Ms Cropp may have been confusing bottle and pottle is dispelled by her reply to the further question, “What did the nurse do with the pottle once the seal had been removed?” The defendant says, “She then handed it to me and she gestured towards the toilet area.” There is simply no evidence before this Committee to the effect that the bottles were opened before the defendant went to the toilet.
--(g) Were the bottles out of Ms Palmer’s sight?
--[207] As we said at para [195], a principal plank of the defendant’s submission that there is a break in the chain of custody is that the bottles were allegedly left unattended by Ms Palmer when she undertook an observed collect of the defendant’s urine sample.
--[208] We accept Ms Palmer’s evidence that after the defendant arrived at the drug testing station at 1.32 pm (13.32 hours) she went to the bench and unsealed and opened a biological specimen kit (exhibit 9). She took out the pottle, removed the seal, emptied out the two capped, sealed sample bottles and paperwork, and handed the defendant the urine collection pottle. She said the defendant entered the toilet, and that she went to the door and explained that she was required to observe the defendant. After approximately two minutes, Ms Palmer said, she became aware the defendant had provided a sample. The defendant passed the pottle to her before dressing. They both went to the bench and the balance of the process was completed in the defendant’s presence.
--[209] This evidence was supplemented by Ms Palmer demonstrating to this Committee the manner in which she unsealed the biological specimen kit. She emphasised the sample bottles have flick up tops with seals and these need to be opened before the urine sample from the pottle is placed inside the specimen bottle.
--[210] There is conflicting evidence as to whether Ms Palmer placed herself in the doorway of the toilet cubicle so that she could observe the defendant providing a urine sample, and whether she had thereby positioned herself in such a way that she would also have seen anyone who might have come into the drug testing station and tampered with the specimen bottles on the bench.
--[211] Ms Palmer said that it was her practice to “stand right in the doorway” and watch the jockey. She said that she was not “in the room around the bowl. I am at the door. So I am looking that they are doing the act without any tampering." (p 45) She said that she did this on every occasion and did not move from her position at the door.
--[212] The defendant gave evidence on this matter and made certain assertions of fact, which contradicted Ms Palmer’s evidence. The defendant said that the nurse came into the toilet and pulled the door closed behind her. The defendant said she undressed and after “a good few minutes” provided a sample. She said that Ms Palmer was standing close enough to her that she could have reached over and touched her. The defendant said that after she had provided the sample, Ms Palmer stayed with her until she was dressed and then “she went out and opened the door and shut the door behind her....” (p 20).
--[213] In assessing the reliability of Ms Cropp’s evidence, we note that she gave differing accounts of the nurse’s actions with respect to the first occasion she was in the toilet cubicle. Early in her evidence, when describing her first attempt at urination, she says, “[The nurse] followed me in. She did say something about I’m sorry I have to view or have to watch. She then closed the door and I went to the toilet.” In response to the question where was the nurse at this time, she replied, “She’s only like an arm’s length behind me, I suppose …. Well, if I’d reached over she was - - I could touch her probably, I could reach her.” (p 9)
--[214] Later in her evidence, she contrasts the actions of Ms Palmer on the second occasion with those on the first, stating
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