Non Raceday Inquiry – L K Cropp 11 March 09 pt 4
ID: JCA21849
Hearing Type (Code):
thoroughbred-racing
Decision:
[260] The following cross-examination by Mr Moore with respect to--the weight issue demonstrates the evasive attitude of the defendant to--questioning:
“Well, you told racecourse--inspector Bevege on 12 May, when he spoke to you after you got the positive--result, that you were taking Duramine and Sudomyl, which are both diet--pills. That was what you told him,--isn't it? ….. I must have.
----If you don't agree with me--I’ll show you your statement. Do you--want to have a look at your statement? ….. I'm saying if I said I was on diet--pills, yes.
----Mr Registrar, can we show--the witness that please. I’ve--highlighted the relevant passage for you. --Is that what you said on 12 May just a few days after 7 May on the same--day that you returned a positive result for methamphetamine in your urine? …..--This is in Bevege’s writing, yes.
----You’ve signed it, for--goodness sake. Are we going to play--these games are we? ….. I'm just suggesting, I didn't write it.
----Is that what you said or is--it not what you said? ….. Most likely I would have probably been on diet pills,--yes.
----You told us a short time ago--that you have a wonderful memory for the events of this time and yet you seem--to be having difficulty telling us what medication you were on at that time to--reduce weight. What do you say to that?--….. Well, - -
----Have you got a good memory--or a bad memory? ….. Yeah, I haven't - - I probably would have been on diet--pills, yes, definitely. Sudomyl. Because - - -
----So you were concerned about--your weight in May 2005, weren't you? ….. I know why. There was a horse I was riding on the next day after this race--day and it was a real lightweight in the weight for age. The 13th, yeah.
----So you were having weight--concerns in May 2005, weren't you? ….. It’s not concerns. It’s to keep it so that you get it down,--yeah.
----You were taking medication--to control your weight. Let’s put it--that way. Is that correct? ….. Yeah.
----Can I have that--back please. I mean, you did sign this--statement, didn't you? ….. Yeah, I know, I see that. I thought you said that I wrote it.” (p 48)
----[261] Ultimately, our decision as to whether or not the defendant--was told she could return later in the day and give a further sample, is a--matter of determining whether the informant’s witnesses or the defendant, in--giving her evidence, was the more credible. --We accept the informant’s evidence on this point. Whether words or gestures were used, or--both, we do not accept the defendant’s evidence that she was not told she could--return. We are satisfied and find as a--fact that the defendant was informed she could return and that she understood--this.
----[262] We are unaware whether NZTR practice has altered since the--defendant was tested. We would--recommend that provision be made, where a sample is insufficient to be split,--for the jockey to be informed both orally and by written notice of this fact,--and that the jockey be required to confirm in writing his or her--acknowledgement of this and an appreciation of his or her ability to return at--any later time in the day.
----[263] It was acknowledged by the parties and the expert witnesses--that jockeys have particular difficulty on raceday in providing a sample due to--the effects of wasting. There was--differing evidence before us as to whether 30 mls of urine was necessary, given--recent developments in technology, before a sample was able to be split. This is a matter that we believe NZTR and--their specialist advisors could investigate further.
----(j) Was the protocol followed?
----[264] --Counsel for the defendant questioned--whether the actual steps taken pursuant to the drug testing protocol, and--followed on the day in question for the collection of the defendant’s sample,--were reasonable. We observe it is said--in the Supreme Court in Cropp (above),--at para [18]:
----“A requirement to supply a bodily--sample, and the analysis of that sample, constitutes a search. Even when a contract exists between the body--requiring the sample and the person required to supply it, or to submit to its--being taken, if that body is exercising a public function the very entitlement--to conduct any search and also the manner in which a particular search is--conducted will be subject to scrutiny under s 21 of the Bill of Rights.”
----[265] Mr Shaw submitted that as a consequence of the multiple--breaches of the protocol, reasonable process was not followed. He said that the integrity of the sample--result was irretrievably compromised by the major deficiencies in the--collection process and procedures. --These deficiencies, he stated, were such that the ESR could not confirm--the results as complying with the AS/NZ standard. He referred to a number of breaches of, or deficiencies in, the protocol,--many of which he acknowledged were technical.
----[266] We now proceed to consider the breaches of or deficiencies--in the protocol, as submitted by counsel for the defendant in broad ranging--oral submissions:
----• The failure to designate the site as a drug testing--site. We note no confusion appears to--have arisen from this fact and there is no evidence of any member of the public--or a licence holder blundering into the testing area, in error, whilst the--defendant was being tested, or indeed at any time during the day.
----• Inadequate training for the collector, in that Ms Palmer--had not received training from the ESR. --We note that Ms Palmer had been briefed by Mr McKenzie, was a very--experienced infectious diseases nurse, and had eight years’ experience of--taking jockey samples. We are satisfied--that she followed the protocol and the absence of ESR training in collection--procedure has not affected the integrity of the sample result.
----• The failure by Ms--Palmer to identify the defendant. There--is no evidence that the defendant was mistaken for someone else or that someone--else was mistaken for Ms Cropp. We have--already indicated that we have found no breach of the chain of custody.
----• The failure of the nurse to report the presence of debris,--as noted in her drug testing record (exhibit 5), to the ESR on the chain of--custody form (exhibit 2). Dr Couch--stated that if his laboratory had been doing the test, and had he been told of--the mucus-like substance, he would have requested a resample or, at least,--consulted with the collecting organisation (in this case NZTR) for advice. The analyst conducting the immunoassay--analysis saw the debris, and Dr Russell, after being called to observe this--feature, said that she noted it by way of a “stickie” on her report, and--continued with the test of the sample, and reported the results. This observation was evident on the ESR drug--testing form (exhibit 6). There was--clear evidence before this Committee that the ESR did not believe the foreign--matter rendered the sample unreliable. --The ESR witnesses called by the informant were not questioned as to what--their response might have been were they alerted to the presence of mucus.--There is certainly no evidence before this Committee to the effect that the ESR--would have aborted the testing due to concerns as to the reliability of the--result. We have already commented on--the improbability of the mucus being from a third party, and the need for it to--have contained metabolised methamphetamine.
----• The failure of the nurse to report to the ESR the fact--that the defendant had placed a finger in the aperture of the pottle. We do not accept that this “voids” a sample,--as Dr Couch suggests, and a retest is compulsory, as any jockey could thereby--ensure a sample would not be tested. --Moreover, a finger in the aperture, as previously noted, does not--explain the presence of metabolised methamphetamine in the defendant’s sample.
----• The failure to exclude other jockeys from the testing area--whilst the defendant was being tested. --We note a jockey did enter the area, but this was whilst Ms Palmer was--completing the paper work after the defendant had given her sample, and that--this jockey was told to come back later. --Again we note that we have already indicated that we have found no--breach of the chain of custody.
----• The failure of Ms Palmer to split the sample, as raised in--Dr Couch’s evidence. This has been--referred to at para [227], and we re-iterate this is not a requirement of the--accredited testing laboratory, the ESR, and we attach no criticism to the--collector, Ms Palmer and, by implication, to NZTR because of this fact.
----• The untidy or dirty nature of the collection--surfaces in the drug testing station as alleged by the defendant in her--evidence. This was not the evidence of--Ms Palmer, who as an infectious diseases nurse, stated she was conscious of the--need for conditions to be sterile, so that there was no room for contamination--or cross-referential infection. We also--note Mr McKenzie’s evidence that he carefully prepared the testing area early--in the day, which included his wiping down the surfaces of the bench and--toilet. We again accept the evidence of--the informant’s witnesses and do not find any evidential foundation for counsel--for the defendant’s description of the testing station as being some kind of--“unhygienic shambles”.
----• The--failure by Ms Palmer to ensure that the defendant did not bring personal items--into the testing area. Ms Cropp stated--that she was wearing a necklace and her watch at the time of testing. There was no evidence either of these items--came into contact with the urine sample or that they somehow affected the--reliability of the sample result.
----• The--failure by Ms Palmer to afford the defendant privacy when excreting her--sample. On the defendant’s evidence, we--note the toilet cubicle door had been fully closed when Ms Cropp provided a--sample on her second visit. We have--already indicated we accept Ms Palmer’s evidence that she merely pulled the--door to, while she stood in the doorway. --It was an outward swinging door. --The requirement in the protocol is that privacy be given, so far as is--practicable. We believe this was--satisfied in this instance.
----• The--failure of Ms Palmer to inform the defendant that she could return later in the--day and donate another sample because the 28 ml was below the 30 ml threshold--for splitting. We have dealt with this--at subheading 9(i). We find as a fact--that Ms Cropp was told she could return later in the day and chose not to do--so.
----• The defendant was not told a specific time by Ms Palmer--when she could come back and provide another sample. There is no evidence the defendant was misled by this or--presented herself for a test only to find the nurse had left. We believe it was clear to the defendant--that she could return at any time up until a reasonable period had elapsed--after the conclusion of the last race on the day’s card. (We have held in Ruling No. 5 that the--failure by Mr B McKenzie to specify a time in the defendant’s request form--(exhibit 10) is not a breach of R 226(2)(d).)
----• Further matters raised (eg--absence of written waiver, no knowledge of the testing regime) have been--covered in our discussion of these issues under the earlier sub-headings to--Part 9 of this decision.
----[267] We give weight to these matters to the extent that they were--raised in evidence and formed part of the defendant’s submission that there was--a sufficient departure from the collection procedures to invalidate the--legality of the reported results.
----[268] We also consider under this heading the defendant’s--submission that the specific collection of the defendant’s sample, purportedly--under the protocol, amounted to an unreasonable search and seizure in breach of--s 21 of the Bill of Rights Act and, as a consequence, the defendant’s sample--results should not be received by this Committee and should not be relied upon--to prove either of the charges.
----[269] In rejecting the defendant’s submissions on this issue, we--note that many of the breaches that have been identified by the defendant and--considered by us were minor (“technical” to use Mr Shaw’s words) and--inconsequential, although Mr Shaw described their cumulative effect to be that Ms Cropp’s collection process was not in--compliance with the protocol, not reasonable, not in accordance with natural--justice or fairness, and shambolic. --We are satisfied that a proper process has been followed in this--instance: the actions of Mr McKenzie, Ms Palmer and the ESR laboratory were both--lawful and reasonable, and in general accordance with the protocol.
----[270] We believe the crucial question is: Is the integrity of the--sample result sufficiently discredited by these alleged deficiencies or--breaches, such that this Committee is unable to accept the defendant’s positive--readings as reliable? We are clearly of--the view that this question must be answered in the negative. The alleged breaches or deficiencies, neither--singularly nor cumulatively, are of such moment as to render the testing process--unlawful or unreasonable, nor are they such as to give an incorrect reading or--to prevent an accurate reading. If we--had any doubt about this matter, to the standard established in Z, we would--have given the defendant the benefit of that doubt.
----[271] We thus find that a request was lawfully made of the--defendant by Mr McKenzie, Racecourse Inspector, pursuant to R 226(2)(d), to--provide a sample of her urine to Ms Palmer and that Ms Palmer conducted the--test in accordance with the provisions of the NZTR drug testing protocol. We do not believe the actions of Mr McKenzie--and/or Ms Palmer to be an unreasonable search and seizure for the purpose of--the Bill of Rights nor to be in breach--of natural justice or fairness.
----(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] --Mr Shaw has submitted that information--64994 was defective because it referred to the Misuse of Drugs Act 1975,--whereas the defendant’s version of the Rules of Racing referred to the Misuse--of Drugs Act 1971. There is and has--been no 1971 Act. The defendant gave--evidence that when she was first told she had returned a positive sample, she had--ripped the page, which contained the text of R 528, out of her Rulebook. This page was introduced as exhibit L. No evidence was put before us that this was--the version of the Rules of Racing in force at the time the sample was taken--from Ms Cropp.
----[273] We do not accept that this reference to a 1971 Act--invalidates the charge as against the defendant. The law at the relevant time was as set out in R 528 as it is--expressed at para [18] of this decision. --It had not changed since this version of the Rules commenced with the--Constitution on 1 April 1999. The--notation to R 528 indicates that exhibit L is an extract from an earlier--version of the Rules of Racing. It is--unfortunate that the defendant held an outdated version of the Rules, but we--fail to see that she has suffered any detriment as a consequence. There has been no evidence placed before--this Committee demonstrating that she has been misled or prejudiced in her--defence to the charge.
----[274] The Rules of Racing were not erroneous as at the date of the testing of--the defendant. We do not accept that--the fact the defendant may have held an outdated version of the Rules provides--a defence to the charge.
----10 Is a--breach of R 528 proved?
----[275] --The defendant, Ms Lisa Cropp, licensed--jockey, presented herself at the Te Rapa racecourse on 7 May 2005 to ride in a--number of races. The issue that this--Committee must consider is whether the informant has proved to the required--standard, as explained in Z, that a--sample of urine taken from the defendant at that time contained the prohibited--drugs methamphetamine and amphetamine.
----[276] --We now turn to consider the evidence--supportive of the three elements which the informant must prove.
----(a) The defendant is a rider
----[277] --The first element is that the defendant--is a rider. The word “rider” is defined--in the interpretation section of the Rules of Racing, R 105, as:
----"Rider" means a person authorised by these Rules,--whether as a Jockey, Apprentice Jockey, Amateur Rider, or Emergency Rider, or--otherwise howsoever to ride a horse in a race and for the purposes of the drug--testing provisions in these Rules, includes a person who rides or presents--himself to ride a horse in track work and/or trials at any racecourse or--training centre under the control or jurisdiction of a registered Club."
----[278] There is a deeming provision that requires the defendant to--give notice to the informant in advance of the hearing if she intends to rely--upon a challenge that the defendant was a rider. We understand that no such notice of challenge was received by--the informant.
----[279] In addition, exhibit 8 is a copy of the defendant’s--application for a jockey’s licence for the 2004/2005 season. This document was referred to by the--defendant in the course of her evidence and she confirmed it was her--application. The defendant also--admitted in evidence that, as at 7 May 2005, she was a rider, as that term is--defined in the Rules of Racing. We thus--find this element proved. (We also note--in passing that the application for a jockey’s licence contains a condition--that the defendant will permit samples of urine or blood be taken for drug--testing purposes. In addition R 310(2)--and (3) provide that every licence contains a condition that the licence holder--permits a urine sample to be obtained whenever required by a Racecourse--Inspector, and licence holders are deemed to accept all conditions imposed on their licences.)
----(b) The rider was required by a--Racecourse Inspector to supply a sample of her urine
----[280] --The second element,--which the informant is required to prove is that the defendant was required by--a Racecourse Inspector to supply a sample of her urine. Rule 226(2)(d)--provides that every Racecourse Inspector shall have the power to require a--rider to provide a sample of urine under the supervision of an authorised--person at such time and place as the Racecourse Inspector shall nominate.
----[281] The defendant admitted in evidence she was requested by a--Racecourse Inspector to supply a sample of urine. The question of the authority and the vires of a Racecourse--Inspector to make the requisition under R 226(2)(d) was determined in the--informant’s favour in the Supreme Court in Cropp--(above).
----[282] --Authorised persons are defined in R--105(1)(b) as meaning “a nurse registered or enrolled under the Nurses Act--1977”. Racecourse Inspector, Mr Bryan McKenzie has stated that he made a--requisition on 7 May 2005 for the defendant to supply a sample of urine. The nurse recruited for this purpose was Ms--Palmer.
----[283] --Ms Palmer gave evidence that she was an--Enrolled Nurse pursuant to the provisions of the Nurses Act 1977. She also produced a copy of her practising--certificate, issued by the Nursing Council of New Zealand, as evidence of this.
----[284] --The defendant--challenged whether Ms Palmer was qualified as an authorised person in terms of--the definition, because of the fact that on the date when the defendant’s--testing was done, the Nurses Act 1977 had been repealed by the Health Practitioners Competence Assurance Act 2003.
----[285] --We believe this issue is determined by--s 22(2) of the Interpretation Act 1999, which states:
----A reference in an enactment to a--repealed enactment is a reference to an enactment, that, with or without--modification replaces, or that corresponds to, the enactment repealed.
----[286] --In addition, s 184(1) of the Health--Practitioners Competence Assurance Act 2003 reads:
----Every person who, immediately before the commencement of--this section, was registered or enrolled as a nurse under the Nurses Act 1977--(including a person who, immediately before that commencement, was so--registered or enrolled by virtue of a provisional certificate of registration--or enrolment or a certificate of temporary registration or enrolment under that--Act) is, on the commencement of this section, deemed to be registered, under--this Act, with the Nursing Council as a practitioner of the profession of--nursing.
----[287] --Under the 1977 Act there was both a--register and a roll of nurses. Under--the 2003 Act this has become simply a register, and nurses enrolled under the--1977 Act are now deemed to be registered under the 2003 Act, in accordance with--the provisions of s 184.
----[288] --Exhibit 1 is evidence of Ms Palmer’s--valid registration as a nurse under the Health Practitioners Competence--Assurance Act. We are thus satisfied--that Ms Palmer is an authorised person for the purpose of the Rules.
----(c) The sample taken from the--rider is found upon analysis to contain any controlled drug as defined by the--Misuse of Drugs Act 1975
----[289] The third matter, which the informant must--establish, is that the sample of urine was found upon analysis to contain a--controlled drug. Methamphetamine is a Class A controlled drug; it is defined--as such in the First Schedule to the Misuse of Drugs Act 1975. It was reclassified as a Class A controlled--drug in an Amendment to the First Schedule, with effect from May 2003. Amphetamine is a Class B controlled drug,--listed in Part 2 of the Second Schedule to the Act.
----[290] --The ESR witnesses, Ms Turner, Dr--Russell and Mr Brown described the--receipt, testing and analysis of the sample WDT0529131, Ms Lisa Cropp, received--by the ESR from Ms Palmer, and gave evidence of these results. This was--that the defendant’s urine sample was found to contain very high levels of both--methamphetamine and amphetamine at a level well above the 300 nanogram--threshold.
----11 Conclusion
----[291] --The--informant has discharged the burden of proof. --The allegation contained in information number 64994 that Ms Cropp was--in breach of R 528 is proved. In so--determining, we have accepted counsel for the defendant’s submission with--reference to Z (above) that the--standard of proof to which we must be satisfied is “an exacting and high--standard of proof because of the serious nature of the charges and the--inevitable effects on conviction upon the defendant’s reputational and--livelihood interests.”
----[292] --As--information number 62182 is laid in the alternative, it is dismissed.
----[293] The issues of penalty and costs need to--be determined. We direct that a--telephone conference be held a week after the delivery of this judgment at--which time a date will fixed for consideration of these matters.
----Decision Date: 01/01/2001
Publish Date: 01/01/2001
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: c6ee51d6bcc62b0bceb31341d43c218f
informantnumber:
horsename:
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 4
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
[260] The following cross-examination by Mr Moore with respect to--the weight issue demonstrates the evasive attitude of the defendant to--questioning:
“Well, you told racecourse--inspector Bevege on 12 May, when he spoke to you after you got the positive--result, that you were taking Duramine and Sudomyl, which are both diet--pills. That was what you told him,--isn't it? ….. I must have.
----If you don't agree with me--I’ll show you your statement. Do you--want to have a look at your statement? ….. I'm saying if I said I was on diet--pills, yes.
----Mr Registrar, can we show--the witness that please. I’ve--highlighted the relevant passage for you. --Is that what you said on 12 May just a few days after 7 May on the same--day that you returned a positive result for methamphetamine in your urine? …..--This is in Bevege’s writing, yes.
----You’ve signed it, for--goodness sake. Are we going to play--these games are we? ….. I'm just suggesting, I didn't write it.
----Is that what you said or is--it not what you said? ….. Most likely I would have probably been on diet pills,--yes.
----You told us a short time ago--that you have a wonderful memory for the events of this time and yet you seem--to be having difficulty telling us what medication you were on at that time to--reduce weight. What do you say to that?--….. Well, - -
----Have you got a good memory--or a bad memory? ….. Yeah, I haven't - - I probably would have been on diet--pills, yes, definitely. Sudomyl. Because - - -
----So you were concerned about--your weight in May 2005, weren't you? ….. I know why. There was a horse I was riding on the next day after this race--day and it was a real lightweight in the weight for age. The 13th, yeah.
----So you were having weight--concerns in May 2005, weren't you? ….. It’s not concerns. It’s to keep it so that you get it down,--yeah.
----You were taking medication--to control your weight. Let’s put it--that way. Is that correct? ….. Yeah.
----Can I have that--back please. I mean, you did sign this--statement, didn't you? ….. Yeah, I know, I see that. I thought you said that I wrote it.” (p 48)
----[261] Ultimately, our decision as to whether or not the defendant--was told she could return later in the day and give a further sample, is a--matter of determining whether the informant’s witnesses or the defendant, in--giving her evidence, was the more credible. --We accept the informant’s evidence on this point. Whether words or gestures were used, or--both, we do not accept the defendant’s evidence that she was not told she could--return. We are satisfied and find as a--fact that the defendant was informed she could return and that she understood--this.
----[262] We are unaware whether NZTR practice has altered since the--defendant was tested. We would--recommend that provision be made, where a sample is insufficient to be split,--for the jockey to be informed both orally and by written notice of this fact,--and that the jockey be required to confirm in writing his or her--acknowledgement of this and an appreciation of his or her ability to return at--any later time in the day.
----[263] It was acknowledged by the parties and the expert witnesses--that jockeys have particular difficulty on raceday in providing a sample due to--the effects of wasting. There was--differing evidence before us as to whether 30 mls of urine was necessary, given--recent developments in technology, before a sample was able to be split. This is a matter that we believe NZTR and--their specialist advisors could investigate further.
----(j) Was the protocol followed?
----[264] --Counsel for the defendant questioned--whether the actual steps taken pursuant to the drug testing protocol, and--followed on the day in question for the collection of the defendant’s sample,--were reasonable. We observe it is said--in the Supreme Court in Cropp (above),--at para [18]:
----“A requirement to supply a bodily--sample, and the analysis of that sample, constitutes a search. Even when a contract exists between the body--requiring the sample and the person required to supply it, or to submit to its--being taken, if that body is exercising a public function the very entitlement--to conduct any search and also the manner in which a particular search is--conducted will be subject to scrutiny under s 21 of the Bill of Rights.”
----[265] Mr Shaw submitted that as a consequence of the multiple--breaches of the protocol, reasonable process was not followed. He said that the integrity of the sample--result was irretrievably compromised by the major deficiencies in the--collection process and procedures. --These deficiencies, he stated, were such that the ESR could not confirm--the results as complying with the AS/NZ standard. He referred to a number of breaches of, or deficiencies in, the protocol,--many of which he acknowledged were technical.
----[266] We now proceed to consider the breaches of or deficiencies--in the protocol, as submitted by counsel for the defendant in broad ranging--oral submissions:
----• The failure to designate the site as a drug testing--site. We note no confusion appears to--have arisen from this fact and there is no evidence of any member of the public--or a licence holder blundering into the testing area, in error, whilst the--defendant was being tested, or indeed at any time during the day.
----• Inadequate training for the collector, in that Ms Palmer--had not received training from the ESR. --We note that Ms Palmer had been briefed by Mr McKenzie, was a very--experienced infectious diseases nurse, and had eight years’ experience of--taking jockey samples. We are satisfied--that she followed the protocol and the absence of ESR training in collection--procedure has not affected the integrity of the sample result.
----• The failure by Ms--Palmer to identify the defendant. There--is no evidence that the defendant was mistaken for someone else or that someone--else was mistaken for Ms Cropp. We have--already indicated that we have found no breach of the chain of custody.
----• The failure of the nurse to report the presence of debris,--as noted in her drug testing record (exhibit 5), to the ESR on the chain of--custody form (exhibit 2). Dr Couch--stated that if his laboratory had been doing the test, and had he been told of--the mucus-like substance, he would have requested a resample or, at least,--consulted with the collecting organisation (in this case NZTR) for advice. The analyst conducting the immunoassay--analysis saw the debris, and Dr Russell, after being called to observe this--feature, said that she noted it by way of a “stickie” on her report, and--continued with the test of the sample, and reported the results. This observation was evident on the ESR drug--testing form (exhibit 6). There was--clear evidence before this Committee that the ESR did not believe the foreign--matter rendered the sample unreliable. --The ESR witnesses called by the informant were not questioned as to what--their response might have been were they alerted to the presence of mucus.--There is certainly no evidence before this Committee to the effect that the ESR--would have aborted the testing due to concerns as to the reliability of the--result. We have already commented on--the improbability of the mucus being from a third party, and the need for it to--have contained metabolised methamphetamine.
----• The failure of the nurse to report to the ESR the fact--that the defendant had placed a finger in the aperture of the pottle. We do not accept that this “voids” a sample,--as Dr Couch suggests, and a retest is compulsory, as any jockey could thereby--ensure a sample would not be tested. --Moreover, a finger in the aperture, as previously noted, does not--explain the presence of metabolised methamphetamine in the defendant’s sample.
----• The failure to exclude other jockeys from the testing area--whilst the defendant was being tested. --We note a jockey did enter the area, but this was whilst Ms Palmer was--completing the paper work after the defendant had given her sample, and that--this jockey was told to come back later. --Again we note that we have already indicated that we have found no--breach of the chain of custody.
----• The failure of Ms Palmer to split the sample, as raised in--Dr Couch’s evidence. This has been--referred to at para [227], and we re-iterate this is not a requirement of the--accredited testing laboratory, the ESR, and we attach no criticism to the--collector, Ms Palmer and, by implication, to NZTR because of this fact.
----• The untidy or dirty nature of the collection--surfaces in the drug testing station as alleged by the defendant in her--evidence. This was not the evidence of--Ms Palmer, who as an infectious diseases nurse, stated she was conscious of the--need for conditions to be sterile, so that there was no room for contamination--or cross-referential infection. We also--note Mr McKenzie’s evidence that he carefully prepared the testing area early--in the day, which included his wiping down the surfaces of the bench and--toilet. We again accept the evidence of--the informant’s witnesses and do not find any evidential foundation for counsel--for the defendant’s description of the testing station as being some kind of--“unhygienic shambles”.
----• The--failure by Ms Palmer to ensure that the defendant did not bring personal items--into the testing area. Ms Cropp stated--that she was wearing a necklace and her watch at the time of testing. There was no evidence either of these items--came into contact with the urine sample or that they somehow affected the--reliability of the sample result.
----• The--failure by Ms Palmer to afford the defendant privacy when excreting her--sample. On the defendant’s evidence, we--note the toilet cubicle door had been fully closed when Ms Cropp provided a--sample on her second visit. We have--already indicated we accept Ms Palmer’s evidence that she merely pulled the--door to, while she stood in the doorway. --It was an outward swinging door. --The requirement in the protocol is that privacy be given, so far as is--practicable. We believe this was--satisfied in this instance.
----• The--failure of Ms Palmer to inform the defendant that she could return later in the--day and donate another sample because the 28 ml was below the 30 ml threshold--for splitting. We have dealt with this--at subheading 9(i). We find as a fact--that Ms Cropp was told she could return later in the day and chose not to do--so.
----• The defendant was not told a specific time by Ms Palmer--when she could come back and provide another sample. There is no evidence the defendant was misled by this or--presented herself for a test only to find the nurse had left. We believe it was clear to the defendant--that she could return at any time up until a reasonable period had elapsed--after the conclusion of the last race on the day’s card. (We have held in Ruling No. 5 that the--failure by Mr B McKenzie to specify a time in the defendant’s request form--(exhibit 10) is not a breach of R 226(2)(d).)
----• Further matters raised (eg--absence of written waiver, no knowledge of the testing regime) have been--covered in our discussion of these issues under the earlier sub-headings to--Part 9 of this decision.
----[267] We give weight to these matters to the extent that they were--raised in evidence and formed part of the defendant’s submission that there was--a sufficient departure from the collection procedures to invalidate the--legality of the reported results.
----[268] We also consider under this heading the defendant’s--submission that the specific collection of the defendant’s sample, purportedly--under the protocol, amounted to an unreasonable search and seizure in breach of--s 21 of the Bill of Rights Act and, as a consequence, the defendant’s sample--results should not be received by this Committee and should not be relied upon--to prove either of the charges.
----[269] In rejecting the defendant’s submissions on this issue, we--note that many of the breaches that have been identified by the defendant and--considered by us were minor (“technical” to use Mr Shaw’s words) and--inconsequential, although Mr Shaw described their cumulative effect to be that Ms Cropp’s collection process was not in--compliance with the protocol, not reasonable, not in accordance with natural--justice or fairness, and shambolic. --We are satisfied that a proper process has been followed in this--instance: the actions of Mr McKenzie, Ms Palmer and the ESR laboratory were both--lawful and reasonable, and in general accordance with the protocol.
----[270] We believe the crucial question is: Is the integrity of the--sample result sufficiently discredited by these alleged deficiencies or--breaches, such that this Committee is unable to accept the defendant’s positive--readings as reliable? We are clearly of--the view that this question must be answered in the negative. The alleged breaches or deficiencies, neither--singularly nor cumulatively, are of such moment as to render the testing process--unlawful or unreasonable, nor are they such as to give an incorrect reading or--to prevent an accurate reading. If we--had any doubt about this matter, to the standard established in Z, we would--have given the defendant the benefit of that doubt.
----[271] We thus find that a request was lawfully made of the--defendant by Mr McKenzie, Racecourse Inspector, pursuant to R 226(2)(d), to--provide a sample of her urine to Ms Palmer and that Ms Palmer conducted the--test in accordance with the provisions of the NZTR drug testing protocol. We do not believe the actions of Mr McKenzie--and/or Ms Palmer to be an unreasonable search and seizure for the purpose of--the Bill of Rights nor to be in breach--of natural justice or fairness.
----(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] --Mr Shaw has submitted that information--64994 was defective because it referred to the Misuse of Drugs Act 1975,--whereas the defendant’s version of the Rules of Racing referred to the Misuse--of Drugs Act 1971. There is and has--been no 1971 Act. The defendant gave--evidence that when she was first told she had returned a positive sample, she had--ripped the page, which contained the text of R 528, out of her Rulebook. This page was introduced as exhibit L. No evidence was put before us that this was--the version of the Rules of Racing in force at the time the sample was taken--from Ms Cropp.
----[273] We do not accept that this reference to a 1971 Act--invalidates the charge as against the defendant. The law at the relevant time was as set out in R 528 as it is--expressed at para [18] of this decision. --It had not changed since this version of the Rules commenced with the--Constitution on 1 April 1999. The--notation to R 528 indicates that exhibit L is an extract from an earlier--version of the Rules of Racing. It is--unfortunate that the defendant held an outdated version of the Rules, but we--fail to see that she has suffered any detriment as a consequence. There has been no evidence placed before--this Committee demonstrating that she has been misled or prejudiced in her--defence to the charge.
----[274] The Rules of Racing were not erroneous as at the date of the testing of--the defendant. We do not accept that--the fact the defendant may have held an outdated version of the Rules provides--a defence to the charge.
----10 Is a--breach of R 528 proved?
----[275] --The defendant, Ms Lisa Cropp, licensed--jockey, presented herself at the Te Rapa racecourse on 7 May 2005 to ride in a--number of races. The issue that this--Committee must consider is whether the informant has proved to the required--standard, as explained in Z, that a--sample of urine taken from the defendant at that time contained the prohibited--drugs methamphetamine and amphetamine.
----[276] --We now turn to consider the evidence--supportive of the three elements which the informant must prove.
----(a) The defendant is a rider
----[277] --The first element is that the defendant--is a rider. The word “rider” is defined--in the interpretation section of the Rules of Racing, R 105, as:
----"Rider" means a person authorised by these Rules,--whether as a Jockey, Apprentice Jockey, Amateur Rider, or Emergency Rider, or--otherwise howsoever to ride a horse in a race and for the purposes of the drug--testing provisions in these Rules, includes a person who rides or presents--himself to ride a horse in track work and/or trials at any racecourse or--training centre under the control or jurisdiction of a registered Club."
----[278] There is a deeming provision that requires the defendant to--give notice to the informant in advance of the hearing if she intends to rely--upon a challenge that the defendant was a rider. We understand that no such notice of challenge was received by--the informant.
----[279] In addition, exhibit 8 is a copy of the defendant’s--application for a jockey’s licence for the 2004/2005 season. This document was referred to by the--defendant in the course of her evidence and she confirmed it was her--application. The defendant also--admitted in evidence that, as at 7 May 2005, she was a rider, as that term is--defined in the Rules of Racing. We thus--find this element proved. (We also note--in passing that the application for a jockey’s licence contains a condition--that the defendant will permit samples of urine or blood be taken for drug--testing purposes. In addition R 310(2)--and (3) provide that every licence contains a condition that the licence holder--permits a urine sample to be obtained whenever required by a Racecourse--Inspector, and licence holders are deemed to accept all conditions imposed on their licences.)
----(b) The rider was required by a--Racecourse Inspector to supply a sample of her urine
----[280] --The second element,--which the informant is required to prove is that the defendant was required by--a Racecourse Inspector to supply a sample of her urine. Rule 226(2)(d)--provides that every Racecourse Inspector shall have the power to require a--rider to provide a sample of urine under the supervision of an authorised--person at such time and place as the Racecourse Inspector shall nominate.
----[281] The defendant admitted in evidence she was requested by a--Racecourse Inspector to supply a sample of urine. The question of the authority and the vires of a Racecourse--Inspector to make the requisition under R 226(2)(d) was determined in the--informant’s favour in the Supreme Court in Cropp--(above).
----[282] --Authorised persons are defined in R--105(1)(b) as meaning “a nurse registered or enrolled under the Nurses Act--1977”. Racecourse Inspector, Mr Bryan McKenzie has stated that he made a--requisition on 7 May 2005 for the defendant to supply a sample of urine. The nurse recruited for this purpose was Ms--Palmer.
----[283] --Ms Palmer gave evidence that she was an--Enrolled Nurse pursuant to the provisions of the Nurses Act 1977. She also produced a copy of her practising--certificate, issued by the Nursing Council of New Zealand, as evidence of this.
----[284] --The defendant--challenged whether Ms Palmer was qualified as an authorised person in terms of--the definition, because of the fact that on the date when the defendant’s--testing was done, the Nurses Act 1977 had been repealed by the Health Practitioners Competence Assurance Act 2003.
----[285] --We believe this issue is determined by--s 22(2) of the Interpretation Act 1999, which states:
----A reference in an enactment to a--repealed enactment is a reference to an enactment, that, with or without--modification replaces, or that corresponds to, the enactment repealed.
----[286] --In addition, s 184(1) of the Health--Practitioners Competence Assurance Act 2003 reads:
----Every person who, immediately before the commencement of--this section, was registered or enrolled as a nurse under the Nurses Act 1977--(including a person who, immediately before that commencement, was so--registered or enrolled by virtue of a provisional certificate of registration--or enrolment or a certificate of temporary registration or enrolment under that--Act) is, on the commencement of this section, deemed to be registered, under--this Act, with the Nursing Council as a practitioner of the profession of--nursing.
----[287] --Under the 1977 Act there was both a--register and a roll of nurses. Under--the 2003 Act this has become simply a register, and nurses enrolled under the--1977 Act are now deemed to be registered under the 2003 Act, in accordance with--the provisions of s 184.
----[288] --Exhibit 1 is evidence of Ms Palmer’s--valid registration as a nurse under the Health Practitioners Competence--Assurance Act. We are thus satisfied--that Ms Palmer is an authorised person for the purpose of the Rules.
----(c) The sample taken from the--rider is found upon analysis to contain any controlled drug as defined by the--Misuse of Drugs Act 1975
----[289] The third matter, which the informant must--establish, is that the sample of urine was found upon analysis to contain a--controlled drug. Methamphetamine is a Class A controlled drug; it is defined--as such in the First Schedule to the Misuse of Drugs Act 1975. It was reclassified as a Class A controlled--drug in an Amendment to the First Schedule, with effect from May 2003. Amphetamine is a Class B controlled drug,--listed in Part 2 of the Second Schedule to the Act.
----[290] --The ESR witnesses, Ms Turner, Dr--Russell and Mr Brown described the--receipt, testing and analysis of the sample WDT0529131, Ms Lisa Cropp, received--by the ESR from Ms Palmer, and gave evidence of these results. This was--that the defendant’s urine sample was found to contain very high levels of both--methamphetamine and amphetamine at a level well above the 300 nanogram--threshold.
----11 Conclusion
----[291] --The--informant has discharged the burden of proof. --The allegation contained in information number 64994 that Ms Cropp was--in breach of R 528 is proved. In so--determining, we have accepted counsel for the defendant’s submission with--reference to Z (above) that the--standard of proof to which we must be satisfied is “an exacting and high--standard of proof because of the serious nature of the charges and the--inevitable effects on conviction upon the defendant’s reputational and--livelihood interests.”
----[292] --As--information number 62182 is laid in the alternative, it is dismissed.
----[293] The issues of penalty and costs need to--be determined. We direct that a--telephone conference be held a week after the delivery of this judgment at--which time a date will fixed for consideration of these matters.
----sumissionsforpenalty:
reasonsforpenalty:
penalty:
hearing_type: Old Hearing
Rules: 226.2.d, 310.2, 105.1.b
Informant:
JockeysandTrainer:
Otherperson:
PersonPresent:
Respondent:
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