"VZZ" and Australian Sports Drug Agency - [2001] AATA 776

DECISION AND REASONS FOR DECISION [2001] AATA 776

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/539

GENERAL ADMINISTRATIVE DIVISION       )
           Re      "VZZ"
  Applicant
           And    AUSTRALIAN SPORTS DRUG AGENCY
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date6 September 2001
PlaceMelbourne

Decision        The decisions under review are affirmed.
  ...........Sgd. Mr J. Handley.............
  Senior Member
CATCHWORDS
Sports Drug Testing Authority – applicant won 800m event at a national track and field event – selected to represent Australia – positive drug testing result – whether testing procedure flawed – whether sample beaker contaminated – decision affirmed.

REASONS FOR DECISION

6 September 2001 Mr J. Handley, Senior Member

The applicant applies to review decisions made by the respondent on 10 May 2001 namely-
° not to determine a positive test result invalid and
° to enter her name on the Register of Notifiable Events.
The application arises by reason of the respondent having determined that the applicant returned a positive test result from a urine sample collected after she had competed in and won an open 800 metre event at the Telstra Athletics Grand Prix in Perth on 4 March 2001.
As a consequence of the applicant's name being entered on the Register of Notifiable Events, the applicant has been banned from competition by Athletics Australia for two years.
The application to this Tribunal is to review the decisions made by the respondent. There is no appeal concerning the banning order or its duration made by Athletics Australia.
The applicant is 17 years of age. An order has previously been made by the Tribunal under s.35 of the Administrative Appeals Tribunal Act 1975 with respect to her identity and access to documents.
An application was also made previously by the applicant and her father (who appeared as her representative), for a stay of the decisions of the respondent pursuant to s.41 of the Administrative Appeals Tribunal Act 1975. A stay order was not made. On appeal to the Federal Court, Goldberg J, decided on 26 June 2001 to dismiss the application. It was said by the applicant's father that the absence of a stay order would preclude his daughter from competing in the world junior games in Hungary in July 2001.
The application was heard in Melbourne on 27 August. The applicant appeared and gave evidence. She was represented at the hearing by her father. Mr Marshall of counsel appeared on behalf of the respondent. The respondent called Ms Woodyard, a chaperone appointed by the respondent, to give evidence.
The Legislation
The relevant legislation and other statutory instruments comprise the Australian Sports Drug Agency Act 1990 ("the Act"), the Australian Sports Drug Agency Regulations 1999 ("the Regulations") and the Australian Sports Drug Agency Drug Testing (Scheme A) Orders 1999 ("the Scheme").
Section 11 of the Act provides that a "Drug Testing Scheme" ("the Scheme") is a scheme that sets out a schedule of drugs and doping methods, authorises the agency (the respondent) to request competitors to provide a sample to determine whether the person has used a scheduled drug, requires the agency to establish and maintain a Register of Notifiable Events, requires the agency to enter the name of the competitor on that Register if the competitor fails to comply with a request to provide a sample or returns a positive test result in relation to that sample, and requires the agency to give written notice of the entry on the Register to relevant national sporting organisations.
By section 14 of the Act, a "positive test result" is a finding made by an accredited laboratory having used specified analytical techniques and equipment, the results of which produce the presence of a drug included in the schedule of drugs or doping methods specified by the scheme.
Section 15 of the Act provides that the Administrative Appeals Tribunal can review decisions made by the Agency to enter the name of the person on the Register of Notifiable Events. A decision of this type is taken to be a reviewable decision (refer s.16).
Regulation 17 permits the agency to ask orally or by written notice that a competitor provide a "sample". A "sample" is defined by the Act as meaning any human biological fluid or tissue or breath. Regulation 29 provides that if the sample is returned positive and the agency is satisfied that the procedures for collection and dealing with the sample are consistent with the regulations and the agency has decided that the test result is valid, the agency must enter on the relevant Register the name of the competitor, the details of the result and any other information concerning the competitor.
Orders 17-25 of the Scheme provide a procedure and protocol for the issue and selection of sample collection containers, the giving of samples and the securing and storage of samples. Order 26 concerns the rights of a competitor if it is believed that the sample has been tampered with.
Section 17A(1) of the Act provides that a drug-testing scheme may set out procedures for dealing with a sample. ss(2) provides that the scheme may provide that strict compliance with procedures is not required and substantial compliance will suffice. ss(3) however provides that ss(2) does not apply with respect to the following matters, namely-
(a)      the accredited laboratories where samples are tested,
(b)      the analytical techniques and equipment used when samples are tested,
(c)       ensuring that a sample is not tampered with and
(d)      ensuring that a sample is securely contained and identified.
The applicant's father at the outset of the hearing indicated that the sole basis upon which the review of the respondent's decision was sought was by regard to s.17A(3(c)), namely that the respondent could not ensure the sample of his daughter was not tampered with. It followed, he said, that the decisions must be set aside in the circumstances because having regard to the introduction to ss(3), strict compliance is required.
More specifically - and these were the issues in evidence in these proceedings - it was submitted that a sample container that was issued to his daughter for the purposes of producing a urine sample was dropped by her into a toilet bowl. This in turn he said caused the sample to be contaminated to the extent that the eventual positive drug test result is referable to that contamination. Additionally it was put that the chaperone had turned her back immediately before his daughter dropped the sample container and did not thereby maintain the protocol of retaining or keeping his daughter under observation as is required by the Scheme.
No issue is raised by the applicant concerning the accreditation of the drug testing laboratory or the methods used or the finding of a positive test result.
The Applicant
The applicant gave evidence. She relied on a letter that is found at T-15 and dated 10 April 2001. The letter is addressed to an officer of the respondent and is reproduced as follows-
"DEAR ANNE,
          In consultation with my father and coach, (name), I present this submission in relation to the validity of the sample provided by me at the Perry Lakes Stadium on 4th March 2001.
          I competed in the Open 800m event at the Telstra Athletics Grand Prix in Perth in 40-degree celsius. I was placed 1st. At the completion of my event I was notified by Kirsten Woodyard at 4:10pm that I was selected to provide a sample for drug testing. I signed the appropriate documentation and was provided with a green copy. I completed a warm down following this and then asked Kathy Lee to accompany me to the drug testing room. Kathy, David Meyer, Kirsten and myself sat around for approximately an hour before I attempted to provide a sample. During this time I consumed approximately 4 to 6 litres of water. I was extremely dehydrated due to the 40 degree celsius heat, and was able to produce approximately 20 mls of urine. Kathy Lee and David Meyer asked if everything was all right. I said I was unable to produce anymore. It was approximately 5:45pm. Kirsten witnessed the provision of this sample.
          I was asked to pour the sample into a tamper proof container, which was then sealed into a bag numbered 013372 and signed by the supervisor David Meyer. The plastic bag was then sealed and we all went to dinner, which took approximately 60 minutes.
          At the completion of dinner we all went back to the drug testing room and the previous sample was produced and we all agreed that no tampering had occurred. I was exhausted and drained and approximately 30 to 40 minutes later I was still unable to produce a sample. David was exerting pressure as he said he had to be home for a dinner appointment at 7:00pm. I obtained another beaker and went into the toilet room with Kirsten and produced approximately 10-20 mls of urine. I couldn't provide any more. I was absolutely exhausted and frightened.
          Kirsten then suggested she turn the tap on. I agreed. As Kirsten walked over to the sink and turned the tap on I accidentally dropped the beaker into the toilet bowl. (I was simply repositioning myself). I quickly retrieved it and wiped it on my leg. I was panicking and shaking and sat on the toilet to compose myself. I was petrified and scared to admit what had happened as everyone was tired and tense and I thought I would get into trouble for dropping the beaker. Kirsten then moved back into the middle of the room to observe me. Approximately 10 to 20 minuted (sic) later I was able to produce a minimal sample at my second attempt.
          Kirsten asked me to put the beaker on the floor and she checked it for quantity. She said it was barely acceptable. We both went to the next room, where Kathy and David were sitting, collected the first sample. I was asked if no tampering had occurred. I said it looked O.K. to me and then opened it and mixed it with the second sample. Alkalinity was tested.
          I was then asked to select a testing kit. I took the A and B jars out of it and opened them, and poured the contents of the beaker into each jar. I was asked to seal the jars and place then (sic) in a box and seal them with tape.
          I then was requested to complete and sign a control test document. Kathy Lee and I then returned to the motel.
          At no time, to my knowledge, did anybody handle my sample except myself and Kirsten. Dropping the beaker into the bowl during the taking of the second sample was my fault and I stress that it was absolute fear that prevented me from revealing this to the drug control supervisors. Everybody was tired and stressed from the heat and the prolonged time it took me to produce my sample. I was simply petrified and didn't want to make things worse.
          My doctor, Dr. Peter Fuller, has been made aware of the allegations and is quite disturbed. I present for medical examinations and blood tests frequently and in his opinion there is no evidence to suggest the use of the agents prescribed in the samples provided. He has indicated that he will provide appropriate medical reports if required.
This is an honest account of the event and if necessary I will testify on oath as to these facts being true and correct. I plead for a speedy resolution to this matter as my father and I are innocent of any improper conduct and the stress of these allegations has had considerable effect on our health and well being.
My plea is based on the fact that the sample obtained in Perth was contaminated because of my negligence and fear. For that I apologise. I hope you will understand".
In cross-examination the applicant agreed with Mr Marshall that she was given a brochure entitled "Drug Testing: An Athletes Guide" produced by the respondent. The applicant said she was given the brochure after she had competed. She could not recall whether she read it but agreed that enough time was given to her to read it before the sampling occurred. The applicant in any event said that she did read part 4 of the brochure entitled "Providing a Sample". That part summarises the procedure concerning the selection of a sample beaker, provision of a urine sample and control of the sample.
The applicant also agreed with Mr Marshall that she was introduced to her chaperone, Ms Woodyard, being a person of the same gender (consistent with the Scheme and the Regulations). She said that Ms Woodyard spoke to her about the procedures and agreed that they remained together from the commencement of the sampling procedure until a second sample was eventually provided some time later.
The applicant was shown a number of photographs depicting the drug control facility, the drug control rooms, and the toilet area depicting toilet and shower cubicles. She agreed that the photographs depicted the premises where she provided urine samples. These photographs will be referred to later in these reasons. The applicant said that between the time she and Ms Woodyard left the drug control room (having selected a sample beaker) and entered the toilets, there were no other persons present and no other persons entered the toilets during the time she provided a sample. She agreed that Ms Woodyard had told her that she was required to observe the passing of urine and this would require the applicant to leave the toilet cubicle door open. The applicant said she had no quarrel with the respondent concerning the sealing and storage of the first urine sample. Her allegation of tampering concerned the second sample only.
The applicant said she returned to the drug control room with Ms Woodyard after the evening meal and selected another sample beaker. Thereafter she said she entered the room containing the toilet cubicles and entered the same cubicle as she had previously to provide the second sample. She agreed that Ms Woodyard continued to observe her. The applicant said she observed, on this occasion, that the water in the toilet bowl was 'not clear' but she did not flush the toilet.
The applicant agreed that the first time she notified anyone from the respondent that she had dropped the beaker was when she delivered the letter found at T-15 (refer earlier).
The applicant was taken to a letter from the respondent found at T-11 and dated 30 March 2001 which confirmed that the analysis of the A sample bottle revealed the presence of a prohibited drug. The applicant said that her father had been notified by telephone shortly prior to receipt of this letter of the positive finding. The applicant said that it was then that she told her father for the first time that she had dropped the sample beaker. She said she had not told any other person before that date that she had dropped the beaker because she thought she would 'get in trouble'. So far as she was aware her father did not thereafter tell any person of her having dropped the beaker.
With respect to the second occasion of providing a urine sample the applicant said that she had produced approximately 20 ml. of urine into the beaker. She recalled that she was nervous and tense and was having difficulty passing urine. She recalled that Ms Woodyard turned on a tap and it was at that time she dropped the beaker. She said it fell into the water of the toilet bowl but it did not hit the sides of the bowl. She said she retrieved it and wiped excess water from the outside of the beaker on her leg to dry it. She agreed that she could have notified Ms Woodyard then that she had dropped the beaker but she felt "wasted" and believed that everyone else had wanted to go home. She was aware that David Meyer, the drug control officer, was waiting in an adjacent room. The applicant said that had she asked for another beaker and commenced the process again, that people would be upset and that she would have annoyed them.
When it was put to her by Mr Marshall that she was providing a "convenient" excuse for a positive sample by alleging that she dropped the beaker when Ms Woodyard was out of sight "for a split second", the applicant said that Ms Woodyard had been out of sight for about 8 seconds. She was confident that she and Ms Woodyard were out of sight from each other because "she couldn't see me because I couldn't see her".
When asked to provide greater detail for her retrieval of the beaker from the toilet bowl the applicant said that the beaker was wet on the outside only. She said that her right hand was used to retrieve the beaker but her hand was not wet with water from the toilet bowl. She said she retrieved the beaker by holding it around its upper edge. She denied that the beaker "filled up with water".
In answer to questions from me, the applicant said that she had ceased passing urine at the time the beaker was dropped. She estimated that at that stage she had passed approximately 20 ml of urine. She said she did not notify Ms Woodyard that she had completed the sample because she was of the belief that the 20 ml produced was not sufficient. She understood that she had to produce a total of 80 ml from both samples and had learnt this prior to entering the toilet on the second occasion.
The applicant said that she understood that Ms Woodyard had turned on the tap to relax her. She agreed that she was tense and she had been directed to occupy a position where she would have to be observed actually passing urine by Ms Woodyard. She said this was achieved by having to drop her trousers, straddle the toilet bowl and have the beaker positioned between her legs so that the passage of urine from her body to the beaker could be observed. She said she was told by Ms Woodyard that that practice was consistent with the drug sampling protocols. The applicant again said that she was tense and anxious and to the extent that she was having difficulty passing urine, she said "its hard to pee in front of someone else".
The applicant said that when she dropped the beaker it fell at a slight angle without the urine spilling from it. She did not know whether the top of the beaker at any time fell below the surface of the water in the toilet bowl and she could not recall the angle of the beaker in the toilet bowl when she reached in to retrieve it. The applicant said that the colour of the water in the toilet bowl was 'dirty/brownish' however when she retrieved the beaker she could not recall whether the colour of the fluid within the beaker was any different to the colour prior to the beaker being dropped.
I asked the applicant to give greater detail about why she did not notify any person at that time that she had dropped the beaker. She said that she understood that Ms Woodyard and David Myer were impatient and were anxious to leave the premises. She said Ms Woodyard was 'walking around looking at her watch'. She said that Ms Woodyard did not say anything specific which would indicate to her that she was anxious to leave, however she had the impression that she wanted to leave the facility.
The applicant said that her father told her on 30th March that the a sample result had proved positive and that she told him then for the first time that the beaker had been dropped. She said she did not say anything to her father or any other person before that time because she did not think "it would matter" and because she "didn't want to stress out Dad, didn't want anyone to worry". She was unable to explain why her father did not report these events at any time prior to 10th April (when he also wrote a letter to the respondent) except to say, "Dad was handling all this".
Thereafter there was some discussion in the hearing room between the applicant, her father and Mr Marshall and it appears that the letters which are found at T-15 and T-16 both dated 10 April 2001, and signed by the applicant and her father respectively, were taken to Sydney when the applicant and her father witnessed the opening of the seals of the B sample bottle at the respondent's premises. Thereafter the applicant and her father travelled to Canberra and both letters were then given to Ms Gripper, an officer of the respondent to whom the letters were addressed on 11 April. That is, the existence of the letters and the contents of them were not divulged or known to the respondent until after the applicant and her father had left the respondent's premises in Sydney and travelled to Canberra, being at a time after they had attended Sydney for the purposes of witnessing the opening of the B sample container.
Kirsten Woodyard.

Ms Woodyard is currently employed with the Director of Public Prosecutions in Perth and is a part time chaperone with the respondent. She has a Bachelor of Science from Edith Cowen University with a major in sports sciences.
On 4 March 2001 Ms Woodyard attended the Telstra Athletics Meeting in Perth. She initially had contact with David Meyer, the Drug Control Officer of ASDA. Part of his responsibility on this day was to co-ordinate and allocate chaperones to particular athletes. Ms Woodyard said that she learnt shortly after arriving at the track that she was to chaperone the winner of the 800-metre event. Immediately after the race concluded, Ms Woodyard said she liaised with race officials and satisfied herself that the applicant had won the race. She then checked the identity of the applicant from a team list and indicated to her that she would be required for drug testing. She said she provided the applicant with the drug testing brochure (refer paragraph 19) and secured the applicant's signature on a form found at T-5 where the applicant acknowledged having received the brochure. The form also acknowledges that the applicant had been "selected" for a "drug test".
Ms Woodyard then advised the applicant that because she was under the age of 18, she was entitled to have a representative present. She said she accompanied the applicant to the drug control facility at the track and in the presence of her representative Kathy Lee, observed the applicant select a sample beaker. She said that David Meyer also asked the applicant to check that the plastic bag in which the beaker was contained had not been perforated or tampered with. She said that David Meyer then notified the applicant that a minimum of 80 ml of urine would need to be produced to constitute a sufficient sample. Ms Woodyard said that she then escorted the applicant to the toilet facilities. She said no other persons were present and she and the applicant alone were in the toilet facility until the first sample was produced. She said she instructed the applicant to remain seated and comfortable until such time as she felt able to pass urine. She said she then instructed the applicant - consistent with drug testing protocol - to lower her trousers and roll her sleeves to the elbows. (This is a protocol which permits an unobstructed view of the athlete passing urine into the sample beaker).
The witness said that the applicant was unable to pass 80 ml of urine. The quantity of urine passed was later sealed with a temporary seal and the applicant and Ms Woodyard then walked to another part of the track and had an evening meal together. They remained in each other's presence during the meal. Ms Woodyard said that the applicant later indicated to her that she felt ready to pass urine again and they both returned to the drug testing facility where another beaker was selected and both again and alone entered the toilet facilities.
After the respondent learnt that the applicant alleged that she had dropped the beaker, officers of the respondent contacted Ms Woodyard by email. At this time Ms Woodyard had left Australia and was travelling throughout Europe.
On 27 April 2001 in response to some questions asked of her by another officer of the respondent, the witness forwarded an email in the following terms (T-22 p.35)-
"I do remember the athlete - her coach knew all the details about drug testing. (name) did take a while and had a break after giving an incomplete sample first time and went to where the athletes had a free dinner/drinks session. I was with her all this time and then in the final provision of her sample. (name) was fine - there was nothing that I recall as being unusual and viewed the sample being provided."
In response to some further questions asked of her, Ms Woodyard forwarded another email on 1 May 2001. That is found at page 37 of the T-documents in the following terms-
"I did turn the tap on, but in the room we were in I was right next one and the other was a step in front (sic) both on my right hand side while I was facing her. At no time I remember turning my back on her and I find it unlikely that she could of dropped her beaker as to drop and then retrieve it out of the toilet I know I would have noticed and seen. The toilet we were in was very large, which is why she was in front of me at all times - I would have been 1-2 metres from the toilet which was the one the far right side. Its not like the lighting was very bad either.
I'm sorry, but I can not think of anything that could have possibly occurred that I remember thinking was odd. She just asked me to keep talking to her because that was helping her to relax …?"
Some further questions were again asked of the witness by an officer of the respondent and on 8 May Ms Woodyard forwarded another email in the following terms (page 38)-
"As I mentioned previously, I can be sure that I did not turn my back on the athlete - I've been thinking about the situation, but there is no likely hood of that occurring because everything was in front of me that I either accessed or was watching. I would definitely have to say that dropping the beaker into the toilet without my noticing is unlikely and therefore disagree with the athlete's statement. If I had the smallest feeling that anything could have occurred while she was in my presence I would definitely have expressed it, but I have to confirm that is not possible that beaker would have been contaminated from being dropped in the toilet without my notice.
I wish I could say that there could have been a possibility so as to not see an athlete in trouble - but I feel that I can't believe that this happened without my noticing due to the set up of the room."
With respect to the emails referred to above, the witness acknowledged that she was in error when she referred to "Kathy" as the applicant's coach. She now understood that Kathy Lee was the applicant's representative.
Ms Woodyard said that she commonly offers suggestions to persons who have difficulty passing urine. One suggestion is to turn on the tap so as to simulate the passing of urine. Other techniques apparently used are to suggest that the athlete take of their shoes and socks because it is the understanding of the witness that cold feet sometimes precipitate passing of urine.
The witness was adamant that she did not ever turn her back on the applicant. She said that at all times she maintained eye contact her. She said that she did not have to walk to the sink to turn the tap on because she was standing beside it. Ms Woodyard said she reached out with her right arm only and subject to a split second when she looked at the tap in order to position her hand, she at all times kept the applicant in her sight.
Ms Woodyard observed the photographs produced earlier in the hearing by Mr Marshall and said that the applicant was in the cubicle closest to the wall upon which the taps were mounted. The photograph indicates that when standing adjacent to the sink there is a direct line of vision into that cubicle. The witness acknowledged that the applicant may have been in the cubicle next to it, but was sure that the applicant was in the cubicle adjacent to the wall. She said at all times the door was open and she did not ever let the "athlete out of my sight".
Ms Woodyard confirmed the contents of the email that she sent on 1 May where she recorded that she was "1-2 metres from the toilet, which was the one on the far right side". She also confirmed the contents of her email of 8 May but said she did not ever turn her back on the athlete and that it would be unlikely that the athlete could have dropped the beaker without her noticing it.
Ms Woodyard was shown a plan drawn by the applicant, which depicts the toilet cubicles as two metres in depth whereas the shower cubicles are depicted as being one metre in depth. Ms Woodyard disagreed that the toilet cubicles were two metres in depth and said that they were of about the same size as the shower cubicles that is about one metre square. When pressed by the applicant's father in cross-examination Ms Woodyard said that she "can't say for sure that it was the number one cubicle - maybe number two but not the third". She said that even if it was the third cubicle, that is the middle cubicle as depicted by the applicant in her plan, she would have been able to observe her and reaffirmed that at no time did she loose sight of the applicant other than for the split second when she turned on the tap.
Ms Woodyard said that she did not at any time put pressure on the applicant to give a sample. Ms Woodyard described herself as patient and on previous occasions when testing athletes had to wait for hours to obtain samples.
Ms Woodyard said that the applicant did not drop a sample beaker into the toilet bowl, nor did she have to pick it up or wipe it. She said the applicant did not ever notify her that this had occurred.
In response to the evidence of the applicant who said that Ms Woodyard had instructed her to place the beaker on the floor of the toilet after the sample was completed and that Ms Woodyard had then turned it around to observe the measurement, Ms Woodyard said that she did not at any time touch or lift or turn the beaker. She said that it is not her practice nor would she ever have done it. She said she might have asked the applicant to turn it to observe the measurement. Ms Woodyard said that she could recall nothing unusual about the colour of the fluid in the beaker when the sample was provided.
Ms Woodyard acknowledged that the applicant did seem to be upset after the incomplete first sample and acknowledged that the applicant was probably uncomfortable and embarrassed. Generally, however she thought that the applicant's demeanour "seemed to be okay". Ms Woodyard was shown a memorandum found at page 33 prepared by another officer of the respondent who recorded in part a conversation with David Meyer. The note records that "David feels that (the applicant) felt pressured - she looked like she was going to burst into tears but continued with the session regardless". Ms Woodyard said that she had not ever seen this memorandum.
In answer to some questions from me, Ms Woodyard explained the procedures for decanting the urine samples into the A and B bottles. This procedure comprises the issue by David Meyer of a styrene box which is sealed and which contains two glass bottles. The outside of the box is sealed with a tape, which contains a reference number. The same reference number is fixed to each of the two bottles inside the container. Each bottle is contained within a sealed plastic bag. The athlete is asked to open each sealed plastic bag in the presence of the chaperone and the drug control officer.
In the case of a number of samples being provided by an athlete so as to ultimately have a total of 80 ml of urine, the first and any subsequent sample is decanted from the sample beaker into the A bottle. That bottle is then sealed with a temporary seal. When 80 ml of urine is eventually received some of the urine is decanted from the A bottle into the B bottle. Immediately prior to both bottles being sealed the drug control officer conducts a pH test using litmus paper from the residue of urine in the sample beakers. That data is recorded on the "doping control test sheet". The sheet is completed by Mr Meyer and is signed by the applicant and the chaperone (T-6).
More than 50% of the total quantity of urine remains in the A bottle and the lesser quantity is decanted into the B bottle. Ms Woodyard understood this to be a requirement of the testing laboratory but she was unsure of the reasons. In the present case, 60 ml of urine remained in the A bottle and 20 ml was decanted into bottle B (refer T-6).
With respect to the toilet facilities as depicted from the photographs tendered into evidence, Ms Woodyard said that the shower cubicles and the toilet cubicles in her estimation were of the same dimensions. She said that the applicant had walked in to a toilet cubicle before she turned on the tap. She said the applicant entered the same cubicle for the purposes of providing the first sample as she did on the second occasion. Ms Woodyard was adamant that she did not walk any distance to turn on the tap. Whilst acknowledging that she took her eye of the applicant for a split second to reach out for the tap, she said that she was observing the applicant in the first cubicle immediately adjacent to the wall and the taps were to her immediate right. Whilst acknowledging that her right arm was less than one meter in length, it followed, she said, that she did not need to walk any distance to turn on the tap and in those circumstances she did not take her eyes off the applicant other than to turn on the tap.
Discussion
Mr Marshall indicated that he then intended to call Doctor Kazlauskas from the respondent's drug testing laboratory in Canberra. It was intended to have his evidence by telephone. Apparently Doctor Kazlauskas was to give evidence as to the probability of the second test sample being contaminated in the circumstances described by the applicant. It was also to be the respondent's case that evidence would subsequently be called that five other athletes on this day of competition had used these toilets (which were apparently reserved only for the purposes of drug testing) and that all five athletes had returned negative test results. It was suggested in these circumstances that the toilets could not have been contaminated by any other athlete who would have been positive to the same or other drugs as were found in the applicant's urine sample.
The applicant's father took objection because he had not been put on notice that evidence of this type would be produced nor had proofs of evidence been exchanged prior to the hearing. He said that had he been aware that evidence of this type would be called he would have sought to engage the services or the opinion of a Chemist and was in the circumstances denied that opportunity.
After much discussion it was agreed between the parties and decided by me that this evidence would only be relevant if it was decided as a fact that the applicant did drop the sample beaker. If I were to make a finding of that type it was agreed that the hearing would resume at a later date after proofs of evidence had been exchanged by the respondent and the applicant could be given an opportunity to obtain evidence in reply.
Alternatively it was agreed that if I were to find as a fact that the applicant did not drop the sample beaker then this evidence as proposed by the respondent would not be relevant. In those circumstances it was agreed that the decision I make would be the final decision and upon delivery of written reasons, the review could be regarded as being completed.
For reasons which follow I am not satisfied that the applicant did drop the sample beaker as alleged. Additionally, I am not satisfied that the testing protocols were breached by Ms Woodyard. It follows therefore that this decision completes the review initiated by the applicant.
Conclusion & Reasons For Decision
Having read the documents filed and observed the applicant and Ms Woodyard give their evidence I am satisfied that the correct or preferable decision is to affirm the decision that has been made by the respondent.
I found Ms Woodyard to be a credible and impartial witness. Her evidence is consistent with the explanations she provided in the three email letters that she forwarded and found within the T-documents.
I am satisfied and find as a fact that at all relevant times Ms Woodyard did observe the applicant other than for the split second where she turned towards the tap on the occasion that the applicant occupied a toilet cubicle for the purposes of providing the second urine sample. I am satisfied that at that time the applicant occupied the cubicle adjacent to the wall upon which the tap and sink was mounted. This is the cubicle identified by Ms Woodyard in her email found at paragraph 40. That email was composed and sent before these proceedings were initiated. I am satisfied having observed the photographs and having heard the evidence from Ms Woodyard and the applicant that with the toilet door to that cubicle being open, there is a direct and unobstructed line of vision possible from the sink into the toilet cubicle. I am not satisfied that Ms Woodyard did have to walk to the sink to turn on the tap. I am not satisfied that she would have therefore turned her back at any time.
It follows that the applicant's explanation that she was in the third cubicle, that Ms Woodyard turned her back and walked and lost line of vision for approximately 8 seconds is not to be believed. Indeed if the applicant and Ms Woodyard were out of each others sight for a period of time because she occupied the third toilet cubicle, the applicant would have been incapable of observing Ms Woodyard turn her back.
I am also satisfied that the explanation given by the applicant for her failure to explain or notify the dropping of the beaker to be not credible. I readily accept that the process of giving urine samples as described would have been humiliating and embarrassing. I understand also that the applicant was probably dehydrated having competed and been exposed to excessive temperatures for many hours prior to her 800 metre event. I am satisfied that the process of dehydration may of itself have caused difficulty in passing urine as indeed the embarrassment of the circumstances may have also contributed. I also accept that she may have been embarrassed or concerned that she was delaying officials by having difficulty producing the second sample at a time when it was believed that officials had commitments elsewhere.
Nonetheless I cannot comprehend why the applicant would not have disclosed to either Ms Woodyard or Mr Meyer at or about the time of the second sample that she dropped the beaker if in fact it had occurred. Drug testing of athletes is a serious process. It is well known to athletes as it is to members of the public that athletes are subject to random sampling. The reason for this is obvious. Sampling occurs to ensure that persons who compete are not affected by performance enhancing drugs. If the applicant had a concern that dropping the beaker would contaminate her sample she should have said so. At that stage she had produced 20 ml of urine only. She was capable of later producing urine sufficient to constitute a total of 80 ml of urine. If she had dropped the beaker in the manner she described, I cannot now understand why it was - realistically - that she did not then say so. Additionally, I am unable to understand why she would not disclose the dropping of the beaker to any person - including her father - until after he was notified that the sample from the A bottle proved positive. That occurred many weeks after the beaker was alleged to have been dropped. The applicant clearly had many opportunities between 4 March and 30 March to notify her father and others that the sample may have been contaminated and presumably then at a point in time when she was not dehydrated, not humiliated and not delaying other persons. If that explanation had been given by her or her father to the respondent before the first sample was analysed there may have been a different outcome or maybe the respondent would have been prepared to accept the explanation. At the least, it would have been more credible and more realistic than it is now. The failure to notify the respondent after 30 March until 11 April - and then by a hand delivered letter - that the sample was contaminated because the beaker was dropped, again defies realistic explanation. I am satisfied the answer to explain this behaviour is that the beaker was not dropped.
Insofar as I have found that Ms Woodyard observed the applicant at all material times, I am also satisfied that had the applicant dropped the beaker as alleged it would have been known to Ms Woodyard who would have reported it or noted it or communicated it to other persons. Had she observed the applicant drop the beaker, bend forward, retrieve it, lift it and then wipe the outside of it to dry it, it would have been a chain of events which would have been so remarkable that it would have commanded noting or reporting. Additionally, I am not satisfied that Ms Woodyard handled the sample beaker as alleged.

The issues in dispute in this application are the contamination of a sample by the beaker being dropped and Ms Woodyard's temporary failing to observe the applicant whilst the second sample was being produced. As I have recorded above, I am not satisfied that either event occurred. No issue was raised by the applicant or her father as to the drug testing procedures. I am satisfied in any event having read the Act, the Regulations and the Scheme, the documents filed and having observed Ms Woodyard demonstrate the drug testing procedures during the hearing, that the protocols followed were consistent with the Act, the Regulations and the Scheme and no contamination or tampering of the samples occurred by the respondent or its officers or agents.
In all of the circumstances I am satisfied that the decisions are under review should be affirmed.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         .....C. Irons
.............................
  secretary
Date/s of Hearing  27 August 2001
Date of Decision  6 September 2001
Counsel for the Applicant        Mr Riordan
Solicitor for the Applicant
Counsel for the Respondent    John Marshall
Solicitor for the Respondent