Campbell v Chief Executive of the Department of Corrections

[2013] NZHC 1989

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-254 [2013] NZHC 1989

UNDER THE  Judicature Amendment Act 1972

IN THE MATTER OF       An application for judicial review

BETWEEN  BUDDY EDWARD CAMPBELL Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:                   21 June 2013

Counsel:                  Applicant in person

D Perkins and M Gaudin for the Respondent

Judgment:                8 August 2013

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] The legislation .................................................................................................................................... [3] The facts ............................................................................................................................................. [6] Issue 1: Chain of custody ............................................................................................................... [18] Issue 2: result not recorded as “positive” ...................................................................................... [24] Issue 3: level of THC ....................................................................................................................... [28] Other matters .................................................................................................................................. [38]

Result ................................................................................................................................................ [41]

CAMPBELL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2013] NZHC 1989 [8 August 2013]

Introduction

[1]      Mr Campbell is serving a sentence of imprisonment.   While serving that sentence, he was charged with using a drug without the authority of a medical officer.1     The  charge  followed  the  testing  of  a  urine  sample  provided  by Mr Campbell.   At a hearing on 10 September 2012, a Visiting Justice found the charge proved.  She imposed a penalty of five days’ cell confinement and 21 days’ loss of privileges.  As a result of the finding, Mr Campbell was also classed by the prison authorities as an “IDU” (Identified Drug User).  Mr Campbell seeks judicial review of the decision of the Visiting Justice.

[2]      Mr Campbell raised a number of matters in the written documents he filed in support of his application for judicial review.  In his oral submissions he advised that the matters he wished to pursue were confined to:

(a)       the  chain  of  custody  of  the  “B”  sample  submitted  for  testing  to

Canterbury Health Laboratories (“CHL”);

(b)      that the CHL report on the “B” sample did not record a “positive”

result;

(c)      whether the CHL report on the “B” sample detected carboxy-THC or the presence of “carboxylic acid” in accordance with the relevant New Zealand Standard under which samples are tested.

The legislation

[3]      The Corrections Act 2004 governs the operation of the corrections system in New Zealand.   Amongst other things, it permits a correction officer in specified circumstances to require a prisoner to submit to a procedure for the purpose of determining whether the prisoner has used drugs or alcohol.2    The result of a urine sample may lead to a disciplinary charge against the prisoner.   Section 129 of the

Corrections Act provides:

1      Corrections Act 2004, s 129(a); Corrections Regulations 2005, sch 7, cl 5.

2      Corrections Act 2004, s 124.

129     Offences by prisoners relating to drugs, alcohol, and smoking

Every prisoner commits an offence against discipline who,-

(a)       without the authority of a medical officer or a health centre manager or unless section 79(3) applies, uses any drug or consumes alcohol (whether inside or outside a prison); or

...

[4]      The Corrections Regulations 2005 set out provisions which apply to urine samples obtained from prisoners.3  Amongst other things, these include:

(a)      Regulation 139:  a specified form must be completed, the sample must be poured into two sterile bottles, and the sample must be sealed and locked in a refrigerator until it is collected for transportation to a specified laboratory;

(b)Regulation  140:     the  sample  is  to  be  delivered  to  a  specified laboratory and a specified form is to be completed;

(c)      Regulation 141:  after analysis of a sample delivered under reg 140, “an analyst from that laboratory must complete and send to the manager of the prison concerned a certificate showing the result of the analysis”;

(d)Regulation   142:      a   copy   of   the   “certificate   referred   to   in regulation 141” must be given to the prisoner and to a medical officer or a staff member who is a nurse “if the result is positive”.

[5]      There are also requirements in the Regulations if the result of a urine sample analysis is to be used in a disciplinary hearing, as follows:

143     Requirements before result of sample analysis can be used in proceedings

The result of the analysis of a urine sample may only be used as evidence in any disciplinary hearing if—

(a)       the appropriate chain of evidence forms have been completed; and

3      Corrections Regulations 2005, regs 130-143.

(b)       an analyst from the specified laboratory that analysed the sample has certified in writing that—

(i)       the result was positive; or

(ii)      there is evidence that the sample has been tampered with or contaminated in any way; and

(c)      after receiving a copy of the analyst's certificate and before the commencement of the hearing, the prisoner has been—

(i)       advised  of  the  right  to  have  the  sample  independently analysed at the prisoner's own expense; and

(ii)      given 48 hours to elect to have the sample independently analysed; and

(d)      within that 48 hours the prisoner has elected—

(i)       not to have the sample independently analysed; or

(ii)      to have the sample independently analysed and the prisoner has been given—

(A)      14 days after the close of the day on which the 48 hours expires to pay for and dispatch the sample for independent analysis; and

(B)      21 days after the close of the day on which the 48 hours   expires   to   produce   the   result   of   the independent analysis; and

(e)       a medical officer, or a staff member who is a nurse, has certified, in writing, that any drug found in the prisoner's sample was not, to the best of his or her knowledge, administered to the prisoner in accordance with instructions from a health service provider, a health centre manager, or a medical officer.

The facts

[6]      On 25 July 2012 Mr Campbell was required to provide a urine sample to be tested for drugs.4   A prisoner urine sample checklist was completed by a Corrections officer.  The checklist recorded that an adequate sample was provided at 12:58 hours on  25  July 2012.   A barcode  sticker  applied  to  the  checklist  recorded  that  the specimen was given the ID number U142035.

[7]      The sample was divided into two separate bottles, referred to as “A” and “B”

samples.  Both samples were transported to the Institute of Environmental Science

4      Corrections Act, s 124(1), Corrections Regulations 2005, reg 130(1).

and Research (ESR) laboratory.  An ESR analyst’s certificate dated 2 August 2012 was provided to Rimutaka Prison in respect of the “A” sample.5   The collection date and time of the sample was noted on the certificate as 25 July 2012, 12:58.   The certificate referred to the prisoner number (26309997) and specimen ID (U142035). It also contained an ESR reference (A12ESR39213-001).

[8]      The certificate recorded that the sample was analysed for a range of drugs and alcohol.  It also recorded that “[t]he sample was analysed by mass spectrometry for Cannabinoids under section 5 of AS/NZS 4308:2008”.   It then contained the following:

Drug  Result

THC Acid  Positive – THC Acid Level 45 ng/mL

[9]      On 3 August 2012 a medical officer provided a certificate that the result was not consistent with medication prescribed to the prisoner.6   On that same day, on the basis of the ESR certificate, Mr Campbell was charged with using a drug without the authority of a medical officer.  Also on that same day, Mr Campbell exercised his right to have the “B” sample independently analysed.7

[10]     On 23 August 2012 ESR advised CHL that a sample had been couriered by registered  post.    The  letter  contained  the  ESR  reference  “A12ESR39213”  and prisoner number “PRN 2630997”.  The receipt by CHL recorded that a sealed bottle labelled “2630997” and “U142035” had been received and the sample was in a condition suitable for analysis.

[11]     CHL provided a report dated 26 August 2012.   The date of collection was stated as being “? hrs on 25/07/2012”.  The report recorded the specimen details as being PRN 2630997, ESR number “A12ESR39213” and barcode “U142035”.  The

report recorded “[a] single urine sample was received from ESR in a suitable state

5      Corrections Regulations 2005, reg 141.

6      Regulation 143(e).

7      Regulation 143(c)(i).

for analysis at 0830 hrs on Friday the 24th August 2011.”8   The report recorded that the analysis was performed “as per Section 5 of AS/NZS-4308 (2008).”  The result recorded was as follows:

Mass Spectral confirmation                Limit of Detection                 Result

Carboxy-THC  2µg/L  Detected

[12]     Because the report did not provide information as to the amount of Carboxy- THC found, a further report was requested.  This report was as per the 26 August

2012 report except that it was dated 27 August 2012 and included the following:

Please note as requested: Carboxy-THC level 45 µg/L

[13]     Following  earlier  adjournments,  on  10  September  2012  Mr  Campbell appeared before the Visiting Justice.  Corrections Officer Gordon Geekie prosecuted the charge.   Mr Campbell pleaded not guilty and was unrepresented.   Corrections Officer Terry Richards gave prosecution evidence.   He was one of the designated Corrections officers on duty when Mr Campbell provided his sample.  Mr Richards was cross-examined and later recalled for further questioning by the Visiting Justice. Mr Campbell was given an opportunity to present his case.  He handed up written submissions to the Visiting Justice and spoke to them.

[14]     While making submissions to the Visiting Justice, Mr Campbell indicated that he wished to call Corrections Officer Mr de Groot to give evidence.   Mr de Groot had been involved at an earlier stage of the prosecution of the charge.   Mr Campbell had not foreshadowed that he wished to call Mr de Groot to give evidence and  he  was  unavailable  in  any  event.    The  Visiting  Justice  declined  to  permit Mr Campbell to call Mr de Groot.  She also declined to adjourn the hearing until he was available.

[15]     The Visiting Justice found the charge proved.   She heard submissions on penalty.  She imposed a penalty of five days’ cell confinement and 21 days’ loss of

8      The reference to “2011” is clearly a typographical error given the date of the report and the

privileges.  Mr Campbell has long since served that penalty.  His concern arises out of the consequences of his IDU status.  IDU status is an internal prison tool which is used to identify prisoners who may be using drugs.  Mr Campbell was recorded as having that status as a consequence of the charge being proven.

[16]     The purpose of identifying a prisoner as an IDU is so that this may be taken into account in the management of prisoners.   For example, it may be relevant to whether a prisoner will receive parole or be released to participate in a work programme.  The IDU status applies for 12 months.  There is an ability to have that status removed earlier through participating in voluntary checks.   This requires a prisoner to provide two clear samples within a certain period.  Conversely, if further samples are provided which are not clear, then the IDU status is elevated.

[17]     In this case, Mr Campbell was living in a house on prison grounds with other prisoners and was working outside the prison on a “release to work” programme. As a result of his IDU status he is now back in a prison cell and is no longer permitted to work outside the prison grounds.   Mr Campbell sought to have his  IDU status removed by participating in a voluntary check.  Pursuant to that, a sample was taken from him on 9 January 2013.  The “A” sample was positive.  A request for a “B” sample to be tested was made but not carried out.   There is a difference in view between Mr Campbell and the Department of Corrections as to why that was.  In any event, as a result of the positive result on the “A” sample, Mr Campbell’s status changed to “IDU2”.  This is a level up from his original status and resulted in further restrictions being imposed on Mr Campbell.   It seems that Mr Campbell may also have been categorised as “IDU3” at one point but this was rescinded when he was

found not guilty of failing to provide a sample.9

Issue 1:  Chain of custody

[18]     Mr Campbell raises two matters in relation to the chain of custody:

(a)       the  CHL report  on  the  “B”  sample  does  not  record  the  time  of

collection; and

9      I do not have full details about this and it is unclear whether Mr Campbell and the Department of

(b)the ESR number on CHL’s report on the “B” sample is different from the ESR number on the certificate for the “A” sample.

[19]     As set out above, the analysis of a urine sample may only be used as evidence in a disciplinary hearing if “the appropriate chain of evidence forms have been completed”.     The  result  which  the  prosecution  relied  upon  as  evidence  in Mr Campbell’s disciplinary hearing was that relating to the “A” sample.  The chain of evidence forms relating to the “A” sample are the specified forms referred to in reg 139 (obtaining, sealing and locking the samples until collection) and reg 140 (delivering the sample to the laboratory).  It is not contended that these forms were incomplete.

[20]     Mr Campbell’s concerns relate to the “B” sample.   There are no chain of evidence form requirements relating specifically to that.  However proving the chain of custody of any sample is relevant to whether there can be any doubt about the identity or integrity of the sample.   If there are issues about the chain of custody which raise concerns about the identity or integrity of the “B” sample then that would be relevant to whether the prosecution had proven the charge.  That is because the Regulations provide a process by which the prisoner can seek to challenge the reliability of the result of the “A” sample through the testing of the “B” sample.  If Mr Campbell can point to doubts about whether the “B” sample taken on 25 July

2012 was the sample tested by CHL then that may raise a doubt about whether the “A” sample result is sufficient to prove the charge.  That said, the two matters raised by Mr Campbell do not raise any concern about the identity or integrity of the “B” sample tested by CHL.

[21]     As to the date of collection, the prisoner checklist shows that the sample was provided at 12.58 hours on 25 July 2012.  The ESR certificate records that it was collected at 12.58 on 25 July 2012.  It is only the CHL report on the “B” sample that does not record the time at which the sample was taken from Mr Campbell.  There is no doubt, however, that the “B” sample on which it provided its report was part of the sample taken from Mr Campbell on 25 July 2012 at 12.58 hours. That is because the CHL reports of 26 and 27 August 2012 identified the sample by reference to date, prisoner number, ESR number and barcode:

(a)      The date (25 July 2012) on the CHL reports corresponded with the date of the checklist completed when the sample was taken from Mr Campbell and the date of the sample which was the subject of the ESR certificate.

(b)The  prisoner  number  on  the  CHL  reports  was  the  same  as  that included in the ESR certificate for the “A” sample, the ESR letter dated 23 August 2012 advising CHL that the sample was being sent by registered post, and the CHL acknowledgement of receipt of the sample from ESR.

(c)      The ESR number on the CHL reports was the same as that recorded on the ESR letter to CHL of 23 August 2012 and that on the ESR certificate (apart from not having “-001” at the end of the number).

(d)The  barcode  number  on  the  CHL  reports  was  the  same  as  that recorded on CHL’s acknowledgement of receipt from ESR of the “B” sample, the ID number on ESR’s certificate of 2 August 2012 in respect of the “A” sample and the barcode number affixed to the

25 July 2012 checklist completed when the samples were taken from

Mr Campbell.

[22]     As to the ESR reference number, it is the case that the “B” sample received by CHL had the number “A12ESR39213” whereas the ESR certificate on the “B” sample had the number “A12ESR39213-001”.  However, given:

(a)      the correspondence of the other identifying numbers  (the prisoner number and the barcode);

(b)      the documentary evidence that ESR forwarded the sample to CHL

with those identifying numbers; and

(c)      that the ESR reference number in respect of the “A” sample differs only from the CHL sample in that the “A” sample certificate has the additional numbers “001”,

there can be no doubt that the sample received by CHL from ESR was part of the sample taken from Mr Campbell on 25 July 2012 at 12.58 hours.  That sample was required to be divided into two samples.  ESR tested the first sample (it appears it identified this with the “001” addition), referred to as the “A” sample.  The second sample, referred to as the “B” sample, went to CHL.

[23]     The matters  raised by Mr Campbell under this heading therefore do  not establish grounds for the relief claimed.

Issue 2: result not recorded as “positive”

[24]     The second issue pursued by Mr Campbell relates to the report from CHL on the “B” sample.  Neither the initial report dated 26 August 2012 nor the subsequent report on 27 August 2012 recorded that the result was “positive” for Carboxy-THC. Rather both reports recorded that Carboxy-THC was “detected” and the 27 August

2012 report also recorded that the Carboxy-THC level was 45µg/L.

[25]     Mr Campbell relies on reg 143(b)(i) of the Corrections Regulations.   That provides that “[t]he result of the analysis of a urine sample may only be used as evidence in any disciplinary hearing if ... an analyst from the specified laboratory that analysed the sample has certified in writing that ... the result was positive”. However this requirement relates to the “A” sample.  That is because the regulation is referring to the sample analysed by the specified laboratory which has provided the certificate.  This links back to the requirement in reg 140 to deliver a sample to a specified laboratory and the requirement in reg 141 for that laboratory to complete a certificate showing the result of the analysis.   That result may only be used as evidence in a disciplinary hearing if the requirements of reg 143 are met.   Those requirements include a requirement that the analyst certify that the result of the sample analysed  was  positive.    It  also  includes  a separate  requirement  that  the prisoner have the opportunity to have the sample independently analysed.

[26]     There is no requirement that the certified result of the sample relied upon by the prosecution (the “A” sample) can only be used if there is also a certificate that the sample independently analysed (the  “B” sample) is positive.   If the sample independently analysed produces a result different from the certified result on the “A” sample, that will be relevant to whether the prosecution has proven the disciplinary offence of using drugs (s 129 of the Corrections Act).  But it does not prevent the certified result (which relates to the “A” sample) from being used in evidence in the hearing of that offence.  The same view was reached by the High

Court in Attorney-General v The Visiting Justice at Rimutaka Prison.10

[27]     This issue raised by Mr Campbell is therefore not a basis on which relief can be granted.

Issue 3: level of THC

[28]     The third issue that Mr Campbell pursues relates to whether the result of the analysis of the “B” sample showed a positive result under the relevant standards. This issue arises out of a reference in Attorney-General v The Visiting Justice at Rimutaka Prison to the relevant Standard specifying the value at which a sample is deemed to be positive.  Under the Standard referred to in that judgment that value is noted as being “50 nanograms or greater per millilitre of cannabinoids (screening analysis) and 15 nanograms or greater, per millilitre of THC-acid (confirmation

analysis)”.11   Mr Campbell submits that the CHL report gave a “Carboxy-THC level”

of 45 nanograms per millilitre and this is lower than 50 nanograms per millilitre of

“cannabinoids” and does not provide any level for “THC-acid”.

[29]     The AS/NZS4308:2008 is the current Australian/New Zealand Standard for detecting drugs in urine.  Both the ESR certificate in respect of the “A” sample and the CHL report on the “B” sample refer to Section 5 of this Standard as the standard

under  which  the  sample  was  analysed.    That  Section  is  headed  “Laboratory

10     Attorney-General v The Visiting Justice at Rimutaka Prison HC Wellington CIV-2003-485-172,

21 April 2004 at [19]-[20]. That decision was concerned with a similar issue raised in respect of the  legislation  (the  Penal  Institutions  Act  1954)  and  regulations  (the  Penal  Institution Regulations 2000) in place prior to the Corrections Act and Corrections Regulations.   The provisions were materially the same as the provisions at issue here.

11     At [20] referring to the AS/NZS4308:2001 Standard which is materially the same as the 2008

Standard.

Confirmatory Procedures”.  It is described as being the section which “sets out the confirmatory procedures  for  the  unequivocal  identification  and  quantification  of drugs ... in human urine in those classes of drugs listed as follows”.  The list that follows includes “cannabis metabolites”.

[30]     Section  5  goes  on  to  provide  for  various  matters  in  relation  to  the “confirmatory testing” of the urine specimen.   Amongst other things  it sets out “Acceptance  Criteria”.    Under  this  heading  it  provides  that  “[r]esults  shall  be reported  as  detected  (positive)  if  the  following  criteria  are  met”.    That  criteria includes “[t]he concentration detected at or above the specified cut-off concentration in Table 2” by an amount greater than an uncertainty measurement (about which there is further detail stipulated).  It is Table 2 where one of the figures, referred to in Attorney-General v The Visiting Justice at Rimutaka Prison and relied on by Mr Campbell, is found.

[31]     Table  2  is  headed  “Confirmatory Test  Cut-off  Concentrations  (As  Total Drug)”.  It then sets out the drugs and cut off concentrations.  In relation to cannabis it includes:

Compound  Cut-off level

µg/L

ll-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid               15

[32]     As noted above, the ESR certificate stated that the sample was analysed under Section 5 of AS/NZS4308:2008 and that in relation to “THC Acid” the result was “Positive – THC Acid Level 45 ng/ml”.   It is apparent that “THC Acid” is shorthand for “11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid” referred to in Table 2 of Section 5 of the Standard.  That is apparent both from the letters “T” for “tetra”, “H” for hydro” and “C” for cannabinol” and because the ESR is certifying a “positive” result in respect of a drug under Section 5 of the Standard.   In other words, in accordance with the standard, ESR was able to report a positive result on the “A” sample because the testing showed a level of THC Acid (that is, 11-nor- delta-9-tetrahydrocannabinol-9-carboxylic  acid)  well  above  the  cut  off  level  of

15 µg/L.

[33]     As discussed above, it is only the “A” sample that must comply with the requirement in reg 143(b)(i).   And that requirement is that the analyst certify in writing “that the result was positive”.   The CHL report on the “B” sample was, however, relevant to whether the certified result on the “A” sample was sufficient to prove the disciplinary charge brought against Mr Campbell.  That report advised that the  sample  had  also  been  analysed  under  Section  5  of AS/NZ-4308(2008).    It described the drug “detected” as “Carboxy-THC” and that the “Carboxy-THC level” was 45 µg/L.

[34]     It would have been preferable, for the sake of clarity, if the CHL had used the same terminology as that used in the Standard and by ESR.  It is, however, apparent that the CHL was reporting on the same drug: the letters “T”, “H” and “C” corresponding to the shorthand used by ESR, and “Carboxy” apparently being shorthand for “carboxylic acid” (as used in Table 2) and Acid (as used by ESR). The CHL  report  used  the  word  “detected”  rather  than  “positive.”    “Detected”  and

“positive” are used interchangeably in the Standard and mean the same thing.12   The

CHL report also reported that the level detected was 45 µg/L.   It is clear that this level was above the 15 µg/L level set out in Table 2.  It is therefore clear that this was a “positive” result in terms of Section 5 of AS/NZS-4308(2008).

[35]     The result of the analysis on the “B” sample was therefore identical to the analysis of the “A” sample.  The result on the “B” sample did not therefore raise any doubt about the result (as set out in the ESR certificate) relied on by the prosecution to prove the charge.

[36]     For completeness I note that the “50 nanograms or greater per millilitre of cannabinoids (screening analysis)” referred to in Attorney-General v The Visiting Justice at Rimutaka Prison (and relied on by Mr Campbell) relates to a different section of the Standard.   Section 4 of AS/NZS-4308(2008) is headed “Laboratory

Screening Procedures”.  The section is concerned with laboratory procedures for the

12     See 5.13 of Section 5 which provides that “[r]esults shall be reported as ‘detected’ (positive) if the concentration detected is at or above the specified cut-off concentration in Table 2.  And see also 1.3.18 which defines “[c]ut-off concentration” as a “value at or above which the drug/metabolite is deemed to be ‘detected’ and below which the drug/metabolite is deemed to be

‘not detected’” which is followed by “NOTE: In some contexts the words positive and negative
are used respectively for detected and not detected”.

screening of drugs in human urine.  Section 4.10 provides a table of cut off levels at or above which  the specimens  must  be forwarded  for confirmatory testing.    In relation to the class of drugs referred to as “cannabis metabolites” the cut off level is

50 µg/L.  That Section (and that table within it) are not, however, the basis on which a laboratory provides its certificate on the “A” sample or the report on the “B” sample.   It is the level in Table 2 that determines whether a positive result can be certified/reported.

[37]     This issue raised by Mr Campbell is therefore not a basis on which relief can be granted.

Other matters

[38]     Mr Campbell’s written documents raised a number of other issues.  The two potentially of most substance were that he had not been able to call Mr de Groot and that  the  Visiting  Justice  did  not  provide  reasons  for  her  decision.    I  note  that Mr Campbell was right not to pursue these issues.  Mr de Groot was not able to give

relevant evidence that would have been material to Mr Campbell’s case13  and the

Visiting Justice’s reasons for the decision she gave are apparent from a review of the transcript.

[39]     Mr Campbell’s written documents also sought relief in respect of changes to his IDU status.  It seems that there was some misunderstanding about that and the reason for the changes.   If Mr Campbell remains unclear about these matters, he needs to raise them with the prison authorities.

[40]     Finally  I note that  Mr  Campbell  raised  issues  about  the analysis  by the laboratories in order to show that the results could not be relied upon to prove the charge, and that therefore his claim that the cannabis detected in his urine was from passive inhalation (through being present where others were smoking cannabis) should have been accepted as a reasonable possibility.   As discussed above, his concerns about the analysis are not made out.   Mr Campbell did not produce any

other evidence to support his claim of passive inhalation.  For example there was no

13     Mr de Groot provided an affidavit confirming this.

evidence of when and in what circumstances this had occurred.   Nor was there scientific evidence to support this claim.  The only evidence before me about this is in the form of an ESR statement prepared in respect of another prisoner.   In that statement the opinion expressed is that “it is extremely unlikely that a positive result of 24 nanograms THC-Acid per millilitre of urine would be obtained from passive inhalation of cannabis smoke.” Mr Campbell’s positive result was above this level.

Result

[41]     The application for judicial review is dismissed.

Mallon J