34 The references to NATA were to the National Association of Testing Authorities, an Australian body which accredits scientific institutions.
35 Mr Ballard said that when he tested sample 991685 he knew that the testing equipment could print out the relative ion intensities but that it was not the practice in the laboratory to do so. This question and answer followed -
Q. Because if you had produced these results, 1685, which is Exhibit XX, there is no way, would you agree with me, that those results could stand up with what the manual says you are supposed to do, is that right?
A. According strictly to the manual, yes.
36 No comparison of retention times could be carried out at that stage because AGAL had no curator's standard for methcathinone.
37 In view of the remarkable discrepancy between the relative ion intensities of the reference sample and the tested sample and the acceptance/rejection criterion of plus or minus 20% provided for in the manual the jury ought in my opinion to have regarded Mr Ballard's conclusion as tentative at best.
38 Mr Ballard formed his conclusion by reference only to the second of the criteria, namely the appearance of the characteristic pattern of ions. Given that the relative intensity of ion 77 was almost twice as great as in the literature standard and that that for ion 51 was more that twice as great, I think that the jury ought to have wondered how firmly Mr Ballard could hold the view that the pattern appearance of the tested sample matched the literature standard.
39 The evidence about the AGAL manual, its status, intention and authorship, was unsatisfactory. Only two small parts of it were tendered. According to Mr Murtagh it was written by scientists for scientists to assist analysts, not to replace their skills. It was not to be read in a black and white fashion. He rejected what he called its dogmatic approach. Speaking of the tolerance margins for relative ion intensities, he made a number of statements which may not have sat well together, namely that the tolerance levels were valid, that the authors had given insufficient weight to the difference between two makes of testing instruments and that a test result falling outside the 20% margin should exclude a match technically, though it did not show that a conclusion to the contrary was wrong. He was not asked to explain what he meant by the word "technically".
40 Dr Kibby said this of the manual -
It's a part of the quality accreditation re laboratory. You must have adequate documentation of the procedures that you use for analytical chemistry, and these procedures and protocols are to be followed by all staff.
41 Mr Murtagh and Mr Ballard routinely regarded the manual's statements only as guidelines. Occasionally they ignored them. An example comes from the evidence of Mr Murtagh about testing samples on 13 and 14 October 1999, by which time AGAL had the curator's standard for methcathinone. The manual provided for runs of blanks initially and between runs of the known and unknown substances, to ensure that the results were not contaminated by material remaining from any prior run. This extract is taken from his Honour's summing-up -
… and (Mr Murtagh) gave in evidence that, in relation to these tests, he had not done them in accordance with the manual - "technically", again he said - in that he had not run a standard at the end of each blank, nor had he included duplicate runs as indicated by the manual. He claims, however, that the reference to "duplicates" relates to quantitation, not identity testing, even though the manual apparently indicates otherwise. He agreed that his runs in respect of these samples, however, was "technically" deficient, because they did not comply with the manual.
You have heard the evidence relating to the importance of complying with these set standards and counsel's submissions to you in relation to that, particularly from Mr Mayne, whose evidence in cross-examination I am presently dealing with, but also from Mr Fliece and Mr Bonnici. You may ask yourselves whether substantial non-compliance with these set standards, designed to produce validity in the results of an analysis, can be properly regarded as merely technical.
42 Dr Kibby took the opposite approach and submissions by the appellant at trial and in this Court based on his evidence were to the effect that a test result falling outside the tolerance margin showed that the unknown substance must be a substance other than methcathinone. Such an approach seems unreasonable to me, if only because it makes no allowance for contamination or equipment malfunction and admits no possibility that an analyst may be unsure of the identity of a tested substance .
43 Dr Kibby also said this -
Q. How important is the criteria (sic) of relative ion intensities in relation to identification of a compound which is known against a compound which is unknown please?
A. Well, it's critical. But remember the first criteria (sic) is retention time. It's when the retention times match that you then have to progress to the ions observed and then the relative intensities of those ions. But if the retention times don't match, you don't even progress to the second and third criteria.
44 Dealing with the diametrically opposed views of the experts, the Crown put to the jury and repeated in this Court that notwithstanding the provisions of the manual the approach of Mr Ballard and Mr Murtagh was a principled one. Referring to Mr Ballard's identification only by ion pattern, the analogy was drawn of a person recognising a common make of motor car. It could be legitimately done in either of two ways, it was submitted, namely by looking at it and assessing the make and model by reference to the way the make and model always appeared, or by recording the number of all the component parts and comparing them with the manufacturer's list of parts.
45 In my opinion the analogy is of limited value. The recognition of a motor car as of a well-known model requires at least two things to happen. First, the observer has to have seen a substantial number of cars of that model in conditions which will impress all the distinctive aspects of its profile on the memory. Secondly, the car to be identified has to be seen in conditions which enable all the distinctive aspects of its profile to be seen. It is by no means clear that the shape or chemical profile of methcathinone was known to Mr Ballard, though he had read in the literature about the ion pattern that might be expected to be seen. He had never analysed methcathinone before, even though the process of analysis was the same as for any other chemical substance. He did not see all aspects of the shape of the test samples before reaching a conclusion, but only the shape represented by the ion pattern. As the cross-examination revealed, the shape that Mr Ballard saw must have differed to some degree from the literature description.
46 The analogy also assumes that the observer has no expectation about the make and model of motor car about to be seen, a condition that did not exist here.
47 AGAL received its curator's sample of methcathinone on 5 August 1999. On 25 August Mr Ballard did a GCMS test of each of the seven samples. Unlike Mr Murtagh, he ran a sequence of tests in accordance with the manual, comprising one blank, three standard runs, one further blank run, a first and a duplicate run on the first sample (991685) and one run for each other sample followed by a further blank and a final standard run.
48 Mr Ballard prepared to run GCMS tests, as he said to establish that the substance was methcathinone. Before starting them he programmed the instrument and a summary of the intended test runs was printed out. It was tendered by counsel for Mr Griffiths and became Exhibit U.
49 Mr Ballard's evidence was that he keyed in the name of the substance to be tested as "methcathinone" and that he probably keyed into the instrument a retention time of 9.8 minutes. He either keyed in or left in 0.2 minutes as the maximum permissible difference in retention time. On the summary Exhibit U the retention time of 9.8 minutes and the tolerance margin, called "window", of 0.200 minutes appear. Next to each of the samples listed in Exhibit U appear under the heading "source", the letters "ACQU". They are an abbreviation of "Acquisition", an instruction to the computer to acquire data from the samples being run
50 The instrument took about 29 minutes to perform each run.
51 The form of report for each individual run had provision for printing the date and time of commencement, the name of the component and the retention time, among other things. There was no provision for showing the tolerance margin or window. There was provision for printing the word "acquire" if the computer, according to its instructions, acquired its data from samples run. Each report also incorporated a graph with a computer-produced peak. If the peak fell within the window, the computer would print "methcathinone" at the apex of the peak, but would otherwise not print the name of any substance on the graph.
52 The results of the first three curator's standard tests were printed. They became Exhibits V, W and X. On each report the retention time is printed as 9.78 minutes. It was common ground that the expected retention time for methcathinone was 9.8 minutes, but it was also agreed that a difference of 0.02 minutes was insignificant. Following the next blank run the unknown samples were tested and the results printed on documents that became Exhibits S to GG.
53 It was agreed that the retention time for each of the seven unknown samples should not differ from the retention time for the curator's sample by more than 0.2 minutes. There was no direct evidence as to the manual's requirements, in that respect. No relevant portion of the manual was tendered. However, the portion of Dr Kibby's evidence extracted above implied that the manual mandated a tolerance margin of 0.2 minutes.
54 The first three runs, on the curator's standard, produced identical results, including retention times of 9.78 minutes and the printed annotations "methcathinone" on the graph. According to the reports, the first run commenced at 12 hours 13 minutes 37 seconds, the second at 12 hours 42 minutes 37 seconds and the third at 14 hours 16 minutes 21 seconds, all on 24 August 1999. The reports of the first two runs, Exhibits V and W, bore the printed word "acquire". That of the third run, Exhibit X, bore instead the word "file".
55 The report on the test of the first of the unknown samples, Exhibit Z, showed the retention time at 9.55 minutes. Surprisingly, because that time was more than 0.2 minutes less than the standard retention time, the report printed "methcathinone" at the apex of the peak. Like Exhibit X, it bore the printed word "file", not "acquire". Mr Ballard was cross-examined about how such things could have happened. Then there emerged a fact which had not been mentioned (or perhaps noticed, for this is not intended to be any criticism of the Crown Prosecutor) during Mr Ballard's evidence in chief, namely that the run was recorded as having commenced at 14 hours 17 minutes 52 seconds on 24 August 1999. That was impossible if the preceding run with the standard sample(report Exhibit X) did not begin until 14 hours 16 minutes 21 seconds and took about 29 minutes.
56 Curiously, Mr Ballard then said that he was conducting the tests not to confirm that the substance was methcathinone but only for the purpose of quantitation. He agreed in cross-examination that the notation "methcathinone" should not have appeared on the graph in view of the difference between the retention times. Later on, he confirmed that each run took about 29 minutes. There were these questions and answers -
A. Further looking at this last night, going through them with the times, it appears that I did use the instrument some time after 12.42 and before 14.16 - 2.16 - that day.