The trial judge in his summing up to the jury stated:
“...Mr Ballard, as I have already said, is the sole witness for the Crown, hence Mr Ballard is of vital importance so far as the Crown’s case is concerned ...”
1: The exhibits were transferred from senior analyst Murtagh to analyst Ballard on 06/07/1999. Charged with the responsibility of issuing Certificates of Identification with regard to the unknown substance, analyst Ballard failed to take his own samples from the bulk substance and then failed to weigh each of the seven samples. He instead accepted the samples and weights of those samples recorded by analyst Murtagh in his workbook. He testified that this was the first time that the samples were already separated from the bulk substance before being passed to the analysing chemist in matters concerning NSW Police. In his certificates, analyst Ballard certified that the sample numbers and their weights were true and correct something he could not have known with certainty.
In so doing he jeopardised the integrity of both the tests he performed on those samples and the certificates he issued as to identity. As well he was in breach of the AFDL Procedures Manual and NATA requirements.
The following is an excerpt from the transcript;
Q: Obviously you couldn’t vouch yourself for the accuracy of any of the weights, correct?
A: That’s correct.
A): Infrared Spectroscopy (IR) Tests:
The following is an excerpt from the AFDL manual with reference to Infrared Testing:
“Infrared Spectroscopy is another useful technique for identification provided the substance is practically pure”.
1: On 12/07/1999 analyst Ballard conducted Infrared Spectroscopy tests on each of the seven samples, compared them visually with a literature standard, namely the Microgram Journal dated December 1992 and concluded that the samples contained methcathinone.
Dr Kibby, part of whose evidence appears below and who appeared for the defense, has an extensive Curriculum Vitae including 14 publications. Dr Kibby worked at ICI Australia in the Scientific Instruments Division as an Hewlett Packard liquid chromatography specialist and Applications Manager where he was involved in researching and developing new instrumentation and software.
Further to Dr Kibby’s experience the following testimony was given:
“...even more relevant to these proceedings is the fact that at the time in 1991/1992, ICI had a pseudoephedrine factory at Mayfield up in Newcastle and I personally developed the analytical techniques for looking at mixtures of pseudoephedrine, ephedrone, which has been referred to in these proceedings as methcathinone, so I have actually got personal experience in analysing mixtures of these chemicals.”
Concerning analyst Ballard’s IR tests of the 12/07/1999, Dr Kibby pointed out that in the test results for the seized samples there were wave numbers indicated to specific peaks but there was no such data generated in the literature standard which means that the analyst is limited to making an estimation, not an identification. Further, according to Dr Kibby there were some significant differences in the absorbency bands which would preclude a formal conclusion as to identity.
Analyst Murtagh conducted an IR test on sample 991688 on 03/07/1999 and he could only give a cursory opinion as to the identity of this sample. He said there were similarities with the literature standard for methcathinone but the differences between the two meant further testing was required. Analyst Ballard on the other hand ran exactly the same test on the same day on this sample 991688 as part of his tests on samples 991685 to 991691 and concluded all samples were a match with the literature standard.
The defense analyst made the following comments regarding analyst Ballard’s methods in running his Infrared tests:
“...if you suspect you have got a hydrochloride salt, then, I believe Mr Murtagh did a test to show it’s chloride, you actually don’t run infrared spectra as a potassium bromide disc, because there is a possibility of the interaction of the hydrochloride salt with the potassium bromide you use to make the disc. What the AFDL laboratory should have done is used potassium chloride, once they suspected they had a hydrochloride salt.”
2: As a result of matters raised at the Committal Hearing, analyst Ballard began what became known as his curiosity tests. On 15/08/2000 he re-ran an IR test on sample 991685, which became exhibit 160, to test for the presence of caffeine and to satisfy himself as to whether there had been any decomposition in the sample as compared to the original IR test dated 12/07/1999,some 13 months earlier - methcathinone is known to decompose over time. There was no decomposition of sample 991685. Analyst Ballard did not run the methcathinone standard as part of this test, instead used a mixed drug standard but was still able to declare a match for methcathinone when compared to the Microgram Journal reference, exhibit 155.
The defense analyst said there were significant differences between the sample 991685 and the literature reference in the IR test of 15/08/2000 and there were differences between the same sample 991685 when compared to the same literature reference on 03/07/1999.
More significantly, Dr Kibby said there were some differences between the two samples run on the same IR machine thirteen months apart particularly in the higher wave number regions from two thousand wave numbers up to three and a half thousand wave numbers.
B): Thin Layer Chromatography (TLC) Tests:
The AGAL manual refers to Clark’s mobile phase in the amphetamine system and is regarded as a definitive test in analytical chemistry, according to the defense analyst. It’s an eluent system of cyclohexene toluene and diethylamine. Analyst Ballard used the solvent system 25 parts ethyl acetate, 10 parts acetone, and 1 part ammonia, a solvent system which can be unstable and therefore affect results. This solvent system was used in both TLC tests and according to this analyst was the reason that there was no reproducibility between the two runs and the reason that exhibit O, the list of typical RF values for substances as recorded in the AGAL manual, differed greatly from analyst Ballard’s results.
1: On 12 July 1999, analyst Ballard conducted a Thin Layer Chromatography (TLC) test on each of the seven samples - samples were run against several standards of amphetamine-type substances and there was no match to any of these standards. Analyst Ballard recorded the Retention Factor (RF) for samples 991685 to 991691 on what became known as exhibit 156 as well as the RF values for each of the standards. He concluded that the samples 991685 through to 991691 did not match any of the standards, that a particular compound was present in each of the samples and that three of the samples 991689 to 991691 contained a second compound.
