The National Association of Testing Authorities (NATA) The National Association of Testing Authorities or NATA is Australia's government endorsed provider of accreditation for laboratories and similar testing facilities. The following is the response from NATA regarding the main questions that arose from the evidence of the AGAL analysts tests as requested by me and supplied by Maritta Parsell, Manager Forensic Science:- “As background information, I note that this laboratory, AFDL, was originally a unit inside of the Australian Government Analytical Laboratories (AGAL) however this arrangement changed several years ago and AGAL has since been absorbed into the National Measurement Institute (NMI). AFDL was NATA accredited under NATA’s Chemical Testing program at the time of testing referred to in your letter. This group transferred into NATA’s Forensic Science program in November 1999. It should also be noted that over the last eight years there have been considerable changes in both staffing and procedural operations within this section. As part of my investigation, I was able to organise a visit to the laboratory at which time I was granted access to the relevant case files and a variety of laboratory documentation which included archived manuals, procedures and quality documentation authorised for use in July 1999. I was not, however, able to discuss this case with the relevant case reporting scientist, the analyst or the Laboratory Director involved as they are no longer employed by AFDL or NMI.”   1:  While I am not familiar with the Drug Misuse and Trafficking Act (1985) and therefore cannot comment on its intent or interpretation I can, however, confirm that it is a NATA requirement that any work carried out under the act must be performed as directed by that legislation. I also noted that the AFDL Procedures Manual V3.3 states that controlled substances require weighing by the analyst because of the “Admixture” clause of the NSW Drug Misuse and Trafficking Act.   2: The first certificate identifying the compound, Methcathinone was determined through the use of a “reference library” standard. This analytical approach uses a library record covering a variety of compounds where the reference spectrum (or trace) is compared to the unknown sample trace. This approach was not unusual in 1999 particularly as reference drug standards tended to be difficult to obtain. It would, however, be a NATA requirement that any compounds identified would need to be confirmed, which did occur once the reference standard was received a short time later.   3: The TLC records show a negative response for all compounds contained in the standard therefore none of the compounds contained in that particular mixed drug standard were identified or reported. The report dated 3/8/1999 states, “found to contain methcathinone” follows testing by TLC and the FT-IR analyses. The TLC analyses confirmed that no known compounds in the mixed standard were present. The FT-IR analysis used a library spectrum to identify the compound Methcathinone. As noted in my response to Q2 above, the process of using a library reference as a screening technique was considered acceptable practice in 1999. This procedure is also detailed in the relevant AFDL procedures manual. I further note that a Methcathinone reference standard was received on 5 August 1999 from Radien International and this standard was subsequently used to confirm the identification of the compound, Methcathinone.   4: The records indicate that the GC/MS results relied on selected ions which were 58 as the parent ion and 56, 77 and 30 as the three daughter ions. It was considered normal practice to select the four strongest peaks identified in the mass spectrum for an unknown standard. These selected ions must appear in all unknown samples. There were no records of the empirical measurement of peak ratios between these ions to further verify the compound as Methcathinone.   5: It is a NATA requirement that the laboratory follow its documented procedures, which in this case would have meant empirical measurement of the peak ratios between the selected ions.   6: I am unable to comment on the technical variation as I was not able to find any documentation which recorded this change to the authorised procedure. I would note that the method validation process may have included the use of a high concentration standard to demonstrate the linea range, however, I did not have the opportunity to review the method validation data.   7: I was not able to source any in house documentation verifying the technical merit of using the result from a single “representative” sample to determine the content of any other samples. Normal practice at that time would have included at least a duplicate sample, if not more replicates, depending on the size of the sample.   8: I can confirm that the case file records reviewed were counter signed by the Laboratory Director at that time, Mr Skopec as part of the technical review process. By signing these records the technical reviewer confirms agreement with the process. It is a NATA requirement, under the Forensic Science program, that a proportion of all analyst’s case work be technically reviewed prior to the final report being issued.   9: It is not uncommon for analysts to alter computer generated information, however it has always been a NATA requirement in the Forensic Science field that any changes to original data must be initialled and dated by the officer making the changes and an explanation or reason for the change to be noted in the case file. I was not able to find any record in either of the case files detailing the reasons for these alterations.   10: The records you submitted reflect those held in case files. If these records show the incorrect date of analysis, this should have been picked up by the analyst at the time and a note placed on file identifying this issue. I found no such note on file. It is not unusual practice to blank out information contained in crime scene examiner’s notebooks or police diaries particularly if this information has nothing to do with the case into which a copy of the notebook or diary entry has been placed. This would be for confidentiality and continuity reasons. Further it is rare that an officer or examiner would be working on only one case at a time.   11: From my investigations, I was not able to determine the reason for the computer generated comment “corrupt”. As part of NATA’s accreditation requirements it is expected that a note would have been added to the case file to explain this “computer generated comment” and whether or not it necessitated the re-analysis of the samples flagged as corrupt or if this was merely a random programming error. Without this explanatory note I cannot comment further. This should have been identified as part of the technical review process and queried prior to the issuing of the final report.   12: Regarding the changes to the method specified retention time window, the case file records show that there was a change made to the retention time window around 9.8 mins of +/- 0.2 mins to +/- 0.3 mins during the run without any annotation to the record to reflect who made the change or why. While it is not unusual for these changes to be made, it is a NATA requirement that this information be recorded for traceability reasons. Adjustment of the retention time window given in the method may have been justified, however, as stated in the laboratory’s own manual, any changes had to be authorised by the Laboratory Director and I was not able to find any record of this authorisation on the case file.   Regarding Point One of the NATA Response: The analysing chemist, analyst Ballard, certified that the sample numbers and their weights were true and correct, something he could not have known with certainty as, contrary to the Drug Misuse and Trafficking Act, the AFDL Procedures Manual and NATA requirements this analyst did not take his own samples, did not weigh the samples himself and did not allocate them AFDL numbers and in so doing he compromised the integrity of  both  the tests he performed on those samples and the certificates he issued as to identity.   Regarding Point Two and Three of the NATA Response: Contrary to NATA requirements concerning confirmation of conclusions drawn by Analyst Ballard on samples 991685 to 991691 prior to the receipt of the methcathinone standard, this analyst did not re-run his Infrared or Thin Layer Chromatography tests once he had access to the curator standard. The Gas Chromatography Mass Spectrometry test run on sample 991685 prior to his having access to the methcathinone standard was not re-run until 18 August 2000 and also as part of the collective run of all seven samples on 18 January 2001 and in both these tests he claimed to identify methcathinone. It must be remembered that analyst Ballard issued his preliminary certificate of analysis on 03/08/1999 on these unconfirmed test results. In fact there was no confirmatory test performed, once the methcathinone standard was available, prior to the issue by analyst Ballard of his final certificate of analysis. Only a GC test for quantitation was performed and analyst Ballard expressed the view that he was satisfied as to identity by way of his earlier tests and so ignored significant retention time differences. Senior analyst Murtagh performed an IR test and a GCMS test on sample 991662 and declared it a match for methcathinone with both tests performed prior to his having access to the curator standard. Also prior to the arrival of the methcathinone standard, analyst Murtagh conceded that he did not spot the sample on the TLC plate for 991662. On the back of these tests this analyst declared the purity was so high that he made this sample his secondary standard. Analyst Murtagh disagreed that on receiving the curator’s standard it would have been prudent to re-test sample 991662, in order to assess its validity as a secondary standard.   Regarding points 4 and 5 of the NATA Response: It was accepted by both government analysts and the defense analyst and is stated in the AFDL manual, that it was usual practice to look at the 5 major ion intensities. The following is a brief excerpt from the cross examination of analyst Ballard: Q: Why calculate the relative ion intensities? A: As I said, it is not often done. I can’t think of any occasion in the laboratory where myself or others I have worked with have actually done that. It is not procedure. Defense analyst Kibby said that this should be a matter of grave concern for the citizens of NSW. With regard to the 30 ion mentioned in the NATA response number 4, when it did appear it was mostly ignored as it was of very low mass. Analyst Ballard’s first GCMS test dated 15 July 1999 on sample 991685, in the absence of the methcathinone standard relied on ions 58, 77, 51, 56 and 42 - all fell outside the 20% acceptance/rejection criteria as stated in the AFDL Laboratory Manual. Further, when looking at the 77 ion, for example, it was obvious visually that the ratio of the height of the 77 ion to the 58 ion in sample 991685 was vastly different to the ratio of those same ions in the literature reference. Thirteen months later, 18 August 2000, analyst Ballard ran another GCMS test on sample 991685 this time using the electronic library reference of the methcathinone standard.  On comparing exhibit XX, the printout of ion intensities for 991685 test conducted 15/07/1999 and exhibit 170, the printout of ion intensities for the methcathinone standard conducted 18/08/2000 they were found to be greatly different. Taking the 42 ion in both exhibits as an example, one is 1.96 and the other is 29.53 with most of the others outside the plus or minus 20% tolerances as per the AFDL Manual. Analyst Murtagh’s GCMS test on sample 991716 again showed the five major ions to be outside the tolerances as dictated by the manual. The following questions and answers were given: His Honour: Is that background? A: No, these ratios your Honour because they’re distorted by the overloading, they do not accurately represent the true ratios. Technically it should be rejected according to the rules in the manual. I don’t believe that it can exclude my conclusion, the similarities I mean, that I still form the same conclusion, that is , that methcathinone is present. and a little later: Defense Counsel: Does that mean therefore that the data that you’ve produced has been devalued in its empirical value, as it were, by the overloading? A: I believe that the overloading has diminished the value of the quantitative data in that the relative ratios of the peaks of the ion frequencies. Q: And destroyed the value of the data, as it were, to the extent that it cannot be within compliance of the stated manual? A: I think we’ve seen this with most of the examples where there is overloading that they are not complying with the manual’s specified windows. Apart from the above breech of NATA’s requirements, there were several instances in which one or both government analysts failed to follow the laboratory’s documented procedures, which in itself is not in accord with NATA requirements. a) In direct contradiction of the AGAL manual, analyst Murtagh issued certificates of analysis for samples on which he relied in court that were undated, unsigned and unwitnessed. b) The following demonstrates Analyst Murtagh’s disregard for the AFDL manual: Q: It’s also practice to perform what you described as a rinse on the machine when you do a run such as this? A: It is normal to include a rinse. I have indicated a rinse should be put through each sample. I don’t follow that practice. I don’t think that’s necessary. c) The manual also requires that a check sample be run within quantitation runs but again analyst Murtagh does not comply but concedes that it is standard scientific practice to do so. d) Analyst Ballard failed to take his own samples from the bulk substance and then to weigh each of the seven samples. In accepting the samples and weights of those samples recorded by analyst Murtagh and in issuing certificates which he certified to be true and correct, 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 AGAL guidelines and NATA standards.   Regarding Point 6 of the NATA Response: Dr Kibby said that in every laboratory he has worked in you do not run the standard at a single concentration. The defense analyst, Dr Kibby explained, you would “try to straddle the unknown with standard solution concentration at least a couple higher or a couple lower so that you can check the linearity of response of the machine...” Dr Kibby said that it was his understanding that the AFDL Procedures Manual also supported this method.   Regarding Point 7 of the NATA Response: 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. 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. Exhibit XX is a printout of relative ion masses and relative intensities for GCMS test on sample 991685 only. Relative ion intensities of exhibit158 (lit std) and exhibit XX are significantly different even visually e.g. the ratio of the height of the 77 ion to the 58 ion in XX is nothing like the ratio of the 77 ion to the 58 ion in exhibit 158. Analyst Ballard said that based on his earlier tests, Infrared and TLC he was able to conclude that all samples contained methcathinone as a result of the GCMS test run on 991685 only. The defense counsel said that since the laboratory were awaiting the methcathinone standard there was no point in running the other samples on GCMS but once access to the standard was available, all tests should be re-run.   Regarding Point 10 of the NATA Response: Problems of wrong date of analysis:- a) Analyst Murtagh produced an Infrared test (IR) on a substance (sample number 991657) purportedly collected under the warrant and this was computer dated 28/06/1999, and an entry in his workbook confirmed that date - the warrant however, was dated 29/06/1999. b) Analyst Murtagh claimed that this problem of wrong dates concerning the computer attached to the Infrared machine arose from time to time and that he had mentioned it on several occasions but no written record of these comments was produced. The Director of AGAL, at the time, Zoran Skopec, supplied a written statement in which he claimed that AGAL computers and instruments were serviced and maintained regularly, he made no mention of computers printing wrong dates. c) This analyst’s notebook for that date was blanked out - whilst it is understood that confidential information contained in crime scene examiner’s notebooks can be blanked out, the only entry so treated was for 28/06/1999. d) An entry in the police case officer’s diary on the 28/06/1999 mentions PIP which was the opinion given by this analyst as to his IR test when compared with a literature standard on that date. e) A police officer involved in surveillance activities for the period 27/06/1999 to 30/06/1999 failed to mention his observations for that period, with particular emphasis on 28/06/1999. His explanation for that omission was: “Because sir, I had prepared another statement in respect of all my surveillance activities concerning this matter which I am now informed has gone missing.” f) After executing a search warrant on the evening of the 29/06/1999, the case officer in his report to the authorising justice made the following statement: “Chemicals consistent with those used in the manufacture of the prohibited drug methcathinone were located...” The case officer told the court that analyst Murtagh told him it was methcathinone. g) This test was not produced by Mr Murtagh at the committal hearing nor did he issue a certificate of identification for this sample. h) Further this test result was not supplied to the defense and was in fact brought to our attention when, via the Legal Aid Commission, I was supplied with a Bench Copy of the brief of evidence in error. i) Under subpoena this analyst supplied a very poor copy (his words) of the test result for this sample 991657 because, he said, he could not find his original. j) Analyst Murtagh did agree that the National Association of Testing Authorities (NATA) standards require documentation in relation to times and dates.   Regarding Points 9 and 11 of the NATA Response Of analyst Murtagh’s Gas Chromatography Mass Spectrometry (GCMS) tests, of 14 and 15 October 1999, all but two tests produced were marked ‘corrupt’ against the major peak on which he based his opinion. This analyst denied that this made his conclusions suspect. The defence expert strongly disagreed and testified that ‘corrupt’ meant that the tests could not be relied upon and must be re-run. It must be noted that even the printout of his curator’s standard was so marked. The following are responses to questions of analyst Murtagh by defence counsel: “With my GCMS results most of the samples were overloaded. I don’t think that that sufficiently invalidates the results.” and a little later: “For the majority there was overloading and that affected the relative intensities in the mass spectrum.” As well, on these same GCMS results, this analyst physically crossed out computer generated test results and overwrote them with ‘methcathinone’.  No record of or reason for these changes was produced by this analyst.   Regarding Points Eight and Twelve of the NATA Response: This point deals with the widening of the window and relates to the Gas Chromatography test of 24 August 1999 on samples 991685 to 991691 in what became known as the ‘interaction,’ and equally to the Gas Chromatography test of  14 September 1999 on sample 992027 when again the calibration window was widened. In his statement of May 2001, concerning the Gas Chromatography Tests performed by analyst Ballard on 24 August 1999, Zoran Skopec, the Director of AGAL, speculated that the difference in peak shape and retention time between the methcathinone standard and the samples 991685 to 991691, “could be in theory caused by a number of reasons e.g. interaction between the compound and the solvent used to dissolve it prior to analysis, interaction of the compounds  with the GC column, the salt form or salt vs free base that standard and the samples had before injection etc.” He further speculated that “If indeed there was a difference in the salt form that standard and samples had, the quantitation results would still be valid because the samples were compared with a certified methcathinone standard, identity confirmed and amount of pure methcathinone in each sample determined and calculated.” There are a number of problems with the Director’s statements here: a) In his statement dated 27 April 2001, Zoran Skopec said: “AFDL Procedures manual stipulates that each and every sample analysis is checked and approved for release by the Laboratory Director or a Senior Chemist. The checking procedure is mandatory. I have personally checked and approved the results and my initials appear on the records (printouts).” b) Curiously, NATA says only a proportion of tests performed in the analyst’s case work needs to be technically reviewed. c) Analyst Murtagh claimed to have identified sample 991662 as methcathinone hydrochloride as early as 01/07/1999 and analyst Ballard used the Microgram Journal spectrum for methcathinone hydrochloride as his literature standard in his very first test, so again why the speculation? d) The director also states that the window was set at 0.2 of nominal retention time, he fails to mention that his analyst widened the window to 0.3 in order that ‘methcathinone’ would be printed against the major peak. Analyst Ballard stopped the machine in order to affect this change - he offered excuses of possible paper jam or the printer ran out of paper or different solvents for samples and standard before making his admissions - the Director also offered these problems as a reason that the machine was stopped, he did not however, offer an explanation for the window being widened. The following is a brief excerpt from analyst Ballard’s cross examination: Q: But it’s more than an error, isn’t it? You deliberately interfered, or sorry, interacted with the machine to change the sequence, to broaden the window and to reprocess the files to start with a new sequence. You did all those things, didn’t you? A: “Interfere” is a bad word to use, because it’s not uncommon for one reason or other, whatever it may be, as I said, printer jam, injector problem with an instrument, it’s not uncommon to actually have to look at a run while it’s running or have some interaction with a sequence. A further excerpt from analyst Ballard’s cross examination: Q: Put it this way, if the window was left at 0.2, we wouldn’t have ‘methcathinone’ on that long peak printed out, would we? A: It wouldn’t have been printed there by the computer, but since I already identified the substance... e) This GC testing of 24/08/1999 was the first time that the standard was used with any of the samples and so no prior qualititation or quantitation testing using the certified methcathinone standard had occurred. f) Analyst Ballard ran a Gas Chromatography test on a different sample, numbered 992027 on 14 September 1999 and again interacted with the instrument by widening the window to 0.3.minutes - this plus or minus setting equates to a calibration window 36 seconds wide g) NATA says that it is not unusual to make changes to the retention time window, the forensic science manager for NATA, Maritta Parsell does not, however, detail under what circumstances this would be an acceptable course of action. Judges, scientists and forensic accountants have commented on analyst Ballard’s interaction, all have condemned it, none have excused it. NATA does stipulate that it is a requirement that such information be recorded ‘for traceability reasons’ and in order to comply with the AFDL Procedures Manual - the Director, Zoran Skopec claimed it was not a requirement of the AFDL Manual to record such stoppages. Again in contradiction of the AFDL Procedures Manual, analyst Ballard’s GCMS test on sample 992027 on 30 August 1999, was not second read or signed by the director or anyone else. This same test sat on this analyst’s desk for at least nine months and was not in his case file.   In making four statements, the Director never said that changing the retention time window was part of the AFDL Procedures Manual   The Department of Industry, Tourism and Resources The following is an excerpt of the response from the office of The Honourable Ian Macfarlane MP, the former Minister for Industry, Tourism and Resources concerning the actions of the AGAL analysts and the protection afforded them under the witness immunity law: “You express concern that the immunity afforded to expert witnesses who are employed by the Government may allow them to act in a corrupt fashion. The Department of Industry, Tourism and Resources is, however, convinced that no corrupt action was committed on the part of its employees. Please be assured that if that had occurred the Department would have taken action against the employees.”   Mr Macfarlane’s office supplied the following Australian Public Service Code of Conduct: 1: behave honestly and with integrity in the course of APS employment. 2: act with care and diligence in the course of APS employment. 3: when acting in the course of APS employment, comply with all applicable Australian laws. 4: comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction. 5: maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff. 6: disclose and take reasonable steps to avoid any conflict of interest (real or apparent) in connection with APS employment. 7: use Commonwealth resources in a proper manner. 8: not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employees APS employment. 9: not make improper use of: a. inside information, or b. the employee’s duties, status, power or authority in order to gain or seek to gain a benefit or advantage for the employee or for any other person. 10: at all times behave in a way that upholds the APS values and the integrity and good reputation of the APS. 11: while on duty overseas at all times behave in a way that upholds the good reputation of Australia. 12: comply with any other conduct requirement that is prescribed by the regulations.   Particular emphasis is placed on code numbers - 1, 2, 3, 6 and 8