Field Tests   1: On 02/07/1999, analyst Murtagh carried out field tests on a portion of powder using Marquis and Scotts free agents. The tests were negative indicating the probable absence of heroin, cocaine and amphetamine. Note especially, it can be heard on the video expressions of surprise by police and this analyst that the test was negative and yet Analyst Murtagh later gave evidence that he had identified methcathinone on either 30/06/1999 or 01/07/1999. The following is a brief excerpt from the transcript: His Honour: You told us, as I understood, I’m not sure whether it was by 1 July or 30 June, that by one or either of these dates you new it was ‘methcathinone’? A: Yes, I collected some traces of powder on the night of 30 June and my analysis of those on 1 July showed ‘methcathinone’. However, analyst Murtagh gave the following evidence later under cross-examination: Q: So and of course, when you as I think you said at the scene on 2 July you were of the belief that you would find amphetamines, weren’t you? A: No, I did not know what was there and I ruled out with the tests available, I’m talking about the night of 2 July, on the testings that were available, I ruled out the probable presence of amphetamine, methylamphetamine.” This testimony was in direct conflict with this analyst’s previous evidence that he knew as early as 30 June that the substance was methcathinone. Analyst Murtagh testified that he disposed of these tests by pouring them down the sink for safety reasons. Further, the case officer testified that analyst Murtagh told him it was methcathinone on the night of 29 June 1999 and the detective included that information in his report to the issuing justice for the warrant as recorded earlier.   GC-MS Tests Marked Corrupt   1: As to this analyst’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. He initially put this down to a software problem and he didn’t accept that there was a problem with his tests.  This analyst was later to concede that ‘corrupt’ meant he had overloaded the machine but claimed this would have a minor effect on retention time and minor ions and  he didn’t think this would invalidate his results. The defence expert strongly disagreed and testified that ‘corrupt’ meant that the tests could not be relied upon and must be re-run. Analyst Murtagh testified that ‘corrupt’ refers mainly to quantitative tests as opposed to qualitative tests but the Hewlett Packard manual states the opposite. This analyst denied that this made his conclusions suspect. It must be noted that even the printout of his curator’s standard was so marked. As well, on these same GCMS results, this analyst physically crossed out computer generated test results and overwrote them with ‘methcathinone’. Under cross examination, analyst Murtagh conceded: “With my GCMS results, most of the samples were overloaded. I don’t think that that sufficiently invalidates the results.” Analyst Murtagh, in evidence, said that he quite frequently overloads the sample in order to see the minor ions with only a slight affect on retention time. The Hewlett Packard Manual states that ‘overloading can affect peaks and yield corrupt feature information, retention time, area and/or height.’ This analyst later conceded that his overloading of the samples affected the relative ion intensities in the mass spectrum. The manual says all 5 most abundant ions must be within plus or minus 20% of the literature reference - the ion abundances for sample numbers 991659 - 991667 all fell outside the plus or minus 20% of the literature standard. The following is an excerpt from the transcript: Q: What if anything do the peaks and the retention time tell you about the substance? A: If they’re different you’re looking at a different substance. The following is testimony given by analyst Murtagh under cross examination” Q: Just in relation to the application of the criteria, the criteria would indicate that in order to declare a match and a positive identification, you need to have the five most abundant masses within the tolerance as indicated, plus or minus 20%, when comparing to the literature reference, in order to apply the criteria and match exhibit WW the manual? A: The literal interpretation of it would declare all of those results invalid.   1a: In this group of tests was sample 991711, the Gas Chromatography results of which showed 5 peaks indicating 5 different compounds were present in the sample. The Mass Spectroscopy results for this sample found 3 matches with compounds within the library: a) The retention time at 9.219 minutes is matched with Benzamide. b) The retention time at 11.164 minutes is matched with Benzenemethanol. However, analyst Murtagh crosses this out and labels it as Methcathinone - this scan marked corrupt The fragmentation pattern here is: 42; 51; 58; 77; 91; 105/106; 120; 133; 148; 164; and 207. c) The retention time at 14.129 minutes is matched with Piperazine - this scan not marked corrupt In answer to his Honour, Dr Kibby explained: “Piperazine is the fourth ring in the actual chemical structure of sildenafil. It’s not an additive. It’s not a formulation. It’s actually part of the molecule.” Sildenafil is the chemical name for viagra. Further to these tests, analyst Murtagh gave the following testimony: 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. 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. Analyst Murtagh agreed that if you run a standard and it produced what he referred to as an GC artefact, then there might be something wrong with the actual standard or the way the tests were run. He did not agree however that there was anything there that would exclude the use of either the standard or the test results.   1b: Exhibits 122 and 128, both being curator standards showed Peter Ballard as the operator and tests were conducted on Hewlett Packard machine. These standards were run to obtain retention times, to obtain fragment ions and to look at the relative intensities. However looking at exhibit 128,  it is obvious that it is overloaded and that data generated is therefore unreliable -  the solution needs to be diluted and re-injected. Exhibit 122, also performed on the 14/10/99, this time showing Vincent Murtagh as the operator, and again this standard was overloaded. Dr Kibby says it was run from the same vial, and in his opinion was a re-injection of standard 128. Asked to comment, Dr Kibby said that the data produced was unreliable. A simple visual examination of the peaks in the area of 11 minutes shows there are differences between the two injections of the one solution. This could have been avoided by simply diluting the solution and not overloading it as the AFDL Procedures Manual dictates. Further, a simple visual exam in both instances indicates a needle sharp peak of the same height and width at 9.2 minutes. So the minor component is not overloaded. Exhibit 122, in box 3, is the spectrum for the 11.16 peak and the computer has marked it corrupt and therefore the data is useless.   1c: As part of this group of GCMS tests performed by analyst Murtagh sample 991703 was run. The Gas Chromatography results indicated the presence of approximately 5 different compounds present in the substance: a) Peak 1: Retention time equalled 9.203 minutes The fragmentation pattern was: 43; 51; 62; 74; 105; 148. Matched with Propiophenone (P-!-P) from the AGAL library - no copy of library standard supplied to the defense. b) Peak 2: Retention time equalled 11.210 minutes The fragmentation pattern: 51; 56; 77; 105; 132. No Match c) Peak 3: Retention time equalled 13.680 minutes The fragmentation pattern was: 42; 51; 59; 72; 77; 84; 105; 116; 131; and 146; No Match d) Peak 4: Retention time equalled 16.000 minutes Fragmentation pattern : 44; 51; 56; 77/78; 94; 105; 130; 144; 189; No Match e) Peak 5: Retention time equalled 19.710 The fragmentation pattern: 43; 57; 71; 83; 113; 132; 149; 167; 262; and 279 Matched with a Legal Substance.   1d: Another sample in this run of tests, sample 991729 showed Gas Chromatography results which indicated 5 peaks which are an indication of 5 different compounds present in the sample. The Mass Spectrometry results show a retention time at 9. 206 minutes is matched as Propanone which analyst Murtagh equates with P1P and of course they are not the same substance. The retention time at 11.128 gave no match and was marked corrupt but analyst Murtagh wrote in ‘methcathinone.’   1e: Sample 991705. exhibit 137, one of the few tests not marked corrupt, was identified as ephedrine on the machine. Vincent Murtagh crossed out this library match and over-wrote ‘methcathinone.’ The analyst initialled this change on the test but contrary to NATA requirements, the change was not dated or reasons for the change noted in the case file. As well the relative ion intensities differed greatly from both standards 128 and 122 which analyst Murtagh used for his comparison. Importantly analyst Murtagh, if he believed his analysis of the standards was properly performed, did not compare the ion intensities in these tests - the defense analyst said that you can’t validate the standards without comparing the ion intensities. Analyst Murtagh did not deem it necessary to dilute his standards and re-run them. Dr Kibby said those standards tests were invalid and should not be used. Dr Kibby was asked: Q: Well, in fact does it appear that if you overloaded the standard you may use the same proportions in the actual samples? A: No, you can’t. In fact, there’s a very similar pattern between all three exhibits 122, 128 and 137 and that is a split peak at the 11 minute mark.   1f: When shown exhibit 127, sample number, Dr Kibby told the court that “This is the most horrible chromatography I think we’ve seen.” Again the test results were marked corrupt which means the system was overloaded and no conclusions could be drawn from the data. Analyst Murtagh concluded that the sample was a match for methcathinone.   1g: Looking at exhibit 133, sample 991716, in this array of tests when compared to the methcathinone standard, exhibit 122, there were 5 ions, namely 63, 91, 115, 120 and 144 not present in the methcathinone standard. There were also differences in relative ion abundances which were outside the tolerances as per the AGAL manual. Analyst Murtagh still maintained methcathinone was present in sample 991716. The following is an excerpt from the cross-examination of this analyst by defense counsel: Q: And on that basis, I suggest, applying the criteria within the manual, the match that you declared for methcathinone in exhibit 133 should in fact be rejected? A: And I would apply exactly the same arguments as I’ve previously given. Q: Certainly. 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. Q: Just in relation to your last answer, in effect what you say is that the overloading has, as I understand you, distorted what you might expect as the relative ion abundances, correct? A: I believe that is happening and I believe the effect of it is most noticeable by taking the ratio to the largest population base of the 58 ion, just that one which is the first one affected by the overloading. Q: 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. On the actual printout of the test there is no match for methcathinone and exhibit 122, the methcathinone standard is marked ‘corrupt’.   1h: The last sample in this run of tests and identified by analyst Murtagh as methcathinone, was AFDL 991736 which became exhibit 121 and was compared to the methcathinone standard 122. The 77 ion in the sample was about 25% of the 58 ion and in the standard the ratio was 30%, outside the tolerances according to the AFDL manual and in this analyst’s words, “...the criteria of the manual would rule out that spectrum from use.” Again there were ions in the sample, namely 63; 91; 115; 120; and 144 overwritten by 148, not reflected in the standard exhibit 122. Despite the presence of these ions and the failure to obtain relative ion abundance based on the criteria as set down in the manual, analyst Murtagh declared exhibit 121 a match to the standard exhibit 122. (Day 66/67, Pages 3728-3791) There are other tests in this group which were either marked as corrupt or gave a reading of no match or on occasion both appeared and in which analyst Murtagh identified methcathinone. He rejected the instruments findings on some tests and overwrote them with methcathinone.   2: Analyst Murtagh’s tests, in the main, were signed or initialed by senior analyst Judd or by AGAL’S director Zoran Skopec. The trial judge, in his summing up, said that the existence of these signatures and initials are not a confirmation as to the validity of these tests. His Honour instructed the jury: “I direct you as a matter of law that the inference is open to you to conclude that the evidence of neither Mr Judd nor Mr Scopec would have assisted the Crown’s case had they been called as witnesses and their evidence sought by the Crown as to the scientific validity of these tests where their signature or initials appear on the document.”