Commissioner of Police v Zisopoulos

The decision below

1. We observe that, for the sake of consistency and ease of reading, we shall continue to refer to the Commissioner of Police as the appellant and Mr Zisopoulos as the respondent notwithstanding the Commissioner's references to them as respondent and applicant respectively.
2. In a detailed exposition of the material and issues before him the Commissioner: 1. set out the relevant legislative provisions; 2. summarised the respondent's history as a police officer; 3. considered the appellant's statement of reasons which accompanied the order for removal; 4. summarised the case presented for the respondent, undertaking a detailed summary of the evidence presented and submissions made; 5. noted that expert scientific evidence, additional to that presented to the appellant, was presented from; 1. Dr Michael Robertson, Consultant Pharmacologist, Forensic Toxicologist and Chemist; and 2. Dr Shanlin Fu, Associate Professor at the School of Mathematical and Physical Science, University of Technology, Sydney. 1. summarised the case presented for the appellant in answer to the respondent's case, including a detailed summary of the evidence and submissions presented, noting the scientific expert evidence, additional to that considered in the appellant's reasons. of: 1. Chris Kostakis, Manager Toxicology at FSSA; 2. Peter Stockham, Principal Scientist, Science Leader, at FSSA; and 3. Carlo De Filippis, Project Officer in the Drug and Alcohol Unit of the NSWPF. 1. identified and analysed the authorities relevant to the issues before the Commission especially Tredinnick v Commissioner of Police [2016] NSWIRComm 14; 2. rejected the applicant's submission challenging the validity of the hair testing process based on an alleged lack of authority of the collector and failure to strictly follow the prescribed collection process; 3. determined that the removal of the applicant from his position of police officer was harsh, unreasonable and unjust based on the Commissioner's findings that: 1. the appellant has the "absolute right" to remove from the NSWPF any officer who voluntarily consumes illicit drugs, at [151]; 2. the appellant has, however, the responsibility to ensure there is "sufficiently probative evidence" to support such a decision, at [151]; 3. the respondent was on duty when both MDMA and methylamphetamine were accepted at Newtown Local Area Command one week before collection of the hair sample, at [159]; 4. the appellant apparently was not aware of (iii) above when reaching his decision, at [160]; 5. there was unchallenged evidence from Sergeant Allison as to how officers came into contact with drugs, at [161]; 6. the Commission does not need to be satisfied that the respondent came into actual contact rather than possible contact with the two prohibited drugs, at [162]; 7. that there were a number of occasions in the period leading up to the collection of the hair sample when it was "likely" the respondent came into contact with the drugs, at [162]; 8. there is no consensus in the scientific community as to the most effective method of decontamination of hair samples by washing, at [163]; 9. notwithstanding (viii) above, the majority of washing methods used generally involve washes of longer than 30 seconds using both aqueous and methanol solutions, at [164]; 10. the low concentration of methylamphetamine was consistent with either occasional use and/or environmental contamination and it cannot be reliably determined which of the alternatives is more or less likely, at [169]; 11. the contention that the ratio of amphetamine to methylamphetamine was consistent with it being present as a metabolite of methylamphetamine after ingestion, was counted by the scientific evidence that the very low levels of amphetamine present could equally be due to external contamination because illicit methylamphetamine often contains amphetamine, at [171]; 12. even if it be accepted that the testing methods, including wash techniques, used by FSSA are effective, there is no basis to exclude external contamination as a cause of the positive result, at [173]; 13. the evidence of the expert witnesses, accepted by the Commissioner demonstrated that external contamination of the respondent's hair, as a result of handling MDMA and methylamphetamine as part of his duties as a police officer, was more than a theoretical possibility - "it was at least as likely, or more likely, an explanation for the test results of the applicant's hair sample than was ingestion of the drugs by the applicant." - at [180]; 14. the evidence of Dr Robertson, Dr Fu and Mr Farrar, led by the respondent, cast sufficient doubt on the appellant's finding of misconduct so as to shift the evidentiary burden to the appellant, at [186] - [187]; 15. the expert evidence in the present matter weighed heavily in favour of the respondent's explanation of environmental contamination as the cause of the positive test result of his hair sample, at [188]; 16. the appellant did not satisfy his evidentiary burden of proving, on the balance of probabilities, assessing the evidence in accordance with the decision Briginshaw v Briginshaw (1938) 60 CLR 336, that the applicant used prohibited drugs at [189]; and 1. found that there was no barrier to reinstatement, at [191] - [193].
3. The Commissioner accordingly ordered reinstatement.

The appeal

1. By the notice of appeal filed 15 March 2018 the respondent sought to challenge the orders and the whole of the decision of the Commission at first instance.
2. The questions raised by the appeal were identified in the notice of appeal as: 1. Whether the Commissioner properly applied the onus arising under s 181F of the Police Act 1990 (NSW)? 2. Whether an allegation that positive drug test results were possibly caused by external contamination, or that external contamination could not be excluded as a possible cause of those test results, was sufficient to discharge the respondent's onus under s 181F(2) of the Police Act? 3. Whether there was an evidentiary foundation to support the respondent's assertion that positive drug test results were caused by external contamination? 4. Whether the Commissioner: 1. failed to properly consider the nature and extent of the factual evidence that the appellant needed to call, before any question of shifting the evidentiary burden arose for consideration; and 2. failed to approach the decision-making task on a principled basis? 1. Whether the Commissioner failed to properly consider, or consider at all, s 181F(3) (b) of the Police Act? 2. Whether the Commissioner erred by failing to adhere to s 181F(2) of the Police Act by concluding that the evidentiary burden moved from the respondent?
3. The notice of appeal identified 15 grounds of appeal which were said to raise these questions. There is a substantial degree of overlap in the questions and the grounds. In essence the grounds repeat the contentions advance before the Commission below as to the principles to be applied and as to the findings which should be made.

Leave to appeal

1. The principles on leave to appeal are well-established: see for example, New South Wales Nurses and Midwives Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 at [14]. We apply those principles.
2. We consider that the issue raised by questions (1) and (6), which seem to us essentially the same, involve matters of sufficient importance as to justify the grant of leave. Similarly, question (5) raises a significant, though confined issue. As these questions raise issues of wider importance than the immediate contest between the parties we propose to grant leave in respect of them. Questions (2), (3) and (4) raise questions as to the assessment of evidence particularly in the context of questions (1) and (6). Having heard the parties on all matters, for the reasons we now give, we do not consider these questions raise matters of sufficient importance to justify leave.

The parties' submissions

1. The appellant filed his detailed Outline of Submissions on 12 April 2018 and a detailed Outline of Submissions in Reply on 18 May 2018. The respondent also provided, on 9 May 2018, and subsequently filed, a detailed Outline of Submissions in response. Rather than set those submissions out in detail at this point they will be considered in the context of the questions raised by the appeal.

The relevant legislation

1. It is convenient at this point to set out the relevant sections from the Police Act. 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)).

Questions 1 and 6: onus under s 181F

1. The appellant submitted that the Commissioner fundamentally misapplied the correct test under s 181F. There was no attack on the Commissioner's decision on the basis of a failure to follow the requirements of s 181F(1). Rather the first point of attack was a failure to properly apply s 181F(2). In elaboration of that contention the appellant submitted that, having rejected the respondent's attack on the validity of the decision to remove the respondent: "the prevailing principles required him to discharge the onus of proof to the civil standard of establishing on the balance of probabilities, a "winning position" being that there was "sufficient evidence" to establish that the positive hair test results were caused by actual external contamination: see Tredinnick v Commissioner of Police" at [68]".
2. To achieve a "winning position" the respondent needed to adduce sufficient evidence such that absent probative rebuttal evidence from the appellant, the respondent would win. The appellant submitted: In this context "sufficient evidence" needed to at least include: (a) probative evidence of the Respondent's actual exposure to the said prohibited drugs; (b) probative evidence of the physical means and scientific mechanism by which all of the 3 prohibited drugs were incorporated inside, the tested hair sample - if not by deliberate ingestion; and (c) expert evidence that such actual exposure was sufficient to support the likelihood (as distinct from the possibility) that the positive results were not caused by deliberate ingestion of the said prohibited drugs.
3. These submissions require a consideration of the decision in Tredinnick. That decision of the Full Bench, of which the Commissioner was a member, concerned an appeal from a decision refusing the officer's application for review. The removal order in that matter was based upon a positive urine test for a cannabis metabolite. The Commissioner of Police concluded that the officer had voluntarily ingested a prohibited drug. He did not accept the officer's innocent explanations of exposure leading to dermal or other absorption while packing seized wet and sticky cannabis some six days earlier or dermal absorption due to contact with a contaminated load-bearing vest in the days between the exposure and the test.
4. The Full Bench, having reviewed authorities on the onus of proof, in various contexts, and considered the distinctions between the unfair dismissal provisions of the Industrial Relations Act 1996 (NSW) and the review provisions of the Police Act, drew a distinction between the concepts of the "legal burden" and the "evidentiary burden". An applicant, in unfair dismissal proceedings or in a police review, bears the legal burden of showing that the dismissal is harsh, unreasonable or unjust. The Full Bench held, at [40], that the "burden" referred to in s 181F(2) was that legal burden and, at [45], that the legal burden does not shift. The Commission then turned to consider the question of whether the respondent in review proceedings bears the onus of establishing "misconduct", adverting to the established principles in unfair dismissal proceedings. They concluded, at [55], in particular having regard to the statutory scheme, that unlike the respondent in unfair dismissal proceedings, the respondent in a police review did not bear that onus. The reasons for that conclusion were stated at [56]. The Full bench said: The reasons for this conclusion may be briefly stated: (1) The provisions of Divs 1B and 1C are materially different in the procedures to be applied in a review to those adopted in unfair dismissal cases. The points of distinction, as discussed above, demonstrate the inapplicability of the procedures in unfair dismissal proceedings in the present context and underline the provisions of Divs 1B and 1C which would provide a contrary indication. This may, in fact, be the subject matter to which the second sentence of s 181F(2) is directed. (2) The construction of s 181F(2) we have earlier provided demonstrates that the contention by an applicant for review that there is no basis in fact to establish guilt of the impugned conduct (which was the source of confidence findings under s 181D(1)) constitutes, by its nature, a fact in issue necessary to discharge the legal burden under s 181F(2) to establish one or more of the tripartite conditions the applicant must establish under s 181E(1). (3) The proposition that the respondent has an onus to prove, inter alia, the "conduct" (to use the language of s 181D(1)) giving rise to a loss of confidence is inconsistent with the structure of s 181F(1) in two respects. First, it is inconsistent with the respondent's reasons having particular significance in review proceedings. The applicant has the burden of demonstrating the flaw in, or inadequacy of, those reasons. Secondly, the ordering of proceedings under s 181F(1) makes clear that the respondent bears no obligation greater than answering the applicant's case. (Emphasis added)
5. Thus unlike unfair dismissal proceedings, concerned with termination for serious misconduct in which the employer is required to prove the fact of misconduct, the Commissioner of Police is not required to do so - unless, as will be seen, an applicant succeeds in shifting the evidentiary burden. The obligation of the Commissioner extends no higher than answering the applicant's case. The emphasised passages in (1) and (2) at [22] make that proposition clear. The emphasised sentence in (3) identifies the burden imposed on the applicant for review. It should be noted that the burden on the appellant is to demonstrate "the flaw or inadequacy in [the appellant's] reasons". That, as the Full Bench went on to observe, may be done in a number of ways.
6. It is important to bear this last proposition in mind when examining the decision in Tredinnick. It is necessary to distinguish the principles from examples of factual contexts used to illustrate those principles. The burden on the applicant for review is to demonstrate the flaw in the respondent's reasons. That may be done, as the Commission said at [66] by bringing "evidence to explain why the Certificate did not demonstrate the consumption of illicit drugs". Establishing that proposition need not go so far as proving, as the appellant submits, that an applicant did not in fact consume illicit drugs or that the test result was "caused by actual external contamination".
7. The paragraph from Tredinnick referred to in the appellant's submission at [19] is in the following terms: "68 It is appropriate to refer to the judgment of Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (the "George S") [1989] 1 Lloyd's Law Reports 369 at 370 as illustrating the shifting notions of that burden: I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible."
8. A reading of that paragraph does not indicate that the respondent is obliged to prove "that the positive hair test results were caused by actual external contamination". An applicant for review is required to prove that the decision to remove him is harsh, unreasonable or unjust.
9. That burden can be satisfied by casting sufficient doubt on the Commissioner's reasoning process as to justify the Commission's intervention. That is reinforced by the Full Bench's endorsement at [70] of passages extracted from Starr v Commissioner of Police [2001] NSWIRComm 226. It is worth repeating those passages. We would, however, wish to emphasise the following passages from Starr (at [171]-[176] and [179]) which we consider to be correct: 171 The concession made by Mr Willis was, in my view, sound having regard to the circumstances of this case. The question of onus in this matter may be resolved in line with the approach adopted in Bigg (No 2) and Oswald (No 2). Those cases, it will be remembered, were decided on the basis that once the applicant had produced evidence casting sufficient doubt on whether the Commissioner had adhered to the procedures set down by the Act or raised a substantial allegation of an uninformed decision, the burden passed to the Commissioner to demonstrate that the decision was properly made. It was said in Bigg (No 2) (at 458) that if the material provided in the reinstatement case by the applicant called for rebuttal by the Commissioner, then "an evidentiary burden shifted to the … Commissioner to demonstrate that the requirements had been observed." In Van Huisstede, it was found (at 107) that the same approach is appropriate under the present provisions of the Act, notwithstanding the presence of s181F(2). There does not appear to have been a provision equivalent to s181F(2) in the legislation considered in Bigg (No 2) and Oswald (No 2). 172 In Bigg (No 2) and Oswald (No 2), the consideration focussed on whether the Commissioner had discharged the evidentiary burden of establishing compliance with the requirements of the Act or that the decision was properly informed by the available evidence. As has been discussed, in this case also the Commissioner failed to consider available evidence that would have assisted the applicant's case, namely, the transcript of the Local Court proceedings. The Commissioner was, as a result, not aware of deficiencies in the evidence he relied upon when deciding to remove the applicant from the Police Service. Mr Willis conceded that the Commissioner's decision was misinformed, at least in relation to the nature and strength of the DNA evidence. On the approach adopted in the earlier cases, it then falls for the Commissioner to establish that the decision to remove the applicant was properly made. 173 Having reached this point in the consideration, it is difficult to avoid the conclusion that the Commissioner bore the evidentiary burden as to both the procedural and substantive issues. The essential approach of the Commissioner in this matter was to make a finding, on the basis of the evidence before him, that the allegations against the applicant were made out and to conclude that the Local Court finding was insufficient to vindicate the applicant. It was found earlier in this decision that the Commissioner's decision was founded on an inadequate assessment of the available evidence. Once it has been demonstrated that the Commissioner's reasoning process was attended by doubt of the kind referred to in Bigg (No 2) and Oswald (No 2), it must fall to the Commissioner to demonstrate that the misinformed decision could be otherwise justified, notwithstanding his failure to consider all the evidence. Because the defect in the Commissioner's decision-making process goes to the validity of his factual findings, the burden extends, in my view, to establishing an evidentiary basis for those findings. 174 In this case, the Commissioner, quite properly, responded to the applicant's case by seeking to introduce evidence establishing that the applicant was guilty of the conduct alleged. Mr Willis contended that the removal was justified, notwithstanding the failure to consider the Local Court transcript, having regard to the evidence introduced in these proceedings concerning the conduct of the applicant. It was the Commissioner's case that the applicant used the air rifle found in the boot of his car to wound himself and hence made a false report. The Commissioner sought to introduce evidence to demonstrate that this was the case. As has been mentioned, Mr Willis submitted that the Commissioner had discharged "his evidentiary burden" of establishing that the applicant committed the conduct relied upon by the Commissioner in making his decision. 175 The structure of the review to be conducted by the Commission dictated by s181F(1) supports the conclusion that the Commissioner may bear some evidentiary burden at this point. That section requires the Commission to consider the Commissioner's reasons for removing the applicant, then the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and finally the case presented by the Commissioner in response. In Newton, the Full Bench emphasised the importance of adhering to the procedure laid down in s181F(1). The Full Bench stated (at 75): Section 181F(1) is prescriptive as to the matters which the Commission must consider when entertaining an application brought under s181Eof the Police Service Act. While s181F requires the Commission, firstly, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. 176 If the case presented by the applicant raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the applicant's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner (in the sense referred to in Bigg (No 2) and Oswald (No 2)). … 179 The fact that the decision to remove an officer is based on the Commissioner's confidence does not, in my view, alter the conclusion reached above. The Act does not permit the Commissioner to determine that he does not have confidence in the suitability of an officer to continue as a police officer in a manner that is arbitrary or capricious: see Bigg (No 2) at 457. As mentioned, the finding on confidence must relate to the officer's competence, integrity, performance or conduct. Where, as in this case, the Commissioner bases his confidence decision on express findings of fact, it is not, in my view, inconsistent with the provisions of the Act for the Commissioner to be obliged to produce evidence establishing those allegations in subsequent proceedings. It does not render s181D inoperative to require the Commissioner, once sufficient doubt has been cast on the fairness of the decision, to provide evidence that would vindicate his factual findings. (Emphasis added)
10. These passages identify and make clear, stripped of the technical expressions of legal and evidentiary burdens, the process by which a matter before the Commission is to be considered. The first point of reference is the reasons of the appellant. In his decision the Commissioner examined those reasons. The next step is to consider the case brought by the respondent to establish a flaw (or flaws) in those reasons sufficient to justify the intervention of the Commission. In other words, that the flaw (or flaws) is sufficient to lead to a conclusion that removal is harsh, unreasonable or unjust. The Commissioner identified a flaw in the appellant's reasons based on the case brought by the respondent. The principal flaw was that the evidence considered by the appellant was inadequate to support the factual findings made. Accordingly, the final step is to consider the case brought by the Commissioner of Police in answer to the applicant's case. In this case, the Commissioner was not persuaded that the evidence led by the appellant satisfied the "burden to produce evidence vindicating the factual findings made" - Starr at [176].
11. The appellant's submissions commence on the premise that the respondent, in order to satisfy the legal burden, must prove that an adverse test result is caused by environmental contamination and nothing other than that will suffice (a proposition the subject of question (4) and grounds 1-4). That is not consistent with or supported by the authorities on which the appellant relies. It also conflates the s 181D process as outlined at [28]. "Casting doubt" on the appellant's reasons is only the second stage of the process. It is not the end point but it does have the effect of shifting the evidentiary burden to the appellant. It is then for the appellant, through his case in answer, to demonstrate that the factual conclusions reached were justified.
12. We see nothing in Commissioner Murphy's reasons to support the proposition that he has misunderstood or misapplied either s 181F(2) or the principles which were established in Tredinnick. We have set out at [10(9)] a summary of the Commissioner's findings. The Commissioner held that the respondent's case had established flaws in the appellant's reasons including the findings at [10(9)(c)], [10(9)(d)] and [10(9)(g)]. Of most importance to that conclusion was the Commissioner's observations at [10(9)(b)]. That observation effectively reiterates the statement contained in the appellant's reasons that his conclusions are formed "on the balance of probabilities, and having regard to the seriousness of the allegation". The allegation in this case is quite serious being an allegation of criminal conduct by a serving police officer. That requires convincing proof on the balance of probabilities. The Commissioner was satisfied that the evidence before the appellant, including the expert evidence, did not reach that standard. Added to that was the evidence of which the appellant was not aware, or which was understated.
13. That resolves the issues raised by questions (1) and (6). We turn then to question (5).

Question 5 - consideration of s 181F(3)(b)

1. We note that the ground of appeal supporting this question is ground 14 which simply states: "The Commissioner erred in not having any regard, or any proper regard to the public interest and the fact that the Appellant made the decision to remove the Respondent as required by s 181F(3) of the Police Act."
2. The appellant's written submissions included the following in relation to this ground: "113. The Decision discloses no reference at all to s 181F(3) of the Police Act. As such, it can be readily inferred that the Commissioner failed to exercise his statutory function. The scheme in the Police Act requires that consideration first be given to the reasons for decision so that the Commission can be satisfied as to whether a 'valid' decision has been made. If that occurs (as it did here), then the fact that a Removal Decision has been made, must be given considerable weight. This did not occur here. Indeed, contrary to the requirements of the scheme, the Commissioner instead gave the Respondent 'the benefit of the doubt' said to exist about the Removal Decision. 114. Furthermore, the Commissioner seemingly paid no regard for the risk to the integrity of the Police Force if police officers are given the 'benefit of the doubt' in connection with their use of prohibited drugs. This concern is a fortiori in this case when the 'doubt' is said to arise simply/merely because the Respondent 'worked with drugs' on an (asserted) regular basis. The integrity of the Police Force will be seriously undermined if this 'defence' or 'answer to positive drug tests is regarded as acceptable and sufficient to 'win' on review."
3. We observe at the outset that the Commissioner set out the legislation at [19] of the decision.
4. There can be little doubt the Commissioner was alert to the importance of the public interest. His observation summarised at [10(9)(a)] reflects the subject matter of s 181F(3)(b). We do not accept that he ignored the subsection.
5. The public interest cannot, however, cannot be used to bolster equivocal evidence. To permit that to happen is to completely disregard the interests of the officer, as required by s 181F(3)(a), and to overlook the nature of the legislation under consideration. The review regime under the Police Act is beneficial legislation and is to be construed and applied accordingly. Although there are distinguishing features from the unfair dismissal provisions generally available under the Act, the ultimate issue remains the same - whether the decision of the employer is harsh, unreasonable or unjust. In determining that issue the Commission is required to give consideration to matters which are not required to be considered in unfair dismissal proceedings. In particular, the decision of the appellant and the fact it is made under s 181D are to be given weight. Nevertheless, it remains a balancing exercise for the reasons we have set out. If the Commission decides the decision is harsh, unreasonable or unjust, it has the authority to, among other remedies, reinstate the applicant and should do so in an appropriate case notwithstanding the appellant's wishes.
6. We do not find error in the Commissioner's application of s 181F(3)(b).
7. That is sufficient to resolve the appeal. In deference, however, to the parties submissions on the factual matters we propose to comment on some but not all of the submissions as to the assessment of the evidence. We are able to take this course because, as we have explained already, the challenges made are based on misconceptions as to what the respondent was required to prove.
8. The questions to be considered by the Commissioner were whether the respondent's case cast sufficient doubt on the appellant's reasons and, if so, whether the appellant's answer to that case was sufficient to justify the factual findings. We reiterate it is wrong therefore to examine the adequacy of the evidence only from the perspective of whether the respondent proved environmental exposure.
9. We repeat we do not propose to deal with all of the appellant's challenges to the Commissioner's findings on the evidence because they are equally affected by this erroneous approach to the course of the proceedings and what the respondent had to prove. Once the context is adjusted, the criticisms simply become arguments as to appropriate weight of evidence. Nevertheless some deserve specific attention.

Question 2, 3 and 4 - adequacy of respondent's evidence

1. We have observed that the Commissioner's approach to assessing the evidence is completely consistent with Tredinnick and Starr as set out at [179] of the latter case and quoted at [24].
2. The propositions advanced at [20] have as their foundation the submission at [19] which we have rejected in answering the first question. Thus the challenge made by the appellant to the Commissioner's assessment of the adequacy of the evidence is based on a false premise.
3. We would add that it is not possible to establish immutable and precise tests of what needs to be proved in every case. Each case requires an assessment of all of the evidence in the context of the particular proceeding and the issues raised by the parties. Part of the evidence in this case was as to the respondent's lengthy and exemplary service and his unequivocal denial. There was evidence of a urine sample which disclosed no illicit drugs. There was also a good deal of expert evidence which the Commissioner carefully considered about the hair sample and the "problematic" nature of interpreting results of hair testing. A significant body of that evidence cast doubt on the reliability of the appellant's conclusion. That is not to say that all of that evidence had that effect. There was also circumstantial evidence of the respondent being exposed to drugs in the recent past.
4. The Commissioner was required to consider and weigh all of the evidence in the case. That involves a balancing exercise about which minds may differ. Even if it could be shown that a different opinion was open, that does not amount to appellable error. It was open to the Commissioner to find that the respondent had led sufficient evidence to cast doubt on the appellant's reasons.
5. The appellant's submissions focus on the failure of the respondent to lead evidence of actual exposure to the three drugs. We pause to observe that the appellant, in coming to his decision, determined that the respondent had consumed two drugs. That was based, at least in part, on the results reported by FSSA. The issue of the third drug, amphetamine, arose from the question to Ms Lindsay as to whether any other drugs were detected. She confirmed that amphetamine was detected below the LOR but above the level of quantitation. The evidence, in particular of Dr Fu, was that amphetamine was a metabolite, but not a unique metabolite, of methylamphetamine. It is also an illicit drug in its own right and can be a contaminant in illicit methylamphetamine. Although the Commissioner refers often in his reasons to the two drugs, those reasons also show that he was alert to, and dealt with, the issues related to amphetamine.
6. More importantly many of the appellant's grounds attack the Commissioner's findings or lack of findings about actual exposure. That demonstrates the misconception in the appellant's challenge. The respondent led sufficient evidence to cast doubt on the factual findings on which the appellant's decision was based. Once that is done it falls to the appellant to prove to the requisite standard that the respondent voluntarily ingested the prohibited drugs. In that context it does not matter whether actual exposure is proved. No doubt an applicant's case would be stronger if he/she can prove actual exposure but it is not an essential in every case.
7. In their written submissions counsel for the appellant repeated an extensive passage from the cross-examination of Dr Lewis which the Commissioner quoted in his decision at [119]. They then made the following submission: The Commissioner included this extensive extract from the cross-examination in the Decision, seemingly on the basis that it supported the Respondent's case and provided a critical foundation for his decision to uphold the Respondent's case. However, the passages in fact support the Appellant's case (both below and now on appeal) and reveal the fundamental flaw in the Commissioner's approach to the disposition of the review proceedings. That is, the Commissioner (with great respect) was confused about the fundamental difference between whether a proposition can never be "safely" excluded or discounted "as a matter of science" (a matter of irrelevance in this context) and whether it can be established or effectively excluded or discounted, on the balance of probabilities, by reference to probative evidence (the critical matter in this context). (Emphasis as in original)
8. In the quoted passage there were several important pieces of evidence relevant to the issues before the Commissioner. In the opinion of Dr Lewis environmental exposure was "feasible" but "unlikely". Later the witness said he did not express the view that "ingestion was the cause" of the positive result he said he thought contamination "unlikely". One aspect of this evidence is that it confirms there was no opinion expressed by any of the experts that ingestion was the cause.
9. That was, however, the conclusion reached by the appellant. It is interesting too, that the appellant submits that whether something can be safely exclude as a matter of science is irrelevant in this context when the appellant's decision and case is based completely on scientific evidence and scientific interpretation. There was certainly no evidence of physical observation of ingestion identified.
10. The high point of the evidence in favour of the appellant's conclusion that ingestion was the cause came from Dr Lewis in his Expert Report prepared for the proceedings in which he said: The presence of amphetamine (metabolite of methylamphetamine) in Mr Zisopoulos' hair, indicates ingestion of methylamphetamine and effectively, further discounts environmental contamination. Based on the evidence presented to me, and a summary of the results of reports and studies, I am left with the only conclusion, that Mr Zisopoulos voluntarily consumed methylamphetamine. Although no metabolite of MDMA was reported, based on my opinions on the low probability of external contamination, I conclude it highly likely MDMA was voluntarily consumed. (Emphasis added)
11. These opinions were expressed prior to cross-examination and need to be seen in that context. Dr Lewis is driven to his conclusion about voluntary consumption of the two drugs by his conclusion as to the likelihood of environmental contamination. His position after cross-examination was not as definite but still he regarded environmental contamination as less likely and therefore voluntary consumption more likely. A key area informing his assessment of probabilities was the level of methylamphetamine reported. In his view to achieve the level of 120 pg/mg one would need to absorb 30-40 mg of the drug, an amount highly visible to the naked eye. That made environmental exposure implausible.
12. The appellant submitted that the Commissioner should have made a finding consistent with Dr Lewis's opinion as it was the only one reasonably open. We disagree. The Commissioner had other evidence from other experts which challenged and effectively discounted Dr Lewis's reasoning. For example, Dr Fu in his supplementary report explained that Dr Lewis's statement as to the amount of drug necessary to produce a reading of 120 pg/mg was correct if it entered the hair after dermal absorption into the blood and was then deposited in the hair. Alternatively if it came into direct contact with the hair as little as "1 mg of the drug or even less would be needed", see the Decision at [49]. As we have noted Dr Fu also explained, as set out in the same paragraph of the Decision, that amphetamine was not necessarily present as a metabolite.
13. In that regard the expert evidence was that the presence of a unique metabolite was a pointer to ingestion. There was no issue amongst the experts that amphetamine was not a unique metabolite. There was additional evidence to the effect that, in order to support a reliable conclusion that the drug had been ingested there should be at least one (or two on other views) unique metabolites identified in the correct proportion to the parent drug. This is but one aspect of the evidence considered and weighed by the Commissioner but it reinforces the "problematic' nature of hair testing.
14. The appellant is critical of the Commissioner's "failure" to deal with the evidence relating to the Doran Study as to the presence of drugs in police stations. The appellant submitted: "The Commissioner erred in his assessment and apparent findings vis the evidence of the microscopic levels of drugs found in police stations and that amphetamine and methylamphetamine degrade rapidly when exposed to light." The Commissioner's findings in relation to possible exposure were not confined to the scenario described in the Doran Study. At [177] of his Decision the Commissioner refers to the study in dealing with the appellant's submissions. The important aspect was that notwithstanding the "microscopic levels" found on surfaces in police stations, the authors of the study "recognised the risk of external contamination of hair with drugs in police stations".
15. We note that the Commissioner found that the respondent was on duty on several occasions in the period leading up to the tests when it was likely he would have come in contact with the relevant drugs. Those findings are summarised at [10(9)(c)] - [10(9)(g)] above. The observation of the authors of the Doran Study reinforced those findings. The observation certainly did not detract from them.
16. The appellant concluded this aspect of his submissions with the following statement: "The rapid degradation of the drugs had to be taken into account in assessing whether the Respondent had discharged the onus to prove no deliberate ingestion, by seeking to establish his external contamination hypothesis which was fanciful given Annexure "A" hereto. The Commissioner erred in that he did not do so." The submission suffers from two defects. First, it is expressed in the context of the respondent having to "prove no deliberate ingestion" - a proposition we have already rejected. Second, it ignores the evidence of exposure, identified at [55], which the Commissioner found persuasive.
17. The appellant was also critical of the Commissioner's findings and understanding of the "cut-off levels" recommend by the Society of Hair Testers ("SOHT"). The appellant sought to make much of the proposition that the level is set at a point which enables confident conclusions that the test results reflect "chronic use'. The appellant emphasises there are no reporting guidelines for one off or occasional use.
18. The reason there are no such reporting guidelines is because of the complexity of interpreting hair test results. The Commissioner in his summary of the cases presented for the respondent and the appellant referred to the evidence in relation to this issue on several occasions. 1. At [23 (11)] he cited scientific articles, relied upon by the respondent, including one by Dr Lewis in which he said: "Unfortunately, before hair can be truly accepted by a court of law as primary evidence of drug use, a number of complex issues need to be resolved." and "There are other unresolved issues that may preclude the use of hair testing as a preferred protocol in law enforcement. These include problems of contamination, lack of agreement on analytical methodology and paucity of standard guidelines." 1. In the same paragraph the Commissioner quoted from an article by Olaf H Drummer who wrote: "Unfortunately, contamination of hair can occur because substances enter hair by a number of processes. Incorporation by entrapment from the blood bathing the growing follicle is the primary mechanism, but drugs can also be incorporated through direct contact of mature hair with sweat and/or sebaceous secretions. The interpretation of hair results must only be used in combination with other sources of information. This could be information on likely drug usage or previous urine drug results. Sometimes metabolite patterns of drugs can be useful to distinguish internal exposure from environmental exposure." (Emphasis added) 1. At [35] of the Decision the evidence of Dr Robertson is quoted. He said: a. As outlined above, the interpretation of drug results detected in hair is not straight-forward. It is generally agreed within the forensic toxicology community that drugs detected in the hair at or above the guidelines outlined by SOHT are as a result of chronic or repetitive use of the drug and that hair drug concentrations do not correlate well with either the amount of drug ingested or number of drug-use occasions. … c. It is therefore my opinion that drugs detected in the hair of individuals such as police officers that may be exposed to drugs as part of their day-to-day employment should be used to corroborate other independent evidence of drug use rather than the only evidence of drug use and / or the cut-off concentrations (concentrations above which a sample is regarded as positive) should be at least as high as those recommended by the Society of Hair Testing whose cut-off concentrations largely exclude low concentrations of drugs in hair that may be the result of external contamination. (Emphasis added) 1. Parts of Dr Fu's evidence was quoted at [46] and [47] of the decision including: "The presence of very low levels of methylamphetamine and MDMA in the hair samples does not suggest that Mr Zisopoulos had consumed these illicit substances over the same periods, because environmental contamination of hair with these substances leading to false positive hair test results cannot be excluded." … I am of the opinion that environmental contamination is the most likely cause of the hair testing results of Mr Zisopoulos based on the following considerations. Despite the significant advancement in developing more and more sensitive analytical techniques to detect drugs in hair, interpretation of hair test results remains problematic and challenging up to this date. The most serious pitfall of hair testing is its inability to differentiate active drug use from environmental contamination especially when drugs detected in hair are at minute levels. Drug incorporation into hair is a complex process and its mechanism is not fully understood. … To minimise the risk of reporting false positive hair test results, the Society of Hair Testing (SOHT) has made a number of recommendations. These recommendations include 1) washing hair samples prior analysis to remove external contamination, and 2) identifying unique metabolites together with parent drugs. The recommended washing procedure should include washing steps with both organic solvent and aqueous solutions. The primary metabolites of methylamphetamine and MDMA commonly targeted during drug testing procedures are amphetamine and 3,4-methylenedioxyamphetamine (MDA), respectively, although they are not considered as the unique metabolites. It is also the general consensus among forensic toxicologists that when environmental contamination cannot be excluded, hair test results should only be used as a complimentary evidence to support other drug test findings such as urine drug test results. … Because of the many unanswered issues surrounding hair testing for drugs, especially the difficulty in differentiating active use from external contamination, extreme caution needs to be exercised when offering interpretation of hair results for medico-legal matters. Over-interpretation of hair test results has been identified as one of the common pitfalls associated with hair testing and must be avoided. In a recent proposal for interpretations of results from different types of specimens, the US Department of Justice stated that "An examiner may not report or state an opinion that a drug or poison finding in hair is proof of ingestion of the drug or poison unless a metabolite that is unique to ingestion is also identified and/or validated wash procedures have been performed that can differentiate between exposure and ingestion". When inconclusive hair test results arise, other drug testing methods such as urine drug testing should be used to confirm hair test findings and hair test results should be used as complementary information only under these circumstances. (Emphasis added) 1. At [57] a part of Mr Farrar's evidence is quoted. He said: "27. When the hair-methylamphetamine concentration is as low as reported for Mr Zisopoulos' hair sample (i.e. below the SoHT Guidelines for cut-off values), a specific metabolite such as p-hydroxymethylamphetamine must be identified and quantitated in order to conclude ingestion of methylamphetamine. Similarly, specific metabolites of MDMA, such as 3,4-dihyroxymethylamphetamine or 4-hydroxy-3-methoxymethylamphetamine must be identified and quantitated in order to conclude ingestion of MDMA. 28. In the absence of identification of these metabolites, there is no evidence that methylamphetamine or MDMA were ingested by Mr Zisopoulos. 29. In my opinion the available information does not support the allegation of consumption of methylamphetamine and MDMA by Mr Zisopoulos." (Emphasis added) 1. At [80] the Commissioner quoted from Ms Lindsay's 18 August 2016 "opinion" report. The passage quoted identified three modes of incorporation of drugs in hair. In summary they were diffusion from the bloodstream (ingestion), diffusion from sweat and sebum secretions and external contamination. Then at [81] the Commissioner quoted her conclusion. It was: "In summary, the levels of codeine, diazepam (along with its metabolite nordiazepam) and zolpidem are consistent with therapeutic use over the approximate timeframe of testing but also could be a residue of previous higher use. The levels of methylamphetamine, detected in all three segments, and 3,4-methylenedioxymethylamphetamine (MDMA), detected in segments 1 and 2, are consistent with one-off or occasional use over the corresponding timeframe or residual of prior higher use but recent external contamination cannot be excluded as the levels are too low for metabolites to be detected above the LOR. In this case the subsequent analysis of three 1 cm segments has not been able to further elucidate which of these scenarios took place due to the low levels present." (Emphasis added) We note that the appellant was critical of the Commissioner's reference to Ms Lindsay's statement that "recent external contamination cannot be excluded" because he did not refer to the balance of the sentence nor did he interpret it in light of the later identification of the presence of amphetamine. The appellant's submission does not refer to the highlighted sentence which is inconsistent with a finding, on the balance of probabilities having regard to the seriousness of the allegation, that the respondent voluntarily ingested the drugs. Nor does it deal with the evidence of Dr Fu, and ultimately agreed by Dr Lewis, in this context that amphetamine is not a unique metabolite and may be present for other reasons or the evidence of Mr Farrar identifying the unique metabolites which were not detected and which would have indicated ingestion. We do not consider that the Commissioner misunderstood or misapplied Ms Lindsay's evidence. Rather he assessed it together with the other expert evidence.
19. We consider the findings of the Commissioner were open to him on the evidence. No error has been shown as to the assessment of the evidence to justify the grant of leave.

Conclusion

1. For these reasons we grant leave to appeal in respect of questions (1), (5) and (6) of the notice of appeal and dismiss the appeal.

Orders

1. We make the following orders: 1. Leave to appeal granted in respect of questions (1), (5) and (6) of the notice of appeal otherwise leave refused. 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2019