Agreed Statement of Facts
7The prosecutor tendered an Agreed Statement of Facts of 16 pages, which is Annexure A to this judgment. However, it is useful in the body of the judgment to identify the main elements of what has been agreed:
On 16 February 2009, approximately 12 police officers were seconded to the Sydney Police Centre ("SPC"), as members of the "Audit & Destruction Project 2009 (Ordinary & Drug Exhibits)." The purpose of this Project was to conduct an audit of all ordinary and drug exhibits held within the Exhibits Section at the SPC ("SHEC") to identify and destroy exhibits which no longer need to be stored in accordance with legislative requirements.
Drug exhibits seized in the field are the responsibility of the arresting officer ("OIC"). The seized drug exhibit is conveyed to an exhibit storage centre, in this case SHEC where it is sealed in an approved storage bag, given a unique identifier and stored in an exhibit safe or vault. At a later stage the exhibit is conveyed to the Division of Analytical Laboratories DAL (now known as the Forensic and Analytical Science Service Centre (FASS)) for analysis.
Analysts at DAL record the weight and retain a small quantity of the exhibit prescribed by legislation for analysis. The remainder of the drug exhibit is heat sealed into an outer plastic bag and returned to the SHEC where the 'Exhibit Book' entry is updated and the exhibit is again secured in one of the two drug vaults at the SHEC.
The sample is analysed by DAL to determine the identity of the prohibited illicit portion of the substance and an 'Analyst's Certificate' is produced in accordance with section 43 of the Drug Misuse and Trafficking Act 1985. The DAL Analyst's Certificate is provided to the OIC for production in court proceedings. A copy of the Analyst's Certificate is not provided to SHEC.
Room 1803 at SHEC is medium security 'drug exhibit vault and Room 1804 is a high security 'drug exhibit vault'. Rooms 1803 and 1804 were designed and purpose built to store drug exhibits. Generally, drug exhibits of less than trafficable quantities are stored in room 1803. Drug exhibits exceeding trafficable quantities are generally stored in room 1804.
The general day-to-day operations of SHEC are managed by four permanent employees. SHEC is responsible and accountable for the storage and security of both ordinary and drug exhibits.
Drug exhibits include 'prohibited drugs' such as heroin, cocaine, cannabis and methylamphetamines; 'prohibited plants' such as cannabis; 'prescribed restricted substances'; and 'precursors' such as 'safrole'. As at 30 September 2008 SHEC had on hand 5554 Drug Exhibit Entries comprising in excess of 200,000 individual items.
An annual audit of drug exhibits is required. The audit process checks the integrity of the exhibit for signs of tampering and facilitates the destruction process by identifying exhibits no longer required to be kept. Prior to 2009 SHEC had been audited two times over the preceding 10 years (in 2001 and 2004).
The NSW Police does not destroy a drug exhibit until its associated court matter is finalised and sentencing completed in case the matter is appealed and the exhibit is required in court or for re-analysis. For this reason some drug exhibits at the SPC in 2009 were over 10 years old.
In 2008, all LACs were directed to significantly reduce the number of exhibits stored at each LAC effective immediately.
In August 2008 the Surry Hills Audit and Destruction Project 2009 (Ordinary and Drug Exhibits) ("the Project") was established. A project Plan was developed. The Project Plan outlined the aim, objectives, risks, timings and deliverables associated with the project. The head of the Project, Inspector Birley, was responsible for the identification, assessment, control and management of OHS risks associated with the proposed audit.
Police officers were seconded to the Project. A total of 33 officers were seconded to the Project at SHEC to commence the audit project in February 2009 and completion in December 2009. The officers were required to work 38 hours per week, over four shifts.
Incident on 18 March 2009
On 18 March 2009, Sergeant Nader Hanna, Detective Senior Constable Stephen De La Croix and Senior Constable Andrew McGrath were working at SHEC on auditing drug exhibits inside room 1803, the medium security drug vault.
At approximately 4pm, officer McGrath opened a cardboard box lifted out an exhibit bag containing a beige powder and placed it on his leg. Officer McGrath immediately noticed a very strong chemical odour.
Officer De La Croix was called into room 1803 and described the event as follows:
"I went in. On the floor was a cardboard box. In the box were a number of bags, drug bags. Sergeant Hanna was standing next to the next to the box. I think Andrew said to me "Can you get a smell coming out of this?" I then squatted down near the box, put my face over the box and then with my left hand I waved the air over it to see if I could get a smell out of the box, to check if anything was coming out. I didn't get any smell at first. I then moved the bags out of the box one by one. Sergeant Hanna was, I think he had the Drug Exhibit Book with him and was cross-checking and ticking off the numbers on the drug bags. And then suddenly, I got a whiff of strong odour come out of one of the bags. I think I said, as soon as I got the whiff, I was taken back "This stuff stinks, it smells like boot polish". Those are the words I said to Sergeant Hanna and Andrew, who were standing next to me." Officer De La Croix was called into the room and officer McGrath removed another drug exhibit bag from the box. Officer De La Croix also detected the strong odour and said 'this stuff stinks, it smells like boot polish'.
Officer De La Croix further said:
"I then located the bag from which the odour was coming out. The seal on the exhibit bag had come undone. To double check that it was the seal on the drug bag - there are two bags - there's the bag in which the drug is sitting in and then that bag is put into the drug bag. The seal on the drug bag had come undone and to double check, I then put my finger in the gap of the seal to confirm the seal had come undone. Some of the sticky substance went on my finger, whatever was in that bag. The fumes from whatever chemicals were in those bags went up my nose and mouth. The exhibit bag seal was detected as being open. To confirm this Officer De La Croix put his finger in the gap, which was subsequently contaminated by the oily yellow substance. Officers McGrath's hands were also contaminated by the unknown substance.
At this time all three officers left the room as a result of the vapours emanating from the exhibit and experienced an immediate burning sensation to their eyes, nose (sinus) and throat.
The officers were not provided with any personal protective equipment at the time of the incident, nor were they supervised in relation to its use, as the risk assessment process had not identified that personal protective equipment was to be used whenever they were working in the drug vaults.
Officer De La Croix put the exhibit back into the box. The officers washed their eyes, face and hands with running water from a sink located in the adjacent office and from a hand basin located in the men's bathroom outside the exhibit section.
The officers reported the incident to Sergeant Neil Cooper who was, on the day, in charge of 'general day-to-day operations' of SHEC.
Sergeant Cooper sealed the vault and the officers were instructed to go home.
Officers De La Croix and McGrath described the immediate burning sensation to persist for a period of less than half an hour. Officer Hanna says it lasted up to a few hours.
Officer McGrath states that his asthma became worse after the incident.
Post Incident Actions, following 18 March 2009 incident
Following the incident on 18 March 2009, drug vault (room 1803) was closed.
The drug exhibit (358/D309677 (2006)) involved in the incident was identified as containing approximately 5 Kilograms of a compressed beige substance containing the precursor 'safrole'. It also contained approximately 3 Kilograms of methylamphetamine otherwise known as 'speed' and approximately 2 Kilograms of methylenedioxymethamphetamine otherwise known as 'MDMA' or 'ecstasy'.
Sergeant Maguire received by facsimile, various Analyst's Certificates from DAL and a copy of the Material Safety Data Sheet (MSDS) for safrole, which he provided to Officers Hanna, McGrath and De La Croix. Safrole is a hazardous substance according to the National Occupational Health and Safety Commission (NOHSC).
The drug exhibit was placed into a HAZMAT recovery bin and sealed. Three HAZMAT personnel who entered the vault wore spillage suits and SCBA breathing apparatus. Approximately 5 kilograms of items were placed into a HAZMAT recovery bin and sealed. Atmospheric monitoring was conducted in the drug vault during the operation with 'no reading recorded'. The storage shelf was wiped with bleach where the exhibit in question was located and the area deemed safe by the HAZMAT team.
Officers Hanna, McGrath and De La Croix were then instructed by Inspector Birley to immediately seek medical attention and undergo blood and urine analysis. They left work early to undertake this instruction.
The tests results for all officers were negative and revealed no abnormality.
After medical review Officer McGrath, a person who suffered from asthma prior to being seconded, obtained an 'unfit for work' medical certificate which concluded his secondment duties at SHEC.
After medical review, Officer De La Croix continued in full time auditing duties at SHEC. He lodged a Hurt of Duty claim, which was accepted, but he did not have any days off work as a consequence of the events of 18 March 2009. His secondment concluded on 28 March 2009.
After medical review, Officer Hanna returned to full time auditing duties at SHEC on 19 March 2009. Thereafter he attended a medical practitioner for blood and urine tests in accordance with instruction given by Inspector Birley and the following day he continued full time auditing duties at SHEC. His secondment concluded on 9 May 2009.
System of work prior to 18 March 2009 incident
Inspector Birley as the 'Project Manager' was responsible for identifying, assessing and controlling risks associated with all aspects of the project. This included OHS risks as stated in the document titled 'Project Plan'. OHS risks were considered under the guidance of, and in accordance with policies, of the Safety Command within NSW Police.
Inspector Birley relied on a document titled 'SPC Exhibits - July 2008', an audit of the Surry Hills Exhibit Section said to have been completed by NSW Police OHS Coordinators.
On 18 March 2009 Officers McGrath, Hanna and De La Croix worked inside Room 1803 without PPE.
The document titled 'SPC Exhibits - July 2008' identified inadequate systems around the identification, labelling and storage of substances and recommended the implementation of a chemical safety management system, however there was no associated record of how this was to be achieved and by whom.
The document did not consider the impact that prolonged temperatures ranging in the mid to high 30's (degrees Celsius) may have had on the chemical composition of the drug exhibits or on the integrity of the drug bags that contained them.
Post Incident on 18 March 2009 Actions
On 23 March 2009, Phill Cantrell, Senior Project Officer, WorkCover Chemicals Team attended SHEC to inspect room 1803. Mr Cantrell provided a 2-page report. Mr Cantrell also made a statement setting out his investigations, dated 21 February 2011:
Investigation into the analysis of the exposure exhibit containing safrole;
Atmospheric monitoring as the HAZMAT test may not be reliable;
Purchase combination dust and solvent respirators to accommodate the 'volatile organic compounds' found in precursors such as safrole;
Destruction of amphetamine based exhibits as precursors are likely to oxidise when left for extended periods;
Degeneration of cannabis exhibits are subject to bacteria, fungi and moulds. Breathing the cannabis dust that contains THC should be avoided with PPE.
After the initial incident, a risk assessment was completed that identified a number of actions to minimise the risk of reoccurrence. According to Inspector Birley's incident report the following actions had occurred as at 30 March 2009:
all staff were briefed following the initial incident on the safe handling of exhibits;
the induction package was updated and all staff were required to sign it. It was to be included within their individual 'Personnel' file
ventilation to rooms 1801, 1803 and 1804 were independently examined
carbon badges ordered and to be worn by staff
an eyewash station installed
additional PPE provided
review of current risk assessments and standard operating procedures
Exhibit Entry 358/D309677 conveyed to NMI Laboratories for further testing
Clinical Hygienist is required to conduct carbon tube analysis of the air quality.
After the incident on 18 March 2009, an eye wash station was installed on the wall between rooms 1803 and 1804.
Disposable P2 respirators were provided to the seconded officers but were not made mandatory.
Instruction was provided on what to do in the event of a chemical spill. The instruction was to leave and isolate the area immediately and notify a senior officer. No information was provided to the officers on how to use the chemical spill kits.
The MSDS for safrole was added to the pre-existing drug MSDS available in rooms 1803 and 1804.
Incident on 22 April 2009
On 22 April 2009, Officers Hanna and Varlin received an instruction from Senior Sergeant Maguire to commence for the first time the auditing of room 1804, the high security drug vault. Inspector Birley at this time had taken a leave of absence and had appointed Senior Sergeant Maguire as the 'Project Manager' for that period.
Prior to entering 1804, Senior Sergeant Maguire provided each officer with a disposable respirator to wear. Senior Sergeant Maguire instructed Hanna and Varlin to wear gloves and a face mask.
However, the officers were not supervised in relation to using the respirator, as the risk assessment process had not identified that personal protective equipment was to be used whenever they were working in the drug vaults.
Officer Hanna stated to Inspector Cook when interviewed on 2 December 2010 that the mask did not fit over his nose and face properly, thus he could still smell the drug exhibits. Shortly after commencing work he removed the mask, placed it on his head and continued working.
On this day officer Varlin's role was to physically remove the drug exhibits from the shelves inside room 1804, identify each drug exhibit number, inspect each exhibit bag for damage, particularly to the seal and communicate the information to Officer Hanna who was also inside room 1804. Officer Hanna's role was to record the information for each drug exhibit communicated to him by officer Varlin into an 'Exhibit Book'.
Officer Varlin removed a large box containing exhibit number 274/C896127 (2004), which was made up of approximately 25 bags of white powder weighing around 36 kilograms in total.
Officer Varlin then opened the box and removed a bag, to inspect its integrity. It weighed approximately 1 kilogram. Officers Hanna and Varlin detected an odour coming from the bag. The officers experienced a burning sensation to their nose (sinus) and throat.
The seal on the exhibit bag was detected as being open. The bag was immediately returned to the box and the officers left room 1804 to report the incident to Senior Sergeant Maguire.
Exhibit number '274/C896127 (2004)' was identified to contain 'cocaine'.
The NSW Fire Brigade HAZMAT team were contacted and attended SHEC. Approximately 38 kilograms of cocaine from exhibit number '274/C896127 (2004) was placed into a HAZMAT recovery bin and sealed. Officers Hanna and Varlin concluded duties at the Exhibit Section and sought medical attention. Blood and urine analysis tests were performed with their GPs for cocaine exposure. The tests were negative.
On 23 April 2009, Officers Hanna and Varlin returned to full time auditing duties at SHEC. Both completed a report of the incident for Inspector Birley.
Post Incident Actions
On 30 April 2009, Senior Sergeant Maguire completed the NSW Police Force 'Risk Management Tool 2003' dealing with the incident on 22 April 2009.
Following the incident on 22 April 2009, Senior Sergeant Maguire issued all officers with reusable 'carbon filtered silicon respirators'. Officer Hanna noticed that once he was provided with this type of respirator, he felt he could breathe properly when auditing exhibits in the drug vaults.
The wearing of respirators, goggles and gloves when auditing was made mandatory.
On 1 May 2009 Inspector Ankucic advised that the testing would commence after 11.00 am. Further, that on the information he had received, it appears that:
"The PPE provided to your staff involved in the auditing process, is more than adequate to minimise the risks associated with that type of work."
Testing of SHEC was carried out by Mr M Faiz, Occupational Hygienist, Chemicals Team, WorkCover New South Wales, who produced a report dated 2 June 2009 in which he stated:
"The air monitoring results from the Drug Exhibit Section are satisfactory, indicating that the officers undertaking the drug audit are not unduly exposed to dust or organic vapours emanating from the drug exhibits. While auditing, the officers used the full range of personal protective equipment and they were protected from any fugitive emissions. Under the condition, a significant health hazard does not exist to the auditors."