Evidence of Mr Norman Rees
66 Expert evidence on behalf of the applicant was given by Mr Rees, his treating Clinical Psychologist, who provided an affidavit/report which was marked Exhibit 10.
67 Whilst Mr Rees' last report of interviewing the applicant is dated the 17th February, he gave evidence that he'd spoken over the telephone since that date and probably did so the last occasion, some six weeks prior to the hearing. He gave evidence that he understood then, that the applicant was undergoing the testing required of him and successful in gaining some employment, that his relationship with his mother had settled down, and was keeping a social network together with previous friends from Sydney Water.
68 On the question of chances of him reusing cannabis, Mr Rees gave evidence that he thought that the applicant was at the "better end of the spectrum in terms of reuse" and went on to suggest there was relatively little chance of a relapse at this stage. Under further questioning on the same issue, he gave evidence that generally speaking, people find it a very hard thing to break the habit of marijuana use and after twenty years, probably less than a quarter have broken the habit.
69 Dr Rees gave evidence that the withdrawal from addiction like cannabis tends to peak in the first week or so in terms of discomfit, and in his practical experience was to treat such people with valium as a tranquiliser through an addictions program lasting up to six weeks.
70 On the basis of what the applicant had advised him, Mr Rees believed that marijuana use itself was creating an underlining psychotic process.
71 Important to the applicant's case was Mr Rees' evidence that he believed that the applicant was unable to form an intent in respect of his actions on the 4th June, 2006.
72 In response to a question as to the investigation interview conducted on the 13th June, 2006 by his employers, Mr Rees doubted very much whether he would fully understand the proceedings or have been able to speak on his own behalf, or to understand the proceedings fully at the time.
73 In cross-examination Mr Murphy put the proposition to Mr Rees that his findings were very much dependent upon what he was told by Mr Marshall. Whilst agreeing somewhat, he said that his findings were also dependent on assessments and tests and not entirely due to what actually was said in the interview, and a number of dimensions are attempted to be read, including body language, that is to assess the veracity of what people are saying from their body language. He believed that the psychologists had developed a certain level of skill with that process. In addition, an objective assessment is made of personality and emotional function, which is also relied upon.
74 Mr Rees had used what he called a Personality Assessment Inventory, involving the applicant "not being administered by Mr Rees or anyone else" and he further clarified - "no, no, it's a test that he sits by himself to do". The report is a computer generated report based on his answers and the author of the test filled out by Mr Marshall was an American Clinical Psychologist by the name of Lesley Moray PhD. (Exhibit 11 refers).
75 Mr Murphy took Mr Rees back to the issue as to what extent the Clinical Psychologist is dependent upon what they are told by the patient and drew upon an instance where the applicant appears to have misinformed Mr Rees. Mr Murphy referred him to a letter written by himself to Mr Marshall's solicitors of the 16th January, 2007 and quoted from that letter, "he has now been abstinent from cannabis since his referral to the centre", which he pointed out was contradicted by CAM reports. Mr Rees then agreed that people in his situation had to maintain, "a healthy scepticism", working with people with drug addictions. He also agreed that Mr Marshall would have been attempting to present the best possible case for the purposes of these Industrial Relation Commission proceedings. It was put to Mr Rees that it had been shown that information was false and that the applicant had actually still been using marijuana up until the 20th September, 2006, (almost two months after his claim as advised in the letter of the 16th January, 2007). Mr Rees was dismissive of the importance of that contradiction on the basis that the applicant might have occasionally used marijuana. Also, given "the frightening episode that he had had on the 4th June, and being asked to go cold turkey", he would not be surprised that Mr Marshall may have occasionally reused marijuana. When pressed on the question that Mr Marshall had not told him that, Mr Rees answered that Mr Marshall at least had not used marijuana "for some time" since his referral to the centre, but as far as more recent times are concerned, as far as he could ascertain from talking to Mr Marshall, many months had gone by without his use of cannabis, but went on to concede again that information would depend upon him being told the truth by Mr Marshall.
76 Mr Rees also dealt with the question put to him by Mr Murphy in respect of his behaviour towards Tania Carter. Mr Rees suspected that that behaviour was the result of a whole lot of delusional thinking associated with that particular woman and was part of the evidence of his underlining psychotic reaction, although his response to her was irrational. Again he stressed that the actions of Mr Marshall did not have any volition as such, and he did not believe him capable of forming an intention to hurt a person.
77 In respect of the incident of biting a police officer on the leg, Mr Rees had otherwise heard that the same police officer had had his foot on the throat of the applicant, and this made him wonder about the incident.
78 As to whether the consequences for Mr Marshall's colleagues at work could have been far more serious if he was so out of control, Mr Rees disagreed with that proposition because the applicant had never had a history of aggression. As far as his work colleagues were concerned, although kicking the door, he did not actually hurt any work colleague, and in respect of the police officer, there were other issues involved which perhaps contain provocation. He agreed at that point that he was surmising that there was some provocation.
79 When taken by Mr Murphy to the fact that the applicant had a police record, Mr Rees testified that he knew that the applicant had a criminal record, but he was not aware of any acts of assault reported as such, though that involved some incidence of stealing and "a few minor things". Mr Rees went on to again repeat that the applicant had not shown any history of violence towards other persons in response to the question of what might occur if the applicant had a weapon.
80 To questions such as to whether he was aware that the applicant was an intravenous drug user in the past, Mr Rees acknowledged that he was aware of that, but suggested that it was a long way back in time. As to whether he was aware that he had smeared blood on the face of Tanya Carter, Mr Rees suggested that it was again an involuntary act and referred to the issue of probability and suggested that this was the first time in Mr Marshall's life, that such a thing had happened.
81 He agreed with Mr Murphy's proposition that the probability of such conduct reoccurring or even more dangerous conduct, depended upon his ability and or willingness to stay off illicit substances, but suggested that the things that happened on the 4th June provided multiple motivations for the applicant to keep off cannabis, not just simply because of the proceedings before this Commission.
82 During this stage of Mr Rees' evidence, the personality assessment structured by Lesley Morley PhD., referred to earlier was tendered as Exhibit 11, and whilst agreeing with Mr Murphy's description of it being useful in assessing psychological makeup of people, he qualified its utility. The test he went on to say was useful as a validity check to see how a person was responding to the test and whether they were trying to distort the questionnaire with their responses towards presenting in a good light or to distort their responses by being overly frank, presenting themselves in a bad light. In the case of Mr Marshall, Mr Rees believed that Mr Marshall presented himself in "a very frank and candid fashion, more than many people would".
83 At this stage in the cross-examination of Mr Rees, Mr Murphy took him to specific areas of the questionnaire/tests filled out by the applicant, such as "manifesting fairly rapid and extreme mood swings and in particular probably experience episodes of poorly controlled anger". To that and many of the other unfavourable entries in the test, Mr Rees responded to the effect that the applicant had been overly frank and by nature was that sort of person, who, "shoots from the hip, is a frank individual". He developed that theme in several of his answers in response to the above, for instance, when he said, "how we use these things, we use them clinically, we don't look at every paragraph or everything that is reported by the computer generated report. We try to look at the scores, weigh it up with the validity considerations and the attitude of persons to the report. So we had a rather unusual attitude to doing the report". He repeated his assessment that Mr Marshall presented himself in an overly frank way, which he claimed meant the report is distorted towards the "look bad end and - so many of these statements are going to be exaggerated towards a certain end of the spectrum". Mr Rees, amongst other things, suggested that, "that's my clinical judgement of the report. I made some determinations from this report using it, certainly those questions which he's triggered regarding thought disorder, it was clear that that was still current when I did this report. So he still had a degree of thought (sic) disorder there, hadn't been fully treated. He was using - under prescriptive medications at the time to get that under control".
84 Mr Rees developed a similar theme again further in his cross-examination, suggesting that the applicant was still somewhat psychotic when he did the questionnaire, "so he wasn't recovered at this point. So this was done on the 8th August, 2006. I mean, we're looking at a point of time where he just - medications hadn't kicked in, he was still getting psychiatric treatments".
85 Similarly with Mr Murphy's question as to whether or not the report, which suggested that, "the respondent's self description indicates significant suspiciousness and hostility in his relations with others", Mr Rees suggested that that should be put to one side, again, because of the way the applicant has approached the questionnaire in an overly candid way, which Mr Rees suggested, distorted the questionnaire. It was up to him, as Clinical Psychologist, to make a clinical judgement about that situation. When Mr Murphy persisted with the question in respect of that quote, Mr Rees offered further, that, "he certainly had suspicions. I don't know about hostility, I wouldn't agree with that".
86 The cross-examination continued in a similar vein and was similarly defended by Mr Rees.
87 To the important question, concluded in the report, "and reversals should be expected (that is given the difficulty of the process)". Mr Rees again suggested that it was "simply generated by the computer", but eventually accepted that reversals could happen, but thought that that would depend on the sort of steps taken by the applicant to maintain his abstinence and how many social stresses were still present. He assumed from his understanding, that the applicant's psychotic symptoms had diminished to zero as a result of the appropriate medication and went on to suggest that the probability of reversal was relatively low.
88 In reply to a set of responses in the test provided by the applicant on such concepts as, "potential for aggression, people are afraid of my temper", to which the applicant had answered, "mainly true", Mr Rees suggested, "no doubt he was thinking of the incident two months before". Likewise with the entry, "sometimes my temper explodes and I completely lose control". To similar entries, Mr Rees varied his response to the effect, "so no doubt he is responding to things that he had been told".
89 Mr Rees drew the conclusion in cross-examination that if the applicant maintained his abstinence from marijuana and continued his current level of social functioning, he thought there was very little chance of another incident occurring.
90 When the topic was bought to the use of alcohol by the applicant, Mr Rees ventured that in no sense was the applicant an alcoholic. When his attention was drawn to the fact that the applicant had consumed the greater part of a 750 bottle of overproof rum on the 8th April, 2007, Mr Rees agreed that it would make most people very drunk, but pointed out that he was aware from previous evidence given by Dr Degenhardt, heard by him in the hearing room, that the applicant gave evidence that he had given some of the bottle away. On the question of control with the use of alcohol, Mr Rees thought that they were two very different drugs and later suggested that he would not expect the applicant to be aggressive, and again referred to the applicant's history which he believed showed him as not being an aggressive person, except when he was in that psychotic state. When taken further to the incident of the police involvement with the consumption of alcohol in April this year, Mr Rees defended the situation on the basis that the applicant had been to a party with friends, but did not know the circumstances of the physical fight in the street involved. Later in that area of evidence he suggested that the probability of him threatening or posing a threat to fellow employees at Sydney Water was low. He went on to agree with Mr Murphy that it all depended upon him staying off drugs, particularly marijuana.
91 When the evidence of the applicant having smoked up to four cones of marijuana immediately before commencing work was put to Mr Rees, his response was that, "he would have thought likewise, that, if his work diminished there would have been some reports raised about his efficiency and effectiveness and there would have been several warnings given, the usual due process, yes, and I would say he should be dismissed".
92 When pressed in cross-examination by Mr Murphy, Mr Rees agreed that he would have thought that the applicant should not go near marijuana again, "using at that level that he was using at was particularly dangerous and he shouldn't go near the stuff, absolutely". And again, when pressed further on the issue later in his cross-examination, gave evidence, "definitely I think. I think he's quite vulnerable on that level of use, any psychosocial stresses might trigger off another episode. I mean, if he was using recreationally once a month or something, we could probably say it wouldn't be likely, but I would have thought in his case, given he has had this response to marijuana, he should just totally keep away from it".
93 On the issue of proposed testing under the claim for re-employment, the propositions posed by Dr Degenhardt as to the ability to test marijuana and other drugs were put to Mr Rees. He disagreed with Dr Degenhardt in respect of the need to test fortnightly, and thought that once a month would be sufficient to detect the presence of cannabis in the blood stream.