Stefan Elias v Commissioner of Police

The facts

1. On Saturday, 28 March 2015 Police Officer A received a "Snapchat" video from the applicant. The video showed another person, then Constable Najdovski, who appeared to be dancing on a table. The video was captioned in a way which indicated that the applicant and Najdovski were planning to go to the Ivy nightclub in the Sydney central business district that evening.
2. Police Officer A and some friends also went to the Ivy that evening. At about 11pm Police Officer A left his friends to look for other people he knew including the applicant and Najdovski. He encountered the applicant and had a short conversation. Najdovski then joined the conversation. Najdovski made comments suggesting to Police Officer A that he had consumed, and/or intended to consume, cocaine or speed. The applicant had become slightly separated from Police Officer A and Najdovski. Police Officer A was unaware whether the applicant heard Najdovski's comments having regard to the loud music. Police Officer A then left them and returned to his other friends.
3. Although Police Officer A encountered Najdovski on a couple of other occasions that night and exchanged text messages with him the following day, nothing further was exchanged about recreational drugs.
4. On the Sunday, Police Officer A, concerned about his encounter with Najdovski, consulted his sergeant about what action he should take and subsequently made a report of the events of Saturday evening to his Local Area Commander. The report was dated 1 April 2015. Police Officer A was not required for cross-examination.
5. On Thursday, 9 April 2015 Ms Donovan and Ms Davis, who were authorised Drug and Alcohol Testing Officers ("DATO's") attached to the Professional Standards Command ("PSC"), received an instruction to conduct two targeted drug tests at Leichardt Local Area Command ("LAC") and Green Valley LAC.
6. At Leichardt LAC the applicant was the targeted officer. The applicant provided urine and hair samples as directed.
7. The hair samples were sent to Forensic Science SA ("FSSA") for testing. By a Toxicology Report dated 30 April 2015 FSSA provided the statistical results of the testing but did not purport to interpret them.
8. Ms Donovan received the negative results to the urine test and communicated them to the applicant on 15 April 2015. On 14 May 2015 she received the results of the hair testing which indicated that 120 picograms of cocaine per milligram of hair (pg/mg) had been detected.
9. One challenge to the evidence of the two DATO's was based on a legal argument as to their authority to conduct the test because of the repeal and replacement of the Police Regulation 2000 (NSW) by the Police Regulation 2008 (NSW). It was contended for the applicant that the two DATO's had not been authorised pursuant to the later Regulation. The respondent pointed to cl 138 of the Police Regulation 2008 in rejecting that contention. Clause 138 provided: 138 Savings Any act, matter or thing that, immediately before the repeal of the Police Regulation 2000, had effect under that Regulation, is taken to have effect under this Regulation.
10. There was no suggestion that the DATO's were not authorised pursuant to the earlier Regulation. I conclude therefore that they were authorised to conduct tests under the 2008 Regulation.
11. A related criticism of the tests was that the sample taken was inadequate for segmented testing. It was submitted that this led to unfairness in that the applicant was denied the opportunity to have segmented results available. It was also submitted that the lack of certification would render the collection unlawful and therefore unfair. As I have found that the officers were authorised this latter submission is rejected. I shall return to the related criticism in due course.
12. Neither DATO was required for cross-examination.

The Investigation

1. Detective Senior Constable Milles of the PSC was assigned to investigate two issues. The first issue was whether the applicant had used cocaine. The second issue was whether the applicant had tested positive to cocaine. He was to be assisted in the investigation by Detective Senior Constable Bortolussi. Detective Milles conducted a directed interview with the applicant on 25 June 2015. Detective Bortolussi was present and also asked questions during the interview.
2. Detective Milles became unavailable to complete the investigation and it fell to Detective Bortolussi to do so. The Detective had 22 years of experience in the NSW Police Force and had been with the PSC since November 2013. The Detective gave evidence that he: 1. completed the Detectives Education Program and was awarded an Advanced Diploma Public Safety (Police Investigation) from the NSW Police Force College in 2009; 2. had also undertaken the Internal Investigators Course in 2013 and obtained a certificate; and 3. had completed the Senior Critical Incident Investigator Course in 2015 and the Senior Detectives Course in 2017.
3. In the course of his investigation Detective Bortolussi obtained a statement from Mr A (a pseudonym), a friend of Najdovski's, who admitted that he had taken a gram of cocaine to the Meriton apartment he shared with Najdovski on 28 March 2015 and at which the applicant and two other persons had congregated with them prior to attending the Ivy nightclub. He said that Najdovski knew that he had the drug but did not suggest that the applicant was aware of that fact. He also stated that he had "a line of cocaine" in the apartment. He further stated that later that night Najdovski told him: "I've got some stuff of [sic] some random" He formed the view, based upon Najdovski's appearance, that he had consumed drugs.
4. The Detective also obtained an expert report from Dr John Lewis, Consultant Toxicologist, dated 27 July 2015. In his report Dr Lewis expressed the general opinion that: "The urine test was conducted about 15 days after the subject officer attended the nightclub. The time interval would preclude detection of cocaine as it is eliminated from the body within 1-2 days of ingestion. The hair sample was found to contain cocaine at a level greater than the laboratory's reporting levels. No metabolite was detected. The hair sample had been washed according to the laboratory's protocols in order to remove any possible surface contamination from the hair. The washings from the hair were found to be free of any cocaine. Hair washing prior to analysis is designed to remove contamination of the hair by airborne dust or other exposure to cocaine, either through handling material or otherwise being in contact with others who may have been using the substance. The concentration of cocaine was relatively low when compared to overseas studies on cocaine use by regular users; thus it can be stated that there was no evidence to suggest the subject officer was a regular or chronic user of cocaine. Although a number of overseas testing facilities require the presence of the cocaine metabolite, benzoylecgonine (BE), to be present as further proof of ingestion, I am not of the opinion that its absence compromises the test result. This is because, firstly, BE may be present at approximately 5% of the cocaine concentration and any amount present in the hair of subject officer #47726 would be far too low for detection. Secondly, scientific evidence suggests the presence of BE in hair is mainly as a result of the breakdown of the cocaine within the hair, rather than its actual incorporation into hair via the bloodstream."
5. Dr Lewis also provided specific responses to questions posed about the possibility of "drink spiking". It is unnecessary to detail those responses as the applicant at no stage suggested drink spiking may have been the cause of the presence of cocaine in his hair.
6. It's appropriate to note at this point that the applicant provided the investigator with an Expert Certificate dated 8 September 2015 from a Consultant Forensic Pharmacologist, John Andrew Farrar. In the course of his "Discussion" Mr Farrar made the following observations: "23. There are many variables associated with the testing of hair samples for the presence of consumed drugs. These include the possibility of contamination by a drug that is not ingested but comes into physical contact with the hair (Harrison & Fu, 2014). Hair has been shown to exhibit such porosity that it is possible for the hair to absorb cocaine which is then difficult to remove completely by pre-analysis washing (Romano et al, 2001; Schaffer et al, 2005)." … "24. The type of pigmentation of the hair is also significant in that eumelanin, which contributes to black colour, has a higher binding affinity with cocaine than does pheomelanin, which is predominant in fair hair, and tends to retain absorbed cocaine longer (Ropero-Miller & Stout, 2008)." … "26. Methods of analysis of trace quantities of drugs (such as gas chromatography/mass spectrometry) are so sensitive that it is imperative to define lower cut-off limits for the reporting of drugs in hair." "27. A recent review of the methodology for analysing cocaine in hair found that the detection and quantification of metabolites confirms the presence of an ingested parent drug (Ropero-Miller et al, 2012; Harrison & Fu, 2014). The quantitation of metabolites, calculation of analyte ratios and the definition of lower cut-off limits for reporting of cocaine in hair have been proposed as providing a viable means of interpretation of drug-hair analysis and eliminating the reporting of false-positive results (Department of Health and Human Services, USA, 2004; Lopez-Guarnido et al, 2013)." "28. The Department Of Health and Human Services, USA, has proposed, inter alia, as a national standard, that the following criteria be satisfied for the analysis of cocaine in hair, as confirmation of cocaine ingestion (Department of Health and Human Services, USA, 2004): a lower cut-off limit for the reporting of cocaine in hair of 500 pg/mg and a benzoylecgonine to cocaine ratio greater than or equal to 0.05, or cocaethylene quantitated at a concentration of not less than 50 pg/mg, or norcocaine quantitated at a concentration of not less than 50 pg/mg." "29. It can be seen from the above that the reported concentration of 120 pg/mg cocaine in Mr Elias's hair sample, in the absence of any detected metabolites, fails both of these interpretive criteria for cocaine ingestion." It should be noted that Mr Farrar clarified a formatting error in relation to the end point of paragraph 26 and the commencement of paragraph 27 of his statement during his oral evidence. It is quoted above in accordance with that clarification. Mr Farrar also observed, at paragraph 30 of his report, that there is a significant difference between a "lower limit of reporting" and a cut-off limit. He said the former is not supported by repeatable experimental data, as in the case of "limits of detection" or "limits of quantitation" but is used as a replacement for those concepts.
7. Mr Farrar concluded that: "35. …there was no viable evidence that Mr Elias has, at any time, consumed cocaine."
8. Mr Farrar was cross-examined. Firstly about his awareness and understanding of the Expert Witness Code of Conduct. He was aware of it and denied that he had breached it by being an advocate for the applicant. He said he was expressing his opinion not advocating a position. I accept his evidence. I accept also that his evidence was given consistently with the Code.
9. Secondly, he was asked about the SoHT cut-offs. He agreed they were established in respect of chronic users and were not appropriate for one-off use of a drug, but qualified that by adding "as I say, you would need to use - be very careful about dropping that cut-off limit." He acknowledged that the SoHT had said that lower cut offs should be used in certain circumstances to detect one off use such as in case of Drug Facilitated Crimes such as sexual assault but added that it was subject to stipulations. In re-examination he clarified the reference to stipulations. He said: "I did use the word stipulation. In my opinion, Chief Commissioner, where a primary drug level is less than that stipulated by the Society of Hair Testing, it is necessary to show, to show ingestion of the drug. It is necessary to show that there are metabolites of that drug present, the metabolites indicating that the drug has been ingested and has been metabolised in the body and incorporated into the hair shaft." (Emphasis added)
10. Thirdly he was asked about the absence of detection of metabolites. After some preliminary questions he was asked: "Q. Would you agree with this then, that the absence of the metabolites doesn't demonstrate that, particularly at lower levels, the absence of the metabolites doesn't demonstrate that the test result, the hair test result didn't arise from ingestion? A. Well it's inconclusive, that's the problem. It may have, it may not have. Q. Going back to your first statement. Just in relation to paragraph 34, do you accept that it's possible that there were metabolites of cocaine, but because of the levels in which they would have been present in the sample, it would have been at a lower level reported? A. Yes, I accept that as a possibility. What I did say was there's no evidence. Q. Yes. Just in relation to you accept though, don't you, that the positive hair test result demonstrates exposure to cocaine? A. Yes." (Emphasis added)
11. Finally of note, he was asked about the information provided by the applicant as to his exposure to drugs and the cross examination concluded as follows: "Q. I guess what I'm asking you, where you say in about paragraph 35 of your first report, you say there's no viable evidence that Mr Elias has at any time consumed cocaine, so you're obviously relying upon his denial in that respect? A. No, I'm not, I'm relying upon the results of a sample of hair taken from him in which cocaine was detected, but in which cocaine metabolites were not detected, and on that basis, I say there is no evidence of consumption, bearing in mind the low level of cocaine present. Q. Even though you accept that it's possible that the metabolites weren't [sic: were?] present but would have been at a lower level? A. Yes. Q. Does that suggest to you, I want to ask you this, are you saying then that Mr Elias' information to you about possible exposure either socially or work, had no bearing at all upon your opinion? A. It gave me contextual information, background information. My actual opinion does not rely upon what he stated to me. Q. If at no stage Mr Elias came into contact or was exposed to cocaine at any time, say the six month period leading up to the test, either policing activities or social things, so there's no exposure to cocaine. Do you understand that? A. Yes. Q. Wouldn't that be a relevant factor, in your opinion, as to whether or not the positive hair test result arose from the external contamination, environmental contamination? A. Well, how would one know ‑ sorry to ask a question, but how would one know that there had been no contact. Q. Sorry? A. How could one be sure there had been no contact with cocaine. If you want to say hypothetically, Mr Elias had not had been ‑ had not had any contact with cocaine, that would change my opinion. But I stand by my ‑ but I stand by my original opinion. I say that metabolites of cocaine in this case needs to be shown to be present to show actual ingestion." (Emphasis added)
12. Inspector Ralph Deans, Manager- Drug and Alcohol Testing Unit, emailed Mr Chris Kostakis of FSSA seeking his comments on the report of Mr Farrar. The email and the response became Exhibit 19. The Inspector began the exchange on 15 September 2015 attaching the Report and observing: "The Document relates to Case Number 1501884. I believe the sample did not have sufficient volume to conduct a segmented analysis. As the document raises issues of accreditation, I believe it would be beneficial to obtain your advice."
13. Mr Kostakis replied by email dated 25 September 2015. He replied to Mr Farrar's paragraph 30 by explaining how the lower limit of reporting is established and asserting that it is an acceptable form of reporting drug levels. He then notes in relation to paragraphs 31 and 33 that there are no international standards for reporting limits of drugs in hair. He referred to the Society of Hair Testing ("SoHT") and its recommended cut-offs noting that they enabled the identification of habitual drug users. Occasional users would therefore, he said, screen negative. Next he noted that the laboratory was accredited by the National Association of Testing Authorities. Finally he made the following observation in relation to paragraph 35: "The report by FSSA does not imply that cocaine has been consumed. The presence of cocaine may be a result of historical drug use preceding the period represented by the sample hair or infrequent drug use using the same sample period or as a consequence of external contamination resulting from being in environments where the subject was 'passively' exposed to the drug."
14. I observe that Mr Kostakis did not take issue with, or make any comment in relation to any of the paragraphs quoted at [26] and [27] above.

The Investigation Report

1. Detective Bortolussi produced an investigation report dated 12 October 2015 in which he found that the first issue, use of cocaine, was not sustained but the second allegation was sustained based upon the test results.
2. The Detective's reasoning in relation to the first issue is instructive. He first noted that the toxicology report: 1. did not detect the presence of the metabolite benzoylecgonine; 2. reported a positive result of 120 pg/mg for cocaine only; and 3. that, as the metabolite is only expected to be detected at a level of approximately 5% of the parent drug, in this case that would be at 6 pg/mg of hair which is well below the lower reporting limit of 50 pg/mg of hair.
3. He then noted that enquiries were made of the testing laboratory as to whether the metabolite was detected at levels below the lower reporting limit. The laboratory was "unable to say it was".
4. Importantly, he next observed: "The subject officer is good friends with Constable Tony Najdovski. The subject officer socialises regularly with Tony Najdovski off duty. It was the conduct of Tony Najdovski that bought this complaint to light. Tony Najdovski was drug tested on the same day a[s] the subject officer and his hair sample returned a positive result to cocaine and MDMA. Further, the hair sample taken from Tony Najdovski was segmented and showed a pattern of ongoing drug use over at least a three-month period."
5. Detective Bortolussi then went on to consider other occasions advanced by Mr Elias as possible days on which he was in the presence of people using cocaine on 28 March 2015 and 10-12 April 2015 notwithstanding that Mr Elias had no knowledge of that use or of the presence of the drug. In respect of the second of those occasions Detective Bortolussi made the following finding: "The subject officer is present in premises at Jarvis Bay from the 10-12 April 2015 for a 'Bucks Party'. Present at the party are females who are hired to perform the role of 'beer wenches' or who are friends of the 'beer wenches'. There is evidence from the subject officer he later (after the drug testing) became aware at least some of these females were using cocaine at the premises. The subject officer was intimate with one of the females who he stated used cocaine and believes this was in the same room as where the cocaine was used. At another point during the weekend the subject officer had another female he believed had used cocaine sitting on his lap for an extended period of time. The subject officer was drug tested (urine and hair) on the 13 April 2015. Had he used cocaine while at the 'Bucks Party' it is more likely than not he would have had a positive urine sample which he didn't. It would have been too early for cocaine use at the 'Bucks Party' to have been detected in his hair sample."
6. It should be noted that the last sentence of the quote is accurate but only as to ingestion of the drug. As the scientific evidence showed in this case, see [94(3)] and [117(5)] below, if the drug was present in the hair due to environmental contamination it may have been detected because it is unnecessary for the hair to grow to show the presence of the drug.
7. The Detective concluded: "The subject officer has vehemently and repeatedly denied ever using prohibited drugs. There is no direct evidence available of the subject officer using or possessing prohibited drugs. The subject officer's positive drug test combined with his presence at 2 locations where cocaine is known to be used, and the drug use of his friend, are cause for great concern and suspicion about his off duty activities. However, I am not satisfied to the requisite standard that a sustained finding for 'Illicit Drug Use' can be reached.
8. Detective Inspector Brad Johnson of the PSC reviewed the investigation report and stated, it appears also on 12 October 2015, he was "satisfied the findings reached are supported by the available evidence".
9. The report was then endorsed, on the same date, by Detective Acting Superintendent Pat Morris, Commander Investigations Unit, PSC. He expressed the view that all reasonable avenues of investigation had been exhausted and no further lines of enquiry needed to be addressed. He also expressed agreement with the findings of the investigation.
10. The report also contains two pages headed "Commander's Certification" and "Commander's Management Action Decision" respectively. The first records the result of the review by the Commander of Leichardt LAC, Detective Superintendent Paul Pisanos and is dated 23 October 2015. On that page the Superintendent also expressly accepted the investigators findings. On the second page the Superintendent expressed the following conclusion: "The investigator has found Issue 1 - Illicit Drug Use - Not Sustained. I agree with this finding based on the evidence available. The investigator has found Issue 2 - Positive Drug Test - Sustained. I agree with this based on the evidence and advice from PSC MAWS Legal. I note that the Subject Officer has raised environmental contamination as an alternative basis for having the prohibited drug Cocaine in his system at the time of testing, but understand from MAWS that these are matters that may be considered ultimately by the CAP and/or Commissioner. There is sufficient evidence available to find the Issue sustained and on this basis this is an automatic referral to the CAP for Section 181D consideration."
11. The "CAP" is the Commissioner's Advisory Panel.
12. In the period between 12 and 23 October 2015 the Leichardt LAC Complaints Management Team ("CMT") met and considered the Investigation Report. On 14 October the CMT Members were:

• Detective Chief Superintendent Rolph; Director, Investigation and Field Services
• Detective Morris; Acting Commander, Investigations Unit
• Inspector Guyatt; Manager, Field Service
• Chief Inspector Newton; Professional Standards Manager
• Sgt Ponte; PSM Assist
• Ms Sutton; Executive Officer

1. The minutes of that meeting record that the CMT determined, among other things: "The CMT considered the investigator's position in relation to the "Illicit Drug Use" issue and don't support the "Not Sustained" finding, however, do not say that the issue is "Sustained". The CMT discussed the circumstances, as reported, of the use by ELIAS and it is possible that the drug was ingested. The Leichardt Commander is required to exercise the delegated authority for this issue. It is recommended that the delegate, Commander Leichardt LAC, consult with the Manager, Drug and Alcohol Testing Unit, to Assist with the considerations for the finding on this issue." And "Investigation to be referred to delegate, Commander, Leichardt LAC, for consideration and certification of findings, consideration of any Management action and finalisation in accordance with the provisions of Part 8A." (Emphasis added)
2. The CMT met again on 21 October 2015. The members of the CMT on that occasion were:

• Superintendent Pisanos
• Inspector Watson; Professional Standards Duty Officer
• Inspector Gary Coffey
• Acting Inspector Hollows
• Inspector Moore
• Ms Smiles; Executive Officer

1. Minutes of the this meeting record that a briefing was provided by Superintendent Pisanos following which the CMT determined:

• "The CMT ratified Issue 1: "Illicit Drug Use" as Not Sustained as per the PSC investigation"
• "Issue 2: "Positive Drug Test' - based on Superintendent Pisano's [sic] conversation on 20/10/2015 with Inspector Pat Huolohan (PSC MAWS), A/Superintendent Pat Morris (PSC Investigations), Inspector Ralph Deans (Drug & Alcohol Testing Unit) and Ms Carol Donovan (Senior Drug and alcohol Testing Unit) he informed the CMT he is of the view Issue 2 (Positive Drug Test) to be sustained as per findings by PSC and ratified by the CMT."
• "The CMT are aware based on advice provided a sustained finding for an issue of Positive Drug Test is a mandatory referral to the CAP for consideration of 181D as per NSWPF Drug and Alcohol Policy 2007."
• "The CMT recognise there are matters raised by Constable Elias in his brief that may raise some explanation as to how he had been environmentally exposed to illicit drugs, however the advice from PSC in relation to this type of matter must be referred to the CAP rather than be considered for Management action at a local level."
• "It is for the Commissioner to consider the environmental issues not Superintendent Pisanos as the Commander." (Original emphasis)

1. The "NSWPF Drug and Alcohol Policy 2007" ("the Policy") was tendered. The version tendered noted that a scheduled review of the Policy was underway. The review date was stated as July 2012. Nevertheless the version tendered was, according to the evidence of Inspector Grant Watson, in effect at 13 April 2015. I observe that the Policy makes no reference to "hair testing". All of the references in relation to drug testing are to urine testing. The policy contains the following: Positive drug tests Prohibited drugs Any police officer who tests positive to the presence of a prohibited drug is liable to dismissal. The Commissioner can apply the provisions of a s.181D order with respect to that officer unless that officer has had that positive drug test declared as accidental exposure by a Commander or Branch Manager as set out in the provisions of that part in this policy. If a police officer is permitted to remain in police employment following a positive drug test, that officer will be subject to unscheduled testing for the following five years. The officer will also be monitored by an approved counsellor and will be expected to comply with any rehabilitation program developed for them. (Emphasis as per original)
2. The suggestion in the CMT Minutes that the Policy required a mandatory referral to CAP (or at least the Internal Review Panel ("IRP") according to the evidence of Inspector Watson) of any positive drug test was based on advice received by Superintendent Pisanos. That appears in the 21 October Minutes and was the evidence of Inspector Watson. The conclusion seems to be based upon the first two sentences of the extract quoted at [50]. I am unable to identify any more specific statement in the Policy suggesting referral is mandatory. The statement is, however, subject to an exception in relation to "accidental exposure".
3. The section of the Policy dealing with accidental exposure requires: 1. any officer who believes they may have been exposed to voluntarily disclose the information to their supervisor as soon as practicable and in any case less than 24 hours after the exposure; 2. the officer to submit to a drug test; 3. any officer who may be under the influence of a prohibited drug to refrain from operational duty; 4. acceptance by the officer of any necessary treatment and further testing in the event of a positive drug test; 5. that a failure to disclose until the time of or shortly before drug testing does not absolve the officer from taking the test. The discretion to accept the disclosure at this time will rest with the officer's Commander; 6. that a claim of accidental exposure at any subsequent time may be subject to formal investigation by the Commander to determine the validity of the claim; 7. Supervisors, Commanders and Branch Managers to ensure that any officer making such a claim undergoes appropriate testing; 8. Commanders and Branch Managers to ensure the officers duties are restricted until the results of tests are known; 9. Commanders and Branch Managers to consult the Safety Command as to the results of accidental exposure and any medical intervention necessary; and 10. Commanders and Branch Managers to be responsible: "for determining whether or not a claim of accidental exposure is to be accepted and if they are satisfied that the claim is false then the employee should be considered for further targeted drug testing and managerial action by the Commander. The Commander should ensure that detailed records are maintained by them regarding any decision made to accept or decline a claim of accidental exposure.

The applicant's response to the investigation report

1. The applicant was invited to make a submission in response to the Investigator's Report. This he did through his solicitor. The submission was contained in a letter bearing the date 1 December 2015 though it appears it was written after that date. That is so because it refers to and relies upon a supplementary report of Mr Farrar dated 7 December 2015. The letter also bears a "Received" stamp dated 11 December 2015 and a notation by Superintendent Pisanos of the same date.
2. In his submission the applicant focused on Issue 2 given that Issue 1 had been found in his favour. As to the report of Dr Lewis, it was noted that he commented that, on his instructions, there was insufficient hair to perform a "segmental analysis". The submission was critical of Dr Lewis's report on the basis that: 1. the opinion he expressed, that the absence of metabolites did not compromise the test result because the level of cocaine found was far too low for detection of metabolites, missed the point that the absence of metabolites meant that the usual confirmatory finding "was not present, therefore, the reliability of the analysis was questionable"; 2. he was unaware that the applicant had black hair; and 3. he did not address the likelihood of environmental contamination.
3. In relation to the lack of "segmental analysis" the applicant referred to the supplementary report of Mr Farrar. In that report Mr Farrar said: "24. It is particularly noteworthy that an analysis of the axial variation in cocaine in Mr Elias's hair sample was not conducted. Axial analyses (segmental analysis) are conducted in order to demonstrate that the drug of interest (analyte) was incorporated into the shaft of the hair at the time of drug use. Axial variations in concentration are therefore a means of differentiating between metabolic incorporation of the drug into the hair, and environmental contamination (Kintz, 2013). 25. Segmental analysis is of greater importance in cases where the concentration of the analyte is low and when no drug metabolites have been detected. 26. In his report, Dr Lewis states that the absence of detectable cocaine metabolite, benzoylecgonine, does not reduce the veracity of the result as benzoylecgonine may be present as a contaminant of cocaine rather than as a metabolite produced by metabolism of cocaine. However Dr Lewis does not consider the metabolites norcocaine and cocaethyline, the presence of which are highly correlated with cocaine metabolism and therefore with cocaine ingestion (Pragst et al, 2010). 27. It is not sufficient to conclude that such metabolites were present but not detectable as they were present at concentrations below the limit of detection. The fact that they were not detectable indicates that they were either not present, or the method used was not fit for purpose. … 31. Based upon the material received, the source of cocaine present in Mr Elias's hair sample cannot be determined. It is therefore not possible to know whether cocaine was ingested by Mr Elias, or whether it was present in his hair as the result of environmental contamination. 32. There is therefore no viable evidence that Mr Elias has, at any time, consumed cocaine" (Emphasis added)
4. It is noteworthy that the issue of segmental analysis was raised early in the investigation. Included in the evidence as Exhibit 34 are investigation notes. A note dated 23/06/2015 entitled "Conversation with Insp Deans - DATU - PSC" reveals the following: "MILLES had a discussion with Insp DEANS in regards to the hair segmentation of samples provided by ELIAS and NAJDOVSKI. MILLES and DEANS agreed that a segmentation should be performed upon these samples for thorough analysis of same. DEANS stated that the process takes approximately 4-6 weeks to complete. For information" (Emphasis added)
5. A follow-up note dated 30/06/2015 entitled "Segmentation of ELIAS Hair Sample" has the following "Brief Description": "On 30/06/2015 MILLES met with DONOVAN and DEFILLIPS from the Drug and Alcohol Testing Unit to discuss the hair sample provided by S/O ELIAS on the 13/03/2015 [sic]. MILLES was informed that PSC had asked for ELIAS' hair sample to be segmented to determine prior drug use. PSC was informed by Forensic Services SA that there was not enough hair taken during this sample for a segmentation procedure to be conducted. This means that the potential of identifying prior drug use does not exist."
6. As noted at [19], the applicant was critical of the process by which the sample was taken. He submitted that the sample being insufficient to allow for segmental analysis deprived him of the opportunity, identified by Mr Farrar at paragraph 24 of his supplementary report set out at [58], to provide further evidence in support of his case that the cocaine detected in his hair must have been present as a result of environmental contamination.
7. Further, the applicant drew attention to clause 92 of the Police Regulation 2008 which relevantly stated: 92 Action with respect to samples of urine, hair and blood (1) This clause applies to: (a) an authorised person who arranges for a sample of urine, hair or blood to be taken when empowered to do so under section 211A or 211AA of the Act, and ... (2) A person to whom this clause applies must ask the police officer from whom the sample was taken whether or not the police officer would like to keep part of the sample of urine, hair or blood taken from the officer. (3) A person to whom this clause applies must: (a) divide the sample into 2 approximately equal portions, or, if the police officer has indicated that he or she would like to keep a part of the sample, divide the same into 3 approximately equal portions, and (b) place each portion into a container, and (c) fasten and seal each container, and (d) mark or label each container for future identification. (4) Of the sealed containers: (a) the first container must: (i) in the case of a sample taken by a medical practitioner under clause 90, be handed by a medical practitioner to the authorised person present when the sample was taken, or (ii) in any other case, be dealt with in accordance with clause 93, and (b) the second container must be transported to a laboratory accredited by the National Association of Testing Authorities, Australia for the purposes of AS 4308 and nominated by the Commissioner, and must be stored at that laboratory on behalf of the Commissioner, and (c) in the case where the police officer has indicated that he or she would like to keep a part of the sample, the third container must be given to the police officer. …
8. The applicant observed that, although the DATO's were clearly aware of the Regulation, because they followed it in relation to the urine sample, they did not follow it in relation to the hair sample. The hair sample was not divided into two or three equal parts sealed in separate containers. There was only one container. The applicant was not offered a part of the sample of his hair.
9. The applicant submitted these failures constituted a fundamental non-compliance with the requirements of the clause. Reference was also made to clause 93 (5) which provided: 93 Analysis of samples of urine, hair or blood … (5) If the first analysis of a portion of the sample indicates the presence of alcohol or a prohibited drug or steroid in the sample, an analysis of another portion of the sample must be undertaken. (Emphasis added)
10. Failure to divide the sample as required by clause 92 meant that there was no opportunity to comply with clause 93(5). The applicant reiterated that the failure to make an analysis of the second part of the sample deprived him of an important safeguard and the inherent unfairness of that was apparent.
11. The submission advanced two conclusions: 1. the Toxicology Report in relation to the applicant's hair sample should be regarded as unreliable; and 2. if, contrary to (1), the Toxicology Report was accepted as reliable it did not constitute evidence permitting a finding of use or ingestion of cocaine.

The reaction to the submission

1. The notation referred to at [56] was to the effect that the submission was to be discussed at a meeting with PSC on 14 December 2015. Before discussing the evidence concerning that meeting I will briefly review some effects of the applicant's December submission.
2. There is in evidence an email exchange between Inspector Deans and Mr Kostakis beginning 18 December 2015 (parts of which were redacted) in which the Inspector asks that two samples of hair, including the one relating to the applicant, be stored "for an extended period due to possible legal appeals". Mr Kostakis agreed but asked the Inspector to note the following in relation to the applicant's case: "- Length of hair provided was 3cm long - sample divided in two by analyst - there is no hair remaining following the initial test (all used up - report dated 30 April 2015) - the divided sample was segmented (3xIcm segments and not analysed - there was insufficient quantities of hair in each segment to perform a segmental analysis. Note however that we could combine all 3 cut segments and re-test if required" I have understood this note to mean that the sample was divided in two and the first part was the subject of the initial test which did not involve segmental analysis. The second part was segmented into three 1cm lengths but not analysed because there was insufficient hair in each segment to permit a segmental analysis. However it may be possible to combine the segments and re-test.
3. On 22 December 2015 the Inspector responded: "Thanks Chris, (portion redacted) It is the other one with the cocaine, where his legal rep has highlighted that our Regulation say we must split the sample into two at the collection site as in AS 4308. Hair is not taken under 4308, but the Regs are (dated) but specific and use the word (must) in the Regs means we may have collected and prepared the sample against the Regs. So the analysis result may be rejected on legal grounds. This then may affect the other sample result above purely on the 'black and white' interpretation of the Regs. We are seeking legal advice on whether complying with SoHT guidelines is sufficient???"
4. On the same topic in February 2016, there was an exchange between Ms Donovan and Ms Kenneally, of FSSA, in which Ms Donovan asked whether there was sufficient sample remaining to permit a re-test. Ms Donovan first referred to and attached the earlier email exchange which was apparently the basis of the Investigation note set out at [60]. She said she was making the current enquiry because the applicant may want to have an independent analysis carried out although she was not sure of that possibility.
5. Ms Kenneally replied that having checked the sample there was approximately 10 mg of hair and it would be possible to arrange the release of the hair for independent analysis. She noted however that many laboratories wouldn't accept such a small amount for testing. She also noted that because of the conditions under which the sample had been stored she expected minimal deterioration of the sample and added: "there is a possibility, in relation to this particular case, that there may have been some small conversion of cocaine to benzoylecgonine."
6. The CMT met on 8 January 2016. The Minutes in evidence are brief but record that Superintendent Pisanos, who was on sick leave, had been in contact with PSC.
7. The Minutes of the meeting of the CMT on 8 March provide greater detail including as to the outcome of the proposed meeting with the PSC referred to at [67]. They record: "The CMT noted Constable Elias' written response to the show cause notice was received at the command on 1/12/2015. The response was very detailed and related to the sustained finding of a Positive Drug Test. As a result of legal content within the Constable's response, meetings were arranged by Superintendent Pisanos with Professional Standards Command to seek advice on two (2) aspects of Constable Elias' response. The broad advice received in the meetings with PSC was that in cases of Positive Drug Tests - under the Drug and Alcohol Policy the matter should go to the Internal Review Panel for consideration of a referral to the Commissioner, who will in turn consider the environmental factors raised by the officer before making a decision regarding the loss of confidence in the officer (s181D). Superintendent Pisanos discussed the matter with the CMT. The CMT support the Commander's recommendation to the IRP of an alternative to s181D, that being non-reviewable actions engineered toward the officers lifestyle choices and off duty behaviour. IRP recommendations to be considered as follows: 1. A Region Commanders Warning Notice (based around the admitted off duty lifestyle choices and Code of Conduct) 2. A Conduct Management Plan regarding Code of Conduct issues (off Duty choices/behaviours) 3. Drug and Alcohol counselling 4. Drug Testing regime per NSWPF Drug and Alcohol Policy Superintendent Pisanos will recommend at Constable Elias's next 28 Day Review of suspension status (due Wednesday 16 March 2016) that this officer's suspension be withdrawn and for him to return to duty. (Emphasis added)
8. It appears the remaining sample was referred to another laboratory, Racing Analytical Services Ltd ("RASL"), not at the request of the applicant but by the PSC on or about 22 March 2016. The resulting Drug Screening Certificate of RASL dated 12 April 2016 and the accompanying report of Dr Rohan Steel dated 8 April 2016 was tendered by the applicant. The documents had been attached to a statement by Dr Steel which had been filed and served by the respondent. The respondent did not call Dr Steel. The applicant invited me to draw an inference the evidence of Dr Steel would not assist the respondent. That submission was based upon the report.
9. The Certificate reported a positive result for cocaine of 51pg/mg. It also found traces of benzoylecgonine but at levels "below the quantitative limits of the assay". Norcocaine was not detected.
10. The detailed report of Dr Steel contained the following: "11.7 mg of hair was analysed for the presence of cocaine, benzoylecgonine and norcocaine. Analysis included the use of a two-stage drug extraction process. The first stage extracts drugs only from the outer layers of the hair cuticle (surface extract), while the second extract detects drugs present inside the hair shaft (hair extract). The two-stage drug extraction is used to provide information on how the drugs have been deposited in the hair - through the bloodstream or through surface contamination. Cocaine was detected in the hair extract at a concentration of 51 pg/mg. Cocaine was also detected in the surface extract at approximately twice the concentration detected in the hair extract, indicating that the majority of the drug was present close to the hair surface, rather than in the interior of the hair shaft. The hair sample also contained traces of benzoylecgonine below the quantitative limits of the assay. There was no norcocaine detected in the sample. Notes: The interpretation of the detection of cocaine in hair remains problematic due to concerns about environmental contamination. There is wide recognition environmental exposure to cocaine may lead to drug incorporation into the outer layers of the hair, resulting in the potential for false identifications. (Ropero-Miller et al., 2012). The potential for environmental contamination of hair from law enforcement officers has been of particular concern (Mieczkowski, 1997). Analysis for cocaine in hair requires an effective washing strategy to identify/remove environmental contamination. Cocaine metabolites such as norcocaine are indicative of human metabolism, whereas the detection of benzoylecgonine could be the result of environmental contamination."
11. The RASL report was not made available to the applicant until 12 October 2017. It also does not appear to have been considered by respondent in coming to his decision. I conclude that is so because s 181E(3) of the Police Act provides: 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). (Emphasis added).
12. The Notice to Show Cause was signed by the Commissioner on 25 November 2016 and served on 1 December 2016. Plainly the RASL results and Dr Steels report were not available at that time and therefore are not included in the List of Documents accompanying the Notice. The s 181D order and Statement of Reasons ("Reasons") were dated 21 July 2017. There is no mention in the Reasons of the RASL results or Dr Steel's report.
13. The respondent submitted no adverse inference should be drawn from the failure to call Dr Steel because: 1. nothing turns upon the failure to call him; 2. his Statement was limited to RASL's testing procedure; 3. given that RASL's testing procedure documents were produced in answer to a summons issued in the proceedings, and it was not otherwise the subject of any challenge by Mr Elias in his case, there was no reason for Dr Steel to give evidence about these matters; and 4. given that Mr Elias did not adduce evidence in his case that touched upon or required explanation from RASL about its test result, there was nothing that the Respondent needed to meet in its case in reply.
14. It is difficult to evaluate the second point made by the respondent as the statement was not in evidence. The third and fourth points are to an extent irrelevant given the applicant may have wished to obtain additional explanation from Dr Steel as to the "two-stage drug extraction process" given that Dr Steel says that it "provide[s] information on how the drugs have been deposited in the hair' which is the fundamental issue in this case. The fourth point in particular is a matter of interpretation having regard to the evidence of Mr Farrar (see [82] below). The respondent submits however, that the applicant declined the opportunity for an adjournment to allow Dr Steel to be called. Again that is not a complete answer because it places the applicant in a position of having to choose between an indefinite delay in the hearing and the opportunity to cross-examine a witness.
15. The respondent also submitted in the context of answering submissions about procedural deficiencies that: "There is no evidence at all that allows or permits a submission or finding that the RASL test result means that it was more likely that Mr Elias' test result arose from external contamination."
16. I have difficulty accepting that submission because of the evidence of Mr Farrar about the advantages of segmental analysis and "axial variation" quoted at [58] and the fact that Dr Steel notes that the level detected in the surface extract was "approximately twice the concentration detected in the hair extract indicating that the majority of the drug was present close to the hair surface". The applicant submits that Dr Steel's report supports the conclusion of environmental contamination rather than ingestion. As Dr Steel was not called to rebut that the conclusion is open.

Suspension

1. The applicant was suspended with pay from 15 May 2015, the day after notification of the positive test result, until 17 March 2016 when Assistant Commissioner Gallagher approved a lifting of the suspension and return to restricted duties.
2. The matter was referred to the IRP on 22 June 2016. On that date the IRP decided to recommend action under s 181D of the Police Act. As I understand the internal procedures of the Police Force, and consistent with the evidence of Inspector Watson, the IRP becomes the CAP once the decision is taken to move to action under s 181D.
3. As a result of that decision the question of whether the applicant should again be suspended was considered. The "Suspension - Questionnaire and Determination" form was tendered as part of the applicant's case. The "Questionnaire" part of the form was completed by Superintendent Pisanos. The Superintendent made the following comments: "The Officer currently holds a full-time General Duties SAP number at the Leichardt Local Area Command. Currently performing full-time duties on an Interim Risk Management Plan. The Officer is performing a number of shifts within the Leichardt Intelligent Office and Glebe Station duty where required." The Superintendent traced the history of the matter up to the point of the recommendation by the CAP. The questionnaire then calls for an assessment of risks, including to the investigation and the local work environment, in the event the officer remained in the workplace. The superintendent said: "This officer was suspended previously with pay for a lengthy period, from 15/05/2015 to 17/03/2016 for this same matter. He returned to work on an Interim Risk Management Plan (IRMP) as per my recommendation for management action as per Section 173. The delegate AC Gallagher supported this action. Constable Elias is restricted to performing Intell duties. He has been targeted drug tested once since returning to work with no drugs detected in the hair or urine samples. Constable Elias undertook drug and alcohol counselling the first week back at work. The officer is performing well and is complying with all strategies of the IRMP. To re-suspend this officer is unnecessary in my view. Circumstances have not changed and the risk has not altered. Constable Elias is complying with everything asked of him and is contributing to the Command." The Superintendent recommended that strategies other than suspension from office be pursued and commented: "Constable Elias is restricted to performing Intell duties. He has been targeted drug tested once since returning to work with no drugs detected in hair or urine samples. Constable Elias undertook drug and alcohol counselling the first week back at work."
4. The Acting Region Commander, Acting Assistant Commissioner Michael O'Toole however recommended suspension from office with pay in light of the decision of the CAP. Assistant Commissioner Gallagher supported the recommendation of Acting Assistant Commissioner O'Toole and determined to suspend the applicant with pay from 24/06/2016. It appears he remained suspended on pay until he was removed.

The Commissioner's Reasons

1. The respondent concluded that the applicant had consumed cocaine. He did so principally because: 1. while he considered all of the scientific opinions he preferred the opinion of Dr Lewis; and 2. the circumstantial evidence "clearly demonstrates that you associate (or have associated) with people who use cocaine" and socialising with people who use cocaine or other prohibited drugs "corroborates" that the applicant uses or used cocaine.
2. The respondent also: 1. took into account the applicants "assertion" that the testing procedures were not followed but considered that the "overall substantive fairness of the testing" had to be weighed against the alleged procedural failures and in the light of the seriousness of the applicant's misconduct. Accordingly failure to offer the applicant a sample of his hair was not so procedurally unfair as to render the applicants removal harsh, unjust or unreasonable; 2. considered that the applicants character evidence and career history did not mitigate the seriousness of the applicant's misconduct; and 3. concluded that allegations 2 and 3 were made out in light of his view that the applicant intentionally ingested cocaine. Moreover his dishonesty after the fact aggravated the applicant's drug use.

The Scientific Evidence

1. I have noted above the evidence of Mr Farrar, at [26]-[27] and [58], Dr Lewis in his 27 July Report at [24], Mr Kostakis at [33] and [68] and Ms Kenneally at [71], and Dr Steel at [76].
2. The applicant also relied on reports by Dr Michael Robertson, a Pharmacologist and Forensic Toxicologist, and Professor Olaf Drummer, a Forensic Pharmacologist and Toxicologist. The respondent relied on two additional reports of Dr John Lewis dated November 4th 2016 and 3 November 2016 and a report of Dr Gregory Doran dated 3 November 2017.

Dr Michael Robertson

1. Dr Robertson is employed by Independent Forensic Consulting. He was asked to give an opinion as to whether environmental contamination could reasonably lead to the presence of cocaine in the applicant's hair at the detected level. He was also asked to comment on the reports of Dr Lewis and Mr Farrar.
2. In his general comments Dr Robertson: 1. noted that there were no approved International or Australian Standards for hair testing but that the SoHT had published guidelines; 2. the SoHT recommended cut-off limits for substances and metabolites in hair to allow confident identification of regular use and minimise interpretive issues including positive results associated with "infrequent use, contamination and inadvertent use"; 3. noted the FBI laboratory in the USA ceased performing hair testing for cocaine in adults because they could not exclude environmental contamination in many cases; 4. noted FSSA's cut-offs are "25 fold lower" than the SoHT cut-offs; 5. observed that had the laboratory used the SoHT cut-offs they would have reported a negative result; 6. identified three factors to be considered when interpreting drug test results being: 1. the amount of drug present in the hair (i.e. low, medium, high); 2. the presence or absence of metabolic breakdown products (metabolites); 3. the presence or absence of drug in the "external wash" sample, that if present is suggestive of recent external contamination. 1. noted that cocaine is typically present in the form of powder and may readily be transferred from one location to another and may also be present in the form of airborne particles; 2. said external contamination may occur when contaminated items like hands or clothing come in contact with the hair: 3. observed that it is generally accepted in the scientific community that external contamination is a cause of positive hair samples explaining that the drug becomes bound to the hair follicle and is unable to be removed by external washing techniques leading to low levels of drugs and "false positive" results; 4. explained that ingestion of the drug, as opposed to external contamination, may also be supported by the presence of metabolites in the hair because, in general, metabolites are formed in the body after drug use and are then incorporated in the hair with the parent drug; 5. concluded as no metabolites were detected the possibility of external contamination cannot be excluded; 6. if the drug is detected in the wash samples it's usually an indication of possible external contamination; 7. having noted that the wash samples did not contain any detectable amounts of drug observed that this could be reasonably explained by: 1. the ingestion of a small amount of drug; 2. external contamination has been largely removed by personal hygiene techniques 1. whilst the wash solution results in this case likely exclude recent contamination, when attempting to differentiate between use or contamination, the absence of drug in the wash samples is of little interpretive value; 2. concluded that "in the absence of any additional evidence of drug use, I do not believe external contamination can be excluded as a reasonable alternative cause for the provided hair test result".
3. In relation to Dr Lewis's report of 27 July 2015 Dr Robertson concurred with his statements that the concentration of cocaine in the hair of the applicant was "relatively low" and that "there was no evidence to suggest the subject officer was a regular consumer of cocaine".
4. In relation to Dr Lewis's report dated 4 November 2016 he: 1. concurred with Dr Lewis's opinion that the results of the washing solution neither supported nor dispelled environmental contamination; 2. observed that the Dr Lewis largely excludes the likelihood of occupational or inadvertent exposure primarily based on the provided facts and published studies but that it was unclear what level of detail of exposure Dr Lewis was provided in order to exclude environmental contamination is a possibility. Dr Robertson remains of the view that environmental contamination cannot be excluded; 3. disagreed with Dr Lewis that two weeks is not long enough for a drug to become incorporated in head hair samples and observed that the responses at sections 3.8 and 3.9 of his report imply that ingestion of cocaine (and subsequent incorporation of cocaine in hair) was the factor being eliminated not external contamination and that he did not consider the responses relevant to the issue of external contamination
5. as to the reports of Mr Farrar, Dr Robertson: 1. concurred with the opinion in the 8 September 2015 report that there was no viable evidence that the applicant had at any time consumed cocaine; and 2. concurred with the statement in the Supplementary Report dated 7 December 2015 reaffirming that opinion.
6. Dr Robertson was cross-examined on the same topics as Mr Farrer (with the exception of the Expert Witness Code of Conduct). As to the possibilities document provided to him by the applicant he said: "It was really just a number of possible exposures but like I said, my report really focused on giving an assumption of exposure or environmental contamination. Q. On that, if the assumption in relation to environment contamination is not made out, would you agree that that would tend to discount environmental contamination? A. Well, to an extent. Environmental contamination is always something we consider. It's nothing we can prove as scienti[sts] as such from a paper based review without in effect re-enacting a certain set of scenarios. It's all something we consider. If someone said there is no chance of any external contamination then clearly you would err on the side of use. Where there's a possibility of external contamination then that equally becomes a possible explanation for the results." (Emphasis added)
7. He acknowledged that failure to meet the cut off limit set by the SoHT did not exclude ingestion as the guidelines were designed for chronic use. Dr Robertson also acknowledged that there was a need for external moisture to allow the hair to absorb cocaine. He said: "The base of the hair ‑ sorry, on the head at the base of the hair follicle as it exits the head you have things like sweat glands and sebum and these sorts of liquids. So whilst the end of our hair follicles might be dry, there is still an amount of sweat. That's one process of incorporation of drug into hairs. So if drug were incorporated into the sweat or the oily components of the sweat and the oils on the skin, that's a well‑known source of hair incorporation from the environment. So when you then take a sample and you analyse it from the root end, of course you are incorporating some of that oily component, hence part of the decontamination procedures to remove that oil." (Emphasis added)
8. And as to decontamination procedures he said: "There are studies that have shown that the faster you wash the hair relative to the time of contamination largely dictates how much of the drug you actually get off the hair. For instance, if you contaminate the hair and then wash it within a few hours, you can eliminate a vast majority of that external contaminant. After about four hours of contact between the hair and the drug, you end up with it more permanently attached to the hair. There haven't really been any well‑documented drug removal processes that actually remove all drug from hair. That's part of the problem when we deal with low concentrations of drug. (Emphasis added)
9. Dr Robertson was also asked about metabolites and the proportion to the parent drug. He gave similar responses to Mr Farrar in that regard.
10. I asked the witness to give me an understanding of the quantities of drug reported in this case. He said in response: "Q. So this amount of cocaine, is that something I could see with the naked eye? A. I don't think so. I have the benefit of glasses; but a milligram, we might measure a milligram of drug in the laboratory and it might look like a small pinch of salt, for instance. If you then divide that by a thousand to get a nanogram, you might now be down to a grain of salt. Then you divide that again by another thousand, so it would be very unlikely that you would ‑ if there were 1 picogram of drug sitting on this bench, for instance, I wouldn't be able to see it."

Professor Olaf Drummer

1. Professor Drummer is employed as Deputy Director (Academic Programs) at the Victorian Institute of Forensic Medicine. He explained that; 1. effectively all drugs can enter hair through one or more of the following mechanisms: 1. direct entry into the growing hair follicle under the skin from drug present in the blood; 2. diffusion of drug present in sweat through the outside of the hair shaft; 3. diffusion of drug present in the oily secretion (sebum) through the outside of the hair shaft; 4. contamination from drug that may be present in the atmosphere; contamination from traces of drug present on surfaces with which the individual has come in contact resulting in dermal and/or oral absorption and transfer to hair; and 5. Ingestion resulting in "blood concentrations" which causes incorporation by entrapment of the blood bathing the hair follicle, although incorporation through direct contact of mature hair with sweat and/or sebaceous secretions is also a significant source of drug entry. 1. Contamination from an external source often spreads throughout the hair length particularly if the head hair is moist at the time of contamination. In this situation metabolites of drugs may not be present since they normally require active internal processes; 2. Sweat/sebum will contain the drug within a short time following exposure; 3. The concentration of cocaine in hair will depend on a number of factors including hair colour noting that black hair retains more drug than lighter colours; 4. The reason for the SoHT cut-off is to avoid false accusation of drug use; and 5. Recent research he had undertaken "showed that it was not possible from hair concentrations alone to infer the type or extent of exposure".
2. In the Professor's opinion the result obtained in this case should not have been reported as it falls well under the usually applied cut-off. He noted that the use of a washing procedure though standard, does not totally eliminate trace amounts of cocaine from the environment - in fact he emphasised, washing has been shown to contribute to absorption of hair surface cocaine into the shaft giving low false positives.
3. He noted the absence of reporting of any metabolites and added that a metabolite such as benzoylecgonine is also formed by spontaneous hydrolysis and hence its presence would not have provided "any support of personal use over an amount deriving from contamination".
4. The Professor concluded that: 1. "it is not likely that the positive cocaine result in hair could reasonably be inferred as Elias' personal consumption of cocaine"; and 2. "the positive hair result to cocaine could have occurred from either environmental exposure during his working life or some other form of inadvertent exposure".
5. Professor Drummer was required for cross-examination. He disagreed that the standard cut off recommended by the SoHT was designed for chronic users. He accepted that the word "chronic' was used in an article published by the Society but added: "A. Well, the society has a number of members. They produce recommendations to do hair testing, and they have come up with these cut-offs. Yes, there's a mention of the word "chronic"; but, as a general rule, around the world point 5 is a consistent number to identify drug users more likely than those that are exposed to trace amounts. Q. When you say "around the world", you are referring to the cut-offs that you've identified in your report? A. I just mention one report, Society of Hair Testing in my report, but there are other societies that also use point 5 as a cut-off. I should say here, your Honour, that the presence of cocaine, we ought to mention about contamination, to exclude contamination versus personal use, which is really the main objective in any workplace drug testing, in the case of cocaine, particularly in this case here, in this case before the Court here, we need to understand whether we can actually show personal use. The presence of metabolites is a key indicator. Metabolites go into the body and are metabolised by the body and appear in hair. It is a key indicator of use, whether it is single use, where the concentration would be lower, I agree with that, or used over a number of times, where the concentration may be higher. But in cases where there is personal use, going through body, metabolites will find a way into hair; and that is the key indicator to show personal use versus some reason for exposure for whatever reason." (Emphasis added)
6. The Professor agreed generally about the proportionality of metabolites, such as norcocaine, to the parent drug. He was then asked: "Q. So you accept the proposition that a metabolite might be present but in such a low level that it would not be picked up by the testing, they wouldn't be reported under the testing cut-offs? A. That's true. Low levels are less likely to be picked up as a metabolite, but the fact that it is not picked up doesn't mean it is necessarily there. Q. It also does not mean it is not there? A. Personal use means it has to be there, plus the cocaine. Whatever cut-off you might be using for the cocaine, you have proven metabolites are there, because it has gone through the body, plus if there's cocaine present in the hair, whatever concentration cut-off you want to use. One the reasons for the point 5 is a concentration higher enough to also measure metabolites should they be present. So the cocaine is point 6 and no metabolites, the inference is that it is probably external exposure to contamination versus internal use. That's one of the reasons why point 5 is used as a cut-off. Q. Can I suggest that you place a lot of weight on the cut-off guidelines, don't you, in your opinion? A. I place a lot of weight on both cut-off and the presence of metabolites and having a reasonable basis of proving a drug is present. (Emphasis added)
7. He also agreed that it was necessary to be exposed to cocaine in order to be externally contaminated: "Q. You need to be exposed to a particular level of cocaine, correct, at least of the amount that in this case is turned up in the hair result, correct? A. The amount in this case is very, very low. To be exposed to that amount you would not see the cocaine. There could be cocaine in this courtroom here on this bench here. I could touch it with my hand, touch my hair. That's an exposure. If that happens over a few occasions, the concentration will be higher on the hair than one occasion." (Emphasis added)
8. In relation to absorption and washing techniques the Professor said: "We, ourselves, in our own experiments have added cocaine to drug‑free hair, outside the body, of course, person, added cocaine and tried to wash it off. We can't wash it all off. Some of the cocaine goes into the hair as though it were personal use, but it is because we have contaminated the hair deliberately. That's why one needs to have high amounts of cocaine in the hair plus metabolites to infer that, yes, it is probably internal use and probably personal use." (Emphasis added)
9. In re-examination the Professor identified other societies or Associations which adopt the 500pg cut-off including the European Workplace Association and the Health Sciences Association in America.

Dr John Lewis

1. I have referred earlier at [24] to Dr Lewis's report of 27 July 2015. He provided a second Report dated November 4th 2016 at the request of the PSC. It is referred to at [94] in the discussion of Dr Robertson's evidence.
2. In that Report Dr Lewis set out the background facts provided to him essentially related to the possibilities for exposure identified by the applicant. He was asked to express his opinion as to a number of matters.
3. He reported that; 1. height and weight have no bearing on the result; 2. a reading of 120 pg/mg is not itself indicative of the source of the cocaine however the amount detected would be unlikely to have occurred via occupational or inadvertent exposure at the venues described in the background; 3. the absence of cocaine in the washings implies there was no "gross external contamination". In this case the absence of cocaine in the washings neither supported nor dispelled the possibility of environmental contamination; 4. the absence of the axial variation did not render the analysis invalid; 5. the detection of one or two unique metabolites may have deemed the result unequivocal however they were not tested for, and even if they had been the levels would have been far too low for reporting; and 6. early studies suggested that the presence of metabolites was critical to differentiate between ingestion and external contamination but it is now regarded that the presence or absence of benzoylecgonine is not relevant: other metabolites such as norcocaine and cocaethylene are more indicative of active use, however they would be present only in trace amounts, especially where the parent drug concentration is only 120 pg/mg;
4. He also explained the difference between cut-off levels and limits of quantitation and limits of detection
5. In response to questions as to whether individually or cumulatively the possible exposures referred to in the background facts could lead to the levels found in the test results Dr Lewis generally replied in the negative. In his summary he expressed the view that he found the reasons given by the officer to be implausible "because of the timeframe of the events relevant to the growth period of the hair". Nevertheless Dr Lewis noted that one cannot totally preclude the issue of external contamination in any hair test. He further noted that there was no consensus on preferred techniques for washing of hair as part of the testing procedure.
6. Dr Lewis provided a further Report dated 3 November 2017. He was asked to respond to a number of questions. In His report Dr Lewis: 1. provided an explanation as to the nature of cocaine; 2. concurred with Mr Farrar that no washing procedure can completely remove cocaine that may have been absorbed through external contamination but noted that the solvent used by FSSA was the most effective. He noted that the issue of pre-analysis washing has been controversial; 3. stated that cut-offs for results of her testing are recommended concentrations at or above which, a drug is deemed to be present, and below which, a drug test is deemed to be negative. SOHT cut-offs were also purported to be values above which, external contamination can be less likely the cause of the positive result; 4. stated that guidelines have no bearing on single or sporadic use of drugs including cocaine. The SOHT guidelines is a value recommended for chronic use of cocaine; 5. opined that the reporting level used by FSSA and RASL of 20 pg/mg is valid and reliable as it represents their lower limit of reporting. He added that the lower cut-off used by the two laboratories is more appropriate for identifying single or sporadic use of cocaine, "as hair concentrations would be far less that amounts detected in the hair of chronic users"; 6. repeated that benzoylecgonine was originally thought to be a reliable and unique marker of cocaine use but it is now accepted that it can occur in hair as a spontaneous product of decomposition of cocaine and trace amounts can be found in impure street cocaine: in addition Cone et al did not consider it a reliable marker of cocaine use. Having regard to the laboratories limit of quantitation any presence of benzoylecgonine would be below the laboratories' detection limits; 7. observed that several researchers have deemed the presence of norcocaine as a useful if not unique marker of consumed cocaine as against environmental exposure of cocaine. However Dr Lewis observed that the presence of norcocaine may not be detected in the case of sporadic users. He concluded: "I am of the opinion that the presence of norcocaine is an important indicator of consumption; however, lack of norcocaine does not necessarily preclude use, especially in persons who are not street users. The identification or not, of benzoylecgonine has little significance on the result." 1. observed that it is not known how little cocaine needs to be consumed in order to achieve the level found in the reported results in this case; 2. agreed with Dr Robertson and Prof Drummer that environmental exposure is always a possibility in the interpretation of the positive hair test; 3. agreed with Dr Robertson's acknowledgement that a low level of drug could represent infrequent intentional or unintentional use or external contamination; 4. agreed with Professor Drummer that inadvertent exposure to cocaine could have arisen as a result of hand contact with surfaces, but considered the established scenarios for transfer from contaminated persons to drug-free persons was much more extreme than the environments in which Mr Elias had been working or socialising; 5. opined that the workplace situations in which Mr Elias was placed would unlikely have been the source of the cocaine; 6. agreed: "that external contamination of hair samples by drugs is generally accepted as a source of a positive hair test. However, I'm of the opinion that one must look at environments where cocaine may have been located or used, and the likelihood or not of these being a source of cocaine exposure." 1. expressed the opinion that hair colour has a minor, but not significant, bearing on the test results - that the colour of Mr Elias's hair had little or no impact on his test results; 2. disagreed with Mr Farrar's opinion that axial variations in concentration are a means of differentiating between metabolic incorporation and environmental contamination; 3. agreed with Prof Drummer that the results of the hair test should have supporting evidence or other information in order to corroborate the analytical results but disagreed that results well below the cut-off are critical in disallowing the result on the basis that the cut-offs related to chronic users and not single or sporadic users and that other research reported that external contamination occurs at any concentration of drug in hair; 4. agreed with Dr Robertson that one cannot eliminate external contamination as a source of the positive hair test but disagreed that there is any correlation between concentration and source of drug; 5. expressed the view that several micrograms of cocaine would be visible to the naked eye but cocaine residues within police precincts would not be visible; 6. doubted that residual cocaine in police stations was the source of contamination from Mr Elias but noted that when cocaine is in solution such as in damp or wetted hair some cocaine can defuse into the follicle; 7. expressed the opinion that negative results for other drugs in Mr Elias' hair implies that he was not sufficiently occupationally exposed to any of these drugs in order to record a positive hair test; 8. expressed the opinion that: 1. the probability of Mr Elias being contaminated by cocaine while on duty at the police station would have been extremely low; 2. no evidence was presented to him "that extended intimate contact occurred" with other persons; and 3. while one could not exclude the possibility of inadvertent exposure, on the balance of probabilities the likely cause of the hair testing results would appear to be active consumption of cocaine.
7. Dr Lewis concluded his report with the following statement: "Environmental contamination can never be excluded as a source of the positive hair test, and especially so as it has been difficult finding realistic contamination experiments that would mimic inadvertent dermal contact with sub-micrograms amounts of residues of cocaine powder which have been found in the workplace. Existing contamination experiments by numerous researchers do not shed light on this matter as highly unrealistic amounts of cocaine have been used. Furthermore, so-called cut-offs were designed to address chronic cocaine users and have no bearing on sporadic or single users. As the incorporation of cocaine into hair is highly variable, segmented (axial) analysis cannot provide useful information as to the amount, time, and frequency of use or mode of incorporation. My opinions as to the likelihood of Mr Elias having used cocaine, or was was more likely occupationally or socially exposed, based on consideration of all the above variables."
8. Dr Lewis was required for cross-examination. In cross examination Dr Lewis: 1. acknowledged that he had not been involved in any studies involving hair, or the washing of hair for testing, nor had he written any papers relating to the analysis of hair samples for drug testing; 2. could not explain why the FBI, Australian Border Force or Boston Police employ the standard cut-offs to determine whether an officer has consumed cocaine beyond observing that there being no internationally agreed reporting level he expected that they had followed an existing guideline for chronic use; 3. accepted that the studies he had relied on in relation to melanin had been studies on rats and that in order to have validated scientific data in relation to humans and human hair it is necessary to use human specimens; 4. he disagreed that that the presence of metabolites as well as the parent drug was necessary to show ingestion of the parent drug; 5. in relation to any correlation between urine testing (which may be fairly described as Dr Lewis's specialist field within Toxicology) and hair testing he said: Q. You cannot tell the Court then with any certainty whether there is a correlation between the presence of metabolites in urine testing and the presence of metabolites in drug testing just because one is set up one way, that hair testing is not the same; is that your evidence? A. No. Perhaps if I could explain. If you take a drug or are exposed to a drug it gets into the bloodstream, it gets into the liver where it is broken down and excreted. To get a metabolite it has to go through the system, through the liver system and excreted in the urine or in other parts of the body. A metabolite can only get into the hair if it has actually gone through the blood system and through the liver and the kidney system. In the urine, most drugs are broken down; except perhaps amphetamine or morphine, they are excreted, in general, unchanged. But drugs such as cocaine are broken down very rapidly and are excreted almost exclusively as metabolites. Parent drug and sometimes metabolites can get incorporated into hair. (Emphasis added) 1. stated that: "No study has demonstrated a suitable reporting value or the presence of metabolites for non‑chronic users. Those studies have not been done." 1. denied that it was his view that a positive result above a laboratory's limit of quantitation was indicative of drug use; 2. as to his expertise in relation to drug testing he was asked: "Q. In terms of interpreting the raw data on the certificates, what education or training do you have in analysing hair sample numbers to determine whether there is then use or external contamination? A. My experience in reading and interpreting peer reviewed toxicological journals, attending conferences, listening to studies that have been done, formulating my opinion based on what I understand." and "Q. Taking that yardstick you accept you are probably not in a position then to give this commission an expert opinion in relation to hair because you have published, as you have said, not a single paper in this area? A. I agree I have not published on hair, I think that has been established. But I believe I am in a position to comment on reports, studies, that others have done, based on my 35, 40 years in laboratory, I understand the processes, whether it is hair, saliva, sweat, urine or other biological fluids. Q. But you have made findings in your report, you have expressed your own opinions but not based on your learning but on what you have read of other authors. Is that right? A. That is my learning." 1. agreed that external contamination was possible at any level; 2. agreed that; Q. There is more certainty in relation to identifying the presence and amount of cocaine in hair than there is certainty about the interpretation of the results. You accept that as a basic proposition? A. Yes. 1. clarified that his view was that consumption of cocaine was a "plausible" explanation for the results in this case. He accepted external contamination was also possible and agreed that he was in "no scientific position to say one way or the other"; 2. accepted that "people have described cocaine as being at epidemic levels in Sydney in the past 5 years" and "used commonly as a party drug"; 3. In relation to the presence of the metabolite norcocaine said; "Q. Norcocaine, do you stand by your view that it really is inconsequential and doesn't matter in the testing? A. It does matter but it's not definitive. Q. Why did you, in a report dated 4 November 2016 of the Commissioner of Police relied on, say firstly, "The detection of one or two unique metabolites may have deemed the result unequivocal"? A. At that time I hadn't read a later study which says it is equivocal." … Q. You're happy to rely on one set of articles pretty well. Why is it that you've gone from it being unequivocal to now being of little use? Do you accept that that's a pretty big difference? A. No, I ‑ I accept, as all scientists do, we don't always have ‑ scientists do not have access to every journal that's ever been published throughout the world. We rely on universities that will allow you to get these articles, and it is a very difficult task for anyone, especially with time constraints and legal matters, to prepare a document in a short space of time, to go through the hundreds and hundreds of journals that were published on every quarter of the earth, and I stand by my statement it is not always possible to read every article. Science is an evolving discipline, and as we read more and more, we may moderate our opinion." 1. agreed that the sections of his second report suggesting the time lapse between a possible exposure and the taking of the hair sample being too short for a drug to show up in a hair test are directed to consumption rather than external contamination; 2. explained the differing results between FSSA and RASL as follows: "A. They were used as presented in evidence this morning. I gave you a number of reasons why the results could differ. Working backwards, Racing Analytical had a digestion procedure for extracting the cocaine whereas Forensic Science South Australia used an alcohol wash. Those methods are very different and produce different results. The washing technique used by Racing Analytical is very different to that used by Forensic Science. The method of cutting up the hair fibres could be quite different and, as explained earlier, we do not know how equitably the hair fibres were mixed, if at all, by Forensic Science South Australia to apportion a bit for the B sample. We do not know that, therefore it is not surprising that there could be differences in the results because the methodology, the procedures, the washing, the cutting, is quite different. Q. You don't find it concerning at all that the two different numbers were put forward, you say they are both correct? A. The washing technique used by Racing Analytical consisted of about five washes, three of which were methanol. Methanol is known to be a very powerful solvent for cocaine and I would be of the opinion, without speaking to the person who developed that technique, I would be of the opinion that the amount found in the so‑called wash was in fact cocaine that had been incorporated. Therefore, if one adds the amount found in the final extract to the amount in the number of methanol washes, one can find a value not dissimilar to that found by Forensic Science South Australia."
9. In re-examination Dr Lewis was asked to clarify why he regarded the presence of metabolites as equivocal now. He said: "A. Originally it was believed that benzoylecgonine was a unique metabolite in the hair of cocaine users. It is a urine metabolite, a unique one. You can only get it in urine if someone has used cocaine. Benzoylecgonine is a breakdown product of cocaine also. It is what is known as a hydrolytic breakdown product. That means cocaine can spontaneously break down in the body but cocaine will also break down in the hair to benzoylecgonine. Benzoylecgonine has been found in the United States as a contaminant in cocaine as well but essentially benzoylecgonine is no longer regarded as a unique marker of cocaine ingestion because it does not incorporate very well into hair itself ‑ cocaine does; benzoylecgonine doesn't. So you can find it, you can find a lot, you can find a little, you may not find any. It is no longer regarded as a unique identifier because it is actually a breakdown product within the hair. Similarly norcocaine is a very minor urinary metabolite. Norcocaine has been perceived as a unique marker for cocaine ingestion. However, there is a study ‑ I apologise, I have not been able to find it but it is in my 400 references ‑ studies have shown that in some people in chronic users norcocaine has not been found, therefore there is concern that, even with heavy users of cocaine, norcocaine has been absent. Therefore, the assumption is that, if it is found, it is a very useful indicator; but if it is not found, it is not diagnostic and doesn't preclude use. And my remarks are based on those two metabolites as not being necessarily unique markers. Cocaethylene is the other one. Cocaethylene is only formed when you drink alcohol and consume cocaine at the same time. That is the only time it is there. Therefore, if cocaethylene is found in the hair it means that person has taken cocaine and has been consuming alcohol. But it may not be present because it is a very minor metabolite and if the laboratory is not looking for it or if the level is very low or they might have been consuming alcohol an hour or two afterwards, it may not necessarily be present. That is well‑known. Therefore, my comments mean that what was purported to be a unique set of markers is not necessarily so."
10. Following on from a question about the "more likely" source to explain the test result to which the witness replied "casual cocaine ingestion over the three month timeframe" I asked: "Q. In coming to that view, Dr Lewis, in your report you rule out, individually and progressively, suggestions of contact with cocaine as having sufficient affects to give this level of false reading such as searching or attending a particular musical festival. Did you consider the aggregation of those factors? A. The aggregation? Possibly not, Commissioner."

Dr Gregory Doran

1. Dr Doran is a lecturer in chemistry at Charles Sturt University. He is the Principal Investigator on a study commissioned by the NSW Police Force into, among other matters, the presence of licit and illicit drugs in police stations.
2. For the purposes of his report Dr Doran was asked to assume certain facts about the applicant's potential occupational exposure and asked to comment on those matters in the light of his participation in the Case Study. In paragraph 20 of his report he said: "Many of the conditions outline in paragraph 1.21 and the types of activities described by Mr Elias seem to be no different to the activities I observed other police officers undertaking or had described to me by officers in LACs during the Case Study. However, I cannot comment about events not based in LACSs, cannabis houses or cannabis forest operations, such as music festivals, court houses etc as they were not part of the Case Study. I note paragraphs 1.25-1.29 list a variety of drug evidence encountered by Mr Elias during his duties. None of the evidence appears to have been specifically identified as cocaine, but cocaine was the only drug detected in his hair samples. Leichhardt Local Area Command identified in paragraph 1.24 appears to have the same work areas as most of the metropolitan and country police stations eg. charge room, muster room, front desk, exhibits, balances, computers, GD vehicles. On this basis, nothing stands out that suggests that Mr Elias' drug exposure in Leichhardt LAC would be any different to that of any other NSWPF officer that was tested for the purposes of the Case Study. I note that I am unable to provide any opinion on whether or not Mr Elias' private activities would mean that he was exposed to cocaine" (Emphasis added)
3. He concluded his report in this way: "Based on the assumptions I have been asked to make and within the bounds of the Case Study, it seems less likely that the results of Mr Elias' hair samples are a result of environmental contamination. The 2 police officers in the case study who had hair samples positive for cocaine had job roles that appear to pose equal or greater risk of drug exposure than the duties described in sections 1.25-1.29, and showed 5 and 9 pg/mg cocaine in their positive hair results compared to 120 and 51 mg/pg in Mr Elias' hair samples. Additionally, 6 other hair samples collected from other general duties officers who had considerable contact with drug exhibits while acting as exhibit officers were negative for drugs, as identified in the Research Paper (Tab 4). Likewise, one additional hair sample from an officer involved in large scale cannabis eradication in forests was negative despite high THC concentrations swabbed from skin and hair during the operation" (Emphasis added)
4. The body of his report makes clear that Dr Doran was asked to consider occupational exposure within the limits of the Case Study. He made no evaluation of "social" exposure.
5. Before commencing cross-examination the applicant's counsel asked that an objection to the admission of the report be noted. That was done.
6. Dr Doran accepted that the interpretation of hair test results was not within his field of expertise.
7. During his cross-examination the witness explained the difference between three measurements: "The limit of detection of an analytical method is where you can obtain a positive result but there's too much variation in the result to be confident in reporting a number. The limit of quantitation is the lowest possible number that you can report reliably. Then the limit of reporting is a limit set by whoever sets limits of reporting."
8. He also explained that in his report when he compared results from the study and the applicants results he was simply making a direct comparison of numerical values - not making any judgment as to the reasons for the difference.
9. Dr Doran said that although swabs of surfaces taken during the Case Study produced results between 1.5 million and 73 million picograms of cocaine that was not alarming because: "When you look at the background sites you find that ‑ cocaine is everywhere at very, very low concentrations. What you have to remember, though, is what I was doing was swabbing surfaces like this with methanol. Methanol is quite an aggressive solvent. If you actually look at figure 4D you can see ‑ sorry, the black and white doesn't do the photos justice, but it is actually stripped the surface off the counter. So the solvent is very aggressive and what it is doing is actually lifting it. It is not like there's 71,000 picograms sitting there on the surface. What we did was removed from right down inside the surface." (Emphasis added)
10. He explained that the opinion expressed at [122] was based on scientific papers he had read and common sense "based on, as I said, that the solvent is aggressive in what it removes and it is a very ‑ it is assumed to be a gross overestimate of what would be readily picked up from, say, putting your hand on a counter".
11. Dr Doran was asked whether 72 million picograms could be regarded as a small amount. His response was that it was a matter of perspective. If the same figure were expressed in micrograms it would be 0.072 which "is a very small number" but it is the same number.

Marc Grabowski

1. The applicant tendered a bundle of documents which became Exhibit 24. These included a Toxicology Report by Mr Grabowski who is a Senior Forensic Scientist with FSSA.
2. Having noted the various means by which drugs may be incorporated into hair, he observed that external contamination is sought to be eliminated by a brief methanol wash prior to extraction. He noted, however, studies of external contamination of hair with cocaine can result in relatively high concentrations being incorporated into the hair and remaining even after constant washing. He commented upon the applicant's submission in response to the Investigation Report explaining the limits of the laboratory's involvement including that the results it reported did not imply cocaine ingestion or any other source of the drug. He observed also that he had no issue with Mr Farrar's opinions and conclusions summarised in paragraph 18 of the response.

Other "scientific" evidence

1. The applicant tendered the "Guidelines for Testing Drugs under International Control in Hair Sweat and Oral Fluid" published by the United Nations Office on Drugs and Crime. I note that the applicant specifically relied upon pages 32 and 33 but the whole document was tendered into evidence. At page 30 of the document there is a section headed "Interpretation of results". The authors state that "Because of its inherent complexity, interpretation of the results from hair analysis should be performed only by specifically experienced personnel"
2. In section 1.6.2 the authors observe that the differentiation between personal use and external contamination has been an issue with the problem particularly prevalent for illicit drugs prone to contaminate the environment because of their availability in powder form such as cocaine. The report emphasises the danger of misinterpretation and identifies precautions to minimise the possibility. They include: 1. Verification of the coexistence of the drug and its relevant metabolites in adequate proportions; and 2. Use of cut-off levels.
3. The decisional cut-off levels identified are those of the SoHT, although it is noted they relate to "chronic drug use" and must be used with special attention to the specific issue to which the test is applied. They are set out on pages 32 and 33
4. Also tendered was a Letter to the Editor of the Journal of Toxicology from the FBI Laboratory, Chemistry Unit.
5. In their letter, published in 2016, the authors identify two criteria to be applied to identify if an individual has used cocaine. They are: 1. Cocaine is identified in the hair above 500 pg/mg after the subtraction of 5 times any cocaine found in the last of series of 5 washes; and 2. Two hydroxycocaine metabolites are identified in the hair specimen above 5pg/mg If the criteria are not met the specimen will be reported "negative", "contaminated", or "consistent with cocaine exposure".
6. The Australian Government Department of Immigration and Border Protection "Drug Testing July 2015 Associated Document" was tendered. It applies the cut-offs recommended by the SoHT. Levels above the cut-off are considered positive. Levels below may be further investigated.
7. The City of Boston Police Department "Rule 111 - Substance Abuse Policy" was tendered. Although the applicant submitted that the measure of a positive test was at the levels recommended by the SoHT together with the presence of metabolites, the document does not specify those standards. Counsel did however refer me to a decision of the Civil Service Commission of the Commonwealth of Massachusetts in Suffolk v Boston Police Department which does provide support for that submission.
8. Also tendered by the applicant was the "European Guidelines for Workplace Drug and Alcohol Testing in Hair" which is prepared by the European Workplace Drug Testing Society. It recommends a cut-off of 0.5 ng/mg for cocaine and 0.05 ng/mg for other compounds including benzoylecgonine and norcocaine.

The Applicant

1. The applicant swore an affidavit in chief dated 22 September 2017 ("first statement") and a statement in reply dated 24 November 2017 ("reply statement"). Subject to some minor corrections he verified both when he entered the witness box.
2. In his first statement the applicant: 1. described his lifelong dream to become a police officer and his determination not to put his career at risk; 2. said he was aware of the zero tolerance policy to drug use and the testing regime in place in the Police Force; 3. described his commitment to physical fitness and a healthy lifestyle although acknowledging that he drank alcohol on social occasions; 4. said he had worked at Leichardt LAC since graduating from the Academy in December 2011; 5. described occupational circumstances where he may have been accidentally exposed to drugs; 6. described the circumstances leading up to his attendance at the Ivy nightclub 28 March 2015; 7. described the state of Najdovski and his friend, Mr A, when the applicant arrived at the apartment; he noticed a large amount of vodka was missing from the bottle; 8. said that Najdovski and Mr A could not be found in the apartment for about 20 minutes at one point and when they returned they began dancing, shirtless, on the couch: he thought it amusing and so videoed them and posted the video on Snapchat; 9. he did not think that Najdovski or Mr A were affected by drugs - he assumed they were simply intoxicated having regard to (7) above; 10. said that upon arrival at the Ivy he met a good friend by the name of Tory and after a short time he and Tory split from Tony and Mr A and then did not see them again for the majority of the night; 11. recounted meeting Police Officer A when leaving the Ivy: he denied speaking to him inside the Ivy or in the company of Najdovski; 12. denied consuming cocaine or any other illegal drug on that night and did not see Najdovski or anyone else use drugs; 13. denied being present with Najdovski during a conversation with Police Officer A and said he suggested to the investigators they obtain CCTV footage of the night; 14. described the circumstances of the Buck's weekend on 10 April including potential circumstances whereby he may have come into contact unknowingly with drugs although he indicated he was never under the impression that anyone present had used or was affected by drugs on that night; 15. denied consuming any illegal drugs on the weekend; 16. recounted the circumstances of the drug test on 13 April 2015; 17. detailed his financial circumstances; 18. confirmed that he wanted to continue his career as a police officer and indicated that he had, during his suspension, undertaken courses he thought would be relevant to policing including courses entitled: Criminology and Profiling; Certified Ethical Hacker; and Certified Computer Forensic Investigator. He also completed a Certificate In Terrorism Studies because he hoped to join the Counter Terrorism Squad if reinstated; 19. he also completed a First Aid course and undertook a two-hour shooting session with pre-training from instructors at the Auburn Shooting Academy in order to keep his police skills current.
3. In his reply statement the applicant commented on the statements made by Inspector Watson and Detective Bortolussi. He also describes circumstances which may have led to environmental exposure although there was nothing specific beyond general observations about being in suburbs of high drug use or staying in hostels providing shared accommodation and bathrooms while on holiday at the end of 2014.
4. He also made comments in relation to the reports of Dr Doran, Dr Lewis and Professor Steel.
5. The applicant also noted, contrary to a statement included in the reasons, that he had supplied to the investigators during his second directed interview a copy of the instructions he provided to Mr Farrar.
6. In cross-examination the applicant: 1. confirmed his personal hygiene practices including regularly washing his hair; 2. confirmed that his evidence in relation to soft drinks and tobacco was advanced as evidence of a commitment to healthy lifestyle incompatible with taking illicit drugs; 3. his consumption of vodka and Red Bull rather than vodka and orange juice was on very limited occasions only: he also accepted that Red Bull was not a "healthy drink"; 4. acknowledged that he has smoked tobacco (on about three occasions) and has consumed unhealthy drinks; 5. acknowledged that he was in error in telling the investigators that "most" of the "beer wenches" on the Buck's weekend used cocaine but denied doing so intentionally and denied attempting to suggest the use of cocaine was prevalent on the weekend; 6. confirmed his view that any officer who took illicit drugs, even once, should be removed from the Police Force; 7. readily acknowledged, despite doing his best to recall, he could not identify any time in the six months leading up to the test when he came into contact with cocaine in the course of his duties; 8. readily acknowledged not witnessing cocaine use in the apartment or at the Ivy; 9. acknowledged there was no evidence of which he was aware that he knowingly came into contact with cocaine in the course of his duties in the six months prior to the test; 10. did not accept there was no evidence of that kind outside of work, pointing to Najdovski's toxicology report and his having shaken hands with him on many occasions; and 11. denied he was denying consumption of cocaine because he knew that admission would ensure his removal from the Police Force.

Detective Daniel Bortolussi

1. I have earlier, at [22], set out the detectives qualifications and career history.
2. The bulk of the Detective's statement was concerned with searches of police records to discern the applicant's involvement in contact with drugs in the course of his duties in the period between 12 October 2014 and 13 April 2015. His searches did not reveal any identified contact with cocaine. There were however "30 drug-related uses of force involving various unknown drugs", 24 drug-related person searches and the applicant was the arresting officer in 16 drug-related arrests three of which involved unspecified drugs.
3. Detective Bortolussi also sought and produced information about drug tests at Leichardt LAC from 1998. There were a total of 38 occasions on which drug testing was conducted in the period. In total 523 officers were tested. There had been only one positive drug test (urine) within the Leichardt LAC. That was at Balmain police station in January 2000. The drug detected on that occasion was cannabis.
4. During his cross-examination Detective Bortolussi: 1. agreed that he was unaware of: the interchanges taking place between Inspector Deans and FSSA including as to segmental analysis; the issues as to the sampling procedure; and the statements by FSSA that the result they reported did not imply the source of the drug in the applicants hair; 2. opined that he did not think these matters would necessarily have changed his view or needed to be raised with him but considered the last would have added to the strength of the case not to sustain issue 1; 3. said he was unaware of any procedure for washing of scales used by police to weigh drugs; 4. confirmed that when he interviewed the applicant on the second occasion he wasn't concerned that the applicant had been untruthful during the first interview. He said; Q. Mr Elias had not lied in his first interview? A. I had no issues with Mr Elias' answers. I had no belief he was lying to me. Q. In the first interview, that's correct? A. That's correct. Q. Second interview, that's correct? A. That's correct. 1. confirmed that the applicant agreed to be interviewed and answered all questions during both interviews notwithstanding that: "You understood that the allegations you were putting that he did have a right not to be interviewed? A. I believe I informed him of that right or myself or Mr Johnson would have informed him of that right. Q. He didn't exercise it? A. No. 1. as to his findings on the issue of consuming cocaine said: "A. Okay. Based on the issue, which is that he used cocaine, I could find no evidence to support an allegation, such a serious allegation, even based on the balance of probabilities. I took into account the seriousness of the allegation‑‑ Q. Pausing you there. An allegation that a police officer has used drugs is a very serious allegation, isn't it? A. Absolutely. Q. Thank you. What else did you take into account? A. I took into account that I had no evidence from other people to suggest they saw Mr Elias take any drugs, apart from a positive result from a drug test, so I wasn't satisfied that I could prove, even on the balance of probabilities, that he had taken an illegal drug" (Emphasis added)

Inspector Grant Watson

1. Inspector Watson made a statement dated 20 October 2017 which he verified and adopted as his evidence in chief. He said he was an Inspector within the Leichardt LAC. Between 1 May 2015 and 30 September 2017 he was the Professional Standards Duty Officer ("PSDO") for the LAC. From 1 October 2017 he had been one of two Operations Duty Officers for the LAC. He provided a brief summary of his earlier career history since graduating from the Academy in August 1995.
2. In his role as PSDO he was responsible for the welfare of the applicant during his suspension from duty. In addition, on his return from suspension, between 18 March 2016 and 26 June 2016, the applicant was under his command as a general duties constable.
3. The Inspector provided job descriptions for the various roles held by the applicant. He confirmed that there was no place in the Police Force for a person who uses drugs. He attached the Policy and various other policy documents to his statement.
4. Inspector Watson also explained in his statement: 1. the data recording systems used by the Police Force including the Computerised Operational Policing System ("COPS") and the Exhibits, Forensic Information and Miscellaneous Property System ("EFIMS"); 2. the staffing and layout of the two stations, Glebe and Balmain, within the LAC; 3. the role of the Proactive Crime Team of which the applicant had been a member; 4. the sorts of drugs passing through the stations, noting that the main drugs passing through Balmain were ice and cocaine; 5. the manner in which officers may come across drugs and drug related items in the course of their duties; 6. the way in which officers deal with drugs or drug related items in the course of their duties; 7. that drugs are not stored in either station but transferred to Newtown as soon as practicable; 8. that, if an officer is to charge an offender it is usually done at Newtown police station or, if closed to new prisoners, another metropolitan station; 9. the use of disposable or "needle stick" gloves by officers when handling drugs or undertaking searches, and he noted that in his experience officers rarely clean their needle stick gloves and store them in different ways including "in their pants, pockets, bags and/or in their hat whilst on shift and later transferred them into their personal lockers at the Station.
5. During cross-examination the Inspector: 1. confirmed that the Commander of the Leichardt LAC considered that the applicant should be given a non-reviewable Commanders warning notice; 2. that notwithstanding (1), the CMT were told they had to refer the matter to the IRP; 3. expressed the view that the RASL result should have been provided to the applicant during the s 181D process; 4. explained the process by which the IRP becomes the CAP; and 5. indicated that he had never cleaned drug scales or seen them cleaned and that officers don't wear rubber gloves to handle drug scales.
6. Because of the importance with which I regard this evidence I will set out in detail the Inspector's evidence as to his observation of the performance of the applicant as a police officer. He said: Q. You worked with Stefan Elias before? A. As a supervisor, yes. Q. Is it fair to say he was a hard‑working young police officer when he was there? A. Yes. Q. Are you aware that he was taken off suspension for a few months last year while investigation was still ongoing? A. Yes. Q. There were no managerial issues that arose during those few months about his integrity, conduct or competence, save and except about the positive drug test, but for the three months he was there what was his work performance like, do you know? A. It was very good. Q. Very good? A. Yes. Q. I don't know if you know this but Stefan's evidence was he wanted to be a police officer from primary school. Did you get the impression when you supervised him he was a really dedicated young police officer? A. Yes, I did. … Q. Besides this positive test, Stefan Elias never came to the attention of the New South Wales Police Force for the alleged consumption of drugs at any other time, did he? A. No. Q. He had a fairly clean disciplinary history? A. Yes. Q. Do you know what his work off‑rate was like? A. It was quite good. He was identified as one of the high achievers at Glebe. That is why he went to the Proactive Crime Team. Q. It is only officers that display real dedication in general duties that are usually then put into proactive, isn't it? A. Yes. Q. They are hand‑picked, as it were? A. Yes. Q. He was hand‑picked, wasn't he? A. Yes. Q. In the event this [C]ommission were to find or not be satisfied Stefan had consumed cocaine, would you be happy to have him back in [the] command, if he is found not to have consumed cocaine? A. Yes. (Emphasis added)
7. The Inspector identified Sergeant Robert Gallagher as one of two direct supervisors of the applicant during the three months he was back from suspension. Sergeant Gallagher's review reports dated 12 May 2016 and 11 June 2016, both countersigned and endorsed by Inspector Watson and Superintendent Pisanos, were tendered. Sergeant Gallagher concluded in each report respectively: "During the period of 21/3/16 to the 21/4/16 I have observed Constable ELIAS work performance. Constable ELIAS has worked in Glebe Station and the Intelligence Office at Leichardt LAC. From my observations and discussions with Constable ELIAS I am of the opinion that he is performing well and is complying with all strategies in the Interim Risk Management Plan." "During the period of 21/4/16 to the 21/5/16 I have observed Constable ELIAS work performance. Constable ELIAS has worked in Glebe Station and the Intelligence Office at Leichardt LAC. I have observed him offering support and guidance to the junior Constables with their investigations and briefs. From my observations and discussions with Constable ELIAS I am of the opinion that he is performing well and is complying with all strategies in the Interim Risk Management Plan. He advised me that his matter will be reviewed on 21st June 2016." (Emphasis added)
8. Inspector Watson was asked about Sergeant Gallagher and his reports: Q. Thank you. You have given evidence about your observations of Stefan during those three months, but do you know how long Robert Gallagher has been in the job for? A. Yes. Q. Roughly? A. Roughly, 23 years. Q. He's been around quite a while? A. Yes. Q. He was satisfied with Stefan's level of performance in those three months? A. Yes. Q. More than satisfied, he seems to suggest he was doing good work? A. We had a number of conversations and he was very happy with the way he was going. Q. Very happy? A. Yep. Q. Again, he didn't raise any integrity or performance issues in those three months with you, did he? A. No. Q. Thank you. Do those three months fit in your experience of Stefan; they fit in fairly neatly with the rest of his time in the police force; is that right? A. Yes. (Emphasis added)

The test to be applied

1. The applicant drew attention to the decision of the Commission in Morris v Commissioner of Police [2016] NSWIRComm 1034, Commissioner of Police v Morris [2017] NSWIRComm 1010 and Tredinnick v Commissioner of Police [2016] NSWIRComm 14. The respondent relied upon the last case and Commissioner of Police v Eaton [2013] HCA 2; 252 CLR 1.
2. The applicant accepts that he at all times bears the onus of showing the decision to remove him was harsh, unreasonable or unjust in accordance with s 181F(2) of the Police Act. It is common ground too, that there is no place in the NSW Police Force for a person who uses illicit drugs. The question then is whether the applicant did use, that is knowingly and deliberately ingested, cocaine.
3. The respondent submits that, as I have noted, the applicant must prove he did not based upon the authorities of Tredinnick and Eaton.
4. In the latter case the respondent points in particular to two passages. The first from the judgment of Heydon J at [26]. Before setting out the passage cited it is appropriate to note that the issue in Eaton concerned whether a probationary constable was entitled to apply under s 84 of the Industrial Relations Act 1996 for relief against the termination of his probationary appointment. To answer that question the members of the Court considered the two statutory regimes to determine whether the Police Act limited the operation of the general provisions of the Industrial Relations Act. The majority concluded it did. It was in that context that Heydon J identified "anomalies" which may arise if probationary constables could apply under the Industrial Relations Act. I have emphasised the passage relied upon by the respondent in the quote from his Honour's judgment. One anomaly is that if dismissed probationary constables could make applications under s 84(1) they would be in a better position than non‑probationary officers. The rights of review s 181E gives to the latter in relation to s 181D removals would be more qualified than those s 84(1) gives to the former in relation to s 80(3) dismissals. In proceedings under s 84(1), where the dismissal has taken place because of alleged criminal activity, the employer bears the burden of proving that the crime was committed. But in proceedings under s 181E for review on the ground that removal was harsh, unreasonable or unjust, the applicant bears the burden of proving that the crime was not committed. That is because the applicant has, under s 181F(2), the burden of establishing that the applicant's removal from the NSW Police Force was harsh, unreasonable or unjust. The consequences of s 181F(2) are not narrow or trivial. They are significant in view of the fact that s 201 of the Police Act renders it a criminal offence for a police officer to neglect or refuse to obey any lawful order or carry out any lawful duty as a police officer. The scope for criminal offences by police officers, and for removal because of them, is thus wide. (citations omitted) The italicised passage is that cited by the respondent. The bold emphasis is that of the respondent. I note that his Honour cited the decision of Wang v Crestell Industries Pty Ltd (1997 73 IR 454, as authority for the proposition that "the employer bears the burden of proving that the crime was committed".
5. The second passage relied upon was from the judgment of the plurality in Eaton, Crennan, Kiefel and Bell JJ, at [76]. It as follows; "The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material".
6. These passages from Eaton, among others were considered by a Full Bench of the Commission, Walton J President; Tabbaa C; Murphy C, in Tredinnick v Commissioner of Police [2016] NSWIRComm 14.
7. In that case the Commission began with an analysis of the Police Act. They held that the reference to the "burden" in s 181F(2) was a reference to the "legal burden" as distinct from the "evidentiary burden" as defined in [34] of Tredinnick. The Full Bench further held at [45] that the legal burden does not shift because the legislation refers to the obligation existing "at all times". The Commission then turned to the concept of onus in the context of unfair dismissal proceedings brought under the Industrial Relations Act. It is convenient to quote that part of the decision in full: [48] In Starr, the Commission described the incidence of onus in unfair dismissal cases as follows (at [153]-[158]): [153] Having regard to the statutory framework and the submissions advanced by the parties, a useful starting point is a consideration of the approach to the question of onus that has been adopted in unfair dismissal applications generally. An employee claiming to have been unfairly dismissed bears the onus of establishing that his or her case is a proper one for the Commission's intervention: see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279. The burden lies with the employee to provide evidence to prove to the Commission that the dismissal was harsh, unjust or unreasonable. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct or incompetence it will be for the employer to establish that the alleged misconduct or incompetence in fact occurred and warranted dismissal. [154] In Pastrycooks, for example, an employee was summarily dismissed for an alleged failure to follow what the employer believed to be a lawful order. In the course of dealing with the question of onus Hungerford J stated (at 83 - 84): It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949] AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abbattoir [1966] AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer … … [156] Whether the terminology of an "evidentiary burden" in Bigg (No 2) or of a "legal burden in an evidentiary sense" in Pastrycooks was preferred, it appears that essentially the same conclusion may be reached, at least in the procedural sense of resolving issues as to evidence as may arise in unfair dismissal proceedings where the employer asserts that an employee has engaged in misconduct. Where an allegation of misconduct is raised, the employer must prove the misconduct occurred: see also Coles Myer Ltd v Shop, Distributive and Allied Employees Association (1989) 27 IR 299 at 303 - 304; Franklins Ltd v Mervyn Webb (1997) 72 IR 257 at 261 and Wang v Crestell Industries at 463 - 464. A similar approach to the question of onus in dismissal cases has been adopted in the federal jurisdiction: see, for example, North v Television Corporation (1976) 11 ALR 599 at 602 - 603 and Miller v Australian Industrial Relations Commission (2001) 104 IR 415 at 429. [157] The question of onus in unfair dismissal matters was further considered in Wang v Crestell Industries, where the Full Bench considered an appeal by three employees who had been summarily dismissed by the respondent who alleged the employees had been stealing materials from the workplace. … [158] On appeal, the employees claimed this finding was not supported by the evidence. In upholding Commissioner Connor's decision and considering the principles relating to onus and standard of proof in such matters, the Full Bench stated (at 463 - 464): The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. … [49] Part 6 of Ch 2 lays down no procedure for the hearing of applications brought under s 84(1) of the IR Act, save, perhaps, for particular conditions associated with the making of applications in s 84(3) and (4). The procedures which may be adopted by the Commission are wide. Section 162(1) provides that the Commission may determine its own procedure. The Commission is not bound to act in a formal manner and may hear and determine proceedings having regard to the substantial merits of the case without regard to technicalities or legal forms: s 163(1)(a) and (c). [50] There is no stipulation as to the burden of proof. (Emphasis added)
8. It will be apparent from the above emphasised passage that Wang does not impose upon an employer the duty of establishing that a crime has been committed but that misconduct has been committed by the employee. It is the requisite civil standard which applies.
9. The Full Bench concluded that s 181F(2) stood in stark contrast to the practices and procedures in unfair dismissal proceedings. It pointed to other distinguishing features of the Police Act at [52] - [54]. The Full Bench concluded on this point that: "This review of the statutory scheme under Divs 1B and 1C of Pt 9 of the Act, when comparison is drawn with the provisions of Pt 6 of Ch 2 of the IR Act, results in the conclusion (supported by the judgment of the High Court in Eaton (No 3) as discussed below) that the respondent does not bear the onus of proof to establish the applicant was guilty of 'misconduct' (to use the language of the authorities concerning the unfair dismissal jurisdiction). That burden falls to an applicant for review under s 181E although a closer alignment with the provisions of Divs 1B and 1C of the Act would have that conclusion expressed thus: the burden falling upon an applicant is to establish the removal was harsh, unreasonable or unjust. In the case of an applicant contending that a removal was unjust because the applicant did not engage in some or any of the 'misconduct' or infringements to the officer's duties and responsibilities (of the kind referred to under s 181D(1)), the burden falls upon the officer to prove that he is not guilty of misconduct (or 'conduct') in that respect. This may mean the provision of proof there is no basis in fact from the allegations or that the allegations involve a misunderstanding or a misapprehension of the facts." (Emphasis added)
10. That however is only the first part of the quest. Before getting to the second part it is useful to note the Full Bench's analysis of Eaton. The Commission observed at [58], having noted Eaton was concerned with the question of inconsistency between the two statutory schemes: "One distinguishing feature relevant to that inconsistency question considered by the Court was the requirements of the respective statutes as to the burden of proof. That observation is important because, when consideration is given to the judgment of the plurality, it is apparent that a view was formed that the approach to unfair dismissal proceedings under the IR Act vis-à-vis the question of onus (as we have summarised earlier) was, by contrast, not the approach required in a review under s 181E. This ultimately establishes there was a consistency in reasoning between Heydon J and the plurality. The reliance upon a distinction between Div 1C and proceedings under Pt 6 of Ch 2 of the IR Act in the judgment of the plurality indicates that the practice of placing the onus on the respondent in unfair dismissal cases is reversed in proceedings under Div 1C of Pt 9 of the Act (to the applicant) in the manner spelt out more explicitly in the approach adopted by Heydon J in the extract below." I note that under both regimes the legal burden of establishing that the decision was harsh, unjust or unreasonable rests on the applicant. From Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70, it is reasonably clear that the burden on the employer arises if the applicant succeeds in establishing a case. The employer is called upon to respond. The Commission then quoted the passage set out at [162] and continued: "[60] The relevant passages from the decision of the plurality are found at [69] and [76] and are in the following terms: [69] A claimant under s 181E of the Police Act bears the onus of proving that a dismissal was harsh, unreasonable or unjust. There is no equivalent provision in the IR Act, which in general terms empowers the IR Commission to determine its own procedures. In the Court of Appeal, Tobias AJA observed that in practice the IR Commission usually places the onus of proof on the applicant for relief, although the Full Bench has held that the employer must establish misconduct, where this is alleged in a case of dismissal. Dismissals under s 80(3) of the Police Act may well involve questions of integrity and misconduct. … [76] The regime provided for in Pt 9 of the Police Act for the claims of confirmed police officers evidences a concern that the processes of Pt 6 of the IR Act are not in all respects appropriate to be applied to decisions of the Commissioner to dismiss or make other like orders. Part 9 maintains a focus on the Commissioner's decision, a focus which is not provided by the general provisions of the IR Act. Part 9 elevates the Commissioner's decision to one of public interest, in the context of the maintenance of the integrity and discipline of the NSW Police Force. The placing of the burden of proof upon the police officer dismissed is consistent with the weight to be given to the Commissioner's decision, as is the provision which prevents a review of that decision by reference to additional material. [61] The second extract emphasises, as we have previously discussed, the weight to be given to the respondent's reasons for decision. It also identifies the significance of the attention to be paid to the material which the respondent serves as representing the documents or material that he relied upon in coming to his decision (see s 181G(1)(f) and (2)). Heydon J did not comment upon the importance of the respondent's reasons and materials but we consider the judgment of the plurality should, with respect, be applied in this regard. An applicant may satisfy the burden imposed by s 181F(2) if he or she satisfies the Commission that the reasons for removal provided by the respondent are flawed or defective either in a procedural or substantive sense." (Emphasis added)
11. Later the Full Bench considered how the "evidentiary burden" as distinct from the "legal burden" may shift to the respondent. They said at [79]: "The Commissioner was also alive to the necessity, once the appellant had produced evidence casting sufficient doubt on the finding that he had deliberately ingested cannabis, for the respondent to prove, to the requisite standard, that the result of the drug test carried out on 28 May 2014 was a consequence of the fact that he had, in fact, deliberately ingested cannabis. This shift in the evidentiary burden to the respondent occurred by virtue of the appellant's denial and the circumstantial evidence going to the unlikelihood that he would deliberately ingest cannabis together with the expert evidence which opened up the possibility of an innocent explanation for the drug analysis result. The respondent met this shifting evidentiary burden by producing his own expert evidence which, if accepted, effectively ruled out the "innocent explanation" hypothesis. As he was then required to do, Newall C proceeded to consider the evidence placed before him by the parties on that basis." (Emphasis added) And at [108]: "Thus, the task before Newall C was to weigh the evidence which the parties had placed before the Commission to determine, on the balance of probabilities, whether he was satisfied that the appellant had deliberately ingested cannabis. The Commissioner approached this task on the basis that the level of satisfaction required him to find that the conduct which occurred must be consistent with the seriousness of the allegation, that is, a significant degree of persuasion was required on the balance of probabilities (at [72]). The Full Bench at [110] found no error in the Commissioner's approach.
12. If I come to the view that the applicant has succeeded in shifting the evidentiary burden, that is, his case points to a flaw in the respondent's processes or reasons, the task for me then is to consider the evidence called by the respondent in answer to the applicant's case and decide on the totality of the evidence whether I consider it more probable than not, having regard to the seriousness of the allegation involved, that the applicant deliberately ingested cocaine.

A shift in the evidentiary burden

1. For the reasons detailed below I have concluded that the applicant has succeeded in shifting the burden. In summary that is based upon the credible evidence of the applicant denying ingestion: the circumstantial evidence of exposure; the scientific evidence called by the applicant casting significant doubt on the reasoning of the respondent; the evidence led by the applicant as to flaws in the processes of sample taking and testing; and the respondents failure to recognise that the very reasons for the targeted testing of the applicant provided evidence of inadvertent exposure.

Credible evidence of denial

1. The applicant has persistently denied ingesting cocaine. I have already indicated I accept his denial. I found Mr Elias to be a convincing witness. He was responsive to the questions asked both in his directed interviews and in his evidence before me. The respondent mounted an attack of sorts on his credibility based upon his acknowledged consumption of alcohol on social occasions, his (rare) smoking and the occasional consumption of Red Bull as inconsistent with his asserted healthy lifestyle. It is to be born in mind that the applicant is a relatively young man. The degree of "unhealthy" activity for such a person is extremely mild. His appearance was of a very fit and healthy young man. The evidence relied upon to attack his credibility came, readily, from him. There was no effort to conceal or deny these matters.
2. The second basis of attack was his use of the word "most" when referring to the "beer wenches" consuming cocaine. He readily accepted that it was incorrect and denied trying to mislead the investigators. In contradistinction to this alleged motivation, the applicant consistently said to the investigators that he was unaware whether cocaine was consumed. He was advancing possibilities. He later received information confirmatory of the events being possibilities. He provided the information to the investigators for them to pursue should they regard it as necessary. Detective Bortolussi recalls speaking to one woman but he could not recall the detail. He did not see the need to follow up on some matters because he found Issue one not sustained.
3. I reject these criticisms as to the applicant's credit.
4. I am also reinforced in my view of the applicant by the evidence of Detective Bortolussi. He did not think that Mr Elias had lied to him at any point. He also acknowledged that the applicant willingly cooperated in the investigation notwithstanding his right not to do so. Inspector Watson also portrayed a very favourable view of the applicant as did the reports of Sergeant Gallagher and Superintendent Pisanos in connection with suspension.

Circumstantial evidence of exposure

1. Next there is the circumstantial evidence of the applicant being in company with persons known to have consumed cocaine on 28 March 2015. A fact the respondent identified in his reasons as supporting the conclusion that the applicant consumed cocaine.
2. The targeted drug tests were undertaken because the respondent had information that Najdovski appeared to be affected by drugs and made statements suggesting that he was consuming cocaine. He tested positive to that and another substance. His friend, Mr A, admitted possessing and consuming cocaine on that day. The applicant spent the afternoon and parts of the evening with them. The possibility of exposure is clear. In addition there were other occasions during which the applicant spent time with persons who said they had consumed cocaine, in particular the weekend of the buck's party.
3. There is also the possibility of occupational exposure although the evidence does little more than confirm this remains a possibility. To the extent that it is relevant it is in the context of aggregation rather than a likely single cause. I have noted the evidence of Dr Lewis that he had not considered cumulative effect.

Balance of scientific opinion

1. Then there is the scientific evidence. I begin with the general observation that unlike urine testing, which was the form of testing involved in Tredinnick, this case involves hair testing. There is no basis to conclude conclusively from a positive hair test that the result is due to a drug passing through the body, i.e. being ingested. It is common ground that the result confirms only that the subject has been exposed to the drug. Beyond that it is a matter of interpretation and assessment of surrounding facts.
2. The second general observation is that hair testing is a relatively new area of science. There are no Australian or International Standards applicable. The SoHT cut-offs are specifically related to chronic rather than casual or one-off users. Even so the Society cautions about the possibility of false positives and the dangers of relying upon results to conclude that a person has consumed an illicit drug rather than simply being exposed to it. I have also set out above the controversy surrounding washing techniques and whether they may indeed contribute to incorporation of a drug into the hair rather than, as intended, removing it from the surface.
3. Dr Lewis also said that there are no studies demonstrating "a suitable reporting value or the presence of metabolites for non‑chronic users". That means there is no directly applicable science. So the experts are required to extrapolate.
4. The development of this area of science is also reflected in the changing opinion of Dr Lewis about the importance of the presence of metabolites as indicative of ingestion. In his November 4th 2016, report he regarded the presence of one or two metabolites as "incontrovertible" proof of ingestion but his last report expresses the view that their presence is less relevant based upon another paper he had since read which involved a study of chronic users a minority of whom, according to Dr Lewis's recollection, did not show the presence of metabolites when tested. There is also the issue of the metabolite benzoylecgonine the presence of which was originally considered to support ingestion. Later science has shown that its presence may be due spontaneous hydrolysis or because it is a contaminant.
5. In that regard I note RASL detected the presence of benzoylecgonine but at levels below the limits of reporting. It did not detect norcocaine which the current science seems to suggest is a metabolite providing reliable support for a conclusion the parent drug has been consumed. FSSA detected neither.
6. The third general observation is that it is common ground that the levels detected, whether at 120pg/mg or 51pg/mg, are very or, at least, relatively low.
7. Mr Farrar's conclusion was that there was no viable evidence of consumption of cocaine. Dr Robertson and Professor Drummer agreed. Dr Lewis on the other hand, while noting it was not possible to preclude external contamination as a source, concluded "on the balance of probabilities" it was more likely that the source was active consumption.
8. The applicant criticised the Doctor's expertise pointing to the absence of personally undertaking studies or publishing papers in relation to hair testing. I accept that Dr Lewis is an expert in Toxicology and learning may be obtained by studying and analysing the work of, and papers written by, others. I reject the submission he is not qualified to provide expert opinion.
9. In this case it is a question of balancing the expert opinions. To the extent they differ I prefer those of Mr Farrar, Dr Robertson and Professor Drummer. With the greatest of respect to Dr Lewis: 1. several of his opinions, particularly about time frames and hair growth, were expressed with a focus on ingestion rather than ingestion and/or external contamination; 2. he too readily extrapolated from the lack of detection of metabolites, because the levels were so low they may not be detected, the positive conclusion that ingestion was more likely - generally the absence of metabolites is regarded as contradicting ingestion as a source; 3. in assessing the probabilities, he appears to have overlooked the possibility of contamination on the buck's weekend and at the Ivy because there was insufficient time for the hair to grow enough to show a positive result from those occasions when external contamination a day or days before, together with natural fluids and washing techniques may have led to incorporation and produced the results seen in the tests; 4. he too readily regarded a positive report based on a limit of quantitation as an indication of consumption; 5. he infers, by deduction as I understand it, that because the SoHT cut-offs are established in relation to chronic users, casual or one-off users must necessarily show lower levels notwithstanding the absence of any study supporting that proposition; and 6. relies too readily upon the low levels detected to explain the absence of confirmatory evidence of ingestion.
10. In relation to the limits of quantitation, one may accept that the laboratory equipment is sufficiently sensitive and accurate as to be able to detect substances at very low levels, but the laboratories themselves are quick to point out that does not imply consumption. Of course the lower the level of the parent drug the lower the level of relevant metabolites so that presence of the latter is below the limits of quantitation and therefore cannot be confirmatory of ingestion. These factors emphasise why cut-offs are important. Dr Lewis it seems to me simply disregards the underpinning theory and purpose of cut-offs.
11. It is factors such as these and the associated dangers of false positives that have led the SoHT and others to adopt a cut-off of 500pg/mg. The presence of metabolites, such as norcocaine in the case of cocaine, is also regarded as important.
12. I conclude the balance of the scientific evidence points to an inability to determine that personal use is the source of the positive result.

Procedural flaws

1. The evidence supports conclusions that the samples taken were inadequate in quantity to allow for segmental analysis and there was a failure to divide the sample into two or three parts as required by the regulation. The evidence of Mr Farrar supports a conclusion that segmental or axial analysis provides "a means of differentiating between metabolic incorporation of the drug into the hair, and environmental contamination".
2. While Dr Lewis disputes the proposition that segmental analysis would have been of assistance he does so on that basis that cocaine spreads along the hair shaft with time and therefore "cannot be used as an indicator of exposure or time of exposure". He does not deal directly with the proposition advanced by Mr Farrar.
3. The lack of segmental analysis was certainly a matter of concern to Inspector Deans and he sought to remedy it but there was insufficient sample. These matters were not, at least so far as appears from the Reasons and the attached information, drawn to the attention of the Commissioner in coming to his conclusion. Nor indeed were the RASL results.
4. Nor was the information made available to the applicant until after the Commissioner's decision to remove him.
5. I note also, that there appears to be an unexplained departure from the Policy in removing the matter from the Commander and requiring a reference to the IRP. Had the matter been left with Superintendent Pisanos and the Leichardt LAC CMT a very different result would have ensued.

Conclusions

1. I conclude therefore that the applicant has succeeded in shifting the evidentiary burden and it then falls to the respondent to answer the applicant's case and prove ingestion rather than inadvertent exposure. The respondent has sought to do that by reference to the evidence of Dr Lewis, an attack on the credibility of the applicant and criticism of the applicant's failure to identify the precise occasions when it was probable that he was exposed in sufficient quantity to produce the results detected.
2. The respondent has failed to do so. At its highest the respondent can show that, on the science, there is an equal likelihood of ingestion or environmental exposure. That is insufficient. I must be able to conclude it is more probable than not, having regard to the very serious allegation alleged, that the applicant deliberately ingested cocaine.
3. The Police Act s 181F(3) obliges me to consider the interests of the applicant and the public interest.

The applicant's interests

1. The evidence of the applicant is that he has always wanted to be a police officer and since his removal he has attempted to maintain and enhance his skills as an officer in readiness, should the Commission decide in his favour, to return to active duty. That is consistent with the evidence of his dedication and application as officer given by Inspector Watson and as may be inferred from the reports of Superintendent Pisanos and Sergeant Gallagher.
2. The applicant's interests are best served by returning him to duty.

The public interest

1. The public interest is taken to include the interest in maintaining the integrity of the Police Force and the fact of the Commissioner's order.
2. I have no doubt that the Commissioners order was motivated by a desire to maintain the integrity of the Police Force and was intended to convey a message of zero tolerance to the use of illicit substances. The propriety of that approach cannot be gainsaid. I have acknowledged that from the outset of this decision and the applicant's case is predicated on that basis. I reinforce those views.
3. The conclusion I have reached on the evidence is that the applicant did not use illicit substances and therefore an order reinstating him cannot undermine that policy.
4. There is also a public interest in the Police Force having the benefit of the services of a dedicated and talented young officer as described in the evidence of Inspector Watson and sought by Superintendent Pisanos and the CMT.

Harsh, unreasonable or unjust

1. In light of my conclusions I find the decision to remove the applicant was unjust and unreasonable because the finding that he consumed cocaine was not soundly based. The findings of untruthfulness or lack of candour are equally unjust and unreasonable based as they were on the applicant's denial of having consumed cocaine.
2. The decision to remove him was harsh in the light of those conclusions and the views of the Commander and CMT of Leichardt LAC as well as his dedication to the force and the high regard in which he is held by his Commanders.

Orders

1. I order: 1. Application for review upheld. 2. Mr Elias is reinstated to the Police Force at the rank and incremental level he held at the time of his removal. 3. Mr Elias is entitled to be paid at the relevant rates from the date of removal to the date of reinstatement less any sums earned from personal exertion in that period. 4. Mr Elias's service with the NSW Police Force is taken not to be broken. P M Kite SC Chief Commissioner

Endnote

1. Respondent's Outline of Closing Submissions paragraph 18

Amendments 23 May 2019 - Anonymisation implemented 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: 23 May 2019