Tredinnick v Commissioner of Police [2016] NSWIRComm 14 | Case summary

Industrial Relations Commission (NSW)|2016-10-20|Before: Walton J

v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 Starr v Commissioner of Police [2001] NSWIRComm 226 Texts Cited: Cross on Evidence (10th Ed 2015, Lexis Nexis) Category: Principal judgment Parties: David Tredinnick (Appellant) Commissioner of Police (Respondent) Representation: Counsel: P Lowson (Appellant) M J Kimber SC and Y Shariff (Respondent)

Solicitors: Walter Madden Jenkins Solicitors (Appellant) Henry Davis York Lawyers (Respondent) File Number(s): 2016/214472 Decision under appeal Court or tribunal: Industrial Relations Commission of NSW Jurisdiction: Industrial Relations Commission of NSW Citation: [2016] NSWIRComm 1026 Date of Decision: 24 June 2016 Before: Newall C File Number(s): 2015/375731

decision

On 24 June 2016, Newall C dismissed an application by David Tredinnick ('the appellant') brought under s 181E of the Police Act 1990 (NSW) ('the Act') for a review of an order made by the Commissioner of Police ('the respondent') pursuant to s 181D of the Act removing the appellant from the NSW Police Force. The matter before the Full Bench is an application by the appellant for leave to appeal and an appeal from that decision.
The appellant was removed from the NSW Police Force by order of the respondent made on 26 November 2015 following a random drug test conducted on the appellant and other police officers attached to Bellingen Police Station on 28 May 2014.
On the day of the drug test, the appellant's urine sample returned a non-negative result to THC (cannabis), a prohibited drug. A sample of the appellant's hair was also taken.
The appellant's urine sample was subsequently tested in a laboratory operated by Sonic Healthcare. The results of that drug test recorded that the appellant tested positive for the presence of 11-nor-carboxyl-THC in the amount of 185 micrograms per litre of urine.
On 6 June 2014, the appellant was suspended with pay.
On 20 August 2014, the appellant participated in an electronically recorded interview with two police officers who were conducting inquiries into an internal police complaint relating to the appellant's positive drug test result. During that interview the appellant was shown the drug test analysis certificate provided by Sonic Healthcare ('the Certificate'), which recorded the reading set out at [4] above. The appellant did not dispute the validity or accuracy of the drug analysis result. He denied that he had voluntarily consumed cannabis and referred to his coming into contact with cannabis during a drug raid on 22 May 2014, during which he packed cannabis, which had been seized during the raid, into bags using his bare hands.
On 30 January 2015, the appellant was served with an investigator's report. The appellant responded to this report on 9 March 2015. In his response the appellant raised the issue of a conversation which was said to have occurred between a colleague of his at Bellingen Police Station, Senior Constable Narelle Hall, and the two officers who conducted the random drug testing on 28 May 2014, Tracey George and Rema Abidir. The alleged conversation was about the testing cups sometimes being faulty. The appellant claimed that the 'faulty cups' issue was important because he had assumed that the initial non-negative result, when his urine sample was taken on 28 May 2014, was due to the testing cup being faulty. He further assumed that the subsequent test to be conducted in a laboratory would be negative and, for that reason, he did not immediately arrange for an independent urine analysis to be carried out on the same afternoon or evening he was tested. The appellant maintained his denial that he had ever smoked or used cannabis during his time in the NSW Police Force and again referred to his handling of cannabis during the drug raid on 22 May 2014.
On 21 July 2015, the appellant was served with a notice pursuant to s 181D(3)(a) of the Act dated 17 July 2015 ('the Notice'). That Notice was accompanied by a folder of documents entitled "Commissioner's Confidence….. Supporting Documents" ('Commissioner's Confidence Documents'). Included in that folder was the Certificate and an expert opinion prepared by Professor Olaf Drummer, Head (Forensic Scientific Services), Department of Forensic Medicine at Monash University. In that expert opinion Professor Drummer concluded that given "the circumstances of handling cannabis material with bare hands it is very likely that the police officer absorbed some cannabis active drug (THC), and that this would have caused some presence of the carboxy-THC metabolite in urine". However, the professor then stated: Given the positive test for carboxy-THC in urine some 6 days later at a level of 185 micrograms per litre the available data would most likely suggest personal use within a day or a few days, or extreme exposure from handling that should have led to significant negative (physiological effects of cannabis) symptoms on the person concerned. Given the latter symptoms did not occur other than a headache on the day it is more likely than not that the positive urine result was not a direct result of handling cannabis matter 6 days earlier.
On 13 September 2015, the appellant provided the respondent with his response to the Notice. In this response the appellant did not take issue with the validity or accuracy of the drug analysis result recorded on the Certificate, but again referred to his handling of cannabis during the drug raid on 22 May 2014. Included in his response was a report which the appellant had obtained from Dr Michael Robertson, Pharmacologist and Forensic Toxicologist. Dr Robertson's report noted the following: • A level of 185 micrograms per litre would be regarded as low. Levels associated with recent use of cannabis may exceed 2000 micrograms per litre in the day or days following use. • Based on the prevailing science and the absence of significant adverse-effects exhibited by the appellant immediately after or during the packing of the cannabis, Dr Robertson concurred with Professor Drummond that it is unlikely that the positive urine sample was caused or contributed to by exposure to cannabis six days earlier. • The effect of ongoing exposure via dermal absorption due to contact with a contaminated load-bearing vest in the days between the processing of the cannabis and the collection of the urine sample is difficult to determine. That is because it cannot be established what amount of dermal contact occurred during this period i.e. dose and time. Further, any ingestion i.e. residue passed from the clothing to the hands to the mouth, cannot be estimated with any certainty. Due to the absence of any studies replicating this form of exposure if the assumed facts are correct, ongoing exposure in the days between the processing of the cannabis and the collection of urine cannot be excluded as a possible source of the 11-nor-carboxyl-THC in the urine of the appellant.
On or about 1 December 2015, the appellant was served with an order under s 181D(1) of the Act removing him from the NSW Police Force as the respondent did not have confidence in the appellant due to his conduct and integrity ('the Order'). The reason given for the Order was the finding by the respondent, on the balance of probabilities, although having regard to the seriousness of the allegation, that the appellant consumed a prohibited drug, resulting in him testing positive to the cannabis metabolite, 11-nor-carboxyl-THC.
Throughout the disciplinary proceedings leading up to the respondent making the Order, the appellant denied that he had deliberately ingested cannabis. The appellant first contended that the positive drug test result was caused by his handling, on 22 May 2014, of a significant amount of fresh, wet, sticky cannabis without gloves during a police drug raid. He posited that some of the cannabis may have been dermally or otherwise absorbed into his system at that time. Secondly, the appellant claimed that he wore the same load-bearing vest for several days on and after 22 May 2014, up to and including the day of the urine test, without washing it. He postulated that some parts of the cannabis plant, in whatever form, may have adhered to his load-bearing vest and been ingested by him while eating or breathing, or transferred from his vest via his hands to his mouth in some way or other on any of those days, including the day of the test.
The respondent did not accept these contentions and concluded that the appellant "consumed a prohibited drug, namely cannabis". Having made that finding, the respondent, with reference to relevant provisions of the Act, the Police Regulation, the NSW Police Handbook, the NSW Police Force Drug and Alcohol Policy and the NSW Police Force Code of Conduct and Ethics, determined that he did not have confidence in the appellant's suitability to remain a member of the NSW Police Force.

Proceedings at first instance

The decision of Newall C below largely turned upon his consideration of the expert evidence called by both parties. The appellant relied upon two reports from, and oral evidence given by, Dr Michael Robertson. The respondent relied upon one report from, and oral evidence given by, Dr John Lewis. Newall C was satisfied both witnesses were qualified to give expert opinion evidence in the manner contemplated by s 79(1) of the Evidence Act 1995 (NSW). The Commissioner dealt with that evidence in the following manner (at [53]-[64]): 53 As to the first proposition advanced by Mr Tredinnick, that the result of the urine test may have come about because of his handling a significant quantity of sticky cannabis on 22 May, Dr Robertson opined 'it is unlikely that a urine sample would remain positive 6 days following any dermal or inhalation exposure during the seizure and subsequent processing of cannabis.' Whilst 'unlikely', it could not, he said, be excluded as a possible cause of the test result. 54 In this context, and also relevantly to the next part of Mr Tredinnick's case, Dr Robertson and Dr Lewis agreed, by reference to experiment results published in peer-reviewed journals, that dermal absorption of THC was unlikely, as cannabinoids are hydrophobic and do not transfer across the aqueous layer of skin without a carrier. This means, Dr Lewis opined, that simply touching cannabis would not enable any quantity of THC to enter the bloodstream. 55 As to the proposition that Mr Tredinnick had ingested cannabis, in whatever form, whether resin or by particles of leaf or flower, from contact with his load bearing vest, Dr Robertson opined that the effect of ongoing exposure via dermal adsorption due to contact with a contaminated load bearing vest is the period 22 to 28 May 2014 is "difficult to determine". 56 Dr Lewis gave evidence - again by way of reference to reported studies - that THC is unstable and prone to oxidation, with significant losses of THC when stored in the light over six days or more. In Mr Tredinnick's case, Dr Lewis' opinion was that this would mean that the almost daily wearing of the vest by Mr Tredinnick would have significantly depleted any traces of THC upon it. 57 Dr Lewis also gave evidence, based on published studies, that raw, unheated cannabis (which is the only form in which cannabis residue could have been on Mr Tredinnick's load bearing vest) contains at most low levels of THC. Dr Robertson did not opine against this proposition. 58 It is also the case that Mr Tredinnick in his evidence in cross examination said that he did not notice any cannabis material on his load bearing vest on or after 22 May 2014. 59 Dr Lewis' opinion was that the urine test result 'could not have occurred' as a result of either of the scenarios postulated by Mr Tredinnick. He opined that the 'only explanation' for the test result is that Mr Tredinnick had used cannabis within a short time prior to the drug test on 28 May. 60 Dr Robertson did not conclude that that was the only explanation, but rather opined that the first hypothesis advanced by Mr Tredinnick was 'unlikely' and the second 'cannot be excluded as a possible source' of the THC in the urine test result, while agreeing with Dr Lewis about the degradation of THC when exposed to light. 61 Dr Robertson and Dr Lewis agreed that the later urine test results obtained by Mr Tredinnick on 7 and 17 June 2014 do not demonstrate that Mr Tredinnick did not deliberately ingest cannabis, nor refute the presence of 11-nor-carboxy-THC in Mr Tredinnick's urine on 28 May 2014. As Dr Robertson put it, it is entirely consistent that the test results of 28 May, 7 and 17 June 2014 are all correct. Equally the evidence of both experts was that the negative hair test result did not prove that Mr Tredinnick had not consumed cannabis, as hair testing is unlikely to reveal an occasional user of cannabis. 62 It must be noted that both experts agreed that the test result of a presence of 11-nor-carboxyl-THC at a level of 185 mcg/L in Mr Tredinnick's urine on 28 May 2014 was consistent with deliberate consumption of cannabis, by smoking or ingestion after heating, a day or two before the test was carried out. 63 At this point, then, the Commission is faced with evidence from two properly-qualified experts, which, summarised, leans strongly in its combined effect to a finding that the urine test result arose from Mr Tredinnick deliberately consuming cannabis a short time before the test on 28 May. That this is the effect of the expert evidence taken as a whole cannot be gainsaid. That is Dr Lewis' express opinion; as to the hypotheses against that conclusion advanced by Mr Tredinnick, the expert called in his case, Dr Robertson, said that the first of them was 'unlikely' and put the second no higher than that it 'cannot be excluded as a possible source' of the test result. 64 That level of evidence itself does not allow a finding that the Commissioner's reliance on the test result as demonstrating that Mr Tredinnick deliberately used cannabis was misconceived, or that that reliance rendered the decision to remove in any way harsh, unreasonable or unjust.
Newall C then considered the undisputed evidence of the appellant's lengthy and unblemished record, his dedication to a healthy lifestyle and abhorrence of drugs and the inherent improbability that a police officer, with no identified association with drugs or drug suppliers, should have deliberately consumed cannabis in the middle of his rostered shifts and without undertaking any ameliorative action against the possibility of testing, such as consuming more water.
Newall C then stated (at [69]-[73]): 69 With all that, the Commission must assess whether, on the balance of probabilities, having regard to the seriousness of the allegations, it is more likely that Mr Tredinnick deliberately consumed cannabis, or that the presence of THC in his urine arose from some other cause. 70 To accept as evidentiary fact the proposition that Mr Tredinnick did not deliberately consume cannabis because it was against his own strongly-stated principles to do so, and because illicit drug taking (even on a very occasional basis) is inconsistent with the actions of a dedicated and well-regarded police officer means to set aside, on the basis of inference, the weight of the expert opinion evidence, the effect of which is, taking both experts' views into account, that the test result is very much more likely to be the consequence of Mr Tredinnick deliberately ingesting cannabis by smoking it or eating heated cannabis than arising from any other cause. I do not see that I can overlook that expert evidence. 71 It is not just the conclusions of the expert witnesses to which I have regard, but their underlying reasoning and conclusions and the scientific publications to which they referred. 72 I do not agree that the applicable approach to making this decision is that set out in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, as counsel for the Commissioner invited me (by reference to another case) to hold. Of course that case is, with respect, correctly decided, but it applied to a civil case that did not involve the possibility of a finding that a police officer had committed criminal conduct. This case does. The standard is of course the civil standard, but the satisfaction that the conduct occurred must be found at a level consistent with the seriousness of the allegation here involved. 73 Taking that approach I am compelled to the view, on all the evidence and the surrounding circumstances, that it is far more likely than not that the reason that Mr Tredinnick's urine contained a reading of 11-nor-carboxyl-THC at a level of 185 mcg/L on 28 May is that he deliberately ingested cannabis within a day or two of that date.
Newall C then considered the impact of the Order on the appellant against the proposition that the respondent is entitled to hold the view that there is no place in the NSW Police Force for a user of illicit drugs. The Commissioner then found, as a consequence of the conclusion that the appellant had, in fact, deliberately consumed cannabis, that the appellant had not given a truthful account to the respondent nor to the Commission.
In addition, Newall C gave consideration to the public interest which is prescribed by the Act to include maintaining the integrity of the NSW Police Force, and also to include the fact that the respondent made the Order pursuant to s 181D(1).
Ultimately, Newall C concluded as follows(at [87]): It is not in my view harsh, unreasonable, or unjust to remove an officer whom the Commissioner is entitled to find, on the evidence, deliberately consumed an illicit drug and was not candid about that fact. Addressing each limb of the tripartite test to this particular case, it was not harsh, including having regard to the consequences for Mr Tredinnick, nor was it unreasonable, nor was it unjust, given the conduct by Mr Tredinnick that the Commissioner was entitled to accept had occurred, for the Commissioner to remove Mr Tredinnick from the Force.

Submissions

In support of his application for leave to appeal, the appellant relied upon the following reasons: 1. The questions raised by the appeal as to the exercise of the Commission's jurisdiction in the application for review under the Act have potential to affect the conduct of those proceedings in the future. 2. The approach by Newall C is inconsistent with existing authority and requires clarification for future review applications. 3. The failure by Newall C to properly exercise jurisdiction and determine, on all of the evidence before him, whether the removal of the appellant was harsh, unjust or unreasonable denied the appellant his rights to have his review application properly heard and determined. 4. Newall C's approach to the assessment of evidence raises important issues concerning the weight to be attached, and the proper approach, to allegations of misconduct where misconduct is denied.
In support of these reasons as to why leave to appeal should be granted, the appellant put the following submissions: 1. This appeal raised matters of importance such that it was in the public interest to grant leave to appeal. 2. First, the decision evinced a change in approach to the jurisdiction exercised in proceedings reviewing a removal of a police officer under s 181D, including by: 1. Determining that the respondent is strictly limited to adducing evidence limited to responding to the extent to which the appellant identifies an issue with the respondent's reasons or removal decision. 2. Raising an issue as to when and in what circumstances the respondent, or conversely the appellant, bears an evidentiary burden where misconduct is alleged. 1. The Commission hears several s 181D applications each year and deals with many more. It is important to have certainty around the exercise of this jurisdiction. 2. Next, this matter raised an important issue as to how an appellant's denial of misconduct is to be treated, in particular, but not only, if the appellant bears any burden of disproving an allegation of misconduct (which is not conceded) and having regard to how a respondent must respond to a denial in the way it runs its evidentiary case. 3. Given the approach adopted by Newall C, there is a reasonable perception that he failed to properly exercise the jurisdiction in that he determined the matter on a much narrower basis than the cases that were run before him and did not completely deal with each parties' respective evidence and submissions. 4. Next, this matter raised an important issue in relation to the proper approach to expert evidence and to the manifest error in treating opinion evidence as equivalent to an objective fact. 5. Related to this point, this case raised issues as to the proper approach to the assessment of circumstantial and opinion evidence and, in particular, evidence as to probabilities/possibilities, and to an appellant's denial of wrongdoing in exercising the jurisdiction of determining whether a removal (or by extension a dismissal) is harsh, unjust or unreasonable. 6. It is in the public interest that the Full Bench give guidance to Commissioners - who have only relatively recently been accorded jurisdiction to deal with s 181G review proceedings - in relation to these jurisdictional and evidentiary issues.
The respondent opposed the grant of leave to appeal on the ground that none of the 'public interest' issues asserted by the appellant were new or novel issues. The 'public interest' issues asserted by the appellant were as follows: 1. The approach to the statutory exercise required under s 181D of the Act; 2. The treatment of an appellant's denial of misconduct; and 3. The proper approach to expert evidence.
The respondent submitted that these issues: … have been considered and dealt with by the Full Bench of the Commission on numerous occasions in the past. The second and third of these issues are simply questions about the fact finding process, which is a routine matter and requires no reconsideration, whether as a point of principle or otherwise. In any event, the Commission undertook the statutory exercise required under s.181D of the Police Act in the manner that has been well established by reference to the authorities that were relied upon in the Decision.
Further, the respondent submitted: … the Commission gave due consideration to the Appellant's denial and his unchallenged good character, and weighed that up with the expert evidence relied upon by both parties. There is nothing unusual, novel or improper in the Commission's approach. Contrary to the Appellant's contention, the Commission did not take a different approach to that set out in the various Full Bench authorities.
Accordingly, the respondent submitted "that the public interest is not enlivened in this application for permission to appeal and so it should be refused".

Conclusions re Leave to Appeal

We consider there is a proper basis to grant leave to appeal in order to give guidance in relation to the issues concerning the onus or burden of proof in proceedings for a review brought pursuant to s 181E of the Act.
In more recent times there has been renewed interest by parties regarding these questions in proceedings brought in this component of the Commission's jurisdiction. Whilst it is true that many of those issues were well settled at an earlier time, at least one question remains relatively unsettled. That matter concerned whether an obligation to establish allegations (or findings) of misconduct fell upon the respondent in review proceedings under s 181E in a manner akin to unfair dismissal proceedings under Pt 6 of Ch 2 of the Industrial Relations Act 1996 (NSW) ('the IR Act'). That question was left expressly open in Starr v Commissioner of Police [2001] NSWIRComm 226 at [182]. To those considerations may be added questions which have arisen in this jurisdictional area re the onus or burden of proof having regard to the plurality's judgment in Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 ('Eaton (No 3)').
Following orthodox principles relating to the grant of leave to appeal, leave should be granted in this matter as some of the issues raised on the appeal are of general importance to this area of the Commission's jurisdiction. Part of our consideration of onus will involve the construction of the Act and, in particular, Pt 9. Reference should also be made to authority and, in particular, Eaton (No 3). We shall begin by setting out relevant aspects of the legislation.

Legislation

The relevant provisions of the Act for the purposes of this decision are ss 181D(1)-(5), 181E, 181F and 181G(1)(f) and (2). Those provisions are set out below: 181D Commissioner may remove police officers (1) The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. (2) Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister. (3) Before making an order under this section, the Commissioner: (a) must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer, and (b) must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and (c) must take into consideration any written submissions received from the police officer during that period. (4) The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force. (5) The removal takes effect when the order is made. … 181E Review generally (1) A police officer who is removed from the NSW Police Force by an order under section 181D may apply to the Industrial Relations Commission (referred to in this Division as the Commission) for a review of the order on the ground that the removal is harsh, unreasonable or unjust. (2) An application under this section does not operate to stay the operation of the order in respect of which it is made. (3) Except to the extent to which the regulations otherwise provide, it is the duty of the Commissioner to make available to the applicant all of the documents and other material on which the Commissioner has relied in deciding that the Commissioner does not have confidence in the applicant's suitability to continue as a police officer, as referred to in section 181D (1). 181F Proceedings on a review (1) In conducting a review under this Division, the Commission must proceed as follows: (a) firstly, it must consider the Commissioner's reasons for the decision to remove the applicant from the NSW Police Force, (b) secondly, it must consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust, (c) thirdly, it must consider the case presented by the Commissioner in answer to the applicant's case. (2) The applicant has at all times the burden of establishing that the removal of the applicant from the NSW Police Force is harsh, unreasonable or unjust. This subsection has effect despite any law or practice to the contrary. (3) Without limiting the matters to which the Commission is otherwise required or permitted to have regard in making its decision, the Commission must have regard to: (a) the interests of the applicant, and (b) the public interest (which is taken to include the interest of maintaining the integrity of the NSW Police Force, and the fact that the Commissioner made the order pursuant to section 181D (1)). 181G Application of Industrial Relations Act 1996 to reviews (1) The provisions of the Industrial Relations Act 1996 apply to an application for a review under this Division in the same way as they apply to an application under Part 6 (Unfair dismissals) of Chapter 2 of that Act, subject to this Division and to the following modifications: … (f) section 163 (Rules of evidence and legal formality) is to be read as if it provided that new evidence may not be adduced before the Commission unless: (i) notice of intention to do so, and of the substance of the new evidence, has been given in accordance with the regulations under this Act, or (ii) the Commission gives leave. (2) The Commission may grant leave as referred to in subsection (1) (f) (ii) in such circumstances as it thinks fit and having regard to the nature of proceedings under section 181F, and without limiting the generality of the foregoing, the Commission must grant leave in the following circumstances: (a) where the Commission is satisfied that there is a real probability that the applicant may be able to show that the Commissioner has acted upon wrong or mistaken information, (b) where the Commission is satisfied that there is cogent evidence to suggest that the information before the Commissioner was unreliable, having been placed before the Commissioner maliciously, fraudulently or vexatiously, (c) where the Commission is satisfied that the new evidence might materially have affected the Commissioner's decision.

burden of proof

The proceedings before Newall C concerned an application by the appellant for a review of the Order on the ground that his removal as a police officer was harsh, unreasonable or unjust.
Section 181F stipulates requirements for the conduct of review proceedings as well as matters that the Commission must have regard to in determining applications in that respect.
Given the focus in these proceedings upon notions such as the 'onus of proof' and the 'burden of proof', it is unsurprising that sub-s (2) of this provision received considerable attention although the contentions of the parties were almost exclusively upon the first sentence of the subsection rather than the second to which we will return.
Section 181F(1) received some attention by a Full Bench of this Commission in Commissioner of Police v Eaton (2011) 207 IR 209; [2011] NSWIRComm 51 ('Eaton (No 1)'). That decision was the subject of proceedings for judicial review pursuant to s 69 of Supreme Court Act 1970 (NSW), the result of which was the decision of the Full Bench being quashed by the NSW Court of Appeal: Eaton v Industrial Relations Commission of New South Wales (2012) 218 IR 289; [2012] NSWCA 30 ('Eaton (No 2)'). The decision of the Court of Appeal was the subject of an appeal to the High Court of Australia wherein the decision of the NSW Court of Appeal was reversed: Eaton (No 3). We will return to those authorities after approaching the task of statutory construction and, initially, some general principles concerning the burden of proof. However, it is important to note that the various Eaton proceedings concerned the relationship between the IR Act and the Act, and whether there was inconsistency between the provisions of s 80(3) of the Act and Pt 6 of Ch 2 of the IR Act, and, in particular, s 84 thereof. That will be an important context in our further discussion of those judgments.
We propose to start by reference to observations made by the Full Bench in Bigg v New South Wales Police Service (1998) 80 IR 434 at 455 with respect to an earlier version of the Act noting that, in that case, the issue concerned the "dismissal" of a police officer. We agree with the observations of the Full Bench as follows: … The concept of ''a shifting onus'' has only recently been discussed in industrial decisions and more often in submissions, particularly where parties wish to obtain a spurious lexicographical advantage. Such a term can seldom be right and is always confusing. In the common law courts the onus is usually readily identified as falling upon the party who moves the court for an order. In the course of the hearing the onus rarely changes and then only where statutory intervention has altered common law concepts. What frequently occurs, however, is that during the course of a hearing, the evidentiary burden shifts from one party to another. …
The onus to which the Full Bench referred in this passage concerned the legal burden falling upon a party in civil proceedings which may be otherwise described as the 'burden of proof' or sometimes the 'persuasive' burden: Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 at 197. It may be properly distinguished, as the Full Bench did, from an evidentiary burden: see Brady (Inspector of Taxes) v Group Lotus Car Cos pls and another [1987] 3 All ER 1050 at 1059.
The legal burden in this context may be defined as the obligation on a party to meet the requirement of a rule of law that a fact in issue must be proved or disproved. The evidential burden may be defined, on the other hand, as the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue: J D Heydon, Cross on Evidence, (10th ed 2015, LexisNexis) at 318.
As the Full Bench noted in Bigg, with certain limited exceptions such as statutory presumptions, it is inaccurate or inappropriate to speak of a shifting onus or burden of proof: see also Katsilis at 197 and Brady at 1059. Thus, as noted by Barwick CJ in Cameron v Holt (1980) 142 CLR 342 at 347, with respect to criminal law: … it always remains for the Crown to establish guilt, however much during the course of a trial what has been referred to at times as an evidentiary burden of proof has shifted to the accused, that is to say, in cases where the Crown's evidence raises a sufficient prima facie case to lead to the expectation, particularly where the facts are in the possession of the accused, that the accused would provide evidence to negate or weaken the case which theretofore has been made by the Crown. But, in the long run, the Crown must establish guilt. …
We also refer to the observations of J D Heydon in Cross on Evidence at 322: The mere cogency of the evidence adduced by a party who bears the legal burden can never affect its incidence. As long as the matter is governed by the principles of ordinary reasoning, unaffected by rules of law, the party who bears the risk of non-persuasion on a particular issue continues to do so until the tribunal of fact has come to a decision.
In contrast, the evidentiary burden of proof may shift during the course of proceedings. Mustill J in Brady described this shifting burden in the following way (at 1060): It is, however, submitted that the concept of a shifting burden has another meaning, relative to what is called the 'evidentiary burden of proof'. Although this term is widely used, it has often been pointed out that it simply expresses a notion of practical common sense and is not a principle of substantive or procedural law. It means no more than this, that during the trial of an issue of fact there will often arrive one or more occasions when, if the judge were to take stock of the evidence so far adduced, he would conclude that, if there were to be no more evidence, a particular party would win. It would follow that, if the other party wished to escape defeat, he would have to call sufficient evidence to turn the scale. The identity of the party to whom this applies may change and change again during the hearing and it is often convenient to speak of one party or the other as having the evidentiary burden at a given time. This is, however, no more than shorthand, which should not be allowed to disguise the fact that the burden of proof in the strict sense will remain on the same party throughout, which will almost always mean that the party who relies on a particular fact in support of his case must prove it.
We will return to the evidentiary burden in police review matters later in our discussion under this heading.
Section 181F(2) does not refer, in terms, to a 'burden of proof' or the 'onus of proof' and does not expressly distinguish between a legal and evidentiary burden as we have described those concepts above. However, in our view, it is clear that the legislature was referring, in that subsection, to the legal burden or burden of proof, that is, that the appellant has the burden of proof of establishing that (in this case) his removal from the NSW Police Force was harsh, unreasonable or unjust (although it may follow, as we will discuss, that the appellant also has an evidentiary burden). There are three reasons for that conclusion.
First, the word "burden" in the context of the surrounding words "of establishing that the removal" must be taken as a reference to 'onus' of proof. This seems to be accepted by the plurality in Eaton (No 3) (at [69]) where their Honours referred to s 181F(2) as imposing upon the appellant the "onus of proving that a dismissal was harsh, unreasonable or unjust".
Secondly, those same words convey a legal requirement, that is, in order for an applicant to make out a case under Div 1C of Pt 9 of the Act, he or she must establish that a removal from the police force was harsh, unreasonable or unjust.
Thirdly, establishment that removal is harsh, unreasonable or unjust involves not only a legal precept (such as the meaning of 'unjust') but proof of a fact necessary to make out one or more of the tripartite criteria or conditions necessary to establish a basis for the Commission to make favourable orders under Div 1C of Pt 9 of the Act. The establishment of those conditions involves mixed questions of fact and law: Department of Health v Perihan Kaplan [2010] NSWIRComm 65 and Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117. For the present issue as to who bears the onus of establishing 'misconduct' it will suffice to illustrate this consideration by reference to the concept of 'unjust' in the context of a dismissal from employment as discussed by the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 183 CLR 410; [1995] HCA 24 at 465. It was held (by McHugh and Gummow JJ) that the concept of 'unjust' (if adjustment is made to bring into the present context) would embody circumstances where a police officer was not guilty of the misconduct which the respondent has relied upon to remove him. That is a fact in issue for the purpose of the legal burden imposed by s 181F(2).
Further, the language employed by the legislature in s 181F(2) is entirely consistent with the notion that, in the particular facts and circumstances of the case, the burden of proof residing upon the appellant may include proof of a negative to displace a finding which constitutes a basis for a removal: see Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1985) 1 NSWLR 561 at 564.
It is also apparent from the subsection that that burden of proof may not shift because the section refers to the obligation existing "at all times".
This brings us more closely to a consideration of submissions advanced in the proceedings as to whether the respondent in s 181E proceedings bears the onus of establishing 'misconduct'.
There can be little doubt that the genesis of the parties' submissions in this respect was the Commission's approach to the proof of an allegation of misconduct when raised as a justification or defence of a particular course of action by an employer in unfair dismissal proceedings brought under Pt 6 of Ch 2 of the IR Act. It is, therefore, useful to briefly revisit those principles. Given the parties' mutual reliance upon the decision of the Commission in Starr, it will also be useful to borrow the summary of those principles provided in that judgment.
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. …
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).
There is no stipulation as to the burden of proof.
Plainly, then, s 181F(2) stands in contrast to the practices and procedures adopted in proceedings under Pt 6 of Ch 2 of the IR Act. However, other provisions of Divs 1B and 1C of Pt 9 of the Act also represent distinguishing features.
Section 181D(3) provides that a police officer must receive notice setting out the grounds upon which the respondent does not have confidence in his or her suitability to continue as a police officer. The police officer must be given the opportunity of making written submissions to the respondent in relation to the removal. The respondent must take those submissions into account in his decision making. Further, s 181E(3) reposes a duty in the respondent to make available to the appellant all documents and other material upon which he has relied in deciding that he does not have confidence in the subject officer.
A further and important point of difference is that the conduct of the review proceedings is affected by the provisions of s 181F(1). That provision establishes that the first consideration must be the respondent's reasons for removal. The second step in the procedure laid down by that subsection is that the Commission must consider "the case presented by the applicant as to why the removal is harsh, unreasonable or unjust".
The respondent is correct to submit that s 181F(1) places emphasis upon the decision of the respondent and the reasons in support of that decision. The contentions and evidence brought by the appellant under s 181F(1)(b) must necessarily be directed to that decision and those reasons, particularly where the appellant wishes to traverse the respondent's finding as to 'misconduct' based on particular factual considerations relied upon by the respondent (although other considerations may arise with respect to the ground of harshness under s 181E(1)). The respondent is also correct to submit that, by virtue of the procedure required to be adopted by the respondent in s 181E(3), the legislature also drew particular attention to the documents relied upon by the respondent in reaching his decision and in formulating his reasons. This is well reflected in the now considerable body of authority as to reviews under Div 1C of Pt 9 of the Act. It may also be noted, as Newall C correctly did, that the only obligation reposing in the respondent under s 181F(1)(c) is to "answer to the applicant's case".
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.
The reasons for this conclusion may be briefly stated: 1. The provisions of Divs 1B and 1C are materially different in the procedures to be applied in a review to those adopted in unfair dismissal cases. The points of distinction, as discussed above, demonstrate the inapplicability of the procedures in unfair dismissal proceedings in the present context and underline the provisions of Divs 1B and 1C which would provide a contrary indication. This may, in fact, be the subject matter to which the second sentence of s 181F(2) is directed. 2. The construction of s 181F(2) we have earlier provided demonstrates that the contention by an applicant for review that there is no basis in fact to establish guilt of the impugned conduct (which was the source of confidence findings under s 181D(1)) constitutes, by its nature, a fact in issue necessary to discharge the legal burden under s 181F(2) to establish one or more of the tripartite conditions the applicant must establish under s 181E(1). 3. The proposition that the respondent has an onus to prove, inter alia, the "conduct" (to use the language of s 181D(1)) giving rise to a loss of confidence is inconsistent with the structure of s 181F(1) in two respects. First, it is inconsistent with the respondent's reasons having particular significance in review proceedings. The applicant has the burden of demonstrating the flaw in, or inadequacy of, those reasons. Secondly, the ordering of proceedings under s 181F(1) makes clear that the respondent bears no obligation greater than answering the applicant's case.
This brings us to the decision in Eaton (No 3). It may be observed at the outset of considering the judgments in Eaton (No 3) that the appeal from the NSW Court of Appeal was upheld by the plurality (Crennan, Kiefel and Bell JJ) and Heydon J; Gageler J being in dissent. As noted earlier, the judgment concerned the question of inconsistency.
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.
The relevant passage from Heydon J's judgment is at [26] and is in the following terms: 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.6 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.
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.68 There is no equivalent provision in the IR Act, which in general terms empowers the IR Commission to determine its own procedures.69 In the Court of Appeal, Tobias AJA observed70 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.
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.
We will discuss the case advanced by the appellant in greater detail below but we pause to mention two considerations. During the course of the proceedings below, the appellant put the respondent on notice that the appellant was putting him to, in essence, strict proof of the respondent's case. Further, during the tender of the Commissioner's Confidence Documents containing the Certificate, the appellant extracted a concession from the respondent that the tender was limited to the fact the respondent relied upon in the Commissioner's Confidence Documents rather than to the truth of the materials contained therein. That concession is contained in the following exchange between counsel for the respective parties and Newall C recorded in the transcript: Q. Mr Tredinnick, with that letter that you received from the Commissioner, you also received a bundle of materials styled Commissioner's confidence materials, correct? A. Yes. Q. Can I show you a bundle of those documents. DOCUMENTS SHOWN TO WITNESS Q. Is that the bundle of documents you received together with the Commissioner's section 181D notice? A. Yes, it is. SHARIFF: I seek to tender that material. Can I indicate I tender that material on the basis that it was the material that was before the Commissioner served on the applicant and then taken into account by the Commissioner for the purpose of the decision made by the Commissioner. LOWSON: Can I just ask my friend to clarify? Because we've been put in this invidious position where this material wasn't served on us through any witness. If my friend suggesting any limitation on the evidence by framing it in the way that he just has? Or is he putting it in on the basis of the truth of its contents? COMMISSIONER: I am accepting it, I can tell you, if I accept it, only on the basis that it is - it shows the material that the Commissioner had before him when making a decision. If it were advanced on the basis that it is a lot of fresh material, the truth of which I should accept or have debate on, then I would have significant difficulty with that, given the directions that were made about this matter that the evidence in which I'm meant to rely in that sense ought to have been filed in accordance with the directions that were made. I am proceeding on the basis that it is simply shown to me as being the papers that were in front of the Commissioner. LOWSON: Thank you, Commissioner. SHARIFF: Yes. COMMISSIONER: I am right about that? SHARIFF: That is the basis, Commissioner. COMMISSIONER: That being so, I do propose to admit the material. You provide a copy to your opponent, I take it? SHARIFF: Yes.
It followed that, in this appeal, it was contended, by the appellant that the respondent had not proved the validity or accuracy of the findings contained within the Certificate.
In the light of our analysis under this heading to this point these submissions are misconceived. The respondent's reasons for the decision to remove the appellant made plain that he was relying upon the Certificate to sustain a finding that the appellant had consumed an illicit drug. In short, this was central to the respondent's findings that he had lost confidence in the appellant due to questions of integrity and conduct. The Certificate was served upon the appellant as part of the materials served pursuant to s 181E(3). In those circumstances, if the appellant intended to contend that he had not deliberately consumed the illicit drug identified (so as to demonstrate that the respondent's decision to remove him was, inter alia, unreasonable or unjust), the appellant bore the onus of proof to make that contention, that is, to demonstrate the respondent's reasons were based upon a false premise vis-à-vis the consumption of illicit drugs.
The normal practice of the Commission is to require parties to tender the notice, the officer's response and the order made by the respondent and reasons for the respondent's loss of confidence at the outset of proceedings for a review under s 181E. It is more often the case that the documents and materials relied upon by the respondent are tendered at the same time. However, it makes little difference that the materials, in this case, were tendered later in the respondent's case. Just how the materials come forward is, however, beside the point. It is the respondent's decision and reasons for the same based upon the materials relied upon by him in coming to those judgments that constitute the axis upon which the proceedings go forward. If an applicant is to advance a case under s 181F(1)(b) as to why the removal was harsh, unreasonable or unjust, the reasons for decision and documents relied upon for those reasons must be before the Commission, irrespective of which party tendered the material (or if they are tendered at all). The appellant misconceived that it was the appellant (and not the respondent) who bore the burden of proving his conduct was innocent of wrongdoing, even though the evidentiary burden in that respect may shift during the course of the proceedings.
The appellant may have undertaken that task of proving he had not deliberately consumed illicit drugs in a number of ways. He may have led evidence challenging the validity of the testing process, the veracity of the Certificate or conclusions derived therefrom. As we will discuss, none of that occurred in the case brought by the appellant below. Nor were contentions to that effect made below, as we will discuss in our considerations. The appellant may have otherwise brought evidence to explain why the Certificate did not demonstrate the consumption of illicit drugs. This the appellant did, in his response, and in his case below. It may be observed, in this respect, that the appellant did so in circumstances where the respondent had already served upon the appellant a medical opinion rebuffing the excuse or justification provided by the appellant in his response to the Notice. Nonetheless, the calling of evidence by the appellant of a reasonable alternative hypothesis for a reading of cannabis in his blood would shift the evidentiary burden to the respondent in the manner described below but only so far as that particular hypothesis had been advanced with sufficient evidence in support.
A distinction may be drawn, in this respect, in the manner which we undertook at the outset of our discussion, between the legal burden and the evidentiary burden. There seems little dispute in this respect.
It is appropriate to refer to the judgment of Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (the "George S") [1989] 1 Lloyd's Law Reports 369 at 370 as illustrating the shifting notions of that burden: I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible.
In terms of the operation of the Act and, in particular, a review conducted under Div 1C of Pt 9, we are content with the summary of authorities provided by the respondent in a supplementary written submission on the principles bearing upon an evidential burden as follows (at [7]-[14]): 7 The concept of a "review" must at least have the effect of directing the Commission's attention to the decision of the Commissioner and the decision-making process which was adopted by the Commissioner: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [193]. 8 In determining whether the decision of the Commissioner to remove an officer was harsh, unreasonable or unjust, the Commission is entitled to have regard to the process adopted by the Commissioner, in particular whether the Commissioner had adhered to the procedural requirements laid down by the Act: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [194]. 9 The fairness of the process adopted by the Commissioner, and particularly whether the Commissioner adhered to the procedural requirements of s181D, are vital considerations in determining whether the removal of an officer was harsh, unreasonable or unjust: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [196]. 10 Once an applicant raises sufficient doubt as to whether the requirements of s181D are met, the Commissioner bears an onus of demonstrating that those requirements were, in fact, met: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [202]; Starr v Commissioner of Police [2001] NSWIRComm 226 at [171]. 11 This view is supported section 181F which requires that the Commission consider the reasons of the Commissioner, then the case put by the applicant and finally any case presented by the Commissioner in response. If, in the case brought by the applicant, doubt is raised as to compliance with the procedural requirements of the Act, that matter would then need to be answered in the case brought by the Commissioner: Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [202]. 12 The issue of 'onus' may not have any bearing upon the determination of the ultimate findings made by the Commission; particularly in relation to the issue concerning whether there was any basis in fact to the allegations made against the officer. The findings made by the Commission in this case are available upon the assumption that the officer bears the onus and evidentiary burden of making out all relevant matters including by reason of the provisions of s181F(2): Van Huisstede v Commissioner of Police (2000) 98 IR 57 at [209] and [235]. 13 If the case presented by the officer raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the officer's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case, then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner: Starr v Commissioner of Police [2001] NSWIRComm 226 at [176]. 14 Section 181F(2) may be construed as merely stating the general proposition that the applicant must establish his or her case. See also Commissioner of Police v Eaton (2013) 252 CLR 1 at [26], [69] and [76]; and Hudson v Commissioner of Police [2016] NSWIRComm 1031 at [12]. This proposition does not preclude the possibility that an evidentiary burden may shift during the proceedings. The structure of the review contained in s181F(1) must involve some shift in the burdens depending on the portion of the case being considered by the Commission: Starr v Commissioner of Police [2001] NSWIRComm 226 at [176]. (Emphasis in original.)
We would, however, wish to emphasise the following passages from Starr (at [171]-[176] and [179]) which we consider to be correct: 171 The concession made by Mr Willis was, in my view, sound having regard to the circumstances of this case. The question of onus in this matter may be resolved in line with the approach adopted in Bigg (No 2) and Oswald (No 2). Those cases, it will be remembered, were decided on the basis that once the applicant had produced evidence casting sufficient doubt on whether the Commissioner had adhered to the procedures set down by the Act or raised a substantial allegation of an uninformed decision, the burden passed to the Commissioner to demonstrate that the decision was properly made. It was said in Bigg (No 2) (at 458) that if the material provided in the reinstatement case by the applicant called for rebuttal by the Commissioner, then "an evidentiary burden shifted to the … Commissioner to demonstrate that the requirements had been observed." In Van Huisstede, it was found (at 107) that the same approach is appropriate under the present provisions of the Act, notwithstanding the presence of s181F(2). There does not appear to have been a provision equivalent to s181F(2) in the legislation considered in Bigg (No 2) and Oswald (No 2). 172 In Bigg (No 2) and Oswald (No 2), the consideration focussed on whether the Commissioner had discharged the evidentiary burden of establishing compliance with the requirements of the Act or that the decision was properly informed by the available evidence. As has been discussed, in this case also the Commissioner failed to consider available evidence that would have assisted the applicant's case, namely, the transcript of the Local Court proceedings. The Commissioner was, as a result, not aware of deficiencies in the evidence he relied upon when deciding to remove the applicant from the Police Service. Mr Willis conceded that the Commissioner's decision was misinformed, at least in relation to the nature and strength of the DNA evidence. On the approach adopted in the earlier cases, it then falls for the Commissioner to establish that the decision to remove the applicant was properly made. 173 Having reached this point in the consideration, it is difficult to avoid the conclusion that the Commissioner bore the evidentiary burden as to both the procedural and substantive issues. The essential approach of the Commissioner in this matter was to make a finding, on the basis of the evidence before him, that the allegations against the applicant were made out and to conclude that the Local Court finding was insufficient to vindicate the applicant. It was found earlier in this decision that the Commissioner's decision was founded on an inadequate assessment of the available evidence. Once it has been demonstrated that the Commissioner's reasoning process was attended by doubt of the kind referred to in Bigg (No 2) and Oswald (No 2), it must fall to the Commissioner to demonstrate that the misinformed decision could be otherwise justified, notwithstanding his failure to consider all the evidence. Because the defect in the Commissioner's decision-making process goes to the validity of his factual findings, the burden extends, in my view, to establishing an evidentiary basis for those findings. 174 In this case, the Commissioner, quite properly, responded to the applicant's case by seeking to introduce evidence establishing that the applicant was guilty of the conduct alleged. Mr Willis contended that the removal was justified, notwithstanding the failure to consider the Local Court transcript, having regard to the evidence introduced in these proceedings concerning the conduct of the applicant. It was the Commissioner's case that the applicant used the air rifle found in the boot of his car to wound himself and hence made a false report. The Commissioner sought to introduce evidence to demonstrate that this was the case. As has been mentioned, Mr Willis submitted that the Commissioner had discharged "his evidentiary burden" of establishing that the applicant committed the conduct relied upon by the Commissioner in making his decision. 175 The structure of the review to be conducted by the Commission dictated by s181F(1) supports the conclusion that the Commissioner may bear some evidentiary burden at this point. That section requires the Commission to consider the Commissioner's reasons for removing the applicant, then the case presented by the applicant as to why the removal is harsh, unreasonable or unjust and finally the case presented by the Commissioner in response. In Newton, the Full Bench emphasised the importance of adhering to the procedure laid down in s181F(1). The Full Bench stated (at 75): Section 181F(1) is prescriptive as to the matters which the Commission must consider when entertaining an application brought under s181Eof the Police Service Act. While s181F requires the Commission, firstly, to consider the reasons provided by the Commissioner of Police for the decision to dismiss, it also requires the Commission to consider, secondly, the case presented by the applicant as to why the dismissal was harsh, unreasonable or unjust and, thirdly, the case presented by the Commissioner of Police in answer to the applicant's case. 176 If the case presented by the applicant raises a basis for the Commission's intervention, it will be for the Commissioner, in answer to the applicant's case, to introduce evidence sufficient to demonstrate that the removal was warranted. This is not a matter that depends on onus. It is simply that once the applicant establishes a case then a burden may shift to the Commissioner to respond to relevant aspects of that case. In some matters, such as the present, this may include a burden to produce evidence vindicating the factual findings made, having regard to deficiencies in the process adopted by the Commissioner (in the sense referred to in Bigg (No 2) and Oswald (No 2)). … 179 The fact that the decision to remove an officer is based on the Commissioner's confidence does not, in my view, alter the conclusion reached above. The Act does not permit the Commissioner to determine that he does not have confidence in the suitability of an officer to continue as a police officer in a manner that is arbitrary or capricious: see Bigg (No 2) at 457. As mentioned, the finding on confidence must relate to the officer's competence, integrity, performance or conduct. Where, as in this case, the Commissioner bases his confidence decision on express findings of fact, it is not, in my view, inconsistent with the provisions of the Act for the Commissioner to be obliged to produce evidence establishing those allegations in subsequent proceedings. It does not render s181D inoperative to require the Commissioner, once sufficient doubt has been cast on the fairness of the decision, to provide evidence that would vindicate his factual findings.
It follows that the appellant also bore an evidentiary burden although, as we will discuss below, that burden may shift.

CONSIDERATION

In the proceedings at first instance it was submitted on behalf of the appellant that there was an onus on the respondent to prove the misconduct which was the basis for the appellant's removal from the NSW Police Force. Further, it was submitted that the respondent failed to do so because he failed to adduce evidence of the urine drug sample from the relevant drug testing pathology service. As such, on the merits, the respondent had not made out its case that the appellant engaged in misconduct and his removal was, axiomatically, unfair.
As discussed above, this submission misstates the true position. It was the appellant, not the respondent, who bore the onus or legal burden of establishing that his removal was harsh, unreasonable or unjust. In practical terms this required the appellant to lead sufficient evidence to cast doubt on the respondent's finding of misconduct so as to shift the evidentiary burden to the respondent on that issue.
In the alternative, it was submitted that, if Newall C was to proceed on the basis that he was satisfied that the appellant had provided a urine sample on 28 May 2014 which was positive to cannabis metabolite at the level recorded on the Certificate, then the respondent was still required to discharge the onus of proving that the applicant had deliberately consumed cannabis in the days prior to the urine test. Again, this alternative submission is wrong. The appellant bore the onus of proving that he did not deliberately consume cannabis, although, as we have noted, the evidentiary burden may shift, in that respect.
The third alternative submission on the issue of onus which was put by the appellant at first instance was to the effect that, if Newall C was satisfied that the appellant had returned a positive urine sample at the level recorded on the Certificate and that fact was sufficient to transfer the onus on to the appellant of showing that this result was not due to deliberate consumption by him of cannabis, then his removal was still unfair because: a. The appellant had discharged that onus to the respondent prior to his removal; and/or b. The appellant had discharged that onus in the proceedings; and/or c. As the respondent had never put the applicant on notice on 28 May 2014 or thereafter that the onus had shifted on to him, the appellant was denied the opportunity to undertake further urine, blood or hair sampling to demonstrate the likelihood of his version of events. This deficiency in the respondent's drug policy represented procedural unfairness of such magnitude that, in the circumstances of this case, it rendered the removal of the appellant harsh, unreasonable or unjust.
Again, for the reasons already stated, this further alternative submission misstated the true position which was that the appellant bore the onus from the outset of proving that he did not deliberately consume cannabis. We have earlier discussed, however, the evidentiary burden, in that respect, may shift to the respondent once such approach was adopted by the appellant, namely, to provide an alternative hypothesis, supported by evidence, as to how an illicit substance may be found in his blood system, if he had not deliberately consumed the drug.
On appeal, the appellant submitted that it is difficult to assess whether Newall C followed this "well established path… or instead (as described in [25] of the decision) required the appellant to establish in his own case that the removal was harsh, unjust and unreasonable". The appellant cited the following passages from the decision at first instance in support of this submission: 25 If an applicant cannot establish on his evidentiary case that a dismissal was harsh, unjust or unreasonable, there may be no need for the Commissioner to go into evidence at all; an example is Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023, where the propositions advanced by the applicant in his case as to why the decision to remove him was harsh, unreasonable or unjust were patently unsound on the applicant's own evidence and required no evidentiary reply. … 28 It must also be understood that the Commissioner, even if he does go into evidence, is not required in every case to establish by evidence all the facts on which he has relied in coming to the decision to remove an officer. That is not what the 'shifting evidentiary burden' referred to In Hosemans means. Whether the Commissioner brings evidence about some, or all, or none of those facts in a given case will depend on the case advanced by an applicant. To that extent a proceeding for review under s.181E differs from an unfair dismissal case under part 6 of the Industrial Relations Act when the dismissal was for misconduct, where the employer is obliged as a matter of course to make out the misconduct on evidence.
We do not agree that Newall C failed to follow the "well established path" in relation to the issue of onus or evidentiary burden. At [22] and [23] of the decision under appeal, Newall C states as follows: 22 But the important point here is the primary onus that falls on the applicant. That onus has an effect on the conduct of the parties' evidentiary cases. If the applicant advances any evidence that might go to establishing that the removal was harsh, unreasonable or unjust, the onus of addressing that evidentiary case falls on the Commissioner. 23 As the Full Bench held in Hosemans: The issues of onus of proof and evidentiary burdens in matters relating to the removal of a police officer under s181B of the Police Act was [sic] discussed at length in Starr and it is not necessary for us to explore those issues in detail in the present matter. However, it is worthy of repetition that the legislative stipulation in s181F(2) which imposes the primary onus on an applicant does not alter the fundamental proposition that, from an evidentiary point of view, once the applicant goes into evidence, there is then a burden on the Commissioner to answer the case presented by the applicant. A shifting evidentiary burden is consistent with the structure of the review process laid down by s181F and does not offend s181F(2). (at [131]). To the same effect is Starr.
It is clear from these passages that Newall C correctly understood that the onus or burden of establishing that his removal was harsh, unreasonable or unjust lay with the appellant. 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. No error is apparent in relation to the issue of onus or evidentiary burden on the face of the decision under appeal.
The next criticism which is made by the appellant of the decision at first instance is that Newall C proceeded on the basis that, because there was no attack by the appellant on the validity or accuracy of the drug test result, the respondent was under no obligation to prove the validity or accuracy of that result, as noted in the following passages from the decision (at [37]-[39]: 37 In the case he conducted before the Commission to establish that the Commissioner's decision to remove him was harsh, unreasonable or unjust, Mr Tredinnick did not advance any evidence to suggest that there is a provable tendency to error in the laboratory test results, that a percentage of them is routinely wrong, or anything of that sort. Nor did he advance any evidence to suggest that the sample was contaminated by the takers. His case that the decision to remove him was harsh, unreasonable or unjust proceeded on the basis that there was a reading of 11-nor-carboxyl-THC at a level of 185 mcg/L in his urine on 28 May 2014; the fact of the reading was not called into question in his evidentiary case. 38 To write to the Commissioner in the context of the proceedings before the Commission saying 'we put you to strict proof of the laboratory test', as solicitors for Mr Tredinnick did, misconceives, with respect to them, the position. The Commissioner has proceeded on the basis of his being provided with a laboratory reading of a urine test showing the presence of THC in Mr Tredinnick's urine. Mr Tredinnick may, in his case before the Commission, attack the Commissioner's decision on any basis or combination of bases available to him, including by advancing in his case that the test result was suspect. If that is a case that is advanced by Mr Tredinnick before the Commission on any evidentiary basis, then the Commissioner has the burden of meeting that evidentiary case. It was not so advanced, and the Commissioner was not, in response to Mr Tredinnick's case, obliged to prove the test result at all. 39 Mr Tredinnick's case did not proceed on that basis, but on the basis of a resolute denial, in the face of that test result, that he had deliberately voluntarily ingested cannabis.
As already stated, the Certificate was tendered into evidence by the respondent as part of the Commissioner's Confidence Documents which became Ex 6 in the proceedings. The Certificate was before the Commission as part of the material which the respondent took into account for the purpose of making his decision to remove the appellant from the police force. However, the Certificate was not admitted as evidence of the validity or accuracy of the drug analysis result of 11-nor-carboxyl-THC at a level of 185 mcg/L.
The appellant submitted that, because the Certificate was neither tendered nor accepted into evidence of the truth of its contents, the expert evidence relied upon by Newall C had no proper evidentiary basis. We do not agree. The Notice served on the appellant on 21 July 2015 put the appellant on notice that the result of the laboratory analysis of his urine was that it contained cannabis metabolite 11-nor-carboxyl-THC at the level of 185 mcg/L. This was the allegation that the appellant was called upon to answer.
The appellant claimed that he did not accept the analysis result of 185 mcg/L and (in his reply submission) that he did "challenge the result" rather than just explaining it. In support of this assertion, the appellant raised the proposition that he twice asked for the Certificate in June 2014 and it was refused. In addition, the appellant relied upon some comments made by the interviewing officers during his electronically recorded directed interview on 21 August 2014 about the possibility of the urine analysis result being false and that the testing personnel and Inspector Hanzic told him and his colleague that faulty testing cups "do occur". In addition, the appellant arranged for the testing of his own urine on two occasions, 7 and 16 June 2014, in order to demonstrate the absence of any trace of cannabis in his system. Both test results were negative.
However, in his response to the Notice, the appellant did not dispute the validity or accuracy of the testing procedure or the analysis result. Instead, the appellant attempted to explain how the reading of 185 mcg/L could have been caused by innocent means. In considering the appellant's response, the respondent was entitled to proceed on the basis that the appellant did not dispute the analysis result of 185 mcg/L. None of the contrary indicia relied upon in [22] of the appellant's written reply demonstrate that the appellant had expressed to the Commissioner (or to the Commission at first instance) that he contested the validity and accuracy of the urine analysis result in contrast to factors which may have contributed to an alternative conclusion to deliberate consumption. After all, it was the appellant who proffered an explanation in the first place. That reading became the primary basis upon which the respondent, on or about 1 December 2015, served the Order on the appellant removing him from the police force. That is apparent in his reasons for removing the appellant. Those reasons were within the bundle tendered by the respondent and became the first matter the Commission was required to consider.
In review proceedings, such as the application brought by the appellant in this matter, under s 181F(1)(a) of the Act the Commission must firstly consider the respondent's reasons for the decision to remove the appellant. It would be artificial in the extreme if the Commission was obliged to ignore the unchallenged basis upon which the removal order was made, namely, the urine analysis result, because that result had not been strictly proved in the proceedings before the Commission, particularly in proceedings in which the Commission is not bound by the rules of evidence.
Newall C was correct to observe that the appellant's case, at first instance, was not that the drug analysis result was inaccurate or unreliable but, rather, that it was explicable as the innocent consequence of the appellant coming into contact with cannabis matter on 22 May 2014, and on the days following as a result of the contamination of his load bearing jacket.
The appellant's expert witness, Dr Robertson, did not give any evidence which called into question the validity or accuracy of the testing procedure or the drug analysis result. His evidence proceeded on the basis that the result was accurate but not necessarily the consequence of deliberate ingestion of cannabis by the appellant.
The appellant then submitted that Newall C erred in his analysis of the respective cases of the parties and in failing to recognise that the appellant's denial that he deliberately consumed cannabis was sufficient to shift the evidentiary burden on to the respondent to prove that he had deliberately consumed cannabis. This burden, according to the submission put on behalf of the appellant, included the obligation on the respondent to adduce evidence of the validity and accuracy of the urine sample test result.
As we have found, we agree with the proposition put by the respondent to the effect that, in his submissions to the respondent, and in the proceedings at first instance, the appellant did not dispute the validity or accuracy of the drug analysis result. Nor did he challenge the validity or veracity of the Certificate, per se. The appellant's case was run on the basis that the reading of 185 mcg/L was accepted by the appellant "as a given" but that there was an innocent explanation for that reading. We do not repeat our earlier observations as to this component of the appellant's argument.
We also note there was no dispute that the appellant was subjected to a random drug and alcohol test, a sample of urine was taken in that process, the sample was submitted to a laboratory, the laboratory undertook a test and communicated the result in the Certificate to the Commissioner who produced the same to the appellant in order to obtain his response.
We now turn to the balance of the appellant's contentions.
The appellant next identified the following "errors" committed by Newall C in dealing with the evidence: 1. In failing to weigh up the significance of Mr Tredinnick's denial that he deliberately consumed cannabis during the disciplinary process and on oath in the Commission. 2. In rejecting the circumstantial evidence that militated strongly in favour of Mr Tredinnick's denial. 3. In according to the expert's evidence undue objectivity and certainty, where the evidence was opinion evidence and subject to intrinsic and extrinsic limitations that were neither recognised nor weighed up in the balance by the Commissioner.
The appellant's submissions then criticised the manner in which Newall C considered the factors which militated against a finding that the appellant had deliberately ingested cannabis, in the light of the expert evidence. The relevant passages from the decision are (at [67]-[73]): 67 Mr Tredinnick joined the New South Wales Police Force in 2001 and had an unblemished record. He obtained promotion to the rank of sergeant, and indeed began relieving as a sergeant within five years of joining the Force. His unchallenged evidence was that he is dedicated to a healthy lifestyle and abhors drugs. 68 Not only would that evidence, if accepted, stand against a finding of fact that Mr Tredinnick consumed cannabis, there is also, as counsel for Mr Tredinnick posited it, the inherent improbability that a police officer, with no identified association with drugs or drug suppliers, should have deliberately consumed cannabis in the middle of his rostered shifts; and without undertaking any ameliorative action against the possibility of testing such as consuming more water. 69 With all that, the Commission must assess whether, on the balance of probabilities, having regard to the seriousness of the allegations, it is more likely that Mr Tredinnick deliberately consumed cannabis, or that the presence of THC in his urine arose from some other cause. 70 To accept as evidentiary fact the proposition that Mr Tredinnick did not deliberately consume cannabis because it was against his own strongly-stated principles to do so, and because illicit drug taking (even on a very occasional basis) is inconsistent with the actions of a dedicated and well-regarded police officer means to set aside, on the basis of inference, the weight of the expert opinion evidence, the effect of which is, taking both experts' views into account, that the test result is very much more likely to be the consequence of Mr Tredinnick deliberately ingesting cannabis by smoking it or eating heated cannabis than arising from any other cause. I do not see that I can overlook that expert evidence. 71 It is not just the conclusions of the expert witnesses to which I have regard, but their underlying reasoning and conclusions and the scientific publications to which they referred. 72 I do not agree that the applicable approach to making this decision is that set out in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, as counsel for the Commissioner invited me (by reference to another case) to hold. Of course that case is, with respect, correctly decided, but it applied to a civil case that did not involve the possibility of a finding that a police officer had committed criminal conduct. This case does. The standard is of course the civil standard, but the satisfaction that the conduct occurred must be found at a level consistent with the seriousness of the allegation here involved. 73 Taking that approach I am compelled to the view, on all the evidence and the surrounding circumstances, that it is far more likely than not that the reason that Mr Tredinnick's urine contained a reading of 11-nor-carboxyl-THC at a level of 185 mcg/L on 28 May is that he deliberately ingested cannabis within a day or two of that date.
Specifically, the appellant submitted that, in weighing the evidence, Newall C did not refer to the appellant's consistent denial and sworn evidence that he did not deliberately consume cannabis. Further, in rejecting the appellant's circumstantial case that was inconsistent with a finding that he had deliberately consumed cannabis, Newall C, according to the appellant's submission, erroneously found that the expert evidence compelled such a rejection. This, it is said, represents a fundamental misunderstanding of the expert evidence.
The expert evidence is, as the appellant submitted, opinion evidence and not incontrovertible, unassailable objective proof of any fact, such as DNA evidence might be regarded. Whilst Dr Lewis remained firmly of the view that the urine sample analysis result could only be caused by the deliberate consumption of cannabis, his rejection of the theory that it may have been caused by inadvertent ingestion of cannabis was, according to the appellant, necessarily limited by the absence of scientific research into the excretion of cannabis compounds into urine if raw cannabis is consumed.
The appellant then submitted that the fact that Dr Robertson thought it unlikely that dermal absorption alone would have caused the urine sample result does not permit the Commission to exclude this from consideration as an explanation. Similarly, although the absence of any scientific studies into the excretion to urine of cannabis compound from consumption of raw cannabis necessarily prevents a concluded view about that part of the case theory, it does not entitle the Commission to ignore the possibility entirely.
As set out in [9] of this decision, Dr Robertson, in his report of 3 September 2015, stated that any ingestion of cannabis residue passed from clothing to the hands, to the mouth, cannot be estimated with any certainty, but cannot be excluded as a possible source of cannabis metabolite in the appellant's urine. The appellant submitted that this opinion is sufficient to demonstrate that it was not open to treat the expert evidence as being equivalent to a concluded fact that necessitated rejecting the circumstantial evidence in the appellant's favour.
The appellant then criticised the finding of Newall C that "it is far more likely than not that the reason that Mr Tredinnick's urine contained a reading of 11-nor-carboxyl-THC at a level of 185 mcg/L on 28 May is that he deliberately ingested cannabis within a day or two of that date", based, as it was, according to the appellant, on the Commissioner's failures to properly assess and deal with the evidence which pointed towards a contrary conclusion.
In response, the respondent accepted that, whilst the onus of establishing that the removal order was harsh, unjust or unreasonable lies with the appellant, if something substantive that tends, or could tend, to undermine the respondent's decision, is apparent from the appellant's case, then an evidentiary burden falls on the respondent to counter it. However, it was submitted that the appellant did not place before Newall C any evidence which provided a "trigger" for a shift of the evidentiary burden to the respondent.
According to the respondent, no challenge was made by the appellant to the validity or accuracy of the drug analysis result. Therefore, it was submitted, the burden of proving the validity and accuracy of that test result did not shift to the respondent.
The respondent submitted that the appellant's case at first instance was run on the basis that his positive urine test reading was a fact which the appellant did not call into question but needed to explain.
The respondent next submitted that Newall C had appropriately weighed all of the evidence, including the appellant's denial, which pointed towards a finding that he had not deliberately consumed cannabis. However, having weighed that evidence against the expert evidence and the surrounding circumstances, Newall C concluded that it was far more likely that the appellant's urine test result was explained by the deliberate ingestion of cannabis within a day or two prior to the test. This finding was not just reasonably open on the evidence, it was correct. The expert evidence directly contradicted the appellant's denials and it was open to the Commission to so find.
With respect to the assessment and consideration by Newall C of the expert evidence, the respondent rejects the proposition that this evidence was given undue weight. Dr Lewis had rejected the appellant's dermal absorption and transferred ingestion theories as possible explanations for his positive urine test result. Dr Robertson regarded the former as "unlikely" but the latter as an explanation which "cannot be excluded as a possible source of the 11-nor-carboxy-THC in the urine of Sergeant Tredinnick". According to the respondent, the Commission was entitled to regard this theory as having no weight, or to reject it altogether.
As we have mentioned, we accept that the onus of establishing that the removal of the appellant was harsh, unreasonable or unjust lay with the appellant. Given the case mounted below by the appellant that disposes, for reasons we have given, of the appellant's attack in relation to the validity or accuracy of the drug analysis result.
We agree with the submission of the respondent that no evidence was placed before the Commission which directly cast doubt upon the accuracy or validity of the drug test analysis result which was produced in the Sonic Healthcare laboratory. The case for the appellant at first instance proceeded on the basis that there was an innocent explanation for the reading of 185 mcg/L of cannabis metabolite.
In that latter respect, once the appellant produced evidence sufficient to cast doubt on the finding by the respondent that the appellant had deliberately ingested cannabis, the evidentiary burden of proving that fact passed to the respondent.
We disagree that there was no shift of the evidentiary burden to the respondent to prove that the drug test analysis result was the consequence of the appellant deliberately ingesting cannabis. It is apparent that Newall C regarded the appellant's denial that he had deliberately ingested cannabis, together with the circumstantial evidence that the appellant was not a person who would take illicit drugs, plus the expert opinion of Dr Robertson, as sufficient to shift the evidentiary burden of proving that the appellant had deliberately ingested cannabis onto the respondent. The hair sample result was to the same effect. Were this not the case, then it would have been unnecessary for Newall C to give any consideration to the expert opinion of Dr Lewis and it would have been open to the Commissioner to simply dismiss the appellant's application without regard to the respondent's evidentiary case. That did not happen and the Commissioner was correct in the approach he adopted.
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]). Again, we see no error in this approach.
Newall C was entitled to accept, as a fact, that the drug analysis of the appellant's urine returned a reading of 185 mcg/L of cannabis metabolite. The Commissioner then weighed up the expert evidence and the circumstantial evidence which militated against a finding that the appellant had deliberately ingested cannabis (at [67]-[68]). Newall C set out his finding as follows (at [69]-[73]): 69 With all that, the Commission must assess whether, on the balance of probabilities, having regard to the seriousness of the allegations, it is more likely that Mr Tredinnick deliberately consumed cannabis, or that the presence of THC in his urine arose from some other cause. 70 To accept as evidentiary fact the proposition that Mr Tredinnick did not deliberately consume cannabis because it was against his own strongly-stated principles to do so, and because illicit drug taking (even on a very occasional basis) is inconsistent with the actions of a dedicated and well-regarded police officer means to set aside, on the basis of inference, the weight of the expert opinion evidence, the effect of which is, taking both experts' views into account, that the test result is very much more likely to be the consequence of Mr Tredinnick deliberately ingesting cannabis by smoking it or eating heated cannabis than arising from any other cause. I do not see that I can overlook that expert evidence. 71 It is not just the conclusions of the expert witnesses to which I have regard, but their underlying reasoning and conclusions and the scientific publications to which they referred. 72 I do not agree that the applicable approach to making this decision is that set out in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, as counsel for the Commissioner invited me (by reference to another case) to hold. Of course that case is, with respect, correctly decided, but it applied to a civil case that did not involve the possibility of a finding that a police officer had committed criminal conduct. This case does. The standard is of course the civil standard, but the satisfaction that the conduct occurred must be found at a level consistent with the seriousness of the allegation here involved. 73 Taking that approach I am compelled to the view, on all the evidence and the surrounding circumstances, that it is far more likely than not that the reason that Mr Tredinnick's urine contained a reading of 11-nor-carboxyl-THC at a level of 185 mcg/L on 28 May is that he deliberately ingested cannabis within a day or two of that date.
We are unable to discern any error in the approach adopted by Newall C in the manner in which he weighed the evidence and came to the conclusion that the respondent had satisfied the evidentiary burden to establish to the requisite standard that the appellant had deliberately ingested cannabis. In particular, we find that there was nothing erroneous in the Commissioner's assessment of the evidence of the expert witnesses, including their underlying reasoning and conclusions, as refutation of the only direct evidence that the appellant did not deliberately ingest cannabis, being his denial that he did so, together with the circumstantial evidence which supported that denial.
The appellant submitted that Newall C was in error in rejecting the appellant's denial that he had deliberately ingested cannabis, and in rejecting the circumstantial evidence which supported that denial, on the basis of the expert opinion evidence. The expert opinion evidence to which Newall C had regard was said, by the appellant, to not be "in the nature of incontrovertible, unassailable objective proof". However, the point that this submission misses is that the expert opinion evidence was based on undisputed facts, in particular, the result of the laboratory analysis of the appellant's urine as set out in the Certificate which the appellant did not challenge and the facts and circumstances asserted by the appellant as to the handling of cannabis and the wearing of the vest. It was entirely appropriate for Newall C to consider the appellant's explanation as to the positive drug analysis of his urine (that is, his case theory) in the light of this expert opinion evidence.
The appellant's first explanation was that the positive result was due to his exposure to cannabis during the drug raid of 22 May 2014. In his report of 3 September 2015, Dr Robertson stated, "… I concur with Professor Drummer that it is unlikely that the positive urine sample was caused or contributed to by exposure to cannabis 6 days earlier". Dr Robertson confirmed this opinion in a supplementary report of 9 May 2016. Dr Lewis also concurred with this opinion. Based on these expert opinions it was entirely open to Newall C, on the evidence put before the Commission by both parties, to reject the appellant's dermal absorption explanation. We agree with the Commissioner's rejection of this aspect of the appellant's case.
The second explanation proffered by the appellant was that ongoing exposure via dermal contact with, and accidental ingestion of, cannabis, which had contaminated the appellant's load-bearing vest during the drug raid, was the cause of his positive drug test result. Dr Robertson's opinion was that this explanation could not be excluded as a possible source of cannabis metabolite in the urine of the appellant. Dr Lewis was of the opinion that this explanation could not result in the drug analysis result as set out in the Certificate.
The appellant submitted that Dr Lewis, in his report, did not directly address the question of whether the test result could have been caused by ingestion of cannabis from the load bearing vest. However, Dr Lewis did state in his report the following: Touitou [4] also noted that THC was quite unstable and prone to oxidation. Fairbairn and colleagues [7] found highly significant losses of THC when stored in the light over six days or more. These losses were not caused by being dissolved in organic solvents but by exposure to light. … … Furthermore, as his vest was worn on an almost daily basis in the light, any traces of THC on the vest would have been hugely depleted. Newall C referred specifically to this aspect of Dr Lewis' evidence in the decision at first instance at [56].
Further, Dr Lewis was cross-examined on the possibility that the appellant's urine analysis result could have been caused by the accidental ingestion of cannabis matter which adhered to his load bearing vest during the drug raid on 22 May 2014. In the ultimate, Dr Lewis responded as follows: Q. And are you still of the view that you expressed in the last paragraph of your report, or do you accept that at least there's a possibility Mr Tredinnick's positive urinary sample on 28 May 2014 could have been caused by him ingesting some cannabis plant material or resin in the time period of 24 hours prior to the test being given? A. No, I can't accept that.
Newall C found that the weight of the expert opinion evidence, taking both experts' views into account, was that the test result was "very much more likely to be the consequence of Mr Tredinnick deliberately ingesting cannabis by smoking it or eating heated cannabis than arising from any other cause". Again, this conclusion was open to Newall C on the basis of the evidence before the Commission. The Commissioner was entitled to accept the opinion of Dr Lewis over that of Dr Robertson on this issue. It is a conclusion with which we agree.
Creatinine is a naturally occurring substance which is present in urine and which can be a useful marker of hydration. The level of hydration will affect the concentration of a urine sample and the level of substances detectable in that sample. Creatinine is not a matter which was a focal point of the appellant's case, either at first instance or on appeal. However, the appellant does complain that Newall C failed to deal with this aspect of his case in the decision under appeal. It is the case that the evidence relating to creatinine is not expressly referred to in the Commissioner's decision.
In Dr Robertson's supplementary report of 9 May 2016, it is noted that the creatinine content of the appellant's urine sample, which was tested in the laboratory and noted on the Certificate, was 18.45 mmol/L. Dr Robertson's report states that, in an individual who is well hydrated, creatinine levels are typically less than 10 mmol/L. Conversely, in a dehydrated individual, creatinine concentrations are typically higher than 15 mmol/L and may be as high as 25 mmol/L. Dr Robertson expressed the opinion that if, for instance, the appellant was well hydrated and his creatinine level was below 5 mmol/L, the corresponding concentration of cannabis metabolite in his urine would have been below the detectable limits of the drug testing procedures used in the initial test and, as such, would likely have returned a negative result.
Dr Lewis, in his report of 27 May 2016, also considered the creatinine content of the appellant's urine sample which was the subject of the laboratory analysis. After discussing the subject of creatinine in general, and the appellant's creatinine level of 18.46 mmol/L in particular, Dr Lewis confirmed that the issue of creatinine did not change the opinions he had previously expressed. After considering the creatinine level of the appellant's urine, Dr Lewis concluded his report as follows: In providing this report I have considered the possibility of occupational absorption of cannabis during the operation conducted by Mr Tredinnick on 22 May 2014. I have also considered the possibility of contamination from the officer's load-bearing vest on and after 22 May 2014. I am of the opinion that the urine result from 28 May 2014 could not have occurred as a result of either of the above scenarios. I am of the opinion that the only explanation for the urine result of 185 ug/L Carboxy-THC is that Mr Tredinnick had used cannabis within a short time prior to the drug test on 28 May 2014.
The omission from the decision under appeal of any express reference to the evidence concerning creatinine may constitute appellable error.
Such a conclusion may result in the appeal being upheld and, as the appellant sought, the Full Bench re-exercising the jurisdiction of the Commissioner. We do not propose to take that course, however, as it lacks utility given that we find no basis, on the evidence, to disturb the Commissioner's conclusions as to the deliberate consumption of an illicit drug, even having regard to the evidence and submissions on creatinine.
Newall C then went on to consider, in the light of his factual finding that the appellant had deliberately ingested cannabis, whether or not his removal from the police force was, nevertheless, harsh, unreasonable or unjust. He found that it was not. Again, we find no error on the part of the Commissioner in coming to this conclusion.
For these reasons, the appeal must be dismissed.

orders

We make the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Amendments 05 December 2016 - corrected paragraph numbering 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: 05 December 2016

Tredinnick v Commissioner of Police

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