Zisopoulos v Commissioner of Police

Legislative requirements regarding hair testing

1. Section 211A of the Police Act relevantly provides: 211A TESTING OF POLICE OFFICERS FOR ALCOHOL AND PROHIBITED DRUGS (1) An authorised person may require any police officer who is on duty in accordance with a roster: …………………….. (b) to provide a sample of the police officer's urine or hair (or both) for the purpose of testing for the presence of prohibited drugs, in accordance with the directions of the authorised person and the regulations.
2. Relevant provisions of the Police Regulation 2008 (which was in force at the relevant time) provide as follows: 89 APPOINTMENT OF AUTHORISED PERSONS (1) The Commissioner may, by instrument in writing, appoint any person to be an authorised person for the purposes of section 211A or 211AA of the Act and this Part. For those purposes, the Commissioner may appoint a police officer or any other person. …………………….. (3) The Commissioner must furnish authorised persons with certificates of their appointment as authorised persons. 92 ACTION WITH RESPECT TO SAMPLES OF URINE, HAIR AND BLOOD …………………….. (3) A person to whom this clause applies must: (a) divide the sample into 2 approximately equal portions, or, if the police officer has indicated that he or she would like to keep a part of the sample, divide the same into 3 approximately equal portions, and (b) place each portion into a container, and (c) fasten and seal each container, and (d) mark or label each container for future identification. (4) Of the sealed containers: (a) the first container must: …………………... (ii) in any other case, be dealt with in accordance with clause 93, and (b) the second container must be transported to a laboratory accredited by the National Association of Testing Authorities, Australia for the purposes of AS 4308 and nominated by the Commissioner, and must be stored at that laboratory on behalf of the Commissioner, 93 ANALYSIS OF SAMPLES OF URINE, HAIR OR BLOOD ……………………... (5) If the first analysis of a portion of the sample indicates the presence of alcohol or a prohibited drug or steroid in the sample, an analysis of another portion of the sample must be undertaken.

Background

1. In May 1998 at the age of 25, the applicant entered the police academy at Goulburn and was confirmed as a Probationary Constable on 19 March 1999. The applicant completed his probationary period at Newtown Local Area Command ("LAC"). He completed the Diploma of Policing Practice in 2000 and was confirmed to the rank of Constable.
2. The applicant worked in a variety of policing roles and was confirmed to the rank of Senior Constable in 2004. In July 2007, he was seconded to the Australian Federal Police - Airport Uniformed Police Unit at Sydney Kingsford Smith Airport. He completed this secondment in September 2009 and returned to Newtown LAC performing general duties and relieving as Sergeant - General Duties.
3. In February 2010, the applicant was appointed to the position of Leading Senior Constable and in June 2012, he was promoted to the rank of Sergeant - General Duties Supervisor at Newtown LAC.
4. Throughout his career in the NSWPF the applicant has received a number of letters of appreciation and other forms of recognition and citations for his service. He has completed numerous training courses.
5. Apart from one minor substantiated complaint about wearing sunglasses whilst talking to a witness at a motor vehicle collision in 1999, four months into the applicant's period as a Probationary Constable, he has had an unblemished career in the NSWPF.

Section 181F of the Police Act

1. Section 181F of the Police Act is in the following terms: 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)).
2. The first matter that the Commission is required to consider in this case is the respondent's Statement of Reasons for the decision to remove the applicant from the NSWPF. The second matter for consideration is the case presented by the applicant as to why his removal was harsh, unreasonable or unjust. The third matter to be considered is the case presented by the respondent in answer to the applicant's case. I deal with each of these matters in turn.

Respondent's Statement of Reasons

1. The respondent's Statement of Reasons contained the following: As set out in the Notice, I am extremely concerned by your conduct as detailed above. I expect the highest standards of behaviour from sworn officers of the NSW Police Force and for all NSW Police Force officers to place integrity above all. I have carefully considered the issues you raised in your Response, the scientific evidence and expert reports, the Police evidence regarding your exposure to illicit drugs and any other matters to which I have referred below. As set out above, the toxicology reports by Forensic Science SA dated 21 July 2015 and 11 June 2015 set out the results of the analysis of your hair sample, and indicates the presence of MDMA and methylamphetamine. I have therefore determined that there is a reading for illicit drugs. I have taken into account that you state in your Response that, as part of your employment duties, you have been exposed to illicit drugs on a regular basis in the workplace, and that you may have been "unwittingly" exposed outside of work (although there is no evidence in support of this other than the contents of your Response). I have also considered the sections of your Response regarding the verifiability and reliability of the test results and the alleged breaches in the drug and alcohol testing procedures that were followed. I have considered the contents of all of the expert reports, to which I have referred above. Dr Lewis and Ms Lindsay each opine that your test results could be ascribable to use, while Mr Farrar opines that the test results do not provide evidence that the presence of illicit drugs was due to ingestion. However, each expert agrees that it is possible that the levels of drugs reported could have been due to external contamination (although Dr Lewis notes that "one can eliminate environmental contamination as a likely source"). Although I have considered your explanation, Police records show that you have had only limited exposure to illicit drugs during the approximately three month period preceding testing. Consequently, although I recognise that the levels of illicit drugs reported are at the lower level of reporting, I do not accept that your non-negative test results are explained by environmental contamination or "unwitting" exposure or ingestion (either at or outside of work). In addition, I do not accept your response regarding the verifiability and reliability of the toxicology results from your samples after testing. I have concluded that I am entitled to rely upon the contents of the reports. The test results as set out in the reports are verifiable and reliable, having been prepared following testing conducted in accordance with appropriate methods of analysis and by an appropriately accredited laboratory. In addition, I have seen no evidence to suggest a broken chain of custody in relation to the reports. …………………… I have had regard to the scientific evidence and the associated expert reports. Despite the expert agreement regarding external contamination, I prefer the evidence of Dr Lewis and Mr (sic Ms) Lindsay that your test results are ascribable to one off or occasional use of MDMA and methylamphetamine. Having considered all of the above matters, I do not find your denials that you have consumed illicit drugs credible, and I have concluded that you have voluntarily consumed prohibited drugs, namely, MDMA and methylamphetamine. In addition, I have to conclude that you have been less than candid in your Response to me. …………………….. I am aware that early in your policing career, you were subjected to one instance of managerial action, following a sustained finding of rudeness. However, in making my decision, I have proceeded on the basis that you have an unblemished record of approximately 15 years of service. I have taken into account that during your service, you have been recognised for good service on a number of occasions, including receiving certificates of appreciation and medals. Nevertheless, as a long-serving member of the NSW Police Force holding the rank of Sergeant, you are expected to understand and comply with your duties as an officer. You should be in no doubt as to your responsibility to comply with the law and to not use any prohibited drug. You must be held to a higher standard of conduct due to your level of seniority and experience. ……………………… Given your denial of the Allegation, I note that you have not expressed remorse or contrition (except to state that you would have resigned had you taken prohibited drugs). As a necessary consequence of my conclusion regarding your conduct, I have to conclude that you have been untruthful during the testing process and in your Response to the Notice. Your dishonesty compounds the magnitude of your misconduct. ………………………… As I have stated above, I do not find your denials that you have taken illicit drugs to be credible, and I am concerned about your honesty. In these circumstances, I can no longer rely upon your integrity as a police officer to perform policing duties in the future. As a police officer, you should be acutely aware that the general public are entitled to expect every police officer will behave honestly, and with care and diligence in the performance of their duties. The proper performance of your duties requires the highest standards of integrity and it is critical when dealing with allegations of criminal activity. ……………………….. I have carefully reviewed all of the material associated with this matter, and taken into account the details of your personal history and your career history within the NSW Police Force as supplied by you with your Response to my Notice. However, given the magnitude of your misconduct, I see no additional mitigation or reason for your actions that would provide me with any basis not to lose confidence in your suitability to remain a police officer.

Case presented by the applicant

1. The second matter which the Commission must consider is the case presented by the applicant as to why his removal was harsh, unreasonable or unjust.
2. The applicant relied upon his response to the section 181D(3)(a) Notice as part of his case in these proceedings. In summary, that response was as follows: (1) The applicant had an exemplary career in the NSWPF from 1999 up until the occurrence of the issue which led to his removal on 19 December 2016. (2) On 16 April 2015, when he was drug tested, the applicant had been taking a range of over-the-counter and prescription medications which accounted for the initial non-negative result for his urine sample. The applicant was then required to provide a sample of his hair. (3) Subsequent further analysis of the applicant's urine sample confirmed that the initial non-negative result was due to the medications he had been taking and the sample was negative for any illicit substances. (4) On 16 May 2015, the applicant was suspended with pay due to a "positive drug test". (5) After being suspended on pay, the applicant declined to attend an interview with Detective Senior Constable Kiernan of the Professional Standards Command on legal advice and because the applicant had not been provided with an analyst report explaining what the results of the drug test meant. (6) The applicant claimed that, in his work environment, he was exposed to drugs on almost every shift. When the applicant performed the role of Internal Supervisor, there was drug residue on the supervisor's desk and on the handle of the drug safe. Similar exposure to drugs occurred when the applicant performed the role of Custody Manager and Mobile Supervisor. (7) The applicant claimed that, if environmental contamination was eliminated and the analysis result was scientifically sound, then the presence of any illegal drug in his body was because he unwittingly ingested it. (8) The level of the drugs detected in the applicant's hair sample were, according to the applicant, below 200 pg per mg, the level recommended by the Society of Hair Testing for a true positive, which is the standard that the National Association of Testing Authorities Australia ("NATA") recommends for hair testing, and should have been reported as a negative. (9) Contrary to NSW Police Regulations Section 96(5), the applicant's hair sample was not split into two portions so that the second portion could be tested for confirmation once the first portion tested positive. (10) The applicant provided the respondent with the medications he had taken over the three month period prior to him being tested, which could have affected the analysis of his hair sample. (11) The applicant also relied upon a number of scientific articles, including one authored in May 2001 by Dr John Lewis, the expert Consultant Toxicologist, whose report was relied upon by the respondent in the Statement of Reasons which accompanied the removal order. Extracts from those articles are set out below: Unfortunately, before hair can be truly accepted by a court of law as primary evidence of drug use, a number of complex issues need to be resolved. Unfortunately, the value of segmented hair analysis is limited by a number of variable factors. Although mean hair growth is one centimetre per month…, there is significant variation (as little as 0.7 centimetres and as much as 3.6 centimetres)… Kelly et al. (2000) studied the relationship between amphetamine uptake and different hair colour. The authors found the highest uptake in medium-brown hair and a very low uptake in black hair. It is unlikely that any comparable studies have been conducted in Australia. However, should hair testing become part of any law enforcement procedure, Indigenous Australians and ethnic minorities could be disadvantaged relative to fare-haired Caucasians unless proper controls for bias are put in place. There are other unresolved issues that may preclude the use of hair testing as a preferred protocol in law enforcement. These include problems of contamination, lack of agreement on analytical methodology and paucity of standard guidelines. Drug Detection and its Role in Law Enforcement. John H Lewis. Australian Institute of Criminology, trends & issues in crime and criminal justice, May 2001. Unfortunately, contamination of hair can occur because substances enter hair by a number of processes. Incorporation by entrapment from the blood bathing the growing follicle is the primary mechanism, but drugs can also be incorporated through direct contact of mature hair with sweat and/or sebaceous secretions. The interpretation of hair results must only be used in combination with other sources of information. This could be information on likely drug usage or previous urine drug results. Sometimes metabolite patterns of drugs can be useful to distinguish internal exposure from environmental exposure. Testing for Impairing Substances in Health Care Professionals. Olaf H Drummer. Report for the Australian Health Practitioner Regulation Agency, March 2014.
3. The applicant also raised the possibility that the positive test on his hair sample could have been the result of swimming in Sydney Harbour, consuming a bottle of home-brewed alcohol which had been given to him as a gift and which may have been laced with illicit substances or through having his drink spiked on a night out at clubs or bars.
4. The applicant maintained that, had he knowingly taken illicit substances, he would have resigned from his position long before being issued with a section 181D(3)(a) Notice, so as to limit the future repercussions of being removed from the NSWPF.
5. Included in the applicant's witness statement filed in these proceedings (Exhibit 1) was the toxicology report by Ms Lindsay dated 18 August 2016, which contained the extracts referred to in the section of the respondent's Statement of Reasons set out at paragraph 9 above. Also included in the witness statement was correspondence from the applicant's solicitor to the respondent's solicitors including the report of Mr Farrar which contained the extract set out at paragraph 8 above.
6. The applicant also provided evidence as to his current employment and financial situation.
7. In a supplementary witness statement (Exhibit 2), the applicant responded to a number of the witness statements relied upon by the respondent in these proceedings.

Sergeant Rodney Allison

1. Rodney Allison is a Sergeant in the NSWPF. He is based at Newtown LAC and his current role is General Duties Supervisor. Sergeant Allison has known the applicant since 2001 and worked with him at Newtown LAC from 2001 until applicant was suspended in 2015.
2. In a witness statement filed in the proceedings (Exhibit 3), Sergeant Allison described the typical operational arrangements for handling of prohibited drugs at Newtown LAC. This description included the seizure of the drugs by police officers in the field, the conveying of those drugs to the police station where they are weighed on the drug scales, sometimes placed on the charge room/custody area bench and ultimately placed into the drug exhibit storage safe. Sergeant Allison had never seen the charge room/custody area counters, drug scales/balance pans or the Custody Manager's desk at Newtown LAC decontaminated (professionally cleaned).
3. Sergeant Allison deposed as follows: 16. In my experience, police officers performing the roles of general duties car crews, general duties supervisors (including field and station supervisors), and custody managers/officers will regularly seize drugs as part of their duties and could come into contact with drugs which are either in sealed or unsealed packaging. In my experience this is particularly likely at inner city locations such as Newtown where drugs, such as MDMA, methylamphetamine and amphetamine.
4. Sergeant Allison was not required for cross-examination by the respondent's counsel.

Dr Michael Robertson

1. Dr Robertson is a Consulting Pharmacologist, Forensic Toxicologist and Chemist with more than 20 years professional experience. He is a principle of Independent Forensic Consulting and was retained by the legal representatives of the applicant to provide expert opinion evidence in these proceedings. Dr Robertson prepared three reports for the purpose of these proceedings dated 3 April, 20 June and 24 July 2017 respectively.
2. Prior to compiling his first report (Exhibit 4), Dr Robertson was provided with the following: 1. Letter of Instruction from (the applicant's solicitors) dated 23 March 2017 2. Investigators (report) signed by Detective Senior Constable Martin Kiernan dated 3 September 2015 3. Notice to Show Cause signed by Commissioner Andrew Scipione dated 29 March 2016 4. Toxicology Report signed by Marc Grabowski dated 30 April 2015 5. Replacement Toxicology Report signed by Mr Marc Grabowski dated 21 July 2015 6. Replacement Toxicology Report signed by Ms Heather Lindsay dated 11 June 2015 7. Report signed by Dr John Lewis Dated 8 march 2016 8. Response to Notice to Show Cause signed by George Zisopoulos dated 6 June 2016 9. Report signed by Mr John Farrar dated 10 June 2016 10. Supplementary Report Signed by Mr John Farrer dated 11 November 2016 11. Supplementary Report signed by Ms Heather Lindsay dated 18 August 2016 12. The Notice of Dismissal
3. Dr Robertson reviewed the results of the laboratory analysis on the applicant's hair sample and stated as follows: 3. The limitations of hair follicle testing and in particular in the case of police officers; a. As outlined above, the interpretation of drug results detected in hair is not straight-forward. It is generally agreed within the forensic toxicology community that drugs detected in the hair at or above the guidelines outlined by SOHT are as a result of chronic or repetitive use of the drug and that hair drug concentrations do not correlate well with either the amount of drug ingested or number of drug-use occasions. b. That said, given the known risk associated with external or environmental contamination, those people that are routinely exposed to drugs as part of their day-to-day operations are more likely to (be) exposed to the risk of external or environmental contamination and therefore positive hair samples. c. It is therefore my opinion that drugs detected in the hair of individuals such as police officers that may be exposed to drugs as part of their day-to-day employment should be used to corroborate other independent evidence of drug use rather than the only evidence of drug use and / or the cut-off concentrations (concentrations above which a sample is regarded as positive) should be at least as high as those recommended by the Society of Hair Testing whose cut-off concentrations largely exclude low concentrations of drugs in hair that may be the result of external contamination.
4. Prior to the preparation of his second report (Exhibit 5), Dr Robertson was provided with the following: 1. Letter of Instruction from (the applicant's solicitors) dated 25 May 2017 2. Chain of Custody / request form for urine analysis dated 16 April 2015 3. Chain of Custody / request form for hair analysis dated 16 April 2015 4. Statement of Rema Abadir, dated 20 July 2015 5. Sonic Healthcare analytical data 6. Forensic Science South Australia (FSSA) hair testing documents 7. Forensic Science South Australia analytical data 8. FSSA Quantification of Drugs in Hair by LC/QQQ procedure 9. Validation Report for the analysis of Drugs in Hair
5. In this report, Dr Robertson responded to a number of questions asked by the solicitors acting for the applicant, including the following: 10. Do the levels of the methylamphetamine shown in the hair testing results suggest the use of ice or speed? Please provide the reason/s for your view. a. Given the low concentration of drug present in the hair, the only scientifically reliable conclusion is that the presence of methylamphetamine in the hair of Sergeant Zisopolous is due to some form of exposure to methylamphetamine. The provided data suggests the presence of amphetamine at concentrations below the reporting limit in segment two. Whilst this might be consistent with the use of methylamphetamine during this time period, given the very low levels of amphetamine present it could equally be due to residual drug from external contamination by amphetamine if present at the time of exposure. Amphetamine is often present in illicit methylamphetamine and may also present as a pyrolysis product when methylamphetamine is smoked. b. As outlined in my previous report, the levels of methylamphetamine shown in the hair testing results may have been due to: i. Occasional use during the time period represented by the hair sample and/or ii. Environmental contamination in the weeks prior to the collection of the hair sample. c. I do not believe it can be reliably differentiated which of the above alternative scenarios are more or less likely than the other due primarily to the low concentration of drug present in the hair. ……………………. 15. What is your interpretation on the hair testing results? a. As outlined in the previous report I consider the following when interpreting the hair test results of Sergeant Zisopoulos. i. The amount of drug present is low and not would typically be expected following regular or chronic use of the drug. ii. The wash procedure may not remove drug that has been embedded with the hair, particularly when low levels of drugs are present and being interpreted. iii. Therefore when considering the results, the process used, my professional experience and the published literature it is my opinion that the hair test results may be due to either: 1. Occasional use throughout the period represented by the hair sample and / or 2. Environmental contamination. iv. In the absence of any other evidence of drug use or exposure, I do not believe it can be established which of the above possibilities are more likely than the other.
6. Prior to the preparation of his third report (Exhibit 6), Dr Robertson was provided with the following: 1. Letter of Instruction from (the applicant's solicitors), dated 19 July 2017 and emails from (the applicant's solicitors) dated 20 July 2017 and 24 July 2017 2. Statement of Marc Grabowski, dated 18 July 2017 and associated data 3. Statement of Heather Lindsay, dated 18 July 2017 and associated data 4. Report of Dr John Lewis, dated 18 July 2017 5. Statement of Michaela Kenneally, dated 18 July 2017 6. Statement of Peter Stockham, dated 14 July 2017 7. Statement of Chris Kostakis dated 17 July 2017
7. In this report, Dr Robertson responded to a number of questions from the applicant's solicitors concerning the witness statements of those persons listed immediately above who had prepared those statements for the respondent to be used in these proceedings. Whilst he concurred with much of what was contained in those statements, Dr Robertson did not resile from the opinions he had expressed in his previous reports and, in particular, his opinion "… that the possibility of direct contamination or contact of drug with the head cannot be excluded as a possibility for the results in this matter, particularly given the low concentration of drugs present".
8. In addition, in his third report Dr Robertson expressed his opinion in relation to the 30 second methanol wash of the applicant's hair sample prior to testing, which was the method utilised at FSSA to remove external contamination of the applicant's hair sample. Dr Robertson stated: 1. I concur that a brief methanol wash would remove recent, gross contamination. 2. In this matter however there is no suggestion of recent, gross contamination but rather the possibility of residual drug remaining on the hair from external contamination that may have occurred sometime previously, resulting in small amounts of drug adhered to the hair follicle that may not be removed by a rapid methanol wash in isolation, hence the recommendation for aqueous washes by SoHT.
9. Dr Robertson was cross-examined in relation to this evidence. The following exchange occurred: Q. Then in point 2 you say that there is no suggestion of recent gross contamination but the possibility of residual drug remaining on the hair from external contamination that may have occurred some time previously. What you're doing there through the use of the word "possibility" and "may" is adverting to a surmise on your part isn't that right? A. Yes that if contamination occurred at some prior point, not the day or days preceding the collection of the hair sample, that residual drug may be incorporated into the hair. We know that that's a possibility from the literature and that what we're dealing with is residual drug from an external source that is bound to the hair that has not been removed by the wash procedure. Q. And that's the same point you're making down the bottom of the page clearly in the absence of a study demonstrating otherwise it is possible you say that trace amounts of drugs applied externally may remain attached, that's what you are raising as a possibility correct? A. Correct. The 30 second methanol wash would not remove.
10. In re-examination, Dr Robertson gave the following evidence: Q. Given your cross-examination, doctor, do you adhere to the view that there are at least two possibilities by way of explanation of the drug concentrations detected in the hair sample, namely ingestion and environmental contamination? A. Yes, I do. Q. Do you remain of the view that you can't reliably, as a matter of science, opt for one is more likely than the other? A. Yes, based on the information I have received and that's namely knowing how drugs are incorporated into hair, either though the blood or via external contamination, knowing that external contamination, the removal of drug from the external part of the hair is dependent on the wash procedure used and the demonstration that that wash procedure can be used, knowing that wash procedures don't remove all external drug. Looking at the various papers, the 30 second methanol wash, the paper I was just given, the Polettini paper is a good example where they use a system of decontamination which is consistent with the recommendations of the Society of Hair Testing, the use an organic wash first, followed by three aqueous washes, over what accumulates to about an hour, to remove all of the - or do the best they can to remove all of the external contamination. So, in the absence of seemingly any validation that a 30 second methanol wash is able to remove residual drug following external contamination, in my opinion that remains one of the possibilities for what is a low level of drug in the hair. When I say "low", it's not consistent necessarily with chronic use, it's not above those numbers. We wouldn't look at those numbers and conclude that it was regular use. We look at the decontamination process, we look at the presence/absence of metabolites, we do all those sorts of things and we do our best to interpret the fact that there is a low level of drug remaining, following a fairly brief or very brief external contamination. It doesn't give me confidence that if there were drug found externally to the hair that it would have been removed. COMMISSIONER Q. You said a very brief contamination, I think; did you mean-- A. Oh sorry, a very brief wash, decontamination is what I meant to say, thank you.

Dr Shanlin Fu

1. Dr Fu is an Associate Professor at the School of Mathematical and Physical Science, University of Technology, Sydney. His qualifications include a Bachelor of Science degree (Biology), a Master of Science degree (Phytochemistry) and a Doctorate (Pharmaceutical Chemistry). He has experience in drug testing for therapeutic and illicit drugs in biological fluids for clinical and medico-legal purposes, including hair drug testing. Dr Fu is also a NATA Assessor for Medical Testing and Chemical Testing.
2. Dr Fu prepared an expert opinion report for the applicant's legal representatives (Exhibit 10). Prior to preparing his report, Dr Fu was provided with: (a) Chain of custody/request form for urine analysis dated 16 April 2015. (b) Chain of custody/request form for hair analysis dated 16 April 2016 (sic 2015). (c) Toxicology Report of Marc Grabowski dated 30 April 2015. (d) Toxicology Report of Heather Joy Lindsay dated 11 June 2015. (e) Replacement Toxicology Report of Marc Grabowski dated 21 July 2015. (f) Statement of Rema Abadir dated 20 July 2015. (g) Investigator's Report from Detective Senior Constable Martin Kiernan dated 3 September 2015. (h) Report of Dr John Lewis dated 8 March 2016. (i) Notice under Section 181D(3)(a) of the Police Act 1990 (NSW) dated 29 March 2016. (j) Response by Mr Zisopoulos to Section 181D(3)(a) Notice dated 6 June 2016 (without attachments). (k) Report of Mr John Farrar dated 10 June 2016. (l) Supplementary report of Mr John Farrar dated 11 November 2016. (m) Supplementary Report of Heather Joy Lindsay dated 18 August 2016. (n) Order under Section 181D(1) of the Police Act 1990 dated 19 December 2016. (o) Report of Dr Michael Robertson dated 3 April 2017. (p) Schedule 7 - Expert Witness Code of Conduct, Uniform Civil Procedure Rules 2005 (NSW).
3. Dr Fu considered the following analysis of the applicant's hair sample after division into three 1 cm segments, as set out in the FSSA toxicology report of Ms Lindsay dated 11 June 2015. The results are expressed in pg/mg of hair: Segment* 1 2 3 (weight of hair) (7.9 mg) (10.4 mg) (9.7 mg) Methylamphetamine 80 140 90 MDMA 20 20 Not detected Codeine 990 790 930 Diazepam 90 70 50 Nordiazepam 160 130 80 Zolpidem 20 30 40 *Segment 1 was the first segment taken from the root end of the hair sample.
4. In his report, Dr Fu answered a number of questions put to him by the legal representatives of the applicant as follows: 13) What is your interpretation of the hair testing results? The presence of codeine, diazepam together with its metabolite nordiazepam and zolpidem in hair is consistent with Mr Zisopoulos' claim that he had used Panafen Plus (containing codeine), Valium (containing diazepam) and Stillnox (containing zolpidem) for pain management and sleeping disorder over the past months before sample collection. The presence of very low levels of methylamphetamine and MDMA in the hair samples does not suggest that Mr Zisopoulos had consumed these illicit substances over the same periods, because environmental contamination of hair with these substances leading to false positive hair test results cannot be excluded. 14) What is your opinion as to the most likely cause/s of the hair testing results? Please provide the reasoning for your opinion. I am of the opinion that environmental contamination is the most likely cause of the hair testing results of Mr Zisopoulos based on the following considerations. Despite the significant advancement in developing more and more sensitive analytical techniques to detect drugs in hair, interpretation of hair test results remains problematic and challenging up to this date. The most serious pitfall of hair testing is its inability to differentiate active drug use from environmental contamination especially when drugs detected in hair are at minute levels. Drug incorporation into hair is a complex process and its mechanism is not fully understood. There are three proposed models that explain how a drug can be incorporation into hair, i.e., 1) through diffusion from the bloodstream to the hair follicle; 2) through diffusion from sweat and other secretions bathing the growing hair fibre; 3) through diffusion into the mature hair fibre via external drug contact. Hair is a biological matrix that easily traps dirt and foreign materials including drugs due to the presence of sweat, sebum, skin cells and body fluids on its surface. It has been well documented that drugs such as methylamphetamine can be easily incorporated into the hair shafts after external exposure. The oily sebum and the watery sweat excreted on the skin surface provide a favourable medium for incorporation of drugs into hair to occur. This incorporation efficiency can be increased by up to 100 folds if hair care products that contains both moisture and oily components are used. It has been demonstrated by Kidwell et al. that as low as 1 mg of methylamphetamine (roughly the size of 1-3 grains of table salts) is sufficient to contaminate a hair sample to produce hair test results equivalent to chronic drug use. The same research group has also demonstrated the ready transfer of drug substances such as methylamphetamine from shaking hands with methylamphetamine users and from public area of airport via physical contact. It is not surprising to find reports of inadvertent drug exposure among policer officers, forensic chemists working under controlled laboratory safety conditions and veterinary physicians working in either public or private clinics. To minimise the risk of reporting false positive hair test results, the Society of Hair Testing (SOHT) has made a number of recommendations. These recommendations include 1) washing hair samples prior analysis to remove external contamination, and 2) identifying unique metabolites together with parent drugs. The recommended washing procedure should include washing steps with both organic solvent and aqueous solutions. The primary metabolites of methylamphetamine and MDMA commonly targeted during drug testing procedures are amphetamine and 3,4-methylenedioxyamphetamine (MDA), respectively, although they are not considered as the unique metabolites. It is also the general consensus among forensic toxicologists that when environmental contamination cannot be excluded, hair test results should only be used as a complimentary evidence to support other drug test findings such as urine drug test results. The hair drug test results by FSSA do not meet any of the above criteria to be considered as evidence of active use of the two illicit drugs by Mr Zisopoulos. Firstly, the laboratory washing procedure used organic solvent (methanol) only and did not include a washing step with aqueous solutions. Secondly, no metabolites of the two drugs were detected in the hair samples. Thirdly, none of the two drugs and their metabolites was detected in the urine samples provided by Mr Zisopoulos on the same day of the hair sample collection. Therefore, there is no convincing ground to allege active drug use of methylamphetamine and MDMA by Mr Zisopoulos.
5. Dr Fu concluded his report as follows: After reviewing all drug test reports and evidence in front of me, I am of the opinion that environmental contamination cannot be ruled out as the cause of the positive results of methylamphetamine and MDMA in the hair of Mr Zisopoulos. Because of the many unanswered issues surrounding hair testing for drugs, especially the difficulty in differentiating active use from external contamination, extreme caution needs to be exercised when offering interpretation of hair results for medico-legal matters. Over-interpretation of hair test results has been identified as one of the common pitfalls associated with hair testing and must be avoided. In a recent proposal for interpretations of results from different types of specimens, the US Department of Justice stated that "An examiner may not report or state an opinion that a drug or poison finding in hair is proof of ingestion of the drug or poison unless a metabolite that is unique to ingestion is also identified and/or validated wash procedures have been performed that can differentiate between exposure and ingestion". When inconclusive hair test results arise, other drug testing methods such as urine drug testing should be used to confirm hair test findings and hair test results should be used as complementary information only under these circumstances.
6. Dr Fu also prepared a supplementary report (Exhibit 11). Prior to the preparation of that report, Dr Fu was provided with: (a) Report of Dr John Lewis dated 18 July 2017. (b) Statement of Marc Grabowski dated 18 July 2017. (c) Statement of Heather Lindsay dated 18 July 2017. (d) Statement of Michaela Keneally dated 17 July 2017. (e) Statement of Peter Stockham dated 14 July 2017. (f) Statement of Chris Kostakis dated 18 July 2017.
7. In his supplementary report, Dr Fu commented on the statements of a number of those persons listed above. In particular, Dr Fu responded to a number of questions about the report of Dr Lewis as follows: 6) Do you agree with Dr Lewis… that in order to achieve a hair result of approximately 120pg/mg methylamphetamine, studies have shown the applicant would have needed to absorb at least 30-40mg of the drug? If not, why not? Yes and No. If drugs are absorbed through dermal layers into blood circulation and then deposit through blood into hair, 30-40 mg of the drug would be needed. If drugs are directly in contact with hair, then 1 mg of the drug or even less may possibly produce the positive test result. 7) Noting the level of amphetamine is below the reporting limit for FSSA, do you agree with Dr Lewis… that the identification of amphetamine in one of the segments of the applicant's hair provides strong evidence of ingestion of methylamphetamine? If not, why not? No, I do not agree with the conclusion made by Dr Lewis. Amphetamine is one of the metabolites of methylamphetamine. Amphetamine is also an illicit drug on its own right. Contamination of both methylamphetamine and amphetamine would yield a positive test result for both drugs. Given the questionable washing protocol used by FSSA to remove external contamination, and the minute amounts of amphetamine, methylamphetamine and MDMA found in the hair samples, external contamination cannot be excluded as the cause of the positive test results in my view.
8. Dr Fu's concluding comments were as follows: Due to the questionable hair decontamination protocol used by the drug testing laboratory and the very low levels of drugs found in the hair, I am of the opinion that external contamination cannot be ruled out as the cause of the positive results of methylamphetamine and MDMA in the hair of Mr Zisopoulos. When external contamination cannot be ruled out, other drug testing methods such as urine drug testing should be used to confirm hair test findings and hair test results should be used as complementary information only under these circumstances. This conclusion is also shared by Dorana (sic Doran) and co-authors including NSW Police staff in a study designed to investigate the presence of licit and illicit drugs in NSW police stations. The authors states that "while external contamination of hair may be possible, negative urine results coupled with only very low hair concentrations would allow distinction between external contamination and intentional consumption".
9. Under cross-examination, Dr Fu did not resile from these opinions and conclusions.

John Farrar

1. Mr Farrar is a Consultant Forensic Pharmacologist. He is a Director and Principal Consultant of Green Light Consultancy Pty Ltd and provides independent advice and opinion in forensic science to a range of entities including the Commonwealth and State governments. He is currently engaged under contract by the Clinical Forensic Medicine Unit of the NSWPF.
2. Mr Farrar prepared three reports. The first two reports were dated 10 June and 11 November 2016 respectively and were provided by the applicant's legal representatives to the respondent prior to the making of the section 181D(1) Order removing the applicant from the NSWPF. The third report dated 24 July 2017 was prepared by Mr Farrar specifically for the purpose of these proceedings.
3. In his first report (Exhibit 19), Mr Farrar expressed the opinion that the concentrations of codeine, diazepam and zolpidem in the applicant's hair sample were consistent with ingestion of those substances by the applicant. However, Mr Farrar then went on to state: 49. It is not possible to interpret the presence of methylamphetamine and 3,4-methylenedioxymethylamphetamine, as the concentrations of these drugs in the hair sample are below the specified cut-off limit and there is no evidence of the presence of their respective metabolites. 50. In my opinion the available information does not, on the balance of probabilities, support the allegation of consumption of methylamphetamine and 3,4-methylenedioxymethylamphetamine by Mr Zisopoulos.
4. In his second report (Exhibit 20), Mr Farrar stated that he agreed with the statement of Ms Lindsay in her report of 18 August 2016 that the presence of methylamphetamine and MDMA in the hair sample may be attributable to recent external contamination of the hair. Mr Farrar stated: 27. In the absence of detectable metabolites of methylamphetamine and MDMA in the hair, there is no evidence that these substances were ingested by Mr Zisopoulos. Mr Farrar reiterated the opinion he expressed in his first report to the effect that the available information did not support the allegation of consumption of the two illicit drugs by the applicant.
5. In his third report (Exhibit 21), Mr Farrar expressed the opinion that the detection of amphetamine in the applicant's hair sample did not prove that the applicant had ingested methylamphetamine because amphetamine is not only a metabolite of methylamphetamine. He gave the following answer to this question posed by the applicant's solicitors: 23. Is amphetamine a unique metabolite of either methylamphetamine or 3,4-methylenedioxymethyamphetamine (MDMA)? Does amphetamine only occurs as a metabolite of methylamphetamine or MDMA? Amphetamine is a sympathomimetic amine used recreationally for its psychostimulant effects. Amphetamine is also a pyrolysis product of methylamphetamine and is produced when methylamphetamine is smoked (Cook, 1991). Therefore amphetamine does not only occur as a metabolite of methylamphetamine. There is no evidence that amphetamine is present, as a metabolite of methylamphetamine, in Mr Zisopoulos' hair sample.
6. Mr Farrar concluded as follows: 27. When the hair-methylamphetamine concentration is as low as reported for Mr Zisopoulos' hair sample (i.e. below the SoHT Guidelines for cut-off values), a specific metabolite such as p-hydroxymethylamphetamine must be identified and quantitated in order to conclude ingestion of methylamphetamine. Similarly, specific metabolites of MDMA, such as 3,4-dihyroxymethylamphetamine or 4-hydroxy-3-methoxymethylamphetamine must be identified and quantitated in order to conclude ingestion of MDMA. 28. In the absence of identification of these metabolites, there is no evidence that methylamphetamine or MDMA were ingested by Mr Zisopoulos. 29. In my opinion the available information does not support the allegation of consumption of methylamphetamine and MDMA by Mr Zisopoulos.
7. Under cross-examination, Mr Farrar did not resile from these statements and opinions.

Case presented by the respondent

1. The third matter which the Commission must consider is the case presented by the respondent in answer to the applicant's case.
2. The respondent presented evidence from a number of witnesses which is discussed below, not in the order in which the witnesses were called but in an order which follows the chronology of events as they impacted upon the applicant in the lead up to his removal from the NSWPF.

Carol Donovan

1. Ms Donovan is the Team Leader of the Drug and Alcohol Unit of the NSWPF. In her witness statement (Exhibit 32), Ms Donovan gave evidence about the random drug testing of police officers at Newtown LAC between 1 January 2014 and 28 February 2017.
2. On 16 April 2015, 22 police officers at Newtown LAC were selected to undergo random drug testing. The officers were chosen using a random number generator. The applicant was one of these officers so chosen.
3. Ms Donovan was not required for cross-examination.

Rema Abadir

1. Ms Abadir is a Drug and Alcohol Testing Officer in the Drug and Alcohol Testing Unit attached to the Professional Standards Command of the NSWPF. In her witness statement (Exhibit 27), Ms Abadir gave evidence about the manner in which she conducted random drug testing of the applicant on 16 April 2015.
2. Ms Abadir was not required for cross-examination.

Marc Grabowski

1. Mr Grabowski is employed as a Senior Forensic Scientist at FSSA. He holds graduate degrees in Technology (Forensic and Analytical Chemistry) and Science and has approximately 12 years of experience in analytical chemistry.
2. In his witness statement (Exhibit 22), Mr Grabowski gave evidence about FSSA's accreditation, standards, training, protocols and quality assurance system. FSSA is NATA accredited to conduct all of the testing it currently does, including hair testing.
3. With respect to the washing of hair samples prior to testing to detect any contamination in the form of drugs on the outside of the hair, Mr Grabowski stated: I start by adding 2mL of methanol to the test tube, using a pipette. As the fragments of hair sit in the methanol, I give the test tube a gentle swirl by hand. After 30 seconds, I transfer the aliquot of methanol to another test tube, using a pipette.
4. Mr Grabowski described in detail the remaining steps in the hair testing process by liquid chromatography/mass spectrometry.
5. On 30 April 2015, Mr Grabowski wrote a toxicology report on the testing of the applicant's 3 cm hair sample. The results of the analysis were recorded as follows: 1. The hair segment contained approximately: (1) 30 pg 3,4-methylenedioxymethamphetamine (MDMA) per mg (2) 120 pg methylamphetamine per mg (3) 890 pg codeine per mg (4) 70 pg diazepam per mg (5) 100 pg nordiazepam per mg (6) 30 pg zolpidem per mg 2. No other drugs were detected in the hair (see appendix) 3. No drugs were detected in the external wash of the hair (see appendix)
6. On 21 July 2015, Mr Grabowski, at the request of his manager, Mr Chris Kostakis, prepared a replacement toxicology report utilising a specific template for the NSWPF and correcting the spelling of one of the drugs detected. Apart from those minor changes, the information contained in the replacement report was the same as in the original report.
7. Mr Grabowski took issue with the criticisms of his hair sample washing method using only methanol, which were contained in the report of Dr Fu of 19 June 2017 and the report of Dr Robertson of 20 June 2017. He also rebutted Dr Fu's statement to the effect that no metabolites of the two drugs had been detected, and stated: Having reviewed the results of the testing, this is not correct. I detected amphetamine, a metabolite of methylamphetamine, when I tested Mr Zisopoulos' hair samples. Although it was present at very low levels, and below the limit of reporting of 20pg/mg, I am confident that it was correctly identified above the lower limit of quantification (which is a level that is lower than the adopted limit of reporting).
8. Under cross-examination, Mr Grabowski agreed that his toxicology reports on the applicant's hair sample did not contain the following statement, which currently appears in such reports: Drugs can be incorporated into hair in a number of different ways including drug use and external contamination. It should not be assumed that the presence of a drug in the hair is a result of drug use without further consultation with an expert.
9. Mr Grabowski agreed that he had not read any scientific study which endorses, as a method of decontaminating hair samples, a single wash for 30 seconds with methanol.
10. Mr Grabowski also agreed that, when the envelope containing the applicant's hair sample arrived at FSSA, it did not contain two discrete separately packaged samples, but one sample which he then split into two portions.

Heather Lindsay

1. Ms Lindsay is a Senior Forensic Scientist employed at FSSA. She holds a Bachelor of Science degree with Honours in Organic Chemistry and has approximately 40 years of experience in analytical chemistry, including approximately 11 years in toxicology. Ms Lindsay reports to Mr Kostakis.
2. In her witness statement (Exhibit 26), Ms Lindsay gave evidence about accreditation, standards, proficiency programs, training and standard operating procedures at FSSA. She stated: At present, there are no specific Australian and New Zealand standards for hair testing. Forensic Science SA has been previously been involved in developing Australian standards, but I am not aware of whether any such standards are currently being developed for hair testing.
3. On 22 May 2015, Mr Kostakis received a request from Chief Inspector Ralph Deans of the NSWPF to conduct a segmented analysis of the applicant's hair. Mr Kostakis requested that Ms Lindsay undertake this work which she did on 2 June 2015.
4. Ms Lindsay retrieved the portion of the applicant's hair which Mr Grabowski had left in the original kit envelope and cut it into three segments of one cm and washed them using the same technique that Mr Grabowski had used on the other portion of the applicant's hair sample. Each segment was then analysed by liquid chromatography/mass spectrometry yielding the results as set out at paragraph 45 above.
5. One 30 June 2016, Ms Lindsay was instructed to prepare an "opinion" toxicology report based on her analysis of the applicant's hair sample. In that report, which was prepared on 18 August 2016, Ms Lindsay stated as follows: The incorporation of drugs into hair is believed to occur through three different modes: a) Diffusion from the bloodstream to the hair follicles and then incorporated into the hair remaining as the hair continues to grow. b) Diffusion from sweat and sebum secretions. c) External contamination, particularly from drugs that are present as vapours or powders. It is possible for some drugs, depending on their physicochemical properties, to not only result in external contamination of the hair but, over time, to migrate into the mature hair. …………………….. The Society of Hair Testing guidelines suggest a wash step as one of the decontamination strategies which may be used to assess external contamination. In the FSSA procedure we subject the hair to a brief methanol wash prior to the extraction of drugs. This wash is done to remove any external contamination from the hair but may also leach some of the drugs out of the hair, particularly in highly concentrated samples. Low levels of drug in the wash, typically up to 10% of that in the hair, are unlikely to be the result of contamination, but rather to result from leaching and to be indicative of drug use. Levels in the wash greater than 50% of that in the hair are unlikely to result solely from leaching out of the hair and indicate association with the drug which may or may not include drug use. In this case there were no drugs detected in the washes for any of the segments above the corresponding limits of reporting (LORs) (50 pg per mg for benzodiazepines and 20 pg per mg for all other included drugs). …………………… For methylamphetamine this means that the wash contained less than 15-25%, depending on the segment, and is less likely to result from recent external contamination but it cannot be completely excluded. For 3,4-methylenedioxymethylamphetamine (MDMA) detected at 20 pg per mg in segments 1 and 2 this only means that the wash contained less than 100% of that present in the hair and is of little significance except that gross recent external contamination is less likely.
6. Ms Lindsay's "opinion" toxicology report concluded as follows: In summary, the levels of codeine, diazepam (along with its metabolite nordiazepam) and zolpidem are consistent with therapeutic use over the approximate timeframe of testing but also could be a residue of previous higher use. The levels of methylamphetamine, detected in all three segments, and 3,4-methylenedioxymethylamphetamine (MDMA), detected in segments 1 and 2, are consistent with one-off or occasional use over the corresponding timeframe or residual of prior higher use but recent external contamination cannot be excluded as the levels are too low for metabolites to be detected above the LOR. In this case the subsequent analysis of three 1 cm segments has not been able to further elucidate which of these scenarios took place due to the low levels present.
7. On 28 March 2017, Ms Lindsay was instructed by Mr Kostakis to respond to a further request which had been sent from the NSWPF to advise whether there was any level detected of any other substance or metabolite in the applicant's hair sample. Ms Lindsay's supplementary toxicology report dated 12 April 2017 advised that amphetamine was detected in both portions of the applicant's hair sample at concentrations below the limit of reporting. Amphetamine was not detected in any of the washes.
8. Ms Lindsay was cross-examined about her "opinion" toxicology report of 18 August 2016. The following exchange occurred: Q. Now, in the second report, if you look at page 4 for me, I'm sure you are familiar with this Ms Lindsay, if you look at the bold typed paragraph which begins, "In summary"? A. Yes. Q. You there add a further consideration which emphasises the problems associated or which can be associated with these analyses, namely, "Recent external contamination cannot be excluded as the levels are too low for metabolites for be detected above the LQR" (as said). A. It says, LOR. Q. LOR, sorry, level of reporting. Now, but that's simply a further emphasis of potential uncertainty where you've got very low levels, isn't it? A. Yes there is uncertainty at very many levels but especially with low levels.
9. Later, during the cross-examination of Ms Lindsay, the following exchange with the Commission occurred: Q.. Well I'd be assisted Ms Lindsay that it just seems to me that night follows day, if we can't exclude external contamination you can't say it had to be ingested, am I correct in that Ms Lindsay? A. I can't make a judgment whether it was, sorry I didn't mean to use judgment incorrectly, I'm saying that all through my, that statement, I've said it's only what is likely or less likely but I cannot exclude external contamination so-- Q. Well if I, can I put it another way-- A. --it's a matter whether it's, it's likely or less likely based on the results and whatever other contextual information anyone has. Q. Yes I appreciate that but if I can just go back to the question, put it perhaps another way, if you can't rule out recent external contamination does that mean that you cannot absolutely rule in ingestion as the only possibility? A. No I can't absolutely say that it was ingestion.

Michaela Kenneally

1. Ms Kenneally is a Senior Forensic Scientist employed at FSSA. She holds a Bachelor of Technology degree in the Forensic Science and Analytical Chemistry and a Bachelor of Science degree (Honours) in Analytical Chemistry. She has approximately 11 years of experience in forensic science in analytical chemistry.
2. In her witness statement (Exhibit 30), Ms Kenneally gave evidence about accreditation by NATA, the Society of Hair Testing (SoHT) proficiency program, training in forensic hair testing and peer reviews of the hair analysis conducted in the case of the applicant.
3. Ms Kenneally conducted the peer reviews of the testing and analysis of the applicant's hair sample by both Mr Grabowski and Ms Lindsay and did not identify any relevant issues with either analysis.
4. Ms Kenneally was not required for cross-examination.

Chris Kostakis

1. Mr Kostakis is the Manager - Toxicology at FSSA. He holds a Bachelor of Science degree with Honours 1 in Organic Chemistry and a Masters degree in Applied Science (Analytical Chemistry). Mr Kostakis has had a total of 23 years of experience in organic and analytical chemistry.
2. Mr Kostakis' witness statement (Exhibit 23) traversed accreditation, proficiency, training and procedures at FSSA. He stated that hair testing at FSSA was only performed by Senior Forensic Scientists because it is most efficient for only one scientist to perform the work in its entirety and he considered the complexity associated with the reporting and interpretation of the results and the opinions formed to be greater than other analyses performed at the laboratory.
3. Mr Kostakis peer reviewed Mr Grabowski's replacement toxicology report of 21 July 2015 and Ms Lindsay's draft toxicology report of 18 August 2016. In both cases, Mr Kostakis was satisfied with the content of the reports.
4. Counsel for the respondent tendered into evidence a scientific article provided to him by Mr Kostakis entitled "Simultaneous hair testing for opiates, cocaine, and metabolites by GC - MS: a survey of applicants for driving licences with a history of drug use" (Exhibit 25). The article referred to a hair sample washing technique which involved the use of 1 ml of methanol, vortex-mixed for 30 seconds.
5. Under cross-examination, Mr Kostakis agreed that most of the scientific papers he had read on this topic described washes that involved much more than a 30 second wash with one agent. He also described a vortex as a small motorised mixing unit that causes very vigorous mixing of a sample.
6. Mr Kostakis also agreed with the following proposition contained in another 2010 scientific paper entitled "Guidelines for European workplace drug and alcohol testing in hair": Due to their high surface-area-to-volume ratio, hair samples are highly susceptible to external contamination.

Peter Stockham

1. Mr Stockham is employed as the Principal Scientist, Science Leader, at FSSA. He holds a Bachelor of Science degree (Honours) (Organic Chemistry) and has a total of 23 years of experience in analytical chemistry.
2. In his witness statement (Exhibit 31), Mr Stockham gave evidence about accreditation, proficiency, training and protocols at FSSA.
3. FSSA uses an information management system called "CaseMan" to track all activity regarding samples that are received in the laboratory for testing and analysis. Mr Stockham reviewed the tracking records in CaseMan for the applicant's sample. Mr Stockham's initials on the case file for the applicant's sample indicate that he had no concerns or issues with compliance with FSSA's policies in this case.
4. Mr Stockham was not required for cross-examination.

Peter Dawes

1. Mr Dawes is an Intelligence Analyst with the Professional Standards Command of the NSWPF. In his witness statement (Exhibit 28), Mr Dawes gave evidence about all drug-related activity involving the Newtown LAC between 16 October 2014 and 15 April 2015. His searches of the various databases within the NSWPF revealed that, during this period, 97 drug-related Court Attendance Notices were issued for 138 drug-related offences. There were 26 events involving drug-related uses of force which were recorded but there was no record of the applicant being involved in any of those events. There were 20 events involving personal searches recorded but none recorded the applicant as being involved. There were 91 events involving drug detection dogs recorded but none recorded the applicant as the event-creating officer.
2. Under cross-examination, Mr Dawes gave the following evidence: Q. Thank you. Now, is it the case that, because your analysis didn't extend to looking at rosters or duty statements or anything like that, you can't assist us as to the significance of any of those occasions in so far as they might relate to Mr Zisopoulos? A. That's correct. Q. Because all you were looking for, I think you say in your statement, or all you were asked to look for were cases in which Mr Zisopoulos had either been the arresting officer or the person who subsequently issued proceedings for, relevantly, the possession or use of the drug? A. Yes, where he was recorded-- Q. What you weren't looking for-- A. --in an event or incident. Q. I'm sorry, I cut across you, I think. A. Yeah. Where he was recorded in an event or incident. Q. So what you weren't looking for, for example, were cases or incidents in which he might have been the custody manager on duty? A. No. Q. Or the station supervisor who might have been involved in securing and then placing a drug into a safe? A. No. Q. Nor where he was an external supervisor on duty where he might have attended a scene to assist police officers in so far as - in relation to the arrest? A. No. Only where he's recorded-- Q. Yes. A. --in the system. Q. And that's because your duties are limited to intelligence analysis, which is basically the extraction of the data based on the search criteria you are given? A. Correct, yes. ………………….. Q. You don't know whether police, for example, from Leichhardt local area command or Marrickville local area command or Ashfield local area command have to go to Newtown to process prisoners and/or secure drug exhibits? A. No, I don't know that they have to. Sorry. Q. You just don't know? A. No, I just don't know.

Glen Leechburgh Auwers

1. Mr Leechburgh Auwers is an Exhibits, Forensic Information and Miscellaneous Property Systems (EFIMS) System Administrator with the Forensic Services Group of the NSWPF. He has been in this role for approximately 2 years. He has 15 years of experience in forensic investigation.
2. EFIMS is the management and recording system used by officers of the NSWPF to track any exhibits or miscellaneous property that they are responsible for securing.
3. In his witness statement (Exhibit 33), Mr Leechburgh Auwers referred to a previous witness statement which he had made in relation to an audit report that he ran of the EFIMS system for EFIMS activity related to the applicant for the period 17 October 2014 to 15 April 2015, at the request of Detective Senior Constable Kiernan. The report was subsequently provided to the Detective Senior Constable.
4. Mr Leechburgh Auwers was not required for cross-examination.

Detective Senior Constable Martin Kiernan

1. Detective Senior Constable (DSC) Kiernan is attached to the Professional Standards Command of the NSWPF. In his witness statement (Exhibit 29), DSC Kiernan referred to the EFIMS activity audit for the applicant for the period 17 October 2014 to 15 April 2015. This audit identified the time, date and description of all drug EFIMS entries that the applicant checked in or out during that period. The EFIMS records showed that, during this period, drugs were received or accepted in Newtown LAC on a 99 occasions and a small number of drug implements were also received or accepted.
2. DSC Kiernan stated as follows: Mr Zisopoulos checked in or out various drugs (usually in sealed drug bags) on 32 occasions identified as the following substances: i. 15 MDMA capsules (3 capsules in a sealed drug bag, one capsule in a sealed drug bag, 3 capsules in a drug bag, 2 capsules in a sealed drug bag, 3 clear capsules in a sealed drug bag), one plastic bag of MDMA in a sealed drug bag and 8 MDMA tablets wrapped in clear plastic in a sealed drug bag; ii. 2 rocks of 1.1g and 1.2g of ice (each in a clear resealable ziplock bag); iii. 0.9g of methamphetamine in a resealable plastic bag in a sealed drug bag; iv. one cannabis cigarette in a sealed drug bag and one unbagged cannabis joint; v. one plastic bag containing green vegetable matter in a drug bag, 4.31g of unidentified green vegetable matter in a 200ml Tupperware container with a blue lid and 5 clear plastic bags containing 3g of vegetable matter; vi. one 1g Buprenorphine tablet in a small piece of white paper (in a sealed drug bag); vii. 3 vials of phenethylamine (each in a drug bag); viii. one blue and white capsule (in a sealed drug bag), 5 unidentified blue and white capsules (in a clear resealable bag in a sealed drug bag); ix. 37.4g of clear liquid in a small clear resealable bottle; x. 2.5g of an unidentified clear white substance in a small clear resealable bag; xi. a glass vial containing a clear liquid substance in a sealed drug bag; xii. 8 clear resealable bags containing 31.5g of a clear/beige crystal substance in a sealed drug bag; xiii. 7 clear resealable bags containing 20.8g of beige powder in a sealed drug bag; and xiv. 5.8 unidentified white powder in a sealed drug bag.
3. DSC Kiernan also stated: Based on the records that I have reviewed relating to the period between 17 October 2014 to 16 April 2015 (inclusive), Mr Zisopoulos; a. was on duty on 33 occasions in which drugs were received or accepted at Newtown LAC as either Custody Manager, Internal Supervisor or Mobile Supervisor; b. Mr Zisopoulos was not on duty on 66 occasions on which drugs were accepted at Newtown LAC; and c. MDMA and methylamphetamine were checked in or checked out by Mr Zisopoulos on 1 November 2014 (1.1g ice rock, 1.2g ice rock, 15 MDMA tablets, one bag of MDMA and 8 MDMA tablets with weight as set out above) and on 6 February 2015 (0.9g of methamphetamine).
4. DSC Kiernan was also the officer responsible for conducting the initial investigation into the allegations against the applicant and for preparing an investigation report. In preparing that report, dated 3 September 2015, DSC Kiernan found the allegations that the applicant had used illicit drugs sustained. In coming to that conclusion, DSC Kiernan had the benefit of Mr Grabowski's reports of 30 April and 21 July 2015 as well as Ms Lindsay's report of 11 June 2015. It does not appear that DSC Kiernan was aware, when he prepared his investigation report, of the number of occasions when the applicant was potentially exposed to drugs while on duty or of the subsequent report of Ms Lindsay in which she stated that recent external contamination cannot be excluded.
5. Under cross-examination, DSC Kiernan stated that he did not disagree with the content of the witness statement of Sergeant Allison. DSC Kiernan also accepted that the EFIMS records demonstrated that the applicant was on duty on the following dates when MDMA and/or methylamphetamine/amphetamine were accepted at Newtown LAC: 18/10/2014 MDMA 30/10/2014 MDMA 30/10/2014 methylamphetamine/amphetamine 21/11/2014 methylamphetamine/amphetamine 29/11/2014 MDMA 19/12/2014 MDMA 31/12/2014 methylamphetamine/amphetamine 29/01/2015 methylamphetamine/amphetamine (two amounts) 06/02/2015 methylamphetamine/amphetamine (two amounts) 18/02/2015 methylamphetamine/amphetamine 09/04/2015 MDMA 09/04/2015 methylamphetamine/amphetamine

Carlo De Filippis

1. Mr De Filippis is a Project Officer in the Drug and Alcohol Unit of the NSWPF. He has worked in the NSWPF since 21 December 1999.
2. Mr De Filippis holds a Diploma of Policing Practice and an Advanced Certificate of Biomedical Techniques. He is the co-author of the following three published articles, which were annexed to his witness statement (Exhibit 34), and which arose from the results of research commissioned by the NSWPF and undertaken by Charles Sturt University in the period from 13 October 2014 to the present: • The presence of licit and illicit drugs in police stations and their implications for workplace drug testing (Forensic Science International, 2017, 278, 125) • Quantification of licit and illicit drugs on typical police station work surfaces using LC-MS/MS (Anal. Methods, 2017, 9, 198) • Workplace drug testing of police officers after THC exposure during large volume cannabis seizures (Forensic Science International, 2017, 275, 224)
3. The first listed paper set out the results of testing of surfaces in various police premises in NSW as well as other non-police premises. These results showed the presence of methylamphetamine and MDMA at the police stations tested. However, volunteer police officers working at those police stations did not test positive for either drug or their respective metabolites in either urine testing or hair testing. Two police officers tested positive for cocaine after hair testing.
4. The first police officer was based at Kings Cross LAC. This officer tested positive to cocaine only. The testing showed the presence of MDMA and methylamphetamine on work services at Kings Cross LAC. The second police officer was based at the Surry Hills Central Evidence Store. This location is the central repository for exhibits, including drug exhibits, from other NSW LACs. The officer tested positive to cocaine only. The testing showed the presence of MDMA and methylamphetamine on work services at the Central Evidence Store.
5. The paper, which was co-authored by Mr Gregory Doran and referred to in these proceedings as the Doran study, concluded as follows: Mainstream use of licit and illicit drugs in the community leads to accumulation on surfaces such as counters, handles and rails. Low level concentrations of the more commonly used drugs were detected at four public sites and one secure police office facility, indicating that contamination of surfaces is prevalent in the community. Surface swabs taken in 10 city and country police stations yielded positive results for a broader suite of drugs than at background sites. The absence of any literature on police station surface drug contamination levels makes direct comparison impossible. However, as 75-93% of the drugs detected in police stations were below 40 ng, which is only slightly greater than the largest background result measured in the current study. These results suggest that contamination issues are more likely to be focussed in higher risk areas in police stations, allowing targeted efforts to alter behaviour and workplace practices. Charge areas in police stations were identified as generally having the greatest risk of drug residues on surfaces, where balances are used to weigh seized drugs in front of suspects. The seized drugs can arrive in a poor storage condition, allowing loose powder to spill onto the balance, balance pan and charge counter. A concerted effort in these areas is required to ensure surfaces remain clean because failure to do so may allow contact transfer of drugs throughout the police station or increase the likelihood of accidental ingestion. As the charge and balance counters are higher risk surfaces for contamination, the use of an impermeable and easy to clean surface like stainless steel is more appropriate than porous wood or laminate. Reception counters in police stations routinely had drug levels more than an order of magnitude greater than background community levels and is directly connected to the presence of people reporting to police as part of their bail conditions. While stainless steel would be very functional as a reception counter surface, it would not be aesthetically pleasing or welcoming to the general public. As a result, non-permeable laminate or resin surfaces such as those used for a laboratory bench may be a more appropriate compromise. Extremely high risk areas, such as bulk drug evidence stores, should be considered more like a laboratory environment containing chemicals, rather than a storage area containing evidence. Drug evidence bags should be restricted to stainless steel work surfaces, coupled with a thorough and regular cleaning regime, with food consumption prevented in these areas. Suitable training of staff to understand how drug residues can be spread by contact transfer is essential to minimise contamination. Better containment of newly arrived evidence bags using an additional bag is likely to eliminate yet another potential source of contamination. All urine samples collected in this study gave negative results. Only 2 of the 11 hair samples collected from donors resulted in trace level results for cocaine. The cocaine metabolite benzoylecgonine was not detected in either positive hair sample, but may have been present at concentrations below the limit of detection. Both positive hair samples were obtained from donors in very high risk jobs within the NSW Police Force and suggest that while external contamination of hair may be possible, negative urine results coupled with only very low hair concentrations would allow distinction between external contamination and intentional consumption. Minor changes to work surfaces and procedures in police stations and large evidence stores as suggested will decrease the likelihood of external hair contamination or unintentional ingestion of drug residues.
6. Mr De Filippis was not required for cross-examination.

Dr John Lewis

1. Dr Lewis is a Consultant Toxicologist. He holds a Bachelor of Science degree, a Master of Science degree and a Doctor of Philosophy degree and has over 30 years of experience in drugs of abuse testing and is recognised as one of Australia's leading experts in this field.
2. In a report prepared for DSC Kiernan on 8 March 2016, Dr Lewis expressed the following opinion: The presence of both Methylamphetamine and MDMA over the approximate 2-3 month period prior to the hair sampling indicates the officer was exposed to these drugs. It should be noted that Methylamphetamine, an illicit drug in its own right, may have been a contaminant in a preparation purporting to be MDMA. As all wash samples were negative for the drugs, one can eliminate environmental contamination as a likely source of the drugs. Unless the officer was engaged in drug seizures or had access to these substances in line with his/her duties, then one must conclude the officer had been exposed to them outside of the working environment. It cannot be stated whether the results indicated regular use of either Methylamphetamine or MDMA, only that there was exposure over an approximate three-month period. As the concentrations of both drugs was low, it cannot be concluded that the officer was an habitual or chronic user of either substance. It is possible that both substances were part of a single batch of MDMA. Despite the concentrations of Methylamphetamine being greater than that of MDMA, there are different rates of incorporation of these two substances into hair and accordingly it is not possible to speculate whether the officer consumed or was exposed to a single or two separate lots of drugs.
3. In his Expert Report prepared for these proceedings (Exhibit 35), Dr Lewis expressed the opinion that, following voluntary ingestion, consumption or use of MDMA and methylamphetamine, these substances would be incorporated and detected in hair. His report contained the following: Environmental contamination can be a cause of a positive hair drug test. However, as Baumgartner and Hill (ibid) noted, environmental contamination, as dust or within sweat, would be removed through regular normal body hygiene, hair washing and shampooing. In this matter, regular hygiene over the approximate 3-4 month period of the hair growth prior to the hair test would have removed any surface contamination. Any residual environmental contamination would have been removed prior to the hair analysis. ……………………… I am of the opinion that one would need an amount of methylamphetamine in the order of 30-40 mg for it to be incorporated in order to attain the result reported by FSSA. ……………………… On the balance of probabilities, I am of the opinion that Mr Zisopoulos had not been environmentally exposed to MDMA or methylamphetamine. Due to the time interval between the then officer being on duty and his hair test, any environmental contamination would have been removed by normal hygiene (washing/shampooing). Mr Zisopoulos had a significant amount of leave in the 6 months prior to the hair test, thus minimising his occupational exposure to drugs. Had Mr Zisopoulos handled powder or dust from methylamphetamine, the amount of residue on his hands would have been minute. In order to achieve a hair result of approximately 120 pg/mg methylamphetamine, studies have shown he would have needed to absorb at least 30-40 mg of the drug. I am of the opinion that based on the evidence presented to me; this scenario was implausible, as this amount of substance would have been highly visible to the naked eye. The presence of amphetamine (metabolite of methylamphetamine) in Mr Zisopoulos' hair, indicates ingestion of methylamphetamine and effectively, further discounts environmental contamination. Based on the evidence presented to me, and a summary of the results of reports and studies, I am left with the only conclusion, that Mr Zisopoulos voluntarily consumed methylamphetamine. Although no metabolite of MDMA was reported, based on my opinions on the low probability of external contamination, I conclude it highly likely MDMA was voluntarily consumed.
4. Under cross-examination, the following exchanges occurred: Q. Doctor, you've been in court whilst other expert evidence has been given in this case, haven't you? A. Yes. Q. And you heard the evidence of the other experts, Dr Robertson, Dr Fu, Mr Farrar, Mr Kostakis and Ms Lindsay? A. Yes. Q. Do you agree that environmental exposure can produce a positive hair test result? A. It can. Q. You would certainly say that ingestion can also produce a positive hair test result? A. Yes. Q. And you would say that ingestion may be deliberate or inadvertent and either way may produce a positive hair test result? A. Yes. Q. Now, if you move to the specifics of this case, what you're saying in your report is that the positive result was unlikely to be produced by environmental exposure, that's so, isn't it? A. Yes. Q. You've never said in either of your reports that it was absolutely impossible that the result was explicable on the basis of environmental exposure. You put it as being simply unlikely, that's correct? A. Correct. Q. Now, even though something may be unlikely, the mere mention that it's unlikely, but not impossible involves that environmental contamination or environmental exposure is a possible explanation, doesn't it? A. It's feasible. Q. Well, as long as it's feasible or possible, you can't safely conclude that the positive result was definitely the result of ingestion, can you? Safely conclude is what I'm putting to you? A. I said it was unlikely. I didn't say it was impossible. Q. But if you can't eliminate - if you can't absolutely eliminate environmental exposure or contamination, don't you agree as a matter of science it's unsafe to say that the result was produced by ingestion? A. No. Q. Well, what you are doing is descending into the realm of probability and possibility and saying that something is more likely than something else, aren't you? A. Based on my knowledge and my reading of world authorities and looking at mechanisms and likelihoods and studies, I believe that, while not impossible, in this particular matter it would have been unlikely. Q. I understand that. I put that question to you a moment ago as a given, a background thing, but I'm asking you something different as a matter of sound science. If you can't exclude environmental exposure or contamination as a cause of the positive result, don't you as a scientist agree that it's unsafe to say that ingestion was the cause? Don't you agree with that? A. I'm not aware that I said it was the cause. I said it was unlikely in this matter to be contamination. I didn't say-- Q. I'm not asking you about whether you said it was unsafe in your report. I'm asking you now as you sit there in the witness box, doctor, if you can't eliminate environmental contamination, don't you agree as a matter of science it's unsafe to espouse a conclusion that ingestion was the reason for the positive result? A. Yes. ………………….. Q. Now, a cut off level of 200 - and you know what I mean when I say 200? A. I do. Q. Is widely recognised as appropriate for indicating whether or not use is regular or chronic, that's so? A. It's a value that has been deemed by The Society of Hair Testing for considering chronic use. Q. And in itself I suggest to you it's a low level because a genuine chronic user would ordinarily reveal - on testing, would yield findings much higher than 200? A. Yes. Q. So anything under 200 I suggest to you is fairly to be understood in this area of science as a low level? A. Compared to values found in chronic users, it is lower. Q. Doctor, it's a low level, will you agree or not? A. I'm not sure I could agree. It's much higher than the Forensic Science South Australia's level of reporting. It's many times higher than that. So, regardless of the SOHT guidelines, I don't consider it a low because it's way above their level of reporting. Q. But once you get below 200 isn't it fair to say you're very much in the realm of low readings and in the realm of increasing uncertainty of interpretation? Do you agree with that or not? A. I would agree there is always a level of uncertainty in interpretation and that's regardless of the level. ………………….. Q. What I wanted to say, I thought it had to be either 2.5.6 or something in 3 but thank you for clearing up that mystery. On the basis that it's 2..5.6 let me put this to you shortly. There is nothing in those studies to which you refer in 2.5.6 which says that the FSSA technique of a 30 second swirl with an organic solution is perfectly acceptable. There is just no such comment is there? A. The comment is that the use of methanol is a very acceptable washing solution. There is no comment as to a time. Q. Having sat in court Doctor throughout the other expert evidence, you must have heard it repeatedly said that the studies show that a variety of washes are used and that none of them involves a wash as brief as 30 seconds with methanol? That's the fact isn't it? A. Yes. Q. So it's fair to say that FSSA is in a college of one in using a 30 second methanol wash? That's what one can take from a reading of all the studies isn't it? A. I wouldn't see it that way, I would see it that methanol has been one of many accepted washing solutions, some researchers talk about a brief wash but don't give a time in terms of seconds or minutes and so I would not accept that it's a study of one or a procedure of only one. Q. Doctor surely, having read all the papers that have been talked about in this case, you simply must agree with me that there is no wash as brief as the wash employed by FSSA? That's the plain fact isn't it? A. Methanol is a very powerful solvent - ……………………. Q. Doctor may we go back to an earlier agreement which you did give me, namely that the studies involved different washes than this one as well as that the recommendations that are made for the type of wash that should be applied to hair samples have usually been for multiple washes either or both with organic and aqueous agents? That's the fact isn't it? A. One of the authors of the Society of Hair Testing Guidelines is Pascal Kintz and in his own work published in a peer reviewed journal he didn't use that, he only used an organic solvent. …………………… Q. Doctor I'm not asking you about anything Pascal Kintz did, I'm asking you about the recommendations in the guideline. None of the recommendations endorses a single 30 second wash with an organic solution that's correct isn't it? A. In the guidelines they don't recommend it.

Submissions of the applicant

1. Extensive written submissions were filed on behalf of the applicant which included the following: 18. In the 'Statement of Reasons' the Respondent acknowledged that the Applicant had an unblemished record in his service as a police officer. 19. In making the decision to remove the Applicant, the Respondent reached a factual conclusion that the scientific evidence substantiated the Allegation. 20. In reaching that conclusion the Respondent recorded that he considered, inter alia, the following matters: (a) As the analysis of the Applicant's hair sample indicated the presence of MDMA and methylamphetamine it could therefore be determined that there was "a reading for illicit drugs"; (b) The Applicant's evidence that in the performance of his duties he was exposed to illicit drugs on a regular basis in the workplace, and may have been unwittingly exposed to drugs outside the workplace; (c) The Applicant's belief that the drug and alcohol testing procedures were not conducted in accordance with the requirements (which was never resolved); (d) The issues raised by the Applicant in relation to the reliability and verifiability of the interpretation of the hair test results were not substantiated; (e) Although the experts who contributed opinions agreed that it is possible that the level of drugs reported could have been due to external contamination, one expert, Dr Lewis (retained by the Respondent) had opined that environmental contamination could be eliminated as a likely source. 21. In relation to the specific issue of environmental contamination, the Statement of Reasons record: "… Police records show that you have had only limited exposure to illicit drugs during the approximately three month period preceding testing. Consequently, although I recognise that the levels of illicit drugs reported are at the lower level of reporting, I do not accept that your non-negative test results are explained by environmental contamination or "unwitting" exposure or ingestion." 22. In reaching the conclusion that the Allegation was sustained, the Respondent rejected the Applicant's assertion of non-compliance with the legislative requirements and accepted the verifiability and reliability of the interpretation of the toxicology results. 23. The Respondent explained that the Allegation was sustained because: "Despite the expert agreement regarding external contamination, I prefer the evidence of Dr Lewis and Mr Lindsay [sic] that your test results are ascribable to one off or occasional use of MDMA and methylamphetamine." 24. The Statement of Reasons did not contain any explanation for preferring the opinions of the Respondent's consultant, Dr Lewis. The Respondent did not appear to be aware that Ms Lindsay had in fact reported that external contamination could not be excluded. 25. It appears that in determining that the Allegation was sustained the Respondent did not properly consider, investigate or reconcile important facts, or did not otherwise have the benefit of evidence which arose in the course of this review, in particular that: (a) the hair collection procedures not having been conducted in accordance with legislative requirements; (b) the negative results from the Applicant's urine sample; (c) the preponderance of objective expert opinion considers the test results to be consistent with external contamination; (d) The minority expert opinion which supports the Allegation was based on erroneous assumptions; (e) The reasoning adopted in sustaining the Allegation was affected by gaps and errors in Dr Lewis' technical knowledge and factual assumptions; (f) hair testing is not designed for use in non-chronic use cases except where there is some corroborating evidence (such as a complaint in cases of drug facilitated crime) due to the risk of misinterpretation of results; (g) the Applicant's denial and his long and faithful service over the entirety of his adult life; (h) the potential for contamination attributable to the Applicant's occupational duties. CLAIM FOR RELIEF 26. The Applicant claims that his removal was harsh, unreasonable or unjust for the following reasons: A. The hair sampling was not conducted in accordance with the procedures mandated under the statutory framework in force at the time of the events, in particular, Part 12 of the Act and Part 5 of the Police Regulation 2008. B. The scientific evidence does not establish that the Applicant ingested drugs because: (i) It involved an external wash of the hair sample which does not exclude external contamination; (ii) It relied upon reporting levels which are inconsistent with prevailing scientific standards and consensus; (iii) It did not involve efforts to identify unique metabolites (conclusive evidence of ingestion) in the hair sample. C. The internal investigation did not seek to exclude an explanation of external contamination of the hair sample, including whether: (i) significant factors affecting the likelihood of external contamination of persons performing the role of general duties police officers were properly identified and sufficiently scrutinized; (ii) the testing procedures did not involve necessary steps to ensure the validation and confirmation of the original results. D. The Respondent was not sufficiently informed of, and did not consider, the limited conclusions which could be drawn from the procedures and results identified above in A, B and C.
2. The submissions then set out a detailed analysis of the evidence of the applicant and the witnesses called on his behalf as well as the evidence of the witnesses called by the respondent.
3. It was then submitted that there had been non-compliance by the respondent with the legislative requirements regarding hair testing as set out at paragraphs 12 and 13 above in that there was no evidence that Ms Abadir had, as at 16 April 2015, been authorised by an instrument in writing from the respondent to require the applicant to provide a sample of his hair for the purpose of testing for prohibited drugs as was required by section 211A of the Police Act and clause 89 of the Police Regulation 2008, the regulation in force at the relevant time.
4. It was further submitted that there had been a failure to comply with clauses 92 and 93 of the Police Regulation 2008 because Ms Abadir had not divided the applicant's hair sample into two approximately equal portions prior to it being despatched to FSSA.
5. Reference was then made to the decision of the Victorian Police Registration and Services Board Review Division ("the Board") in Senior Constable J Berry v Chief Commissioner of the Victorian Police (unreported, 11 March 2016).
6. In that matter, the applicant, Senior Constable Berry, had been terminated after a sample of her hair tested positive for methylamphetamine and the Board considered the effect of failures to comply with the requirements of the Victoria Police Regulation 2014 in respect of the taking and analysis of the sample and certification processes. Specifically, the case raised the failure to comply with the requirements of clause 42(1) of the regulation which governed the packaging of hair samples.
7. The Board concluded that the omissions amounting to non-compliance with legislative requirements were significant because hair is particularly susceptible to external contamination that cannot be removed by the hair wash in the laboratory as well as the very low level of the drug detected presenting a greater possibility of analytical variability and the effects of cosmetic treatments which may have affected the analysis results.
8. In its decision the Board stated as follows: In the course of the hearing, the Board indicated its concerns about the substantial failure by Victoria Police to comply with the requirements in the Victoria Police Regulations 2014 in respect of the taking and analysis of the sample and certification processes. The Board indicated it regarded those quality control processes as important to the integrity and reliability of the testing process, as mandated by the legislation, and that breaches identified were not simply "technical" issues. ……………………… The purposes in Part 5 of the Act and the regulations are twofold: firstly, to mitigate integrity and safety risks created by the use of illicit drugs by police officers, and secondly, to support the discipline system, by creating a testing process which is fair, objective, not subject to tampering and which is scientifically accurate and reliable. The Board does not consider that it is appropriate for the Hearing Officer or even a course available to him, to overlook substantial non-compliance with the regulations as merely procedural "deficiencies". Non-compliance with the legislatively prescribed requirements has serious consequences for the integrity of the process and: • Casts doubt of the secure collection and storage to ensure that an adequate, uncontaminated sample is obtained for testing; • Omits to provide certification that an adequate sample is obtained and where it will be tested; and • Represents a failure to produce a certificate of analysis that provides probity and accountability by identifying the analyst and factors affecting the results. …………………….. Regardless of whether the Applicant could recall a specific incident, the Applicant's work as a police officer may have exposed her hair to such contamination without her knowledge. This possible cause of the testing result was not properly considered with the benefit of expert advice.
9. Ultimately, the Board concluded that there was insufficient evidence upon which it could have reasonably concluded that the applicant in that matter used methylamphetamine.
10. It was submitted on behalf of the applicant in this matter that this Commission should regard the approach of the Victorian Board to be highly persuasive.
11. It was then submitted: 91. In the present case, the failures are equally significant because the requirement to ensure that there is a second sample available for verification testing, thereby guarding against interpretive false positives, was rendered impossible. Had two samples been taken from quite different locations on the scalp and been found to contain the same levels of drug(s), ingestion might be more strongly suggested. However, because of the ever present risk of external contamination, and because a second sample was not taken nor available to FSSA, the results of the testing are unreliable.
12. It was then put that the overwhelming consensus of the experts was that the test results are consistent with external contamination. Professor Fu, Dr Robertson, Mr Farrar, Ms Lindsay and Mr Kostakis were all of the opinion that the results do not exclude contamination as an explanation. The only witness who took an opposing view was Dr Lewis.
13. The submissions then dealt with the decontamination procedure used at FSSA and the possibility of external contamination of the applicant's hair sample.
14. The following conclusions available on the evidence were then put: 111. In the opinion of the experts in this case, the presence of drugs in the hair sample gives rise to two possible hypotheses: ingestion (whether deliberate or inadvertent) and external contamination. The Commission might think that as a matter of logic, the first could only be accepted if the second has first been ruled out. This appears to have been recognised by the Respondent. The 'Statement of Reasons' records that the Allegation was sustained because the Respondent was: "… satisfied that [the Applicant] consumed a prohibited drug, resulting in [him] testing positive for MDMA and methylamphetamine, in respect of which the drug levels are not explicable by any external contamination." [emphasis added] 112. It would appear that at the time the Respondent (and Detective Kiernan) did not have the benefit of Ms Lindsay's advice that "external contamination could not be excluded". Ms Lindsay and Mr Kostakis, with whom Professor Fu, Dr Robertson and Mr Farrar join, all agree that the drug levels detected in this matter, are in fact explicable by external contamination. In fact there appears to be a real issue about whether drug levels detected through hair testing alone could ever provide a reliable basis for concluding drug ingestion. 113. In reaching the conclusion of ingestion, the Respondent was apparently unaware of the significance attaching to the absence of unique metabolites (the only conclusive evidence of ingestion), the doubts about the effectiveness of the wash procedure in removing all external contamination, and the prevailing views of the scientific community concerning the dangers associated with the interpretation of hair testing results. These are matters which have only come to light in the preparation for the Commission's review. 114. The Respondent's conclusions that the Applicant had used prohibited drugs was affected by the above errors in reasoning.

Submissions of the respondent

1. The respondent submitted as follows: 6. In the present case, Mr Zisopoulos' case seeks to present an alternative hypothesis in an attempt to shift the onus to the Respondent. The hypothesis that has sought to be presented is that his positive hair test results may be explained by exposure to particular drugs in the workplace. For the reasons that follow, this contention amounts to mere speculation or surmise; it posits a possible state of affairs, not an actual or probable state of affairs… 7. For the Commission to accept Mr Zisopoulos' "possibility" theory, it would need to accept and be satisfied of each of the following matters: a. First, the Commission would need to be satisfied that Mr Zisopoulos came into actual, rather than possible, contact with 3,4-methylenedioxymethylamphetamine (MDMA), methylamphetamine and amphetamine during the course of his duties as a member of the NSW Police Force. Being in the mere presence of MDMA, methylamphetamine and amphetamine on a few limited occasions, or having the opportunity to be in the presence of those 3 drugs is not tantamount to actual contamination… To be clear, the Commission would need to be satisfied that each of these 3 drugs was actually or probably on the surface of the small lock of Mr Zisopoulos' hair that was taken for testing, and that all 3 drugs were, through some means, subsumed or incorporated into the follicles of Mr Zisopoulos' hair. There is simply no evidence to support this contention. b. Second, even if the Commission was to entertain the erroneous premise that opportunity equals actual contamination, the Commission would need to accept that the opportunity for contamination occurred because, on Mr Zisopoulos' case, as set out in the Applicant's Submissions at [30], Mr Zisopoulos accepted in cross-examination that there were 18 occasions in 6 months, when the 3 drugs were brought into the station at which Mr Zisopoulos was based. Elsewhere in the Applicant's Submissions, it is alleged that there were 41 possible occasions during which Mr Zisopoulos may have "come into contact" with drugs, but this analysis does not confine itself to particular instances where the 3 drugs were brought into the station… If one took Dr Robertson's analysis of the period that it would take 3 centimetres of hair to grow as being in the range of 2 to 4 months, the opportunity was limited to 6 occasions or 11 occasions… This does not take into account the periods of leave that Mr Zisopoulos took during this period or the periods during which Mr Zisopoulos was not at work. c. Third, the Commission would need to be satisfied that somehow the drugs methylamphetamine and amphetamine were capable of surviving in light for weeks and months, even though the unchallenged evidence is that they are volatile and rapidly degrade when exposed to light (Exhibit 34, Annexure CDf-2, page 24, Doran, G. S. et al 'Quantification of licit and illicit drugs on typical police station work surfaces using LC-MS/MS' (2017) 9 Analytical Methods 198). d. Fourth, the Commission would need to be satisfied that somehow, on the basis of 2 limited studies on the topic, the drug methylamphetamine is capable of penetrating into the hair follicle, especially when one study posited this as an "assumption" and the other examined the penetration of this drug in an extreme and unrealistic situation (Exhibit 14, Kidwell, D. A., Smith, F. P. and Shepherd, A. R, 'Ethnic hair care products may increase false positives in hair drug testing' (2015) 257 Forensic Science International 160). It should be noted that it is no answer to allege that hair is "porous"… As explained below, whether hair is porous or not, drugs only incorporate into the follicle of hair with the application of an aqueous solution: Exhibit 36, Kintz, P. 'Segmental hair analysis can demonstrate external contamination in postmortem cases' (2012) 215 Forensic Science International 73. Notwithstanding hair being porous, Mr Zisopoulos' own expert, Dr Fu, fairly conceded that there were only the abovementioned 2 studies examining the incorporation of methylamphetamine into the follicle of hair... e. Fifth, in the event that the Commission is somehow satisfied that all 3 drugs were on the surface of the small lock of Mr Zisopoulos' hair that was taken for testing and further satisfied that all 3 of these drugs were somehow incorporated into the follicles of that small lock of hair, the Commission would then need to be satisfied that all 3 drugs were incorporated in sufficient quantity that would result in the readings at the levels reported in the hair test results (i.e., a reading of 20pg/mg MDMA and 140pg/mg methylamphetamine). The Commission would also need to bear in mind that in relation to methylamphetamine, the reading was not far removed from the reading of 200pg/mg methylamphetamine which is the cut off for "chronic users". It will be evident from the matters set out below that Mr Zisopoulos' case presented no evidence that the miniscule amounts of drugs measurable in ng/swab (i.e., nanograms per swab of area), being a billionth of a gram - that were extracted from particular surfaces in some police stations in the "Doran et al study" - were capable, as a matter of science, of resulting in readings at the levels found in Mr Zisopoulos' hair test results. The primary studies to which both parties made reference during the proceedings (such as the Polettini et al study (Exhibit 9, Polettini A. et al 'Incorporation of methamphetamine and amphetamine in human hair following controlled oral methamphetamine administration' (2012) 726 Analytica Chemica Acta 35)) and Kidwell et al (Exhibit 14)) examined scenarios where hair test results were analysed in circumstances where relevant drugs were used in quantities greater than at least 1mg to 10mg, as well as at levels much greater than that range. There is simply no evidence to support the contention that an amount of 1mg of any of the 3 drugs (MDMA, methylamphetamine or amphetamine) - let alone 1mg of all 3 drugs - was on the small lock of Mr Zisopoulos' hair so as to be consistent with the readings in the hair test results. By contrast, the experts agreed that the readings in the hair test results were consistent with the consumption of 30-40mg of methylamphetamine, and similar amounts of MDMA. f. Sixth, the Commission would need to be satisfied that the ratio of methylamphetamine to amphetamine found in the sample of Mr Zisopoulos' hair, which is consistent with amphetamine being detected as a metabolite of methylamphetamine as the parent drug, was a mere matter of coincidence. Contrary to various contentions made in the Applicant's Submissions, and as noted below, Dr Lewis, Dr Robertson, Dr Fu and Mr Farrar all agreed that the usual ratio of amphetamine to methylamphetamine is between approximately 7-14 percent in drug users, and the relevant ratio in the present case was within that range... g. Finally, the Commission would need to be satisfied that even though other drugs were brought into the station, it is just some coincidence that no other drugs, other than the 3 in question, were found in the hair test results. 8. The Commission cannot be satisfied of these matters. Either in isolation or aggregation, these contentions are an exercise in speculation and surmise. Based on the matters set out above, the case presented by Mr Zisopoulos ought to be dismissed as fanciful and entirely improbable. 9. By contrast, the Respondent's case is based on a solid foundation: a. Mr Zisopoulos' hair sample returned a positive reading for MDMA, methylamphetamine and amphetamine. b. There is agreement amongst the experts that voluntary consumption or ingestion will lead to a positive hair test result. Once MDMA or methylamphetamine are consumed, they will collect in the blood and later be excreted. The drug will be deposited in hair follicles either directly through the blood supply or from sweat or sebum. c. The level of methylamphetamine recorded in Mr Zisopoulos' hair sample was not far removed from the "cut-off" for chronic use and was consistent with intentional occasional (or one-off) ingestion. d. The concentration of amphetamine recorded in the hair sample is consistent with the substance being present as a metabolite of methylamphetamine (as opposed to a drug in its own right). e. The shifts worked by Mr Zisopoulos in the months before the hair sample testing indicated only a few instances where Mr Zisopoulos had the opportunity to be exposed to those substances in the performance of his duties. f. There is general agreement that normal hygiene, including washing hair with water and shampoo, will remove traces of drugs from hair. Considering that any residue within Mr Zisopoulos' work environment would have been "infinitesimal" to begin with, it could easily be said that any contamination would have been washed out through normal hygiene. g. Mr Zisopoulos self-reported good hygiene practices, including daily showering, which would assist to remove any substances on the surface of hair strands. h. The wash solution (in which the hair sample was "washed" prior to testing to remove contamination), when tested, did not detect any MDMA, methylamphetamine nor amphetamine. i. No other drugs were detected in the hair tests, even though other drugs were brought into the station at which Mr Zisopoulos was based. 10. There was nothing harsh, unjust or unreasonable in the Respondent's determination.
2. The respondent's submissions then proceeded to rebut much of what was put on behalf of the applicant and concluded as follows: 195. The Commission ought to dismiss Mr Zisopoulos' application for the reasons set out above. Mr Zisopoulos has not demonstrated that the order to remove was harsh, unreasonable or unjust on any basis and therefore, the Commission should find that the application cannot succeed. 196. In summary, the Respondent contends that: a. The hair test results were positive to the 3 drugs. There were 2 tests that were conducted, with the second test involving a segmented analysis of the hair. The hair test results recorded a reading for methylamphetamine that was close to the cut-off level specified by the SOHT in its Guidelines for "chronic" drug use. b. All relevant experts agreed that Mr Zisopoulos' positive reading of 120pg/mg of methylamphetamine was consistent with ingestion of approximately 30-40mg of methylamphetamine. c. Mr Zisopoulos' hair sample was positive for amphetamine at a concentration of between 10 and 19pg/mg. All relevant experts agreed that amphetamine was a primary but not a unique metabolite. In addition, all relevant experts agreed that the ratio of amphetamine to methylamphetamine was consistent with it being present as a metabolite of methylamphetamine after ingestion (as opposed to being present as a contaminant). d. The washes of Mr Zisopoulos' hair sample were all negative for drugs in circumstances where, notwithstanding debate regarding the duration of the wash, all relevant experts agreed that methanol was an effective means of removing surface contamination from hair. e. There is no consensus in the scientific community as to an appropriate wash method or duration of washing. However, there is no evidence that the procedure used by Forensic Science SA was invalid or not appropriate. f. Mr Zisopoulos' hair was tested in accordance with a method that has been verified internally and externally by experts. Forensic Science has amassed a body of evidence that demonstrates the effectiveness of its testing methodology, has achieved satisfactory results in proficiency testing by the SOHT, and is accredited by NATA. g. There is no evidence that any of the multiple other types of drugs that passed through Newtown Police Station in the period before drug testing were in Mr Zisopoulos' hair sample, the washes of his hair or in the urine samples of other officers subject to testing: Exhibit 29, Tab 15. h. Although external contamination of hair by drugs is theoretically possible, only 2 studies have discussed or considered whether methylamphetamine can incorporate into hair follicles. One study made an assumption as to the possibility of incorporation, and the other has been criticised employing a highly unrealistic method to apply drugs to hair. i. In the period before drug testing, Mr Zisopoulos had limited occupational exposure to drugs. His exposure was confined to 18 occasions in 6 months, 11 occasions in 4 months, and 6 occasions in 2 months before testing. j. The only evidence of drug-based contamination in NSW police stations is that 75-93 percent of the drugs detected in the stations were at levels of less than 40ng, only slightly greater than the largest background result measured in the study. There is no evidence that this level of contamination would result in the positive drug test readings returned by Mr Zisopoulos. k. Despite Mr Zisopoulos' alleged possible exposure to drugs, there is no evidence to explain how - by a set of bizarre coincidences - 3 separate prohibited drugs came to land on a small lock of his hair and were rubbed into it so as to incorporate into his hair. l. The unchallenged evidence is that MDMA and methylamphetamine are volatile substances and degrade rapidly. m. Mr Zisopoulos was offered but did not take a sample of his hair. There is no evidence that another sample would have produced a different result to those returned in testing. 197. As against the strength of the above, Mr Zisopoulos' case invites an admixture of theoretical possibility, speculation and surmise. The Commission ought to dismiss Mr Zisopoulos' application. Mr Zisopoulos has not demonstrated that the order to remove was harsh, unreasonable or unjust on any basis and therefore, the Commission should find that the application cannot succeed.

Applicant's submissions in reply

1. In reply, it was again submitted on behalf of the applicant that his hair sample was not collected in accordance with the statutory requirements.
2. It was further submitted that the wash procedure utilised at FSSA did not conform with international guidelines, peer reviewed science journals which record industry methodology and practice and the opinions of the experts who gave evidence before the Commission.
3. Criticism was also made of the respondent's reliance on the detection of amphetamine, as a metabolite of methylamphetamine, in the applicant's hair sample in circumstances where there had been no investigation into the possibility that any amphetamine that was in fact present was or was not the result of contamination.
4. It was also submitted that, contrary to the position put by the respondent, it was not incumbent upon the applicant to prove actual contamination but, rather, the applicant had established that the risk of contamination was real and not a fanciful or unmeritorious claim.

Onus of proof

1. Section 181F(2) of the Police Act makes it clear that the applicant bears the burden of establishing that his removal from the NSWPF was harsh, unreasonable or unjust.
2. The issue of onus or burden of proof in matters such as the present application was discussed at length in Tredinnick v Commissioner of Police ([2016] NSWIRComm 14) by a Full Bench of the Commission (Walton J, President; Tabbaa C; Murphy C) in the following terms: 65 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. 66 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. 67 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. 68 It is appropriate to refer to the judgment of Lord Donaldson of Lymington MR in Amoco Oil Co. v Parpada Shipping Co. Ltd (the "George S") [1989] 1 Lloyd's Law Reports 369 at 370 as illustrating the shifting notions of that burden: I now turn to the burden of proof. It is trite law that the legal burden lies upon the claimant. He who alleges must prove. The appellants allege a short delivery and consequential loss and they must prove both. How they prove it and the evidential burden involved is another matter. Proof must be met by counterproof and that in turn by a reinforcement of the original proof (Smith v. Bedouin per Lord Shand at p. 79). If at any particular stage in the evidence one party would succeed, it is for the other party to adduce further or better evidence and, if he does so and thereby achieves a contingently winning position, the first party must do likewise or lose. In other words, the evidential burden swings or may swing between the parties throughout the hearing, but in the end, in the context of a claim for short delivery, the owner of the cargo must prove the short delivery if he is to succeed in his claim and the shipowner must either prevent his doing so or prove affirmatively that, although there was indeed a short delivery, it occurred in circumstances for which he was not responsible. 69 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.) 70 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. 71 It follows that the appellant also bore an evidentiary burden although, as we will discuss below, that burden may shift. CONSIDERATION 72 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. 73 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. 74 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. 75 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. 76 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. 77 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. 78 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. 79 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.
3. It will become apparent from what follows that, in adopting the approach of the Full Bench in Tredinnick, I am satisfied that the applicant has produced sufficient evidence to cast doubt upon the finding by the respondent that the applicant consumed prohibited drugs so that the evidentiary burden of establishing that fact has shifted to the respondent.

Legislative requirements regarding the taking of hair samples

1. I reject the submission put on behalf of the applicant to the effect that Ms Abadir was not authorised to conduct hair sampling of police officers (see paragraph122 above). There is in evidence a Certificate of Appointment as an Authorised Person under section 211A of the Police Act issued to Ms Abadir pursuant to clause 60 of the Police Regulation 2000 and signed on 5 March 2007 by the respondent's delegate, Ms Sharon Buckley, General Manager, Health and Wellbeing. Whether or not hair sampling of police officers was being conducted at that time and whether or not Ms Abadir had been trained in the technique is irrelevant to the question of the validity of her Certificate of Appointment.
2. Clause 138 of the Police Regulation 2008, which was in force as at 16 April 2015 when Ms Abadir took the sample of the applicant's hair, provided as follows: Any act, matter or thing that, immediately before the repeal of the Police Regulation 2000, had effect under that Regulation, is taken to have effect under this Regulation Pursuant to this provision, Ms Abadir's Certificate of Appointment remained valid as at 16 April 2015.
3. I also reject the submission to the effect that the testing of the applicant's hair was rendered invalid due to Ms Abadir's apparent failure to follow strictly the collection process set out in clause 92 of the regulation (see paragraph 13 above). It appears that Ms Abadir did not divide the hair sample into two approximately equal portions and seal them in separate containers. However, this was done by Mr Grabowski when the sample arrived at FSSA.
4. The applicant's submission on this point appears to be based on the misapprehension that the regulation required that two separate hair samples be taken from different locations on the subject's scalp and that, had the same level of drug(s) been found in each sample, ingestion might be more strongly suggested. This is not what was required by the regulation. What clause 92 required was that the one hair sample be divided into two approximately equal portions which were then to be placed in separate sealed containers. This was not done at the point of collection of the hair sample.
5. The respondent relies upon the joint judgement of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority ([1998] HCA 28 at [91]-[93]) to support the submission that non-compliance with a procedural requirement does not invalidate the relevant acts in question.
6. In the present matter, the failure of Ms Abadir to divide the applicant's hair sample into two portions was remedied when Mr Grabowski performed that task shortly after the sample was received at FSSA. He then tested the first portion. Confirmatory testing of the second portion of the sample was later performed by Ms Lindsay. Thus the legislative purpose underpinning clause 93(5) of the regulation was satisfied.
7. I reject the submission put on behalf of the applicant to the effect that the test results were invalid as a consequence of non-compliance with clause 92 of the regulation. Was the removal of the applicant harsh unreasonable or unjust?

The Statement of Reasons

1. As previously stated, in conducting this review of the respondent's decision to remove the applicant from the NSWPF consideration must firstly be given to the respondent's reasons for that decision (subsection 181F(1)(a) Police Act). In essence, the reason for the applicant's removal was that the respondent concluded that, despite his denials, the applicant had voluntarily consumed prohibited drugs, namely, MDMA and methylamphetamine.
2. It is not disputed that the respondent has the absolute right to remove from the NSWPF any officer who voluntarily consumes prohibited drugs. The applicant himself conceded that, had he done so, he would have resigned. However, the respondent also has the responsibility to ensure that the evidence upon which such a removal is based is sufficiently probative to support such decision.
3. In coming to his conclusion, the respondent gave consideration to the two toxicology reports of Mr Grabowski (30 April and 21 July 2015), the two toxicology reports of Ms Lindsay (11 June 2015 and 18 August 2016), the report of Dr Lewis of 8 March 2016 and two reports of Mr Farrar (10 June and 11 November 2016).
4. Taking these matters which were considered by the respondent in order, the following may be stated: Mr Grabowski's report of 30 April 2015 A 3 cm segment of the applicant's hair was analysed by liquid chromatography/mass spectrometry and was found to contain approximately the quantities of prohibited drugs set out at paragraph 70 above. No drugs were detected in the external wash of the hair. Mr Grabowski offered no opinion on how the drugs came to be present in the applicant's hair sample. Ms Lindsay's report of 11 June 2015 A separate portion of the applicant's hair sample was divided into three 1 cm segments and analysed using the same method as used by Mr Grabowski. That analysis revealed the presence of prohibited drugs in the approximate quantities set out at paragraph 45 above. Ms Lindsay also stated that no drugs were found in the external wash of the hair segments. Mr Grabowski's report of 21 July 2015 This replacement report contained no information beyond that contained in Mr Grabowski's earlier report. Dr Lewis' report of 8 March 2016 An extract of Dr Lewis' report is set out at paragraph 117 above. Importantly, Dr Lewis stated "As all wash samples were negative for the drugs, one can eliminate environmental contamination as a likely source of the drugs". Mr Farrar's report of 10 June 2016 An extract of Mr Farrar's report is set out at paragraph 54 above. It was Mr Farrar's opinion that "the available information does not, on the balance of probabilities, support the allegation of consumption of methylamphetamine and 3,4-methylenedioxymethylamphetamine…". Ms Lindsay's report of 18 August 2016 Ms Lindsay's more detailed second report contained the additional information and opinion set out at paragraphs 80 and 81 above. Ms Lindsay identified external contamination as one of three different modes by which the incorporation of drugs into hair is believed to occur. She proffered the opinion that, given the absence of drugs at levels above the limits of reporting in the washes, the applicant's results for methylamphetamine were "less likely to result from recent external contamination but it cannot be completely excluded". Ms Lindsay also stated, in relation to the applicant's results for MDMA, that "gross recent external contamination is less likely". Critically, Ms Lindsay proffered her opinion that "the levels… detected… are consistent with one-off or occasional use over the corresponding timeframe or residual of prior higher use but recent external contamination cannot be excluded as the levels are too low for metabolites to be detected above the LOR. In this case the subsequent analysis of three 1 cm segments has not been able to further elucidate which of these scenarios took place due to the low levels present". Mr Farrar's report of 11 November 2016 This report is referred to at paragraph 55 above. In it Mr Farrar stated that he agreed with Ms Lindsay's statement that the presence of the prohibited drugs in the applicant's hair sample may be attributable to recent external contamination of the hair. Mr Farrar reiterated the opinion which he expressed in his first report to the effect that the available information did not support the allegation of consumption of the drugs by the applicant.
5. In relation to the applicant's exposure to prohibited drugs while on duty, the respondent's Statement of Reasons referred to only two occasions between 16 January and 16 April 2015, prior to the hair sample being taken, when the applicant was "exposed" to illegal drugs, in the sense of being present when another officer weighed the drugs which the applicant then checked into the drug safe when they were contained within sealed drug bags, and another two occasions when the applicant checked in or checked out sealed drug bags (see paragraph 9 above).
6. In the Statement of Reasons, the respondent stated that he considered the expert reports of Dr Lewis, Ms Lindsay and Mr Farrar and noted that each expert agreed that it is possible that the levels of drugs reported could have been due to external contamination, although Dr Lewis thought it unlikely (see paragraph 21 above). The respondent then went on to state that Police records showed that the applicant had only limited exposure to illicit drugs during the approximately three month period preceding testing. Consequently, the respondent did not accept that the test results were explained by environmental contamination or "unwitting" exposure or ingestion, either at or outside of work.
7. In the concluding section of the Statement of Reasons, the respondent stated that, despite the expert agreement regarding external contamination, he preferred the evidence of Dr Lewis and Ms Lindsay that the applicant's test results were ascribable to one-off or occasional use of the two prohibited drugs (see paragraph 21 above).

The applicant's exposure to drugs at work

1. It is apparent that, in reaching the conclusion that the applicant had used prohibited drugs, the respondent was influenced to some extent by what he apprehended to be the very limited number of occasions when the applicant was "exposed" to drugs in the period leading up to 16 April 2015, when his hair sample was taken.
2. The applicant disputes the number of occasions set out in the Statement of Reasons when he was "exposed" to drugs while on duty during the period leading up to 16 April 2015. According to DSC Kiernan, in addition to the four occasions referred to in the Statement of Reasons, an EFIMS audit disclosed that between 17 October 2014 and 15 April 2015 the applicant checked in or out various drugs, usually in sealed drug bags, on 32 or 33 occasions (see paragraphs 106 and 107 above). The drugs involved included MDMA and methylamphetamine, sometimes on the same day.
3. Importantly, the EFIMS audit disclosed that the applicant was on duty on 9 April 2015, one week before his hair sample was taken, when both MDMA and methylamphetamine were accepted at the Newtown LAC (see paragraph 109 above).
4. It appears that the respondent was not made aware of these occurrences at the time he issued the section 181D(1) Order removing the applicant from the NSWPF.
5. The applicant also relies upon the unchallenged evidence of Sergeant Allison as to how officers come into contact with drugs in either sealed or unsealed packaging (see paragraph 31 above). DSC Kiernan did not disagree with this evidence (see paragraph 109 above).
6. I reject the submission of the respondent that the Commission would need to be satisfied that the applicant came into actual contact rather than possible contact with the two prohibited drugs. I am satisfied on the evidence before the Commission that there were a number of occasions in the period leading up to the taking of the applicant's hair sample when it was likely that the applicant came into contact with the two substances.

The wash procedure

1. One of the strongly disputed issues in the case was the effectiveness, or lack thereof, of the 30 second methanol wash used at FSSA to remove external contamination from hair samples prior to testing. What emerges from the evidence before the Commission is that there is no consensus amongst the scientific community as to the most effective method for removing external contamination from hair samples.
2. However, it appears that the majority of methods used generally involve washes of longer duration than 30 seconds using both aqueous and non-aqueous solvents. In addition, the applicant relies upon the evidence of Ms Lindsay who, as a Senior Forensic Scientist at FSSA, uses the 30 second methanol wash and who stated in her toxicology report of 18 August 2016 that "recent external contamination cannot be excluded as the levels are too low for metabolites to be detected above the LOR. In this case the subsequent analysis of three 1 cm segments has not been able to further elucidate which of these scenarios took place due to the low levels present".

The positive test results - voluntary use or external contamination?

1. In addition to the concession made by Ms Lindsay that recent external contamination cannot be excluded, the expert scientific evidence upon which the applicant relies to support the proposition that the positive test results were due to external contamination can be summarised as follows: Dr Robertson The applicant's test results may have been due to occasional use during the time period represented by the hair sample and/or environmental contamination. It cannot be established which of these possibilities is more likely than the other. Dr Fu Environmental contamination is the most likely cause of the applicant's hair testing results (first report). External contamination cannot be ruled out as the cause of the positive results of prohibited drugs in the hair of the applicant (supplementary report). Mr Farrar The available information does not, on the balance of probabilities, support the allegation of consumption of prohibited drugs by the applicant.
2. Against these opinions, Dr Lewis concluded that, based on his opinion as to the low probability of external contamination, it was highly likely that the prohibited drugs were consumed by the applicant. However, under cross-examination, Dr Lewis conceded that environmental contamination was a "feasible" explanation, "unlikely" but not "impossible".
3. Dr Lewis agreed with senior counsel for the applicant that, if environmental contamination could not be eliminated as a cause, "as a matter of science it's unsafe to espouse a conclusion that ingestion was the reason for the positive result".

The case presented by the respondent

1. The written submissions filed by the respondent contained a summary of the case presented in answer to the applicant's case (see paragraph 135 above). Below I deal with each of the matters set out in that summary of the respondent's case.
2. The hair test results were positive to the 3 drugs. There were 2 tests that were conducted, with the second test involving a segmented analysis of the hair. The hair test results recorded a reading for methylamphetamine that was close to the cut-off level specified by the SOHT in its Guidelines for "chronic" drug use. The contention of the respondent that the reading for methylamphetamine was close to the cut-off level for "chronic" drug use does not necessarily support a finding of intentional consumption rather than environmental contamination. Even Dr Lewis was equivocal as to whether any reading below the cut-off of 200 pg/mg could be described as "low" (see paragraph 119 above). Ms Lindsay, in her "opinion" toxicology report, noted that the analysis performed by her on the three 1 cm segments of the applicant's hair sample had not been able to elucidate which of the three scenarios, namely one-off or occasional use or residual of prior higher use or recent external contamination took place "due to the low levels present" (paragraph 81). I accept the evidence of Dr Robertson that the low concentration of methylamphetamine present in the applicant's hair was consistent with either occasional use and/or environmental contamination and that it cannot be reliably differentiated which of these alternative scenarios is more or less likely than the other and that environmental contamination cannot be excluded as a possibility due to the low concentration of the drug present in the hair (paragraphs 37 and 39). Dr Fu gave evidence to similar effect (paragraph 46) as did Mr Farrar (paragraphs 54 and 57). Nothing that has been put on behalf of the respondent has persuaded me to reject the evidence of these expert witnesses.
3. All relevant experts agreed that Mr Zisopoulos' positive reading of 120pg/mg of methylamphetamine was consistent with ingestion of approximately 30-40mg of methylamphetamine. In relation to the reading of 120 pg/mg of methylamphetamine, all of the "relevant experts" were also of the opinion that: • environmental contamination was just as likely as occasional use (Dr Robertson, paragraph 37); • environmental contamination cannot be excluded as a possibility (Dr Robertson, paragraph 39); • environmental contamination is the most likely cause (Dr Fu, paragraph 46); • environmental contamination cannot be ruled out (Dr Fu, paragraphs 47 and 49); • the available information does not, on the balance of probabilities, support the allegation of consumption (Mr Farrar, paragraph 54); • there is no evidence that this substance was ingested (Mr Farrar, paragraphs 55 and 57); • recent external contamination cannot be excluded (Ms Lindsay, paragraphs 81-84); and • environmental exposure was an unlikely but possible explanation (Dr Lewis, paragraph 119). These expert opinions, which I accept, effectively neutralise this contention of the respondent as a matter supporting the allegation of consumption of metylamphetamine by the applicant.
4. Mr Zisopoulos' hair sample was positive for amphetamine at a concentration of between 10 and 19pg/mg. All relevant experts agreed that amphetamine was a primary but not a unique metabolite. In addition, all relevant experts agreed that the ratio of amphetamine to methylamphetamine was consistent with it being present as a metabolite of methylamphetamine after ingestion (as opposed to being present as a contaminant). Dr Robertson was of the opinion that the very low levels of amphetamine present could equally be due to residual drug from external contamination by amphetamine if present at the time of exposure as amphetamine is often present in illicit methylamphetamine (paragraph 37). Dr Fu and Mr Farrar gave similar evidence (paragraphs 49 and 56) which I accept.
5. The washes of Mr Zisopoulos' hair sample were all negative for drugs in circumstances where, notwithstanding debate regarding the duration of the wash, all relevant experts agreed that methanol was an effective means of removing surface contamination from hair. There is no consensus in the scientific community as to an appropriate wash method or duration of washing. However, there is no evidence that the procedure used by Forensic Science SA was invalid or not appropriate. In Dr Robertson's opinion, a rapid methanol wash in isolation may not remove residual drug remaining on the hair from external contamination that may have occurred sometime previously, resulting in small amounts of drug adhered to the hair (paragraphs 40-41). Dr Fu described the decontamination protocol used at FSSA as "questionable" (paragraph 50). Ultimately, Dr Lewis conceded that a 30 second wash using an organic solution was not "recommended" in the guidelines (paragraph 119).
6. Mr Zisopoulos' hair was tested in accordance with a method that has been verified internally and externally by experts. Forensic Science has amassed a body of evidence that demonstrates the effectiveness of its testing methodology, has achieved satisfactory results in proficiency testing by the SOHT, and is accredited by NATA. It is not in issue that the applicant's hair sample tested positive for MDMA and methylamphetamine. The issue is whether those test results were due to voluntary ingestion of the drugs by the applicant or environmental contamination of his hair. Even if it is accepted that the testing methods used at FSSA are effective, external contamination cannot be excluded as a cause of the positive results in this case, as was conceded by Ms Lindsay.
7. There is no evidence that any of the multiple other types of drugs that passed through Newtown Police Station in the period before drug testing were in Mr Zisopoulos' hair sample, the washes of his hair or in the urine samples of other officers subject to testing. This contention by the respondent does not add any weight to the proposition that the applicant's hair was not contaminated with MDMA and methylamphetamine at some point prior to 16 April 2015.
8. Although external contamination of hair by drugs is theoretically possible, only 2 studies have discussed or considered whether methylamphetamine can incorporate into hair follicles. One study made an assumption as to the possibility of incorporation, and the other has been criticised employing a highly unrealistic method to apply drugs to hair. The expert witnesses were all aware of this contention by the respondent, and the two studies referred to, but that did not alter their opinions as to the possibility or likelihood that the test results of the applicant's hair sample were caused by environmental contamination.
9. In the period before drug testing, Mr Zisopoulos had limited occupational exposure to drugs. His exposure was confined to 18 occasions in 6 months, 11 occasions in 4 months, and 6 occasions in 2 months before testing. Based on the evidence of the expert witnesses, it would have taken only one occasion when the applicant handled MDMA and methylamphetamine and touched his head with his hand for contamination of his hair with those drugs to have occurred. DSC Kiernan agreed that the EFIMS audit disclosed that the applicant was on duty on ten occasions when one or other or both of those drugs were accepted at Newtown LAC (paragraph 109).
10. The only evidence of drug-based contamination in NSW police stations is that 75-93 percent of the drugs detected in the stations were at levels of less than 40ng, only slightly greater than the largest background result measured in the study. There is no evidence that this level of contamination would result in the positive drug test readings returned by Mr Zisopoulos. This contention is referrable to the Doran study. Despite the miniscule amounts of drugs detected on bench surfaces in police stations in that study, the authors of that report still advised that minor changes to work surfaces and procedures in police stations and large evidence stores will decrease the likelihood of external hair contamination or unintentional ingestion of drug residues (paragraph 114). It follows that, at the time when that study was published in 2017, the authors, including Mr De Filippis who was a witness for the respondent in these proceedings, recognised the risk of external contamination of hair with drugs in police stations.
11. Despite Mr Zisopoulos' alleged possible exposure to drugs, there is no evidence to explain how - by a set of bizarre coincidences - 3 separate prohibited drugs came to land on a small lock of his hair and were rubbed into it so as to incorporate into his hair. This contention by the respondent is contradicted by the expert witnesses, Dr Robertson, Dr Fu and Mr Farrar, whose evidence as to the possibility or likelihood of the test results of the applicant's hair sample being due to external contamination, I accept.
12. The unchallenged evidence is that MDMA and methylamphetamine are volatile substances and degrade rapidly. This "unchallenged evidence" did not cause Dr Robertson, Dr Fu, Mr Farrar or Ms Lindsay to rule out external contamination as a possible explanation for the positive test results of the applicant's hair sample. Mr Zisopoulos was offered but did not take a sample of his hair. There is no evidence that another sample would have produced a different result to those returned in testing. Again, this contention by the respondent does not affect the expert opinions of Dr Robertson, Dr Fu and Mr Farrar.
13. Contrary to the respondent's contention that the applicant's case invites an admixture of theoretical possibility, speculation and surmise, the evidence of the expert witnesses, which I accept, has demonstrated that external contamination of the applicant's hair, as a result of handling MDMA and methylamphetamine as part of his duties as a police officer, is more than a theoretical possibility but is at least as likely, or more likely, an explanation for the test results of the applicant's hair sample than is ingestion of the drugs by the applicant.

The evidentiary burden

1. In Tredinnick the Full Bench was considering an appeal from a decision of Newall C dismissing an application by David Tredinnick, a former police officer, for a review of an order made pursuant to section 181D(1) of the Police Act removing him from the NSWPF.
2. In that matter, the appellant had been removed from the NSWPF following a random drug test of his urine which tested positive for the presence of 11-nor-carboxyl-THC (cannabis), a prohibited drug. In the proceedings at first instance, the appellant had submitted that the positive test result occurred six days after he had participated in a drug raid during which he handled a significant quantity of sticky cannabis. The appellant had proposed two possible explanations for the positive test result being, firstly, dermal absorption or inhalation of the drug during the seizure and subsequent processing of the cannabis or, secondly, involuntary ingestion in the days after the raid, of cannabis resin or particles of leaf or flower, which had adhered to the appellant's load bearing vest during the seizure and subsequent processing of the drug.
3. In the first instance decision (Tredinnick v Commissioner of Police [2016] NSWIRComm 1026), Newall C considered those two possible explanations for the positive test result and determined as follows: 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.
4. On appeal, the Full Bench stated: 110 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. 111 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. 112 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. 113 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. 114 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]. 115 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. 116 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.
5. The expert evidence in Tredinnick was, in effect, that the appellant's innocent explanations for his positive test result were, according to Dr Lewis, impossible and, according to Dr Robertson, "unlikely" in relation to the first scenario and "cannot be excluded as a possible source" in relation to the second scenario.
6. By contrast, the expert evidence in the present matter is that the applicant's innocent explanation for his positive test result is "feasible", "unlikely" but not "impossible" according to Dr Lewis; "cannot be excluded" according to Ms Lindsay; equally as likely as occasional use of the drugs, according to Dr Robertson; and the "most likely cause" according to Dr Fu. Mr Farrar opined that the available information did not support the allegation of consumption of the drugs.
7. As was noted by the Full Bench in Tredinnick, whilst the applicant bears the burden of establishing that his removal was harsh, unreasonable or unjust, the evidentiary burden may shift to the respondent when the applicant leads sufficient evidence to cast doubt on the respondent's finding of misconduct. That has occurred in this case as a consequence of the evidence of Dr Robertson, Dr Fu and Mr Farrar.
8. In contrast to the expert evidence in Tredinnick, the expert evidence in the present matter weighs heavily in favour of the applicant's explanation of environmental contamination as the cause of the positive test result of his hair sample.
9. I find that the respondent has not satisfied the evidentiary burden of proving, on the balance of probabilities, but adopting the approach to the assessment of the evidence espoused by Dixon J in Briginshaw v Briginshaw ([1938] 60 CLR 336), that the applicant used prohibited drugs, namely, MDMA and methylamphetamine.
10. It follows that I find that the removal of the applicant was harsh, unreasonable and unjust.

Remedy

1. In his Statement of Reasons, the respondent stated that he could no longer rely upon the applicant's integrity as a police officer to perform policing duties in the future. This opinion of the respondent was based entirely upon his finding that the applicant had consumed illicit drugs and had been untruthful during the testing process and in his response to the section 181D(3)(a) Notice.
2. The respondent had formed this opinion without the benefit of the expert evidence which has been placed before the Commission in these proceedings. Given the determination that I have made as to the unfairness of the decision to remove the applicant from the NSWPF, I can see no basis for the respondent to maintain an inability to rely on the applicant's integrity.
3. There is no barrier to the reinstatement of the applicant to his former position in the NSWPF.

Orders

1. The Orders I make in this matter are as follows:
2. The application for review is upheld.
3. The applicant is to be reinstated to the New South Wales Police Force at the rank and incremental level he held at the date of his removal.
4. Order 2 is to take effect on and from Monday 19 March 2018.
5. The applicant's service with the New South Wales Police Force is taken to be unbroken.
6. I will hear the parties further in relation to any ancillary orders that the applicant seeks. John Murphy Commissioner

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: 07 March 2018