Tredinnick v Commissioner of Police [2016] NSWIRComm 14

Industrial Relations Commission New South Wales Medium Neutral Citation: Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Hearing dates: 20 October 2016 (written submissions 26 and 31 October 2016) Date of orders: 02 December 2016 Decision date: 02 December 2016 Before: Walton J, President; Tabbaa C; Murphy C Decision: The Full Bench makes the following orders: 1. Leave to appeal is granted 2. The appeal is dismissed. Catchwords: APPEAL - application under s 181E of the Police Act for review of removal order - appellant removed from police force for testing positive to cannabis - appellant provided innocent explanation for urine analysis result - dermal absorption due to manual handling of cannabis by appellant during drug raid - unintentional ingestion of cannabis residue adhering to appellant's load bearing vest - expert opinion evidence - finding below that it was far more likely than not that reason for the urine analysis reading was that the appellant deliberately ingested cannabis and removal order not harsh, unreasonable or unjust. LEAVE TO APPEAL - issues concerning onus or burden of proof in proceedings for a review brought pursuant to s 181E - whether obligation to establish allegations (or findings) of misconduct fell upon the respondent - leave to appeal granted. MERITS OF THE APPEAL - onus or burden of proof on appellant - evidentiary burden may shift during proceedings - contrast with proceedings brought pursuant to Part 6 Ch 2 of the Industrial Relations Act - the respondent does not bear onus of proof to establish the applicant was guilty of misconduct - the burden falling upon an applicant is to establish the removal was harsh, unreasonable or unjust - the appellant bore the onus of proof to demonstrate the respondent's reasons for removal order were based upon a false premise - no challenge to the validity of the testing process, the veracity of the Certificate or conclusions derived therefrom - distinction between the legal burden and evidentiary burden - evidentiary burden shifted to respondent by virtue of appellant's denial, circumstantial evidence going to unlikelihood of deliberate ingestion of cannabis and expert opinion evidence of possible innocent explanation - respondent met shifting evidentiary burden - no attack by appellant on validity or accuracy of drug test result at first instance - respondent under no obligation to prove validity or accuracy of test result in those circumstances - no error in Commissioner's approach to weighing evidence - appeal dismissed Legislation Cited: Evidence Act 1995 (NSW) Industrial Relations Act 1996 (NSW) Supreme Court Act 1970 (NSW) Police Act 1990 (NSW) Cases Cited: Amoco Oil Co. v Parpada Shipping Co. Ltd (the "George S") [1989] 1 Lloyd's Law Reports 369 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1995) 1 NSWLR 561 Bigg v New South Wales Police Service (1998) 80 IR 434 Brady (Inspector of Taxes) v Group Lotus Car Cos pls and another [1987] 3 All ER 1050 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne & Frew v Australian Airlines Ltd (1995) 183 CLR 410; [1995] HCA 24 Cameron v Holt (1980) 142 CLR 342 Commissioner of Police v Eaton (2011) 207 IR 209 Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Eaton v Industrial Relations Commission of New South Wales (2012) 218 IR 289; [2012] NSWCA 30 Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 Starr v Commissioner of Police [2001] NSWIRComm 226 Texts Cited: Cross on Evidence (10th Ed 2015, Lexis Nexis) Category: Principal judgment Parties: David Tredinnick (Appellant) Commissioner of Police (Respondent) Representation: Counsel: P Lowson (Appellant) M J Kimber SC and Y Shariff (Respondent)