The Supreme Court has quashed the discharge of a Defence Forces recruit who said he tested positive for cannabis after being near friends who were smoking it.
David Rawson joined the Defence Forces in September 2006 and tested positive in a random urine test in November that year. Both his A and B samples were positive, at levels more than twice the programme’s 15 ng/ml threshold. Rawson denied smoking cannabis and said he had been in a car with two friends who did. He argued that passive inhalation could explain the result and sought to present evidence about innocent or inadvertent exposure.
Under the Defence Forces’ regulations, a commanding officer who receives a representation raising reasonable doubt that a member innocently or inadvertently ingested or inhaled a substance should recommend that the member be retained. The Supreme Court said that once Rawson raised this issue, both his commanding officer and the General Officer Commanding had to consider whether a reasonable doubt existed.
The commanding officer recommended Rawson’s discharge in January 2007. The General Officer Commanding rejected his appeal and ordered discharge with immediate effect. Rawson challenged the decision. The High Court refused to quash it in 2008, reasoning that the officers had accepted his account but found it did not qualify as innocent or inadvertent exposure.
Allowing Rawson’s appeal, the Supreme Court said the record disclosed neither why the officers rejected his case nor whether they had applied the required test. The Court could not infer that they had considered the right question from the positive test, the sample reports or the decisions themselves. Although the B-sample report said the 15 ng/ml cut-off was set to rule out passive smoking, the Court said that did not establish how the officers had assessed Rawson’s representation.
The Court held that the regulations required the officers to give Rawson the benefit of any reasonable doubt on innocent or inadvertent exposure. The papers did not show that they had done so. It also held that the High Court judge had gone beyond legitimate inference by hypothesising about the officers’ reasoning.
The Supreme Court quashed the discharge decision. It did not decide whether Rawson’s account was true or whether passive inhalation could explain his test. The Court left it initially to Defence Forces authorities to decide whether the issues raised by the positive test should be considered again.