The High Court quashed the discharge of a Public Defence Forces soldier after finding that an appeal officer relied on undisclosed technical advice without giving him a chance to respond.
In a judgment delivered on 30 October 2012, Mr Justice Herbert found that the omission breached fair procedures. The court did not decide the applicant’s remaining grounds for judicial review and did not rule on whether the outcome would have changed if the advice had been disclosed.
The applicant, Daniel Somers, challenged a decision by the General Officer Commanding 4th Western Brigade to discharge him, following a compulsory random drugs test. Two laboratory analyses of samples collected through the Defence Forces testing process detected cocaine metabolite above the stated confirmation cut-off. Somers disputed the conclusion and relied, among other matters, on a separate urine test arranged through his doctor that reported no cocaine detected.
During the internal appeal, the appeals officer sought technical advice from the Officer in Command of the Defence Forces Drugs Testing Team. The officer’s replies addressed the testing procedures and compared the evidential weight of the Defence Forces results with the separate test. The appeals officer also sought comments on Somers’s account of events. The judgment said the criticisms of the separate test materially influenced the appeals officer’s assessment and conclusion that Somers had used a controlled drug while serving.
The advice letters were not given to Somers, and he had no reasonable opportunity to answer them or obtain expert advice and rebutting evidence. The judge said the test results were irreconcilable on their face and raised a serious issue of proof. The appeals officer had to evaluate and weigh that issue before making a recommendation, so Somers should have been allowed to address the material relied upon.
The court held that the responsibility to ensure fair procedures rested with the appeals officer; Somers was not required to anticipate that advice would be sought and request disclosure. The judge did not decide whether seeking technical advice itself was unfair, distinguishing that question from the undisclosed factual material in this case.
The court granted certiorari quashing the General Officer Commanding’s 25 September 2009 order discharging Somers. It expressly declined to determine the other grounds of the application.