Klement v Commissioner for Consumer Affairs - [2011] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
KLEMENT v COMMISSIONER FOR CONSUMER AFFAIRS
[2011] SADC 111
Judgment of Her Honour Judge Davey
26 July 2011
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal from the cancellation of a security agent's licence due to detection of illegal drugs during a random drug test of the appellant - allegation of drink spiking - suggestion of partial cancellation of licence.
Held: Appeal dismissed and the decision to cancel security agent's licence affirmed.
Security and Investigation Agents Act 1995 s23O; District Court Act 1991 ss 42B, 42E and 42F, referred to.
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Registrar of the Veterinary Surgeons Board of SA v Mooney and the Veterinary Surgeons Board of SA [2009] SADC 62, considered.

KLEMENT v COMMISSIONER FOR CONSUMER AFFAIRS
[2011] SADC 111
Introduction

This is an appeal from the decision of the delegate of the Commissioner for Consumer Affairs to cancel a security agent’s licence pursuant to s 23O(1)(b) of the Security and Investigation Agents Act, 1995 (SIAA). The appeal is made pursuant to the provisions of the SIAA and ss 42B and 42E of the District Court Act, 1991 (DCA).
I note the terms of s 42E and s 42F of the DCA:
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)     The Court, on an appeal—
(a)     is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
In deciding this appeal I must examine the decision of the original decision maker on the evidence before him but I may also allow further evidence and material to be presented to me. On appeal I must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.[1]
[1] As to the meaning of “cogent reasons” see Re Drake and Minister For Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 per Brennan J at p645; and Registrar of the Veterinary Surgeons Board of SA v Mooney and the Veterinary Surgeons Board of SA [2009] SADC 62 per Tilmouth DCJ at [23]-[27]
The appellant’s security agent’s licence was cancelled by the Commissioner for Consumer Affairs because he provided a urine sample which was positive for some illicit drugs. The urine sample was found to contain methylamphetamine, amphetamine, 3,4‑methylenedioxymethylamphetamine (MDMA, also known as ecstasy), 3,4‑methylenedioxyamphetamine (MDA) and 3,4‑methylenedioxyethyl-amphetamine (MDEA). The appellant asserts that he is not a user of illicit drugs and that he unknowingly ingested the drugs. The explanation that he advances is that his drink was spiked about 4 days prior to the testing.
The decision to cancel the licence
I note the affidavit of Mark Andrew Collett, the delegate of the Commissioner for Consumer Affairs, as to the matters considered by him when making his decision:[2]
I particularly had regard to the email from Peter Felgate of Forensic Science SA which indicated that if the Appellant had taken Sudafed this would have had no bearing on the drugs detected in his urine sample analysed by Forensic Science SA. I also had regard to the functions that were authorised by the Appellant’s licence and the need to protect the public by ensuring that security guards do not have drugs in their system when performing the function of controlling crowds.
[2] Affidavit of Mark Andrew Collett affirmed on 2 June 2011 at [22]
I also note the contents of the cancellation notice from Mr Collett[3] which includes the following:
I have taken into account all of the matters put by Mr Klement in his written submission dated 25 October 2010. I also take into account the purpose of the Security and Investigation Agents Act, the potential public risk from having people who use illegal drugs in the security industry and the need to protect the public and maintain the public confidence in both the industry and the licensing scheme. In taking into consideration all the information, I am satisfied that Mr Klement’s licence should be cancelled.
[3] Annexure MAC-7 to the affidavit of Mark Andrew Collett affirmed on 2 June 2011
The appellant was afforded procedural fairness prior to the decision being made by the delegate. The delegate received a submission from the appellant and considered that together with all relevant matters including the purposes of the SIAA and the drug testing procedures set out within the SIAA. He did not consider irrelevant matters. The appellant does not suggest any error of law in the decision making process. The main issue on appeal is whether the innocent explanation provided by the appellant for the presence of the illicit drugs should be accepted.
Evidence on the Appeal
In this case both parties adduced further evidence before me and it was received pursuant to s 42E(1) of the DCA. The appellant tendered affidavits from the appellant,[4] Katrina Panagiotas,[5] and by consent tendered a report by Professor Jason White[6] concerning Lewis Klement. The appellant also gave and called evidence from Ms Panagiotas and Professor White. The respondent tendered affidavits from Mark Andrew Collett,[7] Christine Marie Carroll[8] and Zoe Thomas.[9]
[4]    Affidavit of Lewis Klement sworn 29 June 2011
[5]    Affidavit of Katrina Panagiotas sworn 12 July 2011
[6]    Report prepared by Jason White entitled “Report Concerning Lewis Klement” dated 12 July 2011
[7]    Affidavits of Mark Andrew Collett affirmed 2 June 2011 and 20 June 2011
[8]    Affidavit of Christine Marie Carroll sworn 22 June 2011
[9]    Affidavit of Zoe Thomas sworn 13 July 2011
The appellant asserted on oath (as he did in his submission to the Commissioner of Consumer Affairs) that he did not knowingly ingest any or all of the illicit substances found in his urine sample. At the time when the positive result was found by preliminary testing, the appellant said that he had been taking Sudafed (cold and ‘flu tablets containing pseudoephedrine) and that must account for the positive result. The testing was conducted by a police officer. The appellant did not say (at that stage) that there had been any drink spiking incident. In his submission to the Commissioner for Consumer Affairs, and in his evidence before me, the appellant said that the only explanation he could give for the presence of the illicit drugs in his urine sample was that his drink must have been spiked during an outing on the previous Friday evening.
Richard Bullough, Senior Constable of Police,[10] deposed to the testing of the appellant’s urine which occurred on 18 May 2010. At about 1.10 pm the appellant was issued with the appropriate notice to produce a urine sample and shortly thereafter he provided the requested sample to the police officer. The preliminary reaction to the test sample was that there was a positive urine screening for methylamphetamine and amphetamine. In response to being told of the result the appellant said that he had taken Sudafed at about 11.00 pm on 17 May 2010, ie the day before.
[10] Annexure MAC-1 to the Affidavit of Mark Andrew Collett affirmed on 2 June 2011
By letter dated October 2010[11] the appellant was notified of the intention to cancel his security agent’s licence. That letter provided details of the results of the urine test and gave the appellant an opportunity to show cause why his licence should not be cancelled.
[11] Annexure MAC-3 to the Affidavit of Mark Andrew Collett affirmed on 2 June 2011
By letter dated 25 October 2010[12] the appellant provided details of his background and personal circumstances and also asserted that his conclusion was that something had been put in his drink (commonly known as drink spiking) during the evening of Friday 14 May 2010. The appellant asserted that on that evening he and his partner, Ms Panagiotas, had been with a group of friends at the Wellington Hotel, North Adelaide and later at the Festival Theatre where they attended a concert. He said that during the evening he commenced suffering symptoms consistent with the ingestion of these illicit drugs. During that evening Mr Klement was socialising with friends who were known to him or associated with him and he does not suggest that any of those persons might have spiked his drink.
[12] Annexure MAC-4 to the Affidavit of Mark Andrew Collett affirmed on 2 June 2011
Forensic Science SA tested the sample for the presence of the illicit drugs and also the levels or readings of the drugs in the urine sample. The affidavit of Christine Marie Carroll[13] provides details of the results of the testing, including the concentrations of the drug. I note her comment[14] that blood samples provide a more accurate record of the concentration of drugs and urine levels have less reliability. This was confirmed by Professor White. Nonetheless some results were obtained and showed the following:
·Approximately 0.2 mg of methylamphetamine per litre of urine.
·Approximately 0.05 mg of amphetamine per litre of urine.
·In excess of 0.5 mg per litre of blood of 3,4-methylenedioxymethyl-amphetamine and 3,4-methylenedioxyethylamphetamine. Both these readings exceeded the highest calibrator used to analyse the sample.
[13] Affidavit of Christine Marie Carroll sworn on 22 June 2011
[14] Affidavit of Christine Marie Carroll sworn on 22 June 2011 at [5]
Ms Carroll was asked to comment on whether or not the levels of the drugs found in the urine sample could be consistent with ingestion between approximately 6 pm and 7.30 pm on 14 May 2010. The urine sample was obtained at approximately 1.15 pm on 18 May 2010. The lapse of time is 87-91 hours. Ms Carroll declined to express an opinion stating that this matter was beyond her expertise. Both the appellant and the respondent obtained expert opinions about this topic from Professor White for the appellant and Mr Peter Felgate, Manager of Toxicology at Forensic Science SA, for the respondent.[15]
[15] Report of Mr Peter David Felgate is a statement of witness, marked annexure ZT-3 to the affidavit of Zoe Thomas sworn on 13 July 2011.
Professor Jason White, who is an acknowledged expert in pharmacology and particularly that of illicit drugs, provided a report and also gave evidence before me. In the end, I do not think that there is much difference between the opinions expressed by Mr Peter Felgate and Professor White. Both experts refer to variations in elimination rates and, importantly, both expressed the view that on the scenario advanced by the appellant it is unlikely that any of the drugs would have been detectable in the concentrations found by Ms Carroll by the time of the urine testing at about 1.10 pm on 18 May 2010. Mr Peter Felgate expressed his opinion in terms of it being “highly unlikely” that any of the illicit drugs would still have been detectable in the concentrations found by Ms Carroll. Professor White said that it would be unlikely; he found it difficult to quantify just how unlikely.[16] He maintained that the scenario was possible, based upon theoretic possibilities, however he acknowledged that there was no research that would verify or confirm the likelihood that such concentrations would be detectable in the sample after that period of time had elapsed. There is no dispute that the presence of these illicit drugs could not be explained by use of Sudafed or similar cold and ‘flu medication. These expert opinions suggest that the explanation for the presence of drugs provided by the appellant is, at best, unlikely.
[16] Professor White also referred to one in 12 people who metabolise these drugs slowly, abnormally. He said that genetic abnormality can be found on testing (Transcript at p68). No evidence is before me to establish that the appellant has an abnormally slow metabolism.
In my view the expert evidence with respect to the illicit drugs found in the urine sample has another significance. The evidence is not only as to the level of drugs found in the urine sample, but also the nature of and combination of the drugs. At least two different types of illicit drugs had been ingested by the appellant. One was methylamphetamine based and the other, though related, was different, namely the drug known as Ecstasy. Professor White said that he had never heard of those drugs being combined as a single dose.[17] Whilst the illicit drug trade in this state is not a regulated trade it appears that there are different drugs which are trafficked or traded for specific effect and with specific value. It is of significance that an expert such as Professor White has never heard of the combination of these drugs. It seems then that if the appellant’s drink was spiked, it was likely to have been spiked by someone placing not one, but at least two different drugs in his drink or that there were two different drink spikers.
[17] Transcript p81
In considering the innocent explanation advanced by the appellant I have regard to the common sense of the situation. Common sense and common experience play an important role in decisions of courts. On the scenario postulated by the appellant, a person unknown to him, a stranger, spiked his drink, and did so for an unknown purpose. The person who spiked the drink used drugs that had a value; illicit drugs have a commercial value which, regrettably, is well known to this court. In examining the appellant’s assertion that his drink was spiked, I ask why would a person spike a stranger’s drink in these circumstances and use illicit drugs that have some value? What reason or advantage could that person have for doing so? Additionally, not one but at least two drugs were used. It seems an affront to common sense that there were two unknown drink spikers or that a stranger would spike someone’s drink with not one but two different illicit drugs. There is nothing about the surrounding circumstances which would suggest any motive or reason why this would occur.
I give careful consideration to the submissions made on behalf of the appellant and his evidence as to his personal circumstances. I had regard to those matters when I considered the appellant’s evidence about the drug ingestion topic and his account of events of the Friday evening and the evidence called on his behalf. Simply put, as to the issue of innocent drug ingestion, I did not believe the appellant. An example of the unsatisfactory and unconvincing evidence of the appellant in this regard is his evidence as to when he realised his drink had been spiked and the reason why he did not tell the testing police officer of the Friday night incident.[18] Insofar as Ms Panagiotas’s evidence is concerned, I found her to be an unimpressive witness insofar as she gave evidence as to the circumstances of the Friday evening and thereafter. The evidence about this topic lacked a ring of truth and was not supported by common sense inferences nor by the scientific evidence. In my view the evidence all points away from the drink spiking explanation. The levels of drugs found in the urine sample are suggestive of drug use at a later time.
[18] Transcript pp40-42
Cancellation of some functions of the licence only
The appellant has submitted that I should rescind the respondent’s decision to cancel his licence or alternatively that I should consider re-instatement of the appellant’s licence on more restricted terms which would only permit him to carry out work as a security guard and/or what was termed, security systems work. It is submitted that the concerns about illicit drug use only relate to crowd control activities which the appellant is willing to forego. The respondent argues that I do not have the power to make an order in those terms. The respondent argues that s 42F of the DCA does not permit me to substitute a decision which was not within the power of the original decision maker when cancelling the licence pursuant to s 23O of the SIAA.
I note the terms of s 23O of the SIAA:
23O—Cancellation of licence
(1)The Commissioner may, subject to this section, cancel a security agents licence if—
(a)     the licensee fails, without reasonable excuse, to comply with—
(i)    a notice or direction under section 23J; or
(ii)     a requirement or direction under section 23K; or
(b)     a sample of the blood or urine of the licensee taken in accordance with section 23J is found on analysis to be a non-complying sample (within the meaning of the regulations); or
(c)     the results of a breath analysis undertaken in accordance with this Division demonstrate that the prescribed concentration of alcohol was present in the licensee's blood at a time when the licensee was performing the function of controlling crowds.
(2)The Commissioner must, before exercising powers under subsection (1) in relation to a licensee—
(a)     give written notice to the licensee of the proposed cancellation, including a statement of the reasons that the Commissioner considers justify the cancellation; and
(b)     allow the licensee a period of 14 days (or such longer period as the Commissioner may in a particular case allow) to show cause why the licence should not be cancelled.
(3)At the end of the period allowed by the Commissioner under subsection (2), the Commissioner must—
(a)     determine, having regard to any response received from the licensee, whether or not to proceed with cancellation of the licence; and
(b)     advise the licensee by notice in writing of the Commissioner's determination.
(4)A notice under subsection (3)(b) must, if the licence is to be cancelled, specify the date from which the cancellation is to take effect (which must be not less than 14 days from the date of the notice) and the grounds for the Commissioner's determination.
I agree that the exercise of the power given to the Commissioner (or his delegate) pursuant to s 23O is either to cancel a licence or not. There is no power to vary or partially cancel a licence in this provision. Part 3A of the SIAA deals with the “Regulation of security agents”. Division 2 of Part 3A is entitled “Alcohol and drug testing of persons authorised to control crowds”. Sections 23J to 23N of the SIAA provide the scheme for drug testing, reporting and evidence in respect of those so authorised. S23O is within Division 2 of Part 3A and clearly requires cancellation or not of the entire licence. S23O does not refer to the authorisation to control crowds nor to the cancellation of this function alone. I note that s 7 of the SIAA refers to various classes of licence including those with restricted function conditions, an example of which is crowd control. If it was intended that a specific function be cancelled as opposed to the entire licence then s 23O would say that. It does not. On a plain reading of s 23O the delegate cannot “partially” cancel a licence or cancel a specified function. I agree that notwithstanding the apparently broad terms of s 42F of the DCA which include the power to “substitute” a decision, I am not empowered to do something which could not be done by the original decision maker. In those circumstances I will not consider whether a partial or restricted licence would be appropriate in this case.
Conclusion

I do not accept the appellant’s explanation of the positive urine sample. I see no other basis to depart from the decision of the respondent. I give due weight to the original decision and do not find cogent reasons to depart from that decision.
I affirm the decision of the respondent and I dismiss the appeal.