Supreme Court allows appeal quashing discharge where no evidence shows decision-maker considered reasonable doubt test.

THE SUPREME COURT

[Appeal No: SC 403/2008]

Fennelly J.

Clarke J.

MacMenamin J.

Between/

David Rawson

Applicant/Appellant

and

The Minister for Defence

Respondent

Judgment of Mr. Justice Clarke delivered the 1st May, 2012

1. Introduction

1.1 For understandable reasons the Defence Forces take a very serious view of drug abuse. As part of the measures introduced to

combat this problem, a scheme of random drug testing was introduced in January 2002. It will be necessary to refer to the precise

scheme under which random testing is conducted in due course.

1.2 The applicant/appellant (“Airman Rawson”) joined the Defence Forces, as a recruit, on the 4th of September 2006. On the 27th of

November 2006 he was subjected to a random drug test carried out under the relevant regulations. He tested positive.

1.3 In circumstances which it will be necessary to consider in more detail, Airman Rawson was ultimately informed that he was to be

discharged from the Defence Forces. Airman Rawson brings this appeal from a judgment of the High Court (Hedigan J.) refusing an

order quashing the decision to discharge.

1.4 The relevant regulations provide for two samples to be taken. Airman Rawson was advised that he had tested positive for

cannabis on the first sample and was given the option of having the so called B sample also tested. That sample also proved positive.

1.5 On the 10th January 2007, Airman Rawson was paraded before Commandant Jim Gavin, who was standing in for his commanding

officer (“C.O.”) Lieutenant Colonel McIntyre, and was told that the C.O. was recommending discharge. Airman Rawson was advised

that he could make representations within seven days. On the 16th January 2007 Airman Rawson put forward to his C.O. his case

which was to the effect that he and two friends were in a car when they (but not he) smoked cannabis. Airman Rawson consistently

denied that he himself had smoked cannabis. He suggested that he had been informed by more senior members of the Defence Forces

on a number of occasions that it was not possible to test positive for cannabis in circumstances of passive smoking. However in his

submission he suggested that that was not so and that it was, as a matter of scientific fact, possible to produce what might be

termed a false positive result deriving from passive smoking.

1.6 It would appear that those submissions were rejected in that on the 17th January 2007 Airman Rawson was informed that his C.O.

had decided to recommend that he be discharged. He was informed that the matter was then to go before the General Officer

Commanding (“G.O.C.”) and that he had the right to make further submissions. A written submission dated the 17th January 2007 was

made to the G.O.C. On the 29th of January 2007 Airman Rawson was informed that the G.O.C. had decided that he should be

discharged with immediate effect. Airman Rawson immediately applied to this court and obtained an interim injunction restraining his

discharge pending the determination of these proceedings. That injunction has remained in place to date with Airman Rawson being, I

understand, assigned to administrative duties.

1.7 The case ultimately came on for hearing and judgment was delivered on the 2nd December 2008. For the reasons set out in that

judgment Hedigan J. refused the reliefs sought which were primarily directed towards quashing the decision to discharge Airman

Rawson from the Defence Forces. Against that decision Airman Rawson now appeals to this court. In order to more fully understand

the issues raised both before the High Court and on this appeal it is necessary to say a little more about first, the regulations under

which Airman Rawson’s case was considered and second, the facts including the evidence as to the decisions taken by the superior

officers involved. I turn first, therefore, to the relevant regulations.

2. The Regulations

2.1 To give them their full title the regulations concerned are described as the “Compulsory Random Drug Testing Administrative

Instruction A7 Chapter 3” (“the Regulations”). Paragraph 304(a) requires the provision of a urine sample by a member of the Defence

Forces in the context of a compulsory random testing programme. When a random urine sample is taken para. 308 provides for the

method of testing. In the case of cannabis para. 308 also states that, should the test in question return a reading of greater than or

equal to 15ng/ml, the result is to be regarded as a “test positive” for the use of cannabis. Paragraph 309(c) provides for the A and B

samples.

2.2 Paragraph 313(b) provides that an individual’s C.O. inform the member concerned both orally and in writing of the result of any

positive test and also inform the individual that administrative action is being taken which may result in discharge together with the

fact that a seven day period is provided to make representations. Thereafter, under para. 315, the C.O. forwards his recommendation

regarding discharge or otherwise to the G.O.C. for consideration. A copy of that recommendation should also be given to the individual

who must be informed that he has the right to appeal to the G.O.C. within seven days. The final decision is made by the G.O.C.,

under para. 317, on receipt of the recommendation of the C.O. and on considering any further submissions made by the individual.

2.3 However, of particular relevance to the issues which arise in this case is para. 318 which provides that where it appears to a C.O.

"on foot of any representation made, that a reasonable doubt exists, that the individual … may have innocently or inadvertently

ingested, inhaled or otherwise introduced the substance, he should recommend that the individual be retained in the service".

2.4 There was no significant difference between counsel as to the overall approach required under the Regulations. Where a test is

deemed to be positive then the relevant procedures which potentially lead to a discharge are commenced. The individual concerned is

entitled to make representations which may include a representation, under para. 318, that there is a reasonable doubt to the effect

that the individual concerned may have innocently or inadvertently ingested, inhaled or otherwise introduced the substance. It seems

clear that para. 318 requires the individual who has tested positive to raise that question if he wishes it to be considered, for the

paragraph speaks of the C.O. considering the matter “on foot of any representations made”. However it seems equally clear that,

once a representation to that effect is made by an individual whose conduct is under consideration, there is an obligation on the C.O.

and, it follows, on the G.O.C. on appeal, to consider it. Against the background of the Regulations it is next necessary to deal in a

little more detail with the facts.

3. The Facts

3.1 I have already briefly outlined the sequence of events. Insofar as material to the issues which now arise it is necessary to trace

the case made by Airman Rawson on the question of passive inhalation. While the representations made by Airman Rawson to his C.O.

were not exhibited in the evidence it was accepted by both sides that those representations were broadly in the same form as those

which were made in writing to the G.O.C. by memorandum of the 17th January, 2007. In those written representations Airman Rawson

admitted that he was in the company of friends who smoked cannabis resin but "categorically" denied that he himself had smoked any

form of cannabis. Airman Rawson went on to make a number of other points which are not relevant to the issues which now arise.

However, towards the end of his submission he complained of what was said to be a failure of the authorities to provide a mechanism

and/or suitably qualified persons or forum to consider and determine the matter of innocent or inadvertent consumption. He also went

on to say that he was "in a position to produce evidence of third parties in relation to my innocently/inadvertently ingesting a

substance" and asked "for an opportunity now so to do as this matter is relevant for the purposes of consideration of the matter

and decision herein".

3.2 It is clear, therefore, that the question of whether Airman Rawson ought to be considered as having innocently or inadvertently

ingested cannabis was squarely put forward by him during the disciplinary process. That question having been raised, it follows that

there was an obligation on his C.O. and G.O.C. to consider that representation in accordance with para. 318. It further follows that,

in order to deal with the matter in accordance with the Regulations, it was necessary for those superior officers to consider whether

a reasonable doubt existed as to whether the cannabis concerned had been innocently or inadvertently introduced. On the facts that

was the only issue which those superior officers had to deal with.

3.3 Against that background it is next necessary to turn to the actual decisions of the superior officers concerned. As pointed out

earlier, the C.O. was Lieutenant Colonel McIntyre whose recommendation for discharge of the 17th January, 2007 is in brief terms and

can be set out in full. It reads as follows:-

"Pursuant to the provisions of paragraph 8B(1) of Defence Forces Regulations, it is my recommendation, as O.C. A.C.C.

that Recruit Rawson R 862639 be discharged from the Defence Forces"

3.4 It is said that Airman Rawson did not see that document until it was exhibited in the opposition papers filed on behalf of the

Respondent (“the Minister”) in these proceedings. Given the sparseness of the document itself it does not seem to me that much

turns on that question. In addition, the decision of the G.O.C., as was communicated to Airman Rawson on the 29th January, appears

to have been simply to the effect that the appeal was rejected and that his discharge was to proceed.

3.5 It follows that all that is known as to the considerations given by both the C.O. and the G.O.C. to the case, including the

representations made by Airman Rawson, is that discharge was being recommended and that the appeal against that finding was

dismissed. It is against that background that Airman Rawson complains that the decision cannot be sustained.

3.6 One further aspect of the process does need to be noted. As indicated earlier Airman Rawson arranged to have the B sample

tested. While there was a slight difference between the result of that test and the earlier result of the testing of the A sample, in

both cases the level of cannabis disclosed was more than twice the threshold of 15 ng/ml. In addition, the report which accompanied

the results of the testing of the B sample (which came from an English firm called Scientifics Ltd.) states the following:-

"The cut-off utilised for cannabis in the drug-testing programme is 15 ng/ml. This is set to rule out the effects of

passive smoking."

3.7 The reports showing the results of the testing on both the A sample and the B sample (including in the case of the B sample the

commentary to which I have just referred) were before the relevant superior officers. In addition the representations made by Airman

Rawson to the C.O. were before the C.O. while the written representation, to which reference has already been made, which was

made to the G.O.C. was also, of course, before the G.O.C. There is nothing in the evidence to suggest that any other materials were

considered by either of the relevant superior officers. Finally, in that context, it should be noted that no affidavit evidence was

placed before the High Court by either of the superior officers who were directly involved in the decision-making process.

3.8 On that basis it is necessary to turn to the decision of the trial judge insofar as it relevant to the issues which arise on this

appeal.

4 The High Court Decision

4.1 Having set out the order sought, an analysis of the Regulation together with some background facts and addressed the sequence

of events which have already been outlined in this judgment, the trial judge went on, at para. 18 of his judgment, to set out the case

made to him on behalf of Airman Rawson.

4.2 As there recorded Airman Rawson's case was as follows:-

(a) There was no evidence that the C.O. gave any consideration to the possibility of passive inhalation being the cause of

the positive result. This was neither investigated nor was the applicant given a proper chance to make that case.

(b) Lieutenant Colonel Jim Lynnott is not in a position to swear that the C.O. did give the proper consideration.

(c) The level of certainty required, on the part of the C.O. by para. 318, in order to decline to recommend that an

individual be retained in service is extremely high.

(d) The C.O.’s recommendation was not forwarded to the applicant prior to its transmission to the G.O.C. as required by

the Regulations and that, as a result, the applicant was prejudiced.

4.3 Having noted the position of the Minister, the trial judge commented, at para. 22, of his judgment, correctly in my view, that a

member of the Defence Forces who has been deemed to have tested positive may be discharged, subject to the member's right to

make representations and that, where those representations create a reasonable doubt as to innocent or inadvertent inhalation, the

individual concerned should be retained in the service.

4.4 At para. 23 of his judgment the trial judge noted that it must be assumed that the account given by Airman Rawson was

accepted for, in the view of the trial judge, this followed from the fact that no further submissions were required nor explanation

called for. The trial judge went on then to suggest that the decision actually made by the relevant superior officers was, first, to the

effect that Airman Rawson had tested positive under regulations which set a cut-off point to exclude passive smoking. The latter

aspect of that point was based on evidence which was placed before the court on behalf of the Minister which suggested that, on

the basis of the scientific evidence available to the Minister, the level fixed in respect of cannabis was such as would exclude a

person testing positive if engaged only in passive smoking. It should be said that contrary expert evidence was tendered on behalf of

Airman Rawson. It must also, in that context, be recalled that the relevant superior officers had before them the report from

Scientifics Ltd. which is to the same effect as the Minister's advice on this point.

4.5 The trial judge then went on to infer that the G.O.C. "decided that no reasonable doubt existed that the member may have

innocently or inadvertently ingested, inhaled or otherwise introduced the substance". He then correctly went on to note that it was

not for the High Court to second guess the view of the C.O. or the G.O.C. The trial judge concluded that it was reasonable and

rational for the G.O.C. to decide that Airman Rawson's account "did not amount to innocent or inadvertent ingestion or inhalation". In

that regard the trial judge noted evidence from the Officer in Charge of the Defence Drug Testing Team which was to the effect that

an explanation of being in a car with people who were smoking cannabis was "unacceptable, as a soldier would be expected to

remove himself from any such situation". The trial judge concluded that that view was reasonable.

4.6 Against the background of that decision it is next necessary to turn to the issues which arose on this appeal.

5. The Appeal

5.1 While a range of grounds were addressed both in the notice of appeal and in the written submissions filed on behalf of Airman

Rawson, counsel, without abandoning any other grounds, made a focussed submission directed to the reasoning (or more accurately

the absence of reasoning) set out in the determination of the respective superior officers. In that context it is important to note that

counsel for the Minister, in reply, correctly drew attention to the fact that the grounds of challenge as permitted in the order granting

leave in this case did not focus on an absence of reasons per se but rather on an alleged absence of any suggestion that the

relevant superior officers had addressed the real question in issue.

5.2 It is clear, therefore, that this case is not a "reasons" case as such. Rather it is a case where it is said that the record does not

suggest that those involved in the decision making process applied their mind to the right question at all rather than failed to give

adequate reasons for their answer to that question.

5.3 That, in reality, is the real issue which arises on this appeal. In order to consider that ground of appeal it is necessary to discuss

the relevant legal principles applicable. I, therefore, turn to the law.

6. The Law

6.1 It is trite law to say that judicial review is concerned with the lawfulness of decision making in the public field. Where a decision is

made by a public person or body which has the force of law and which affects the rights and obligations of an individual then it hardly

needs to be said that the courts have jurisdiction to consider whether the decision concerned is lawful. If it were not so then it is

hard to see how such a situation would be consistent with the rule of law. For if decisions materially affecting the rights and

obligations of individuals could be made in an unlawful fashion the rule of law would not be upheld.

6.2 While the circumstances in which a decision made by a public person or body may be found to be unlawful are varied, it is possible

to give a non-exhaustive account of the principal bases by reference to which such a finding might be made. First, the decision must

be within the power of the person or body concerned. Second, the process leading to the decision must comply both with fair

procedures and with whatever procedural rules may be laid down by law for the making of the decision concerned. Third, the decision

maker must address the correct question or questions which need to be answered in order to exercise the relevant power and in so

doing must have regard to any necessary factors properly taken into account and must also exclude any considerations not

permitted. Fourth, in answering the proper questions raised and in assessing all matters properly taken into account the decision

maker must come to a rational decision in the sense in which that term is used in the jurisprudence.

6.3 There may, of course, be many variations or additions to that very broad description of the matters that need to be assessed in

order to decide whether a decision affecting rights and obligations has been lawfully made. However, it seems to me that a party

faced with a decision which affects their rights and obligations must be entitled to assess whether they have a basis for challenging

the lawfulness of the decision in question. The courts have consistently held that it is an inherent part of the judicial review role of

the courts that parties need to know enough about the process and the decision which affects them to be able to mount a challenge

to that decision on the grounds of unlawfulness in an appropriate case.

6.4. In O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750, Murphy J. said, at p.757:-

"It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the courts to

review and secondly to satisfy the persons having recourse to the tribunal that it has directed its mind adequately to

the issue before it. It has never been suggested that an administrative body is bound to provide a discursive judgment

as a result of its deliberations…"

6.5 Sometimes, of course, the process itself will provide for an appeal. It has consistently been held that parties who have a right of

appeal within a process are entitled to sufficient information to enable them to consider, and if appropriate to mount, such an appeal.

For example, Finlay P. in State (Sweeney) v. Minister for the Environment [1979] I.L.R.M. 35, stated that it was necessary "… to give

… (to an) applicant such information as may be necessary and appropriate for him, firstly, to consider whether he has got a

reasonable chance of succeeding in appealing against the decision of the planning authority and secondly, to enable him to arm

himself for the hearing of such an appeal."

6.6 Kelly J. came to a similar view in Mulholland v. An Bord Pleanála (No.2) [2006] 1 I.R. 433 at 460.

6.7 More recently in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701 Murray C.J. said that a failure to

supply sufficient reasons would affect the applicant’s “constitutional right of access to the Courts to have the legality of an

administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective”.

6.8 While the primary focus of a number of the judgments cited, and indeed aspects of the decision in Meadows itself, were on the

need to give reasons as such, there is, perhaps, an even more general principle involved. As pointed out by Murray C.J. in Meadows a

right of judicial review is pointless unless the party has access to sufficient information to enable that party to assess whether the

decision sought to be questioned is lawful and unless the courts, in the event of a challenge, have sufficient information to determine

that lawfulness. How that general principle may impact on the facts of an individual case can be dependant on a whole range of

factors, not least the type of decision under question, but also, in the context of the issues with which this Court is concerned on

this appeal, the particular basis of challenge. In some cases the material on which a challenge might be considered may be obvious.

Where, for example, the challenge is based on a suggestion that the relevant decision maker did not have jurisdiction at all, it will, at

least in the majority of cases, be possible to assess that question by reference to a comparison between the decision made and its

scope on the one hand and the law (whether statute or otherwise) conferring the decision making power on the other. Where the

challenge is based on the process or procedures followed then, again in the majority of cases, any party having standing to challenge

the decision will have participated in the process (or will be able to point to an arguably unlawful exclusion) and will be likely to be

well familiar with what happened and thus able to assess whether there is any legitimate basis for challenge.

6.9 However, where the possible basis for challenge is concerned with the decision making itself then there is the potential for a

greater deficit of ready information. Where the possible basis for challenge is founded on an absence of the correct question being

addressed, incorrect considerations being applied or an irrational decision, any party wishing to assess the lawfulness of the decision

will need to know something about the decision making process itself. While, as already pointed out, this is not a "reasons" case per

se nonetheless the underlying rationale for the case law on the need to give a reasoned but not discursive ruling, while not strictly

speaking applicable, seems to me to have a bearing on a case such as this where the issue is as to whether the decision maker

addressed the correct question. White & anor v. Dublin City Council & ors [2004] 1 I.R. 545, is a good example of a case in which a

decision was quashed because the decision maker asked himself the wrong question. The case concerned a question as to whether a

revision to a planning application required to be re-advertised. Fennelly J. found that the decision maker had, in reality, asked himself

whether planning permission should be granted rather than whether some members of the public might reasonably wish to object to

the plans as modified. It is clear from the judgment that the court had available to it sufficient materials to enable an analysis to be

conducted as to the question addressed by the decision maker.

6.10 However, if a person affected does not have any sufficient information as to the question which the decision maker actually

addressed then it surely follows that that person's constitutional right of access to the courts to have the legality of the relevant

administrative decision judicially reviewed is likely to be, in the words of Murray C.J. in Meadows, "rendered either pointless or so

circumscribed as to be unacceptably ineffective".

6.11 Against the backdrop of that analysis it is necessary to return to the application of that law to the facts of this case.

7. Application to this case

7.1 It seems to me that the issues which arise in this case potentially come within the third of the four categories of lawfulness

challenge identified earlier. The issue is as to whether the ultimate decision maker asked himself the right question. What was that

question? Airman Rawson raised, in his representations, the possibility of innocent or inadvertent inhalation, and thereby created a

situation where the decision maker was required, because of para. 318 of the Regulations, to determine whether a reasonable doubt

in that regard had arisen. The question, therefore, was as to whether there was a reasonable doubt to the effect that the positive

sample in question arose out of circumstances which could be described as innocent or inadvertent. In the light of the case made by

Airman Rawson that was really the only question. If the answer to that question was "yes" then para. 318 required that Airman

Rawson remain a member of the Defence Forces. If the answer to that question was "no" then his discharge necessarily followed. The

lawfulness of the decision to discharge, in the light of the challenge brought in this case, therefore depends on whether the decision

maker asked and rationally answered that question.

7.2 While a judgment made in relation to a “reasons” case it seems to me that the logic of Clare v. Kenny [2009] 1 I.R. 22 is equally

applicable to a challenge based on a contention that the correct question was not asked or inappropriate considerations were given.

In that case MacMenamin J., at p.36, stated that:-

“… a court in judicial review proceedings cannot act on what must be at best a hypothesis as to the possible rationale

for the decision, particularly so in the context of the array of possible reasons, some of which would go beyond

jurisdiction … The situation required a decision so that all the parties would be aware precisely of their positions. The

reason or rationale for the decision as to jurisdiction unfortunately cannot be inferred from what was said by the

respondent”.

7.3 There may, of course, be cases where it is possible to say with a great deal of comfort that the decision maker has approached

the issue in a particular way. The materials before the court may make it clear as to what the approach of the decision maker was so

that, even if not set out in express terms, there is only one real basis on which it might be considered that the decision maker

approached the issues under consideration. However a review of the facts seems to demonstrate that this is not such a case.

7.5 Do we really know why the C.O., or the G.O.C. on appeal, rejected Airman Rawson’s case? It is possible that he was not believed.

If that be so then it follows that there is a potential difficulty, as identified by the trial judge, in that further consideration was not

given to the facts, including the scientific facts suggested on Airman Rawson’s behalf. On the other hand it is possible, as was found

by the trial judge, that the decision maker considered that Airman Rawson’s defence did not, in reality, bring him within the innocent

or inadvertent category at all. It certainly does not follow that passive inhalation of cannabis will always afford a defence under the

innocent or inadvertent provisions of para. 318. The problem is that nothing in the record, or the evidence placed before the court on

behalf of the Minister, provides any indication as to whether the basis for the decision was one or other (or indeed both) of the above

or indeed some other reason altogether.

7.6 While, as pointed out, this is not a "reasons" case, nonetheless the court is entitled to be able to be satisfied that the correct

question was asked. There may be cases where an analysis of the situation with which the decision maker was presented bears only

one reasonable interpretation. However this does not seem to me to be such a case. At a minimum, there is something of a tension

between the position adopted by the Minister which was to the effect that the 15 milligram threshold was designed to exclude the

risk of passive inhalation, on the one hand, and the finding of the trial judge that the relevant senior officers must have accepted

Airman Rawson’s account on the facts, on the other hand. If it is true that the 15 milligram threshold does, as a matter of

practicality, exclude (or almost always exclude) a positive test in circumstances of passive inhalation then such a finding would

necessarily involve rejecting Airman Rawson’s account to the effect that the only explanation for the presence of cannabis in his test

was passive inhalation. As pointed out by MacMenamin J. in Clare v. Kenny it is not for the court to engage in a hypothetical exercise

in seeking to determine the possible rationale for a decision particularly where there may be many possible bases on which a decision

might be reached. By a parity of reasoning it seems to me that it is not possible to infer that the decision maker asked the correct

question when there are a number of different bases on which the question could be approached and where the record and the

evidence is silent as to the basis on which the decision maker actually approached the issue in question.

7.7 But perhaps of even greater importance is the question of the standard of proof. As already noted when the question of innocent

or inadvertent ingestion is put forward in representations on behalf of a member of the Defence Forces para. 318 of the Regulations

requires that the relevant superior officer consider that matter on the basis of a standard of proof of a reasonable doubt. This is not

one of those cases where the presence of an appropriate level of cannabis raises, under the Regulations, a presumption of use

subject to the entitlement of the member of the Defence Forces to rebut that presumption by putting forward satisfactory evidence

such as would persuade the superior officer concerned, (most likely on the balance of probabilities), of an innocent explanation. It

might well, of course, have been possible for the Regulations to have been drafted in a different way such as would require a deciding

superior officer to approach the issue in that way. However, the Regulations in their current form are clear. Once the issue is raised

the matter must be determined on the basis of proof beyond reasonable doubt.

7.8 In that context it is important to note that there is nothing in the papers, including the documentation which was before either of

the relevant superior officers, which suggests that those officers approached the question on the basis of an obligation to give Airman

Rawson the benefit of any reasonable doubt.

7.9 It follows that there are no materials from which a court exercising a judicial review function could be satisfied that the decision-

makers applied the appropriate test.

7.10 In his judgment the trial judge was constrained to engage in a hypothesis about the basis on which the relevant superior officers

must, in his view, have approached the matter. In my view in so doing the learned trial judge fell into error for the reasons identified

by MacMenamin J. in Clare v. Kenny. There may be cases where it is possible legitimately to infer what question was addressed by

the decision-maker and what considerations were taken into account. However, to go beyond the scope of legitimate inference seems

to me to be impermissible. It seems to me that the exercise engaged in by the trial judge, though entirely understandable, went

beyond the boundary of legitimate inference and strayed into the hypothetical.

8. Conclusions

8.1 It follows that the appeal must be allowed and that the decision to discharge must be quashed. The decision does not, on its

face, disclose that the decision maker (whether the C.O. or the G.O.C.) considered the question of whether a reasonable doubt had

been raised on the innocent/inadvertent issue at all. It is not the sort of case where the court could safely infer that the correct

question must necessarily have been asked having regard either to the way the process developed or the materials which were before

the decision maker. It may well be that there were circumstances in which a decision maker in a case such as this could conclude

that Airman Rawson’s account was not credible and thus not to be accepted. It may well be that there could be circumstances where

a decision maker might conclude that, even accepting Airman Rawson’s account, it did not, in all the circumstances and having regard

to all surrounding facts, bring him within the innocent/inadvertent reasonable doubt test.

8.2 There may, indeed, be other bases, including possibly a combination of those two matters, on which it would be possible for a

decision maker lawfully to come to a decision that para. 318 did not provide a basis for not discharging Airman Rawson. However the

problem in this case is that the court does not even know that the decision maker asked himself any of those questions for we know

nothing about the basis of the decision to discharge Airman Rawson except that it was made and that the materials before the

decision maker included Airman Rawson’s representations.

8.3 In my view that is insufficient to meet the requirement that the court be able to be satisfied, in the event of a challenge, that

the decision maker asked the right question. As to what is to occur in the future it seems to me that, at least initially, it is a matter

for the authorities in the Defence Forces to decide whether the issues raised by Airman Rawson’s positive test could or should be

considered again.