Environment Protection Authority v ACE Demolition & Excavation Pty Ltd

Land and Environment Court (NSW)|2021-09-28|Before: Moore J, Mr J

Introduction

ACE Demolition and Excavation Pty Ltd (the Company), as its name implies, provides demolition and excavation services to developers operating in the construction industry in Sydney. As part of the its business, the Company removes and disposes of waste generated by its activities at various construction sites. Some of the waste material generated by the Company's activities, and removed from the generating site for disposal, is material which is contaminated (including, sometimes, being contaminated by the presence of asbestos material). Other waste generated and removed for disposal can be regarded as clean and is to be classified as excavated natural material (referred to in shorthand terms as "ENM") or virgin excavated natural material (referred to in shorthand terms as "VENM"). Some other waste is classified as general solid waste (referred to in shorthand terms as "GSW"). There are also other waste classifications not needing to be set out.

Mr Sami Allam's role with the Company

Mr Sami Allam (Mr Allam) is the sole director, sole shareholder, and Chief Executive Officer of the Company.

The charges against the Company

The Prosecutor has laid four charges against the Company for alleged breaches of s 144AA of the Protection of the Environment Operations Act 1997 (the POEO Act). The relevant elements of this provision are set out below: 144AA False or misleading information about waste (1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence. It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect. Maximum penalty - (a) in the case of a corporation - $250,000, or (b) in the case of an individual - $120,000. (2) A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $500,000, or (b) in the case of an individual - $240,000 or imprisonment for 18 months, or both. (2A) If the court is satisfied that a person charged with an offence under subsection (2) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), the court may find the person guilty of the offence under subsection (1), and the person is liable to punishment accordingly.
Mr Sami Allam has also been charged with three offences pursuant to s 169A of the POEO Act, these being executive liability offences. Executive liability offences are ones where an individual has the offending conduct of a corporate entity imputed to them by virtue of, here relevantly, the person being a director of the corporation (s 169A(2)(b)(i)).
The Summonses set out the terms of each of these charges. A summary of the charges against the Company and Mr Sami Allam are set out in Annexure A.
As can be seen from Annexure A, three of the four charges laid against the Company are for breaches of s 144AA(2), with the fourth charge (the third listed in Annexure A) is a charge pursuant to s 144AA(1). It is to be noted that the three charges pursuant to s 144AA(2) require knowledge of the falsity of the information transmitted, whilst the single charge pursuant to s 144AA(1) does not require establishment of that mental element.
However, it is to be noted that this judgment deals only with the confined matters arising from the Prosecutor's Notice of Motion seeking leave to rely on tendency evidence against the Company. The charges against Mr Sami Allam form no part of this consideration.

The Prosecutor seeks an advance evidentiary ruling against the Company

On 16 July 2021, the Prosecutor filed a Notice of Motion in the various proceedings against the Company seeking an advance evidentiary ruling. Such an application is permitted by s 192A of the Evidence Act 1995 (NSW) (the Evidence Act). The Notice of Motion sought the following order: That the Prosecutor be granted a ruling pursuant to s 97 of the Evidence Act 1995 that evidence of a tendency of the Defendant, as set out in the notice of intention to adduce tendency evidence which is behind Tab 1 of Exhibit EES-1 to the affidavit of Elizabeth Emily Spain dated 15 July 2021, is admissible.

The Prosecutor's tendency notice

The tendency proposed by the Prosecutor in paragraph 6 of the notice given to the Company pursuant to s 97(1) of the Evidence Act was that the Company had a tendency: to supply information about waste to another person in the course of dealing with the waste, which information was false or misleading in a material respect.
However, to enable an understanding of the matters addressed in this decision, it is also appropriate to set out the terms of paragraph 3 of the Prosecutor's tendency notice as it makes clear the nature of the conduct said by the Prosecutor to found the tendency. Paragraph 3 of the Prosecutor's notice is in the following terms: 3. The substance of the evidence which the Prosecutor intends to adduce to prove the tendency described at paragraph 6 below is as follows: On three occasions between 24 March 2017 and 30 March 2017 the Defendant supplied information to waste facilities in the course of dealing with waste, the waste facilities being known as: • "Howards" - on 24 March 2017 ; • "KSR" - on 27 March 2017; and • "Collins" - on 30 March 2017; the information being a waste classification certificate by El Australia Pty Ltd dated 30 November 2016, reference number E22847_WCC03 ("the certificate concerned"), purporting to be in respect of: □ "Virgin Excavated Natural Material (VENM)" at the Wolli Creek Premises, which certificate was false or misleading in that: □ the original certificate had been issued by El Australia Pty Ltd in respect of "Virgin Excavated Natural Material (VENM) containing potential acid sulfate soils"; and □ the certificate concerned had the words "containing potential acid sulphate soils" removed from two places on the document and the words "virgin excavated natural material (VENM)" had been re-centred in a table concerning the waste classification for off-site disposal in relation to the item "assessed class".
It is to be noted that paragraph 4 of the Prosecutor's notice provides details of how the information was said to be supplied by e‑mail to the waste facilities nominated in paragraph 3 of the notice - with those e‑mails all being sent by Mr Bachar Allam, an employee of the Company.
For the Prosecutor to be permitted to rely on the tendency about which it seeks a ruling, the Prosecutor must first satisfy the tests in s 97(1)(a) and (b) of the Evidence Act. If those tests are satisfied, it is then necessary to consider whether or not ss 101, 135 or 137 of that Act operate in a fashion which would exclude reliance on the tendency asserted by the Prosecutor in its tendency notice.

The related interlocutory decisions

As part of the suite of interlocutory issues arising with respect to the prosecutions for the charges set out in Annexure A, one related decision has already been given by me. This decision addressed a challenge to the validity of the obtaining by the Prosecutor of a large number of text messages and WhatsApp conversations retrieved from Mr Sami Allam's mobile phone, a phone which had been seized from him by the Prosecutor (there being no challenge to the seizure, merely to the validity of the obtaining of the messages retrieved from it). On 24 September 2021, I rejected the challenge to the obtaining of the messages and conversations by the Prosecutor (Environment Protection Authority v Allam [2021] NSWLEC 103).
Two further interlocutory decisions (Environment Protection Authority v Allam (No 2) [2022] NSWLEC 7 (Allam No 2) and Environment Protection Authority v ACE Demolitions & Excavations Pty Ltd; Sami Allam [2022] NSWLEC 45 (the Company and Sami joint decision) have been given simultaneously with this decision. A reading of all four of these decisions will assist in understanding the nature of the present status of the proceedings (proceedings which are scheduled to proceed to trial in late July 2022).

The Statement of Agreed Facts

The parties have settled a Statement of Agreed Facts relevant to the series of interlocutory proceedings within which this decision fits. It is in the following terms: Background The legislative framework for disposal of excavation waste 1. At the times of the alleged offences, the disposal of waste, including excavation waste, from construction sites was governed by the Protection of the Environment Operations Act 1997 (POEO Act) and the Protection of the Environment Operations (Waste) Regulation 2014 (Waste Regulation). 2. There were different types or categories of waste including: • aggregate; • asbestos; • bricks or concrete; • contaminated soil; • mixed waste; • soil (not contaminated or Virgin Excavated Natural Material (VENM)); • VENM • asbestos containing/contaminated material (ACM); • potential acid sulphate soils (PASS); • general solid waste (GSW); and • excavated natural material (ENM). 3. Under Part 3 of the Waste Regulation, the occupiers of waste facilities were required to record certain information in relation to each delivery of waste or other material received at the facility, including the amount of any waste delivered, its waste type, its waste stream (such as construction and demolition waste), the date and time the delivery is made and the registration number of the vehicle used to make the delivery. This was an obligation that attached only to the occupiers of waste facilities. Accounting required for disposal of excavation waste, generally 4. In summary, the waste facilities had weighbridges over which the trucks carrying waste into the facility were required to pass. The weighbridges generated weighbridge disposal dockets (dockets) which were usually given to the drivers of the trucks concerned. A function of the dockets was to provide a record of the disposal of the quantity of waste concerned. The dockets sometimes specified the source development site which had been supplied to the waste facility operator when the company disposing of the waste agreed with the operator for the waste to be disposed of at the facility, and/or given to the weighbridge operator by the truck driver when going over the weighbridge. Where an order number (job number) had been created by the waste facility for that source site, the docket sometimes specified that data. (The process by which the dockets were generated is detailed under the heading "ACE's transactions with waste facilities" below.) The dockets were ultimately provided to the company disposing of the waste, in this case ACE Demolition & Excavation Pty Ltd (ACE). A record of the dockets was also kept by the waste facilities. ACE received dockets in one or other or both of two ways: • from the driver of the truck; and/or • from the facility, sometimes as copies, when it invoiced ACE for the cost of ACE disposing of the waste concerned; or when ACE requested them from the facility. 5. The dockets usually recorded in print form: (a) the name of the facility; (b) a unique docket number; (c) the date and time; (d) the vehicle registration number of the truck; (e) the identity of the company disposing of the waste (e.g. ACE); (f) a job number or source location for the waste; (g) the waste type; (h) the tare weight of the truck; and (i) the net weight of the waste. ACE Demolition & Excavation Pty Ltd The company and relevant senior staff 6. At the times of the alleged offences, ACE conducted civil works, such as demolition and excavation of development sites, and the transportation and disposal of waste. 7. At the times of the alleged offences, Mr Allam was the sole director of ACE and had been a director since 22 January 2004. Mr Allam was the sole shareholder of ACE. 8. At the times of the alleged offences, ACE simultaneously conducted excavation activities on an average of 25 development sites in NSW - most of them in the Sydney area. ACE had an office at Regents Park. Based at the office were • Mr Allam - director; • Munaf Al Sarray; • Bachar Allam - truck & people allocator; • Kassan (also "Kassem") Allam - machinery allocator; and • Ameer Sidawi - accounts payable clerk & contracts administrator. 9. Mr Allam acted as the company's chief executive officer. 10. As part of his role, Mr Al Sarray: (a) had oversight of the movement of waste from construction sites to waste facilities, including coordinating where waste was sent; (b) was responsible for collecting dockets from waste facilities and for providing copies of dockets to clients and environmental consultants; (c) was responsible for finishing the jobs which ACE undertook by, amongst other things, providing evidence to clients that waste anticipated to have been present on the site was lawfully disposed of. The company's operations 11. ACE typically quoted to development companies (including construction companies) to conduct the demolition and excavation phases of planned development works. Those phases often included the removal from the development site of the demolition and excavation waste generated by ACE. 12. ACE entered into agreements with various waste facilities for the disposal at those facilities of waste taken from particular development sites at which ACE was generating waste. 13. The system which ACE operated for the transport of waste to waste facilities was generally as follows: (a) excavator operators hired or employed by ACE excavated material from the development site concerned; (b) the excavated material was placed by the operator of an excavator either directly from the excavation or from a stockpile into a truck hired by ACE; (c) the truck drove to the exit gate of the site; (d) the gate was controlled by a traffic controller; (e) the traffic controller was told the type of the waste and the waste facility to which the truck should take the waste; (f) if he had not already been told by the allocator, the truck driver was told the destination waste facility to which the load should be taken by the traffic controller. ACE's transactions with waste facilities 14. In the period 2016-2017, ACE disposed of excavation waste to waste facilities, including facilities operated by: (a) SUEZ Recycling & Recovery Pty Ltd (SUEZ) - including its Elizabeth Drive Landfill Facility at 1725 Elizabeth Drive, Kemps Creek, NSW (SUEZ Facility); (b) Dial A Dump Industries Pty Ltd and Dial A Dump (EC) Pty Ltd (DADI) - including its Genesis Eastern Creek landfill and recycling facility at Kangaroo Avneue, Eastern Creek, NSW (DADI Facility); and (c) The Holt Estate 1861 trading as Besmaw Pty Ltd (Besmaw) - namely its Holt Land Rehabilitation Centre, corner Lindum Road and Captain Cook Drive, Kurnell, NSW (Holt Landfill). 15. The procedure to enable ACE to dispose of waste to the SUEZ Facility and the DADI Facility was that ACE already had or opened an account with the operator of the facility. The procedure included: (a) ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of; (b) in the case of DADI, the operator allocated an order number to the customer which was then printed on its dockets as the "Order No."; (c) in the case of SUEZ, the operator allocated a "Customer ref." which was a unique code. 16. Generally, when a truck carrying waste being disposed of by ACE came to a waste facility it was required to go over a weighbridge. The truck driver told the weighbridge operator that it was carrying waste for ACE. The weighbridge weighed the gross load. The truck travelled into the facility and tipped off its load (if one bin on a bogie truck) or loads (if two bins comprising a truck and dog) and returned to the weighbridge. There the weighbridge calculated the tare weight of the vehicle and recorded the net weight of the load/s. The weighbridge generated a docket (for details, see pars 4 and 5 above). 17. ACE disposed of waste to the Holt Landfill from at least 12 source development sites. Trucks carrying waste to the Holt Landfill for ACE from any source site went over a weighbridge which calculated the weight of the loads tipped and generated a docket (entitled "Tax invoice duplicate") which contained the same data as referred to in paragraph 5 above. Wolli Creek Premises Development consent, excavation contract and site investigations 18. On 13 November 2014, development approval was granted for the demolition of existing structures and construction of two 8 storey residential flat buildings with rooftop terrace areas and basement parking, at 40-50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction company owned by Top Pacific Group Pty Ltd. The latter company was responsible for developing the Wolli Creek Premises. 19. Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries. A director at EI Australia was Eric Gerges. 20. On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000. The contract was signed for ACE by Mr Allam. Works at the Wolli Creek Premises 21. The contract with TPC specified that, amongst other things, ACE was required to remove all VENM, PASS, ACM and GSW from the Wolli Creek Premises. Information provided by ACE to TPC and EI Australia in respect of waste at the Wolli Creek Premises 22. On 25 January 2017, ACE submitted an invoice to TPC. 23. On 23 February 2017, ACE submitted another invoice to TPC. 24. On 29 March 2017, Dean Huang, a contract administrator employed by TPC, sent an e‑mail to Mr Al Sarray and Mr Allam advising that further payments would only be released once further information was received from ACE, including "all dockets" for the "100% of bulk excavation" work for which ACE had claimed payment. 25. On 7 April 2017, Mr Maroun sent an e‑mail to Mr Allam reiterating that TPC would release payment to ACE once dockets were provided. 26. On 10 April 2017, an e‑mail was sent from Mr Allam's ACE e‑mail account to Mr Maroun stating that ACE would send through the dockets on that day or the next day. 27. On 18 April 2017, Mr Al Sarray sent an e‑mail to Mr Maroun attaching, amongst other things: (a) 70 dockets for the disposal of waste material at the SUEZ Facility (18 April SUEZ Dockets). The 18 April SUEZ Dockets did not refer to "Wolli Creek". Instead, the customer reference was recorded as "H57" and, in one instance, "H57 TERRY HILLS"; and (b) 148 dockets for the purported disposal of waste material from the Wolli Creek Premises at the DADI Facility (18 April DADI Dockets). 28. Mr Allam was listed in the "CC" field of the e‑mail, together with Mr Park Wei, Mr Wesley Wei and Mr Dean Huang. 29. On 12 June 2017, an e‑mail was sent from Mr Allam's ACE e‑mail account to Eric Gerges at EI Australia, attaching, amongst other things: (a) a document listing details regarding 80 loads, or 2,415.97 tonnes, of waste material (the First Holt Run Sheet); (b) a letter from Besmaw stating that 2,415.97 tonnes of VENM was received by Besmaw; (c) 153 dockets for the purported disposal of waste material at the DADI Facility (12 June DADI Dockets). The 12 June DADI Dockets made reference to a range of source locations, including "wolli creek", "REGENTS PARK", "LIDCOMBE", and "westmead"; (d) 48 dockets for the disposal of waste at the SUEZ Facility (12 June SUEZ Dockets). The 12 June Suez Dockets did not refer to the words "Wolli Creek" but instead referred to "H57" and, in one instance, "H57 TERRY HILLS"; (e) an excel spreadsheet titled 'Wolli Creek Summary', which included 95 docket reference numbers and associated information for the purported disposal of waste from the Wolli Creek Premises (DADI Spreadsheet); and (f) an excel spreadsheet named 'ACE 130217 300317', which included 70 docket reference numbers and associated information for the disposal of waste at the SUEZ Facility (SUEZ Spreadsheet). The SUEZ Spreadsheet did not refer to the words "Wolli Creek", but instead referred to "H57" and, in one instance, "H57 TERRY HILLS". 30. On 2 December 2017, Mr Sidawi e‑mailed Mr Gerges attaching a purported summary sheet (or run sheet) from the Holt Group. The run sheet indicated that 622 loads, or 18,186.91 tonnes, of waste material had been disposed of by ACE at the Holt Landfill (the Second Holt Run Sheet). Mr Allam was listed in the CC field of this e‑mail. Zetland Premises 31. On 20 January 2016, development approval was granted for the demolition of existing structures and construction of a mixed use development comprising three buildings of a scale of 9 storeys, 11 storeys and 15 storeys, each above two levels of basement car parking at 105-115 Portman Street, Zetland, NSW (the Zetland Premises). The construction company that was responsible for developing the Zetland Premises was Westbourne Constructions Pty Ltd (Westbourne). 32. On 15 February 2017, ACE entered into a contract with Westbourne to carry out works at the Zetland Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Zetland Premises, design and install shoring walls and ground anchors, and perform earthworks and piling. The value of the contract was $19,000,000. The contract was signed by Mr Allam for ACE. Works at the Zetland Premises 33. Between February and August 2017, ACE carried out and completed the works at the Zetland Premises. 34. As part of the development consent, Westbourne was required to prepare a Waste Management Plan. Westbourne prepared such a Waste Management Plan on 18 July 2016. That Waste Management Plan stated, in relation to "[e]xcess or contaminated excavation fill... to be removed off site and classified in accordance with relevant authorities", that "[t]rucking docket records are to be kept on site to check that fill is going to the nominated landfills". The Waste Management Plan was not included in Westbourne's contract with ACE. Dockets provided by ACE to Westbourne in respect of waste at the Zetland Premises 35. On 2 June 2017, Mr Al Sarray sent an e‑mail to Glen Allen, a construction manager employed by Westbourne, attaching, amongst other things: (a) 70 weighbridge dockets for the disposal of waste at the SUEZ Facility (2 June SUEZ Dockets). The 2 June SUEZ Dockets did not refer to "Zetland", but rather to "H57" and, in one instance, "H57 TERRY HILLS"; and (b) 147 weighbridge dockets for the purported disposal of waste from the Zetland Premises at the DADI Facility (2 June DADI Dockets). 36. Mr Allam was listed in the CC field of this e‑mail.

The evidence

For the purposes of this limited preliminary issue, virtually the entirety of the material relied upon for the Prosecutor or for the Company was provided electronically. The electronic material was provided on two USB sticks (one from the Prosecutor and one from the Company), with only limited elements of the material requiring consideration on this preliminary application. A list of the evidentiary material across all these interlocutory decisions is at Annexure B.

Representation

The Prosecutor was represented by Mr D Buchanan SC and Ms F Graham, barrister. The Company was represented by Mr J Potts SC and Ms K Morris, barrister.

The hearing

The hearings addressing the interlocutory matters (of which this judgment deals with but one) were held over six days, with an approximately two-week break between the second and third/fourth days, and a further break of a month until the final two days (as a result of additional time being required). This additional time was necessary because of the underestimation of the time needed by the parties when these preliminary determinations were set down for hearing.
The hearings were held, as a consequence of the COVID‑19 pandemic, partially using audio-visual links and, when technical problems arose, using telephone conference call technology - without the necessity for any physical attendance in the courtroom.

The written submissions

Comprehensive sets of written submissions were provided by the Prosecutor and by the legal representatives for the Company and Mr Allam, dealing with all the matters requiring consideration in this series of interlocutory decisions arising from the prosecutions of the Company and Mr Sami Allam.

Introduction

Four different elements of the Evidence Act require consideration or noting in these proceedings. The first is the provision that permits the Prosecutor to seek an advance evidentiary ruling concerning the "asserted tendency" by the Company upon which the Prosecutor seeks to be permitted to rely. The second element is the sequence of provisions concerning tendency evidence and the tests they establish that must be satisfied, successively, for the Prosecutor to be permitted to rely on the tendency that it seeks to assert against the Company. Third, I note (but do not reproduce) the provision that permits hearsay evidence to be considered in interlocutory proceedings such as these. Finally, it is appropriate to set out the definition of probative value from the Dictionary to the Act.

Advance evidentiary rulings

The first relevant provision is s 192A, the provision that permits the Prosecutor to seek the advance evidentiary ruling set out in the Prosecutor's Notice of Motion. This provision is in the following terms: 192A Advance rulings and findings Where a question arises in any proceedings, being a question about - (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

The provisions relating to proposed tendency evidence

It is next appropriate to set out the five relevant provisions requiring consideration concerning the proposed tendency evidence considered in this decision. These provisions set out the sequential process requiring my consideration as to whether or not the Prosecutor's "asserted tendency" is established and is appropriate to be permitted to be adduced as evidence in the Company's trial for the charges that have been laid against it.
The first provision, s 97, sets out the framework of the tendency rule and sets a number of gateways which are required to be established to be open before the Prosecutor can be given a positive advance ruling as sought in the Notice of Motion. The provision is in the following terms: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) ...
If the Prosecutor succeeds in passing through the two gateways established by s 97, because these are criminal proceedings, an additional gateway requires to be open for the Prosecutor to succeed. This is established by s 101(2). The provision is in the following terms: 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant. (3) ... (4) ...
Assuming that the Prosecutor has successfully traversed the gateways in ss 97 and 101(2), there are then two general discretions requiring to be considered in my evaluation of the Prosecutor's "asserted tendency". These are contained in ss 135 and 136. These provisions are reproduced below: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing.
Finally in this sequence of evaluation, s 137 imposes a mandatory requirement to refuse to admit evidence in the circumstances set out by this provision. It is in the following terms: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
As can be seen, ss 135 and 136 provide for discretionary considerations, whilst s 137 does not have any discretionary element but mandates the exclusion of evidence in circumstances covered by the provision.

Exclusion of the hearsay rule

It is to be observed that, as these are interlocutory proceedings, s 75 of the Evidence Act operates to set aside the hearsay rule for the purposes of these proceedings. It is unnecessary to set out the terms of this provision.

The definition of "probative value"

The definition of "probative value" in the Dictionary to the Evidence Act will also later require consideration. This definition is in the following terms: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

The POEO Act

Three provisions of the POEO Act required to be noted. The first of those is s 144AA - earlier set out at [3].
The second provision of the POEO Act to be noted is s 169C, the provision that permits the state of mind of an employee of a corporation to be attributed to the corporation itself. This provision is in the following terms: 169C Evidence as to state of mind of corporation (1) Without limiting any other law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation (while acting in his or her capacity as such) had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind. (2) In this section, the state of mind of a person includes - (a) the knowledge, intention, opinion, belief or purpose of the person, and (b) the person's reasons for the intention, opinion, belief or purpose.
As later noted at [39], the Prosecutor used its power under s 212A of the POEO Act to require the production of an original of the document which had been attached to Mr Bachar Allam's e‑mails. It is not necessary to reproduce this provision.

The Prosecutor's submissions

The Prosecutor commenced submissions concerning the e‑mails sent by Mr Bachar Allam by taking me to the relevant documents in the evidence. In this context, it is to be noted that it was accepted by Mr Potts that e‑mails may have been sent from the e‑mail account of Mr Sami Allam, but it was not conceded that those e‑mails were sent by Mr Sami Allam.
Each of the e‑mails from Mr Bachar Allam had had attached to it the same waste classification certificate produced by EI Australia Pty Ltd (EI Australia) dated 30 November 2016. The certificate was a lengthy document comprising some 80 pages or so.
For the purposes of the matter pressed in the Prosecutor's tendency notice, however, only a limited number of pages - principally, the front page of the document - were submitted as being relevant, being a page headed "Waste Classification Certificate". The waste classification row on the front page of this document recorded that it related to "virgin excavated natural material (VENM)".
The remainder of the documentation comprised, the Prosecutor submitted, in essence merely of sampling details and analytical reports.
The Prosecutor then proposed to take me to a record of interview of 10 December 2019 between an employee of the Prosecutor and Mr Bachar Allam, the Prosecutor referencing answers to questions 93 to 286 inclusive. At this point, in response to a question from me, Mr Potts said (Transcript 25 August 2021, page 180, lines 26 to 30): POTTS: No, your Honour, and if I can shortcut this, your Honour, for the present purpose, we accept that Mr Bachar Allam sent each of the three e‑mails which our learned friend took your Honour to and attached the waste certificates that our learned friend took your Honour to. We accept that. That's not in contest.
The Prosecutor next took me to the process by which EI Australia was required to provide information to the Prosecutor. The requirement to produce the information was achieved by a notice to EI Australia given pursuant to s 212A of the POEO Act. This notice, dated 22 November 2019, effected a variation of an earlier notice issued to EI Australia - one dated 23 October 2019. The variation added, under the heading "Requirement to provide records Wolli Creek premises", the requirement that a copy of the waste classification certificate, E22847_WCC003 dated 30 November 2016, was to be provided to the Prosecutor within a nominated time.
The Prosecutor next took me to the answer to this requirement to provide information. By letter dated 26 November 2019, Mr Gerges of EI Australia responded to the variation notice by providing a copy of the waste classification certificate specified. It is to be observed that this letter, relevantly, also said that: EI Australia did not issue the document which is Annexure A to the variation notice which appears to be a modified version of the enclosed waste classification certificate.
Attached to the response was a waste classification certificate having the same reference number (E22847_WCC003) as that which Mr Bachar Allam had appended to his e‑mails. However, the certificate, which had been returned in response to the requirement to EI Australia to produce documents, differed from that which had been attached to Mr Bachar Allam's e‑mails - in that the entry in the waste classification row on the EI Australia‑provided document read "virgin excavated natural material (VENM) containing potential acid sulphate soils".
The Prosecutor submitted that Mr Bachar Allam sent the e‑mails in his capacity as an employee of the Company and that his doing so was to be imputed to the Company. As a consequence, therefore, the Company had supplied the inaccurate information in the certificates to the waste disposal facilities to which Mr Bachar Allam had sent that document. In this context, the Prosecutor submitted (citing Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500) that (Transcript 25 August 2021, page 181, lines 41 to 43): … the Court will be content with applying the attribution theory of corporate liability for the conduct of employees in order to make good the submission that Mr Allam's conduct is to be imputed to the defendant.
At this point, Mr Potts again intervened and indicated that it was accepted that, when Mr Bachar Allam sent the three e‑mails, he was acting for and on behalf of the Company and that his conduct should be attributed to the Company. This concession obviated the necessity to consider the applicability of s 169C of the POEO Act.
With respect to the notice requirement in s 97(1)(a) of the Evidence Act, Mr Potts also confirmed that it was accepted that the notice requirement had been satisfied.
The Prosecutor noted that the evidence pressed in support of the tendency was not said to be evidence of a tendency to commit an offence against s 144AA. The tendency pressed, as applying to the Company, was to supply false or misleading information to others about waste with which the Company was dealing. On this basis, the Prosecutor submitted that the "asserted tendency" was relevant to offences charged under s 144AA without regard to the subsection upon which the charge was founded.
The Prosecutor addressed the question of whether or not the "asserted tendency" was relevant to offences charged for breaches of both subs (1) and subs (2) - irrespective of the fact that, in subs (2), there is a mental element required to be proved.
I then asked the Prosecutor (Transcript 25 August 2021, page 187, lines 46 to 50): HIS HONOUR: Do you accept that for the purposes of s 97(1)(b) [it] is at least permissible for me to contemplate or ask myself the question whether the asserted tendency would have significant probative value with respect to 144AA(1) for that charge and for 144AA(2) with respect to those charges and at least potentially come to different conclusions.
The Prosecutor's response was in the following terms (Transcript 25 August 2021, page 188, lines 2 to 8): PROSECUTOR: Theoretically, yes, but, it's a matter of practice in this case. Theoretically, yes in the abstract, but, in this case, because the conduct concerned is not conduct to knowingly transmit information, which is false or misleading. The significant probative value has to reside in the extent to which the asserted tendency could assist in proving the conduct comprising the supply of information to other people as charged in the four offences, the subject of the charges against the defendant company.
I then had a further exchange with the Prosecutor concerning the difference between s 144AA(2) (being the requirement for knowledge of the falsity of the information supplied) and the lack of this requirement for the offence in s 144AA(1). At this point, the Prosecutor made it clear that (Transcript 25 August 2021, page 188, lines 39 to 43): PROSECUTOR: … It is not the whole of the offences charged, and the two elements are those which are the facts in issue as identified yesterday by my learned friend. Whether the conduct charge can be attributed to the company and, secondly, whether the information supplied was false or misleading.
The Prosecutor submitted that the asserted tendency of providing information that was false or misleading in a material respect as proposed by the "asserted tendency" would make it more likely that a tribunal of fact would find or conclude that the conduct charged in the offences was engaged in, or committed by the Company.
I then enquired of the Prosecutor whether, if I was to find that the "asserted tendency" had been established, I might note that the "asserted tendency" was not sought to be relied upon for the purposes of demonstrating knowledge of the falsity or misleading nature in a material respect of the information so supplied. The Prosecutor accepted that this would be appropriate (Transcript 25 August 2021, page 189, line 6).
Citing IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (IMM v The Queen), the Prosecutor submitted that (Transcript 25 August 2021, page 189, lines 25 to 34): PROSECUTOR: … the assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The effect of that principle, your Honour, in our submission, is that your Honour would not give weight to the evidence upon which the defendant relies as to what the defendant discovered when performing experiments with the file comprising the falsified waste classification certificate, simply because your Honour takes the evidence at its highest, without regard to material which would detract from its probative value.
The reference in the above transcript extract to "performing experiments with the file" is a reference to the evidence I later discuss in setting out the submissions for the Company, this being evidence in an affidavit from Mr George Pasas, a solicitor employed by the legal representatives of the Company and Mr Allam.
The Prosecutor next referred me to paragraphs 27 and 28 of the Prosecutor's written submissions. These paragraphs were in the following terms: Evidence as to aspects of Prosecutor's case of which asserted tendency evidence is probative 27 For the purposes of this application, evidence as to the following aspects of the Prosecutor's case of which the waste classification certificate case is, it is submitted, highly probative, is contained in the PFRDSoF: • as to the Wolli Creek Premises and the Defendant's relationship with it; • as to the nature of the Prosecutor's case in respect of the information supplied to others relating to waste removed from those Premises. 28 In particular, the Prosecutor's case that the Defendant supplied information relating to waste from the Wolli Creek Premises which was false or misleading is detailed in the PFRDSoF.
The first bullet‑point in paragraph 27 is footnoted with references to a number of paragraphs in the Prosecutor's Further Revised Draft Statement of Facts. To enable a proper understanding of the submission in the first bullet‑point, it is appropriate to reproduce, in their entirety, the relevant paragraphs of the Prosecutor's Further Revised Draft Statement of Facts footnoted as relevant to the proposition. These paragraphs are in the following terms: Wolli Creek Premises Development consent, excavation contract and site investigations 28. On 13 November 2014, development approval was granted for the demolition of existing structures and construction of two 8 storey residential flat buildings with rooftop terrace areas and basement parking, at 40-50 Arncliffe Street, Wolli Creek, NSW (the Wolli Creek Premises). Top Pacific Construction Pty Ltd (TPC), subsequently known as Top Pacific Constructions Aust. Pty Ltd (TPCA), was a construction company owned by Top Pacific Group Pty Ltd. The latter company was responsible for developing the Wolli Creek Premises. 29. Environmental Investigations Australia Pty Ltd (EI Australia) provided, amongst other things, environmental engineering services for the construction and excavation waste disposal industries. A director at EI Australia was Eric Gerges. The services EI Australia provided included classifying the materials likely to be or actually found on development sites as different waste types and providing reports and waste classification certificates in respect of such materials. EI Australia was engaged by TPC to carry out a geotechnical investigation of the Wolli Creek Premises. As part of this, EI Australia was required to examine, test and report on the proper classification of the waste at, or likely to be present at, the Wolli Creek Premises that would require handling and usually removal and disposal before the construction phase of the development could begin. 30. The estimate of the total amount of material expected to be removed from the Wolli Creek Premises was between 30,000 to 35,000 cubic metres (or 45,000 to 52,500 tonnes). EI Australia identified that this material included VENM, PASS, ACM, GSW and ENM. Specifically, EI Australia estimated that the following amounts of material were present at, and would need to be removed from, the Wolli Creek Premises: (a) 20,250 cubic metres or 36,450 tonnes of VENM/PASS; (b) 3,462 cubic metres or 6,232 tonnes of ACM; (c) 3,773 cubic metres or 6,791 tonnes of GSW; and (d) 250 cubic metres or 400 tonnes of ENM. 31. On 9 January 2017, ACE entered into a contract with TPC to carry out excavation and remediation works at the Wolli Creek Premises. ACE was engaged to, amongst other things, excavate and dispose of material from the Wolli Creek Premises. The value of the contract was $3,600,000. The contract was signed for ACE by Mr Allam. 32. … Works at the Wolli Creek Premises 33. The contract with TPC specified that, amongst other things, ACE was required to remove all VENM, PASS, ACM and GSW from the Wolli Creek Premises. Under the contract ACE was required to dispose of waste lawfully, i.e., at waste facilities that could lawfully accept that waste. 34. Under its contract with TPC, ACE was required to submit to TPC all dockets for the disposal of material from the Wolli Creek Premises.
A similar footnoted position arises with respect to the second bullet‑point in paragraph 27 of the Prosecutor's written submissions. However, the paragraphs referenced by this footnote comprise more than 10 pages of the Prosecutor's Further Revised Draft Statement of Facts. Because of their length, it is not appropriate to reproduce them. It is sufficient, for present purposes, that I note that these paragraphs set out details of relevant waste‑related transactions and activities concerning the Wolli Creek premises where those activities took place over a period between January 2017 and 2 December 2017 (the later date being the date of the final offence alleged to have been committed by the Company).
I have carefully read these paragraphs for the purposes of understanding the Prosecutor's submission concerning the probative value submitted by the Prosecutor as relating to the second bullet‑point in paragraph 27 and that which was submitted in paragraph 28 of the Prosecutor's written submissions (paragraph 28 footnoting paragraphs of the Prosecutor's Further Revised Draft Statement of Facts that comprise the second half of the paragraphs footnoted as being relevant to the second bullet‑point in paragraph 27). It will be necessary to refer to this material further in my consideration as to whether or not I accept that the Prosecutor has established that I should conclude that the "asserted tendency" has been demonstrated.
The Prosecutor then acknowledged that there were dissimilarities between the evidence in support of the "asserted tendency" and the alleged conduct of the Company providing the basis for the charges which had been laid against it. The Prosecutor set out, at paragraph 29 of the Prosecutor's written submissions, five separate aspects of difference.
The dissimilarities between the "asserted tendency" said to be demonstrated by Mr Bachar Allam's conduct in the transmission of the waste classification certificate, and the conduct the subject of the charges against the Company, listed in paragraph 29 of the Prosecutor's written submissions, were: First, the information was different, it being waste classification data in the case of the waste classification certificate evidence and waste disposal data in the case of the charged offences. Second, the form taken by the information is different, it being a certificate in the case of the waste classification certificate evidence and weighbridge disposal dockets and spreadsheets and summaries in the case of the charged offences. Third, the respects in which the certificate supplied was false or misleading, were as to the type of waste certified as being on the premises. However, this in fact is a highly material matter given the function of the certificate on its face, the fact that it is addressed to the developer of the Wolli Creek Premises who had obligations to account for the waste removed from the Premises, and having regard to the different types or categories of waste. The respects in which the weighbridge disposal dockets and summaries were false or misleading were particularised in the Summonses under the heading, "That was false or misleading in a material respect", and also concerned highly material matters, given the function of weighbridge dockets, spreadsheets and waste disposal summaries in the accounting of waste disposal and the regulation of the waste industry. Fourth, the person to which the information was supplied was different: the certificates were sent to waste facilities while the weighbridge disposal dockets, spreadsheets and summaries were supplied to developer clients of the Defendant or their agent. Fifth, the waste classification certificate related to waste from the Wolli Creek Premises, while another part of the Prosecutor's case relates to supplied information relating to waste from a different site - the Zetland Premises.
However, the Prosecutor submitted that, despite the dissimilarities, these did not permit disregarding the broader nature of the "asserted tendency" and that, as a second aspect, the tendency arises from the conduct of the Company through Mr Bachar Allam and is not related to the geographic locations from which the waste was generated either for the waste classification certificate or for the documents which give rise to the charges against the Company.
The Prosecutor also submitted that the dissimilarities should not act as a barrier to me concluding that the "asserted tendency" had been established (citing Hughes v The Queen (2017) (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [56]). The Prosecutor then continued (Transcript 25 August 2021, page 190, lines 8 to 30): PROSECUTOR: … The fact that, your Honour, a substantial part of the prosecutor's case relates to supply of information relating to waste from a different site, namely, the Zetland premises, doesn't mean that the waste classification certificate evidence would not be probative. In our submission, it's highly probative of and when taken with the facts in the case against the defendant in respect of that other information. It's the conduct. This is the matter we emphasise in the passage in para 31 of our submissions on p 10. It is the conduct of the defendant in the charged offences of which we say the asserted tendency evidence is probative. The location of the waste, the identity of the defendant's developer client is really not relevant. It's certainly not determinative of the question whether the waste classification certificate evidence is probative of facts in the prosecutor's case generally. In para 32 we set out what we submit the asserted tendency evidence tends to prove, namely, that on occasions other than the occasions charged the defendant supplied information about waste to another person in the course of dealing with the waste and which other waste was false or misleading in a material respect, and it's significant, in our submission, that as of yesterday, courtesy of our learned friends, the issues have been narrowed in these charges to whether the conduct can be attributed ..(not transcribable).. we submit it's highly significant that the defendant concedes, for the purposes of this application, that the conduct of Mr Bachar Allam in supplying the information to those waste facilities was the conduct of the defendant. That puts to rest any question of what it is that the asserted tendency evidence proves that goes to that issue.
The Prosecutor next turned to address the question of whether the information in the charged offences was false or misleading in a material respect, saying (Transcript 25 August 2021, page 190, lines 34 to 41): PROSECUTOR: …. We again submit that your Honour would be satisfied that in a waste classification certificate, without any expert evidence as to the status it had, but having regard to the content of the document and the fact that it is supported by, in each case, a large quantity of sampling evidence and analytical results indicates that the classification of the material is most material, sorry, the classification of the waste is most material and in our submission the Court would be satisfied that in having regard to that, the probative value of the conduct is significant.
I then had an exchange with the Prosecutor concerning the requirement that the information provided must be false or misleading in a material respect. It is appropriate to quote the whole of this element of the transcript (Transcript 25 August 2021, page 190, line 41 to page 191, line 46): PROSECUTOR: …. The probative value of the conduct of the corporation of supplying this information, also misleading in we submit your Honour would be satisfied the material respect. HIS HONOUR: How do I establish that? PROSECUTOR: Whether the information was false or misleading? HIS HONOUR: No, whether it's in a material respect? PROSECUTOR: Well that, sorry, that was, that was what I was trying to make submissions about a moment ago. HIS HONOUR: Yes, I understand what is said, I understand what is said to be the falsity, that is the deletion of the words that indicate the potentiality of the presence of acid sulphide soil profile elements. But, how do I know that that is something that is in a material respect, do I not need to know that in some fashion, material that has that additional and said to be omitted attribute requires to be dealt with in a fashion that is materially different to that which would have been dealt with in the fashion actually set out in the documents sent by Mr Bachar Allam? PROSECUTOR: We submit no, your Honour. Because your Honour has the context of the explanation by Mr Allam as to why he was sending the certificate to see whether waste facilities on the basis of what he sent them would be prepared to take the certificate and your Honour can see the conversation that occurred with that occurred with someone speaking for one of the waste facilities that she obviously saw the - Jodie Howard - HIS HONOUR: Yes, I recollect that, but she doesn't say anything about acid sulphate soils. She says that of the other - I think it's three elements, salty, clay, silty sand and a third element. That they will only take two of the three. It doesn't speak to acid sulphate at all, so for it to be false or misleading in a material respect, do I not need to have demonstrated to me that if that information had been disclosed, there would have been a further differential response from one or more of the proposed disposal facilities that they would not have taken the material. PROSECUTOR: No, your Honour. We submit that it is the function of a certificate which your Honour can infer to provide an authoritative classification of the material and if that classification is interfered with so as to provide information which is missing from - sorry, so as to not provide the missing information that was in the true certificate, then it is providing information about a different classification of waste. Your Honour might recall in the prosecutor's further advised draft statement of facts that one of the facts is as to a number of different classifications that were provided by the regulations or by guidelines under the legislation and the 22, we would submit to provide a classification certificate which is completely lacking information as to the fact that certain of the classification was present in effect reality, is necessarily a seriously false and misleading document, simply because the function of the document as your Honour can see is to formally and authoritatively classify the information the subject of the certificate and having regard to the purpose, your Honour, it's not whether the information had an effect upon the person reading it. It's the function being performed by the information in the context of it being a waste classification certificate that contributes to the conclusion that the probative value of the false and misleading nature of it is significant for the purposes of s 97(2).
Two additional matters warrant noting from the Prosecutor's written submissions in support of the conclusion that the "asserted tendency" has significant probative value. The first, the Prosecutor submitted, was that I should conclude that conduct of the nature alleged would be unusual as a matter of ordinary commercial experience (citing Hughes at [57]) and that Mr Bachar Allam's conduct, occurring at the end of March 2017, was temporally proximate to the dates of the charged conduct in April, June and December 2017.
The Prosecutor's written submissions, at paragraph 34, said: 34 A tendency to supply information about waste to another person in the course of dealing with the waste when that information is false or misleading in a material respect is, the Prosecutor submits, unusual as a matter of ordinary commercial experience. This contributes to a conclusion that the waste classification certificate evidence has significant probative value - and will be influential in the context of fact-finding in relation to the charged offences.
The Prosecutor's written submissions addressed the test in s 101(2) of the Evidence Act in the following terms at paragraphs 45 to 49 (footnotes omitted): 45 The words "unfair prejudice" have been held to mean: a harm to the interests of the accused, by reason of a risk that the jury will use the evidence improperly in some unfair way. 45 In the case of a summary hearing, where the tribunal of fact is a judicial officer trained and required not to use the evidence improperly in some unfair way, there is little work for s 101(2) to do. In the hearing of the charges, this Court will direct itself: • notwithstanding that the waste classification certificate evidence is of the commission of offences against section 144AA Protection of the Environment Operations Act 1997, not find the Defendant guilty as a punishment for conduct other than that charged; • not be influenced by tendency evidence to overestimate the probative value of the tendency evidence; • not be influenced by tendency evidence to accept too readily other prosecution evidence adduced to prove the charges; and • not to be distracted from the central issues in the hearing. 47 However, there can conceivably be ways in which a defendant can be unfairly prejudiced other than the evidence being improperly misused by the court. The expression "any prejudicial effect it may have on the defendant" in the Evidence Act 2011 (ACT) has been held to "encompass some aspects of a fair trial" and "may include procedural disadvantage flowing from the admission of that evidence in a given case". 48 There are no aspects of a fair trial and there is no procedural disadvantage that would flow to the Defendant from the admission of the way certificate evidence as tendency evidence. 49 In the circumstances, it should be concluded that the Prosecutor has satisfied the Court that the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
The Prosecutor's oral submissions concluded by addressing, in anticipation, a submission foreshadowed on behalf of the Company. The Prosecutor's response was (Transcript 25 August 2021, page 193, lines 22 to 29): PROSECUTOR: … The defendant submits that because the e‑mails the subject of the asserted tendency evidence were sent by one employee, and yet the company had something like between 170 to 200 employees, it is a misconception to say that what Bachar Allam did on those three occasions is evidence of a tendency of the whole corporation, but we would ask your Honour to read that submission in light of the concession made by my learned friend this morning that it is conceded that the conduct of Mr Allam can be attributed to the company for the purposes of this application.
Finally, for reasons later set out, it is relevant to note that the Prosecutor's written submissions in support of this tendency application also said: 17 For the purposes of sections 97 & 101 Evidence Act, the relevant tendency is a tendency to act in a particular way, not necessarily a tendency to perform a particular act - or to perform the act or acts comprising the charged offence. In this case, however, the relevant tendency is a tendency to perform particular acts - indeed, the acts comprising the charged offences.

The submissions for the Company

The first matter to which Mr Potts turned was responding to the final element of the Prosecutor's submissions set out above, saying (Transcript 25 August 2021, page 194, lines 2 to 8): The concession that Mr Bachar Allam was acting as an employee and for and on behalf of Ace doesn't undermine the submission we make, which is the actions of a single employee, admittedly, acting on behalf of the company, in sending three e‑mails attaching one document are incapable of establishing anything like a tendency by a corporation, especially when the corporation is of the size and has the number of employees, 170 to 200, that Ace had at the relevant time.
It is to be noted that, as later discussed as to how the waste classification certificate is to be regarded for the purposes of assessing the Prosecutor's "asserted tendency", the alteration to the first page of the certificate is not conceded by the Company to be an alteration that is "false or misleading in a material respect" for the purposes of s 144AA of the POEO Act.
Part of the evidence relied upon in these interlocutory hearings concerning the charges laid against the Company and Mr Sami Allam was the earlier noted affidavit of Mr George Pasas. This affidavit, dated 30 July 2021, set out the results of an examination by Mr Pasas of the metadata able to be harvested concerning the waste classification certificate which had been transmitted by Mr Bashar Allam in the three instances relied upon by the Prosecutor as supporting the "asserted tendency" proposed against the Company. In this context, it is appropriate to note that Mr Pasas was not held out, by his affidavit, as giving expert evidence concerning the information gleaned from his metadata analysis.
Exhibited to his affidavit (and in evidence for present purposes) were documents referred to by Mr Pasas in his affidavit as demonstrating the various steps he had taken in his metadata analysis. The final one of those documents was a letter from the Company's legal representatives to the Prosecutor summarising the results of the metadata analysis by Mr Pasas and how it was submitted, for the Company, that it was appropriate that the conclusions should be regarded by the Prosecutor. A copy of this letter, dated 28 July 2021, is reproduced as Annexure C to this decision.
During the course of his submissions, Mr Potts took me, in detail, through the steps taken by Mr Pasas, referencing the various documents in the material exhibited to the affidavit of Mr Pasas. This process is recorded in the transcript (Transcript 25 August 2021, page 195, line 43 to page 199, line 26 and, later returning to the detail of Mr Pasas's affidavit, from page 200, line 30 to page 204, line 20). It is unnecessary to set out in detail any extracts from the transcript of this process. It is sufficient, for present purposes, I note that the steps taken by Mr Pasas in the process undertaken by him appear to demonstrate that the waste classification certificate altered in the fashion set out by the Prosecutor in paragraph 4 of the Prosecutor's tendency notice had occurred prior to the transmission of that certificate to the Company and its subsequent retransmission by Mr Bachar Allam to the three waste disposal facilities also nominated in paragraph 4 of the Prosecutor's tendency notice.
However, as I have also earlier noted, Mr Pasas has not been advanced on behalf of the Company as giving expert evidence concerning the metadata analysis he had undertaken. I am satisfied that, to the extent it is appropriate to do so, I should regard his evidence as being that of an informed layperson undertaking that analysis, and it is therefore appropriate that his evidence be approached with the caution appropriate to such qualification.
I have sketched, in outline, what is to be derived from the description in the affidavit of Mr Pasas of his own activities in examining the metadata underlying the waste classification certificate transmitted by Mr Bachar Allam to each waste disposal facility which was a potential location for the disposal of the waste the subject of the certificate. Mr Pasas also described, in paragraphs 21 and 22, work undertaken by another employee of the Company's legal representatives. These paragraphs of the affidavit were in the following terms: Professional review 21 On 27 July 2021, I requested Clayton Utz's Forensic Technology Services (FTS) team to review the metadata contained in Documents No. 7a and 14 for the purposes of determining whether any additional information was revealed by that metadata. Lex Burke was the member of the FTS team assigned to perform this task. A copy of Mr Burke's profile, as found on the Clayton Utz website, appears at Exhibit GP-1, Document No. 16. 22 I am further informed by Mr Burke, and verily believe, that, in his opinion, the metadata contained in Documents No. 7a and 14 reveals the following: a. the creation and modification times indicated in both documents should be adjusted by one hour to account for the effect of daylight savings; b. as the creation times and document IDs on the two documents are identical, they either have a single parent document, or one document is a child of the other document. Further, the original document was created from an Excel file named "E22847_WCC003.xlsx"; c. Document No. 7a has no indicators of being edited or modified after 30 November 2016, whilst Document No. 14 has no indicators of being edited or modified after 26 November 2019. The nature of the modification that was made to Document No. 14 on 26 November 2019 cannot be determined without further analysis; d. both PDF documents are secured with 128-bit encryption which prevents edits being made to the documents in the absence of knowing the password or bypassing the security encryption; e. both PDF documents contain the same password, although the documents have different encryption settings (Document 7a with 128-bit AES encryption and Document 14 with 128-bit RC4 encryption); and f. it is likely, although not certain, that any edits to the document were either performed by a person who knew the password, or who had access to a parent document which did not have security settings and later replicated those settings.
Although what is set out above is hearsay, s 75 of the Evidence Act, a provision earlier noted, permits me to have regard to hearsay evidence in interlocutory proceedings such as these.
In addition to the dissimilarities acknowledged by the Prosecutor, the Company's written submissions, at paragraph 36, identified three further matters said to be relevant. These were that Mr Bachar Allam did not alter any of the e‑mails that gave rise to the charges; the Prosecutor had not identified how the alleged falsity of the waste classification certificate had arisen; and the general provenance of the certificate transmitted by Mr Bachar Allam. With respect to the latter point, Mr Potts' oral submissions discussed above concerning Mr Pasas's affidavit are relevant.
Mr Potts next turned to addressing the exchange which I had had with the Prosecutor as to whether I needed to have evidence establishing that the removal of words from the EI Australia certificate rendered the certificate misleading or deceptive in a material respect. Mr Potts proposed that I did need to have such evidence. He submitted (Transcript 25 August 2021, page 205, lines 10 to 37): POTTS: And your Honour asked my learned friend some questions about whether or not your Honour needed to have evidence about whether the removal of the words contained "potential acid sulphate soils" was able to render this misleading or deceptive in a material respect. We say your Honour plainly does, there's simply no evidence about that and worse than that, in this version of the certificate at 624 which contains those words, your Honour goes to p 625 which is the next page, you'll see a heading there, "waste classification certificate important notes to comment". HIS HONOUR: Yes. POTTS: And your Honour sees note 10, which is the note about virgin excavated natural material (VENM). HIS HONOUR: Yes. POTTS: And there's no description there that suggests that VENM is for the purposes of this certificate or this report any less VENM within the means of the report if there's a notation about containing potential acid sulphate soil. So, apart from there being any evidence about the implications or significance of whether virgin excavated natural material does or does not contain potential acid sulphate soils, on the face of what the EPA asserts is the true certificate in the important notes and comments, the certificate itself makes no distinction and so there is no evidence that the EPA points to try and establish what the true position is in relation to the soil that was tested under the certificate. There's no evidence by which your Honour could conclude that the version that Mr Bachar Allam sent was in fact false or misleading let alone false or misleading in a material respect.
Mr Potts also submitted that, on the Prosecutor's own evidence proposed to be used at trial, there were some 60 or more waste classification certificates handled by the Company for the Zetland and Wolli Creek construction sites. He specifically submitted that (Transcript 25 August 2021, page 207, lines 3 to 6): … we say it is an inference that is open and should be drawn by your Honour that this one waste classification certificate was one of many that was handled by Ace as a corporation in the ordinary course of its business …
He submitted that this was acknowledged by the Prosecutor, in paragraph 25(a) of the Prosecutor's Further Revised Draft Statement of Facts, this being in the following terms: (a) ACE provided the operator with information as to the types of waste to be disposed of for a particular job or for various types of waste it may dispose of, including waste classification certificates from an accredited specialist in respect of the waste, particularly if the waste was going to be contaminated.
Mr Potts submitted that, in this context, what was the subject of this tendency notice was but a single waste classification certificate when the Company dealt with many such documents in the ordinary course of its business.
In response to a question from me, Mr Potts confirmed that the waste classification certificate which had been attached to Mr Bachar Allam's e‑mails was obtained from EI Australia by Top Pacific Constructions and then supplied to the Company.
Mr Potts then submitted that, in the context of the overall activities of the Company, the sending of three e‑mails by a single employee of the Company, from amongst several hundred employees, where those e‑mails attached a single, common waste classification certificate with the e‑mails spanning a single week, could not be probative of the existence of the "asserted tendency" (citing Richards v Macquarie Bank (No 2) (2012) 301 ALR 494; [2012] FCA 1403 and Anthony v Morton [2018] NSWSC 1884 - see discussion of these cases in Allam No 2 at [191] to [200], equally applicable here).
Mr Potts next addressed the reliance by the Prosecutor on Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288, being a decision advanced by the Prosecutor as establishing that a tendency could be demonstrated by a single instance of conduct. Mr Potts drew attention to the specific factual circumstances arising in those proceedings, it being a case relating to sexual assaults on young women and distinguished those circumstances as being significantly different from the position where the Company, as a corporation, has multiple employees operating at many locations and that, for present purposes, the actions of a single employee in one week could not establish the "asserted tendency" on behalf of the Company.
Mr Potts then turned to the decision of Leeming JA in El‑Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10 in contrasting a tendency stated at a level of generality, with one cast in more specific terms - with his Honour's decision demonstrating that the greater the specificity of the "asserted tendency", the greater the likelihood of it having probative value. On this point, Mr Potts submitted (Transcript 25 August 2021, page 209, lines 5 to 12): Here, again, as we did with the text messages, we point to the very general nature of the tendency in para 6 of the notice and say that that tendency at that level of generality is (1) incapable of being proven and (2) incapable of being significantly probative, and so in summary we say the evidence of the three e‑mails attaching that same waste certificate is incapable of establishing that generalised corporate tendency, and we go further and we say the tendency itself is incapable of saying anything relevant to the determination of the facts underpinning the charges against Ace.
Commenting on the propositions advanced by the Prosecutor that the "asserted tendency" was capable of being significantly probative as to whether the sender of the e‑mails on the occasions giving rise to the four charges could be attributed to the Company and, second, that the "asserted tendency" was capable of being significantly probative as to whether the transmitted material was false or misleading in a material respect, Mr Potts submitted (Transcript 25 August 2021, page 209, lines 41 to 45): POTTS: And we say even at a threshold level of admissibility this evidence of tendency is logically incapable of affecting the existence of either of those facts. The fact that on three other unrelated occasions another employee, Mr Bachar Allam sent an e‑mail attaching a waste certificate, a single certificate.
Mr Potts next took me to the details of the charges as summarised in Annexure A. He contrasted the detail of the first charge, as summarised in the table, with what Mr Bachar Allam had done as said to establish the "asserted tendency" for which the Prosecutor contended. He submitted that there was no relevant connection between the two activities. A similar analysis, he said, for the summary of the other charges against the Company also demonstrated the lack of connection between the "asserted tendency", said to be derived from Mr Bashar Allam's conduct, and the conduct said to underpin the charges against the Company.
Mr Potts put, as a general closing summary of the position advanced for the Company (Transcript 25 August 2021, page 210, lines 16 to 25): It's simply incapable of affecting it and so for the very - that applies to the balance of all the items in column 4 of this exhibit B table. It's just not possible to legitimately reason on the existence of the sending of that e‑mail to any finding of false or misleading in a material respect. And it's certainly not possible to say that the proof of those - of that e‑mail being sent or those e‑mails being sent can be significant in the sense of having significant probative value of that fact. And so the prosecutor has simply failed to demonstrate that this material is capable of being significantly probative either of the generalised tendency or of any fact in issue and for that reason it simply fails to get through the gateway in s 97.
Mr Potts then referred to an exchange, which I had had with the Prosecutor (set out at [49] to [51]) where the Prosecutor had accepted that the "asserted tendency" was not sought to be relied upon for the purpose of establishing knowledge as required as an element for the charges under s 144AA(2). Mr Potts submitted that, if my finding was against the Company on the "asserted tendency", I should impose a limitation pursuant to s 136 to preclude the evidence establishing the "asserted tendency" from being used to prove knowledge for the purposes of any of the charges laid pursuant to s 144AA(2).
Mr Potts next noted that I needed to consider whether or not the test in s 101(2) should result in a finding that there was a danger of unfair prejudice to the Company. In this regard, he said (Transcript 25 August 2021, page 210, line 44 to page 211, line 25): We say the probative value as your Honour has heard is weak, the prejudice we say is having to engage then in a collateral inquiry where we're going to have to attempt to investigate and prove all the very things about these documents that we say make them completely innocuous, we're going to have to go and subpoena Top Pacific, EI Australia, we're going to have to try and get the forensic evidence about the metadata if it be necessary to make good the things that we say are obvious on the face of this material. We may or may not have to investigate which of these two certificates is the true certificate and whether or not there were potential acid sulphate soils on the site. Now, all of that might be entirely justified if the probative value were great. But where the probative value is limited as we say, the danger of being distracted from preparing for what is otherwise a large trial with many charges, is something we say your Honour needs to weigh in the mix. And which we say is an important danger of unfair prejudice to my client in the circumstances. … POTTS: Finally, we say that s 135C, cause or result in an undue waste of time, we say this is yet another collateral inquiry about the behaviour of this corporation on an unrelated occasion in relation to unrelated and uncharged conduct where we will have to have a trial within a trial where there is not sufficient probative value to justify court time being taken up with that emphasise [exercise].

The Prosecutor's submissions in reply

With respect to the evidence in Mr Pasas's affidavit, the Prosecutor made two submissions. The first one was that there was no evidence that the file was not altered while it was in the Company's possession as Mr Pasas's affidavit provided no expert evidence as to what could or could not be done to manipulate such a file. The Prosecutor next submitted that the more important point was that when and how the file was manipulated was irrelevant for the present purposes as (Transcript 25 August 2021, page 211, lines 42 to 45): There is no element of the offences charged that requires the prosecutor to prove that the defendant altered or fabricated the waste dockets and summaries and spreadsheets the subject of the charges.
The Prosecutor then summarised the basis of how the Prosecutor established that the waste classification certificate was false.
Next, the Prosecutor made a submission concerning the subsuming, by s 144AA(2A), of a s 144AA(1) charge as providing a fallback if the Prosecutor is unable to establish the necessary mens rea element for the three charges laid against the Company pursuant to s 144AA(2). In this regard, the Prosecutor submitted (Transcript 25 August 2021, page 213, lines 9 to 14): That is to say, as a matter of law, the company faces charges of four offences that do not have a knowledge element, and this is quite apart from the fact that we submit that the evidence goes to part of the offences charged. It goes - it is probative, we say significantly probative, of conduct of supplying information which is false or misleading in the course of dealing with that waste.
At this point, I intervened to observe that a document to which I had been taken in the material exhibited to Mr Pasas's 30 July 2021 affidavit was an e‑mail from Mr Huang, a contract administrator at Top Pacific Constructions, to an employee of the Company. I had been provided with a physical copy of the e‑mail, an e‑mail which referenced a Dropbox link. It was not separately in evidence (although Mr Pasas's affidavit had been read). I invited Mr Potts to tender, separately, the e‑mail.
The Prosecutor objected to this on the basis that it was not relevant to the matters which I was required to consider because the "asserted tendency" was not one which related to knowledge of falsity but was one that merely related to the conduct of transmitting information concerning waste that was false or misleading in a material respect.
I subsequently concluded that a separate tender was not necessary as the e‑mail was already in evidence via Mr Pasas's affidavit.
With respect to this point, the Prosecutor further submitted that there had been a deliberate policy decision by the legislature to criminalise conduct of the nature falling within s 144AA(1) where no knowledge of falsity was required. This legislative intention, the Prosecutor submitted, reflected an intention to put the onus on a person who supplies information about waste, or who does so in the course of dealing with waste, to ensure that the information which they so supplied was not false or misleading in a material respect.
For the present purposes, the Prosecutor submitted it was irrelevant whether the Company knew, or could have known, that the certificate attached by Mr Bachar Allam to his e‑mails had been altered or modified in any way.
As a consequence, the Prosecutor submitted that, as I understood it, all of the material dealt with in Mr Pasas's affidavit was irrelevant to the offence established by the legislature of distributing information concerning waste that was false or misleading in a material respect. Knowledge did not form any part of that proscription by the legislature.
I then asked why, if I am satisfied that the s 97(1)(b) gate is open, did not Mr Huang's e‑mail have potential relevance for the subsequent gates requiring examination (in ss 101, 135 or 137).
The Prosecutor's response was that, based on the decision in IMM v The Queen, I was to take the Prosecutor's case at its highest (as I understood it), even if there was evidence proposed to be adduced on behalf of the Company which was said to detract from the high level of relevance and probative value. The Prosecutor submitted that it was not a question for me at this time to assess reliability (citing the decision of the Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 (Shamouil)).
The Prosecutor next responded to the submission that had been advanced for the Company that, if the "asserted tendency" was admitted, the Company would need to address the matters set out in Mr Pasas's affidavit in a fashion which would render it potentially admissible at trial, and that this imposed both a significant burden on the Company and the risk of wasting time at the trial. The Prosecutor submitted that if I was satisfied that the evidence supporting the "asserted tendency" had significant probative value, it was difficult to see how dealing with it would constitute a waste of time. The Prosecutor submitted that this would not provide a basis to exclude the "asserted tendency" evidence pursuant to ss 135 or 137.
After a further exchange with me (an exchange not presently relevant), the Prosecutor repeated that the evidence in Mr Pasas's affidavit was not relevant to the "asserted tendency" because the "asserted tendency" did not allege any conduct on behalf of the Company of altering or forging the waste classification certificate. This was because the legislature had chosen to create an offence - (by s 144AA(1)) - one which does not require proof of knowledge for an offender to be convicted if the remaining elements of that offence are proved.
I then had a further exchange with the Prosecutor as to the potential confining of the "asserted tendency" only to a charge made pursuant to s 144AA(1), with the Prosecutor submitting that, as a matter of law, the effect of s 144AA(2A) had the effect of causing the Company to face charges against both relevant provisions.
The Prosecutor then submitted that Mr Bachar Allam's sending of the single waste classification certificate was capable of proving that those who had sent the documents, the subject of the charges laid against the Company, would also be deemed to have been acting on behalf of the Company by the attribution theory of corporate liability. However, the Prosecutor did agree with me when I suggested that that proposition would be a matter to be dealt with at trial.
Finally, with respect to the suggestion by Mr Potts that there should be a limitation pursuant to s 136 of the Evidence Act placed on the "asserted tendency" evidence to render it incapable of proving mens rea for the offences charged pursuant to s 144AA(2), the Prosecutor agreed that this would be appropriate.

Introduction

Annexure A to this decision summarises the charges that the Prosecutor has laid against the Company and Mr Sami Allam. Importantly, for the purposes of my current consideration of the "asserted tendency" upon which the Prosecutor seeks to rely concerning the Company, Annexure A also specifies which subsection of s 144AA founds the various charges laid by the Prosecutor against the Company. It is appropriate, at this point, to repeat the relevant elements of s 144AA. It reads: 144AA False or misleading information about waste (1) A person who supplies information about waste to another person in the course of dealing with the waste, being information that is false or misleading in a material respect, is guilty of an offence. It is a defence in any proceedings against a person for an offence under this subsection if the person establishes that the person took all reasonable steps to ensure that the information was not false or misleading in a material respect. Maximum penalty - (a) in the case of a corporation - $250,000, or (b) in the case of an individual - $120,000. (2) A person who supplies information about waste to another person in the course of dealing with the waste, being information that the person knows is false or misleading in a material respect, is guilty of an offence. Maximum penalty - (a) in the case of a corporation - $500,000, or (b) in the case of an individual - $240,000 or imprisonment for 18 months, or both. (2A) If the court is satisfied that a person charged with an offence under subsection (2) is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under subsection (1), the court may find the person guilty of the offence under subsection (1), and the person is liable to punishment accordingly.
As can be seen from a comparison of the maximum penalties in subs (1) and subs (2) of s 144AA, an allegation of a breach of subs (2) is more serious than an allegation of a breach of subs (1). This is because subs (2) sets out an offence which incorporates a mental element, that is, that the person transmitting the information knows of the falsity of the information being transmitted.
In the context of the relationship between the two potential charges arising under s 144AA, it is to be noted that subs (2A) provides a fallback position where, for a person or entity charged with an offence that requires the mental element of knowledge of the falsity of the information transmitted and the Prosecutor is unable to establish that mental element, it is still open to the Court to convict for the lesser offence created by subs (1).
It is in this context that it is to be noted (as disclosed in Annexure A) that three of the charges laid against the Company are brought pursuant to s 144AA(2), being charges that require the Prosecutor to prove, beyond reasonable doubt, the mental element of knowledge (here, critically) in order to establish the Company's guilt, in each instance, in order for the Company to be convicted of the relevant offence.
During the course of the proceedings, I had an exchange with the Prosecutor as to whether or not the significant distinction between the two potential offences in s 144AA might be engaged for the purposes of my consideration of whether the Prosecutor's "asserted tendency" was established and available to be relied upon when the various charges in Annexure A proceed to trial later in the year. In short compass, the position advanced by the Prosecutor was that, for the purpose of these interlocutory proceedings, there was no distinction to be drawn between the two potential charges. The exchange was in the following terms (Transcript 25 August 2021, page 216, line 29 to page 217, line 29): PROSECUTOR: …. We would just emphasise your Honour that it's not relevant because the asserted tendency is of conduct which is not altering documents or altering or forging the waste certificate, nor is, sorry the waste classification certificate, nor is altering documents or altering specific documents charged against Ace. This is, we would respectfully submit very much a red herring and it is, I go back to the fact that the legislature has chosen to create an offence which does not require proof of knowledge or an offender be convicted if they supplied information to another which was false or misleading in relation to the waste with which they're dealing. … HIS HONOUR: That can only be relevant to the charge that does not include the mental element, that is 144AA(1). Is that correct? PROSECUTOR: We say no your Honour, because by virtue of the subsuming subsection, 2A, 144AA, the company in effect as matter of law faces a 144AA(1) charge in respect of each 144AA(2) charge. HIS HONOUR: I understand that, but why is it - you that it is either not - relevant or not available to me to - if I decide that the tendency in para 6 of your notice is established to hold that it is only established for the purposes of 144AA(1)? PROSECUTOR: Because your Honour, the defendant faces 144AA(1) charges as a matter of law in respect of each 144AA(2) charge that has been laid against them. HIS HONOUR: No, I understand that, I'm not suggesting I confine it at all, in that fashion I'm suggesting is it not open to me and I'm asking, is it not open to me to find that if the tendency is established it is only capable of establishing a charge that is under 144AA(1) whether ab initio or derivatively through 144AA(2). PROSECUTOR: I understand what your Honour is putting to me, and we would say no, your Honour, and this comes back to a submission that I made early in our submissions that the asserted tendency is in respect of conduct only. It's not in respect of knowledge. HIS HONOUR: You say to me the tendency is sufficient for conduct and that that simply provides one of the foundations for a 144AA(2) charge and that you have to prove the remainder of the foundations independently of the tendency? PROSECUTOR: With respect, your Honour, that is our submission.

The terms of the "asserted tendency"

I have earlier set out the terms of the "asserted tendency" upon which the Prosecutor seeks to rely in the proceedings brought against the Company. It is appropriate to repeat it. The "asserted tendency" is that the Company had a tendency: to supply information about waste to another person in the course of dealing with the waste, which information was false or misleading in a material respect.
For this "asserted tendency" to be available to the Prosecutor at trial, a number of statutory gates, when examined sequentially, all require to be found to be open. The necessary preconditions to be established to permit reliance on the "asserted tendency" and the statutory provision giving rise to each are: 1. the requirement for "reasonable notice in writing" - Evidence Act, s 97(1)(a); 2. the information conveyed about waste "is false or misleading" - POEO Act, s 144AA(1) and (2); 3. the information conveyed about waste "is false or misleading in a material respect" - POEO Act, s 144AA(1) and (2); 4. the evidence will "have significant probative value" - Evidence Act, s 97(1)(b); 5. … "the probative value of the evidence outweighs the danger of unfair prejudice" to the Company - Evidence Act, s 101(2); 6. whether the "probative value [of the evidence] is substantially outweighed by the danger that the evidence might be unfairly prejudicial" to the Company - Evidence Act, s 135(a); 7. whether the "probative value [of the evidence] is substantially outweighed by the danger that the evidence might cause or result in undue waste of time" - Evidence Act, s 135(c); 8. whether the "probative value is outweighed by the danger of unfair prejudice" to the Company - Evidence Act, s 137.
I now turn to consider the successive tests requiring satisfaction before the Prosecutor can be permitted to rely on the "asserted tendency" set out in paragraph 6 of the notice given on 16 July 2021 pursuant to s 97(1)(a) of the Evidence Act to the Company.

The notice requirement

The Company accepts that reasonable notice was given by the Prosecutor of the proposal to seek to rely on the "asserted tendency". As a consequence, the notice provision contained in s 97(1)(a) of the Evidence Act is satisfied.

False or misleading

I am satisfied that, as a matter of fact, the alteration to the waste classification certificate rendered it "false".

False or misleading in a material respect

It is appropriate, for the purposes of this interlocutory application, to take the Prosecutor's case at its highest (IMM v The Queen at [44]) and assume that the changed waste composition certificate attached to the e‑mails from Mr Bachar Allam to the three potential waste disposal facilities was changed in a fashion constituting a material respect, this being a mandatory precondition to proving either offence established by s 144AA of the POEO Act. The question of what use (if any) is to be made of the evidence contained, directly or indirectly, in the affidavit of Mr Pasas, and the documents relied upon in support, is a matter which must await the substantive hearing and I pay no heed to this evidence for present purposes.
However, as earlier noted, Mr Potts had taken me to Note 10 on the second page of the waste classification certificate as a point to be considered as to whether or not the removal of the words from the certificate which had been provided by EI Australia had caused it to be altered in a material respect. Before setting out the text of Note 10, it is appropriate to observe that the words which had been removed from the original certificate provided by EI Australia were the words "potential acid sulphate soils". Note 10 (folio 625 of Exhibit EES‑1 to the affidavit of Elizabeth Emily Spain) is in the following terms: 10 Virgin excavated natural material (VENM) is a waste that has been pre-classified as general solid waste (non-putrescible). Under the PoEO Act 1997, virgin excavated natural material (VENM) is, natural material (such as clay, gravel, sand, soil or rock fines), that has been excavated or quarried from areas that are not contaminated with manufactured chemicals, or with process residues, as a result of industrial, commercial, mining or agricultural activities and does not contain any sulfidic ores or soils or any other waste.
As can be seen from the terms of Note 10, for waste to be classified as VENM it must not contain any sulfidic soils.
The word "sulfidic" is not defined in either the Macquarie Dictionary or the Oxford English Dictionary. Each of them, however, contains a definition of "sulphide".
The definition of "sulphide" in the Macquarie Dictionary is in the following terms: Noun: A compound formed of sulphur and another chemical element or radical, usually one more electropositive than sulphur.
Relevantly, for obtaining a proper understanding of how the word "sulfidic" is to be understood for the present context, the Macquarie Dictionary also contains the following note concerning usage and spelling: Usage: Traditionally sulphide has been the British spelling and sulfide the American one. In technical and scientific writing sulfide is now standard throughout the world, although the sulphide spelling is still dominant in Australia.
As can be seen, acid sulphate soils, for the purposes of Note 10, are therefore soils that are proscribed from being VENM. As a consequence, for the purposes of disposal of such material, the notation of the potential presence of acid sulphate soils (being a type of sulfidic soil) may be of considerable relevance and importance. For present purposes, taking the Prosecutor's case at its highest, as I am required to do, I am satisfied that the removal of the words "potential acid sulphate soils" should be regarded as rendering the certificate, when transmitted to a third party, as being misleading or deceptive in a material respect.
Making this assumption means that the gateway created by the requirement that the information concerning waste be false in a material respect is open. This, I have concluded, also means the requirement in s 97(1)(b) of the Evidence Act, that the "asserted tendency" clearly arises in the context of charges alleging breaches of s 144AA(1), is satisfied. This satisfaction on this first step also extends to some but not all elements of the alleged offences of breaches of s 144AA(2).

Substantial probative value

The next test required to be satisfied is whether the evidence relied upon as demonstrating the "asserted tendency" will have substantial probative value in the trial of the Company for the offences with which it has been charged.
Although, in the context of the evidence of Mr Pasas, evidence which is to be set aside for present purposes, the written submissions for the Company said: Unless ACE is the party responsible for the doctoring of the certificate, no tendency of the kind contended for by the EPA is capable of arising.
This proposition would apply to the charges pursuant to s 144AA(2) of the POEO Act but would not arise in the context of the charge pursuant to s 144AA(1) of that Act. This is because knowledge of falsity does not arise with respect to the latter charge. The latter charge is one of strict liability and lacks the requirement for proof of any mental element. However, the Prosecutor has agreed to a limitation pursuant to s 136 of the Evidence Act restricting the use of the tendency evidence to only those elements of charges pursuant to s 144AA that do not require proof of knowledge of the falsity of the transmitted information. On this basis, the issue of who "doctored the certificate" is not a matter relevant for the purposes of the "asserted tendency".
In Hughes, the plurality identified, at [41], two interrelated but separate matters requiring consideration as to whether the "asserted tendency" has significant probative value. The second of those matters is: the extent to which the tendency makes more likely the facts making up the charged offence.
Because of the blended fashion in which the first phases of these interlocutory proceedings took place, it is appropriate to assume that, when a particular topic has been advanced on behalf of the Prosecutor or on behalf of one of the Defendants on tendency matters, whatever has been advanced and is relevant on issues pertinent to the other "asserted tendency" is appropriate to be considered as submissions in that separate, second context.
Whilst, on my rereading of the transcript, that only arises in one instance (that being the broader ranging submissions made on behalf of Mr Sami Allam concerning the decision of the Court of Criminal Appeal in El‑Haddad), I am nonetheless satisfied that I should have regard to those submissions also as being made on behalf of the Company in this determination of the tendency asserted against the Company arising out of the conduct of Mr Bachar Allam. The relevant passage of Mr Potts' submissions on this point was recorded at Transcript 5 August 2021, page 58, line 38 to page 57, line 45. In these submissions, Mr Potts was referring to the judgment of Leeming JA in El‑Haddad, commencing part way through [70] of his Honour's decision. Mr Potts submitted, starting with a quotation referenced by his Honour: POTTS: … "One way in which tendency evidence possesses significant probative value turns on the degree of generality or specificity with which the tendency is stated. The tendency which is stated with too higher level of generality will prove a handicap to it having significant probative value." His Honour refers to some other cases by way of example. Skipping over those citations, conversely: "Generally the closer and more particular similarities, the more likely it is that the evidence will have significant probative value." Then in para 71 your Honour sees His Honour refers to Sokolowskyj v The Queen, another Court of Criminal Appeal decision and citing some remarks at the Chief Judge at Common Law - the Chief Judge had said: "One of the difficulties for the Crown in establishing "significant probative value" was the high level of generality of the tendency relied upon. A tendency to have sexual urges was so general as to be meaningless. The additional qualification to that tendency, i.e. to have sexual urges and to act on them in public circumstances where there was a reasonable likelihood of detection, refined the concept but not greatly." Then His Honour, Leeming J, at para 72 offers this explanation: "That is to say, the specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche." Then His Honour - perhaps I should note before I pass from this judgment, at para 74, His Honour was dealing with a submission about dissimilarities between the asserted tendency in that case and the subject matter of the charge. His Honour rejected an appellant's submission based on dissimilarities per se: "Evidence which supports tendency or coincidence reasoning turns on whether there are relevant similarities or dissimilarities His Honour then gives an example, "Take for one example one similarity: the use of telephone numbers" - and I won't read the digits, and that was a particular feature there that's in that case. So what we say your Honour draws from the decision of the Court of Criminal Appeal in that case is there is a direct link between the specificity of the tendency and the strength that the inferential mode of reasoning that proof of such a tendency might provide, and that will inform your Honour in an assessment of whether or not the evidence sought to be adduced to prove that tendency is of significant probative value, as s 97 requires, in order for it to be admissible. We say that reasoning and that informed logical thinking applies in this case, and the very high level of generality at which the tendency is formulated in the notice to which I took your Honour, we say while we tend against it adding significant probative value.
Taking the approach discussed by Leeming JA in El‑Haddad and analysing the "asserted tendency", it is clear that the material set out in paragraphs 3 and 4 of the Prosecutor's notice pursuant to s 97(1)(a) can be viewed as demonstrating, taking the Prosecutor's case at its highest, that: 1. For the single charge against the Company of a breach of s 144AA(1), each of the elements necessary to be proved against the Company concerning the behaviour of a Company employee said to found that charge is present in the behaviour of Mr Bachar Allam in the three instances relied upon to establish the "asserted tendency"; 2. With respect to the three charges against the Company pursuant to s 144AA(2), the behaviour of Mr Bachar Allam relied upon by the Prosecutor as demonstrating the "asserted tendency" lacks the critical attribute necessary to prove all of the ingredients to establish the commission of an offence pursuant to that provision. The critical missing element is the mental requirement that the employee (whose conduct is said to be imputed to the Company) must include actual knowledge that the information concerning waste that has been conveyed to the third party (being information concerning waste that is false in a material respect) is known by that employee to be false.
I earlier referred, at [54] to [56], to paragraphs 27 and 28 of the Prosecutor's written submissions and to the relevant paragraphs of the Prosecutor's Further Revised Draft Statement of Facts that were footnoted by the Prosecutor as establishing the propositions advanced in those paragraphs.
I have carefully read the material at paragraphs 33 to 85 of the Prosecutor's Further Revised Draft Statement of Facts, these being the paragraphs footnoted from this document in support of the matters set out in paragraphs 27 and 28 of the Prosecutor's written submissions. As earlier noted, these paragraphs set out, in chronological order, the detail of communications concerning waste disposal from the Wolli Creek premises and the relevant transaction and waste disposal documentation. The material also set out, as part of this transactional material, the nature of the falsification said to have been undertaken as part of the Company's offending conduct concerning this documentation. It is to be noted that all of this material is extensively footnoted to references in the evidence upon which the Prosecutor proposes to rely at trial.
Consistent with the decision of the High Court in IMM v The Queen, I am satisfied that the "asserted tendency" could rationally affect the assessment of the probability of the evidence demonstrating the existence of facts in issue in the trial of the charges against the Company.
I have earlier recorded that the Prosecutor had accepted that, if I found that the "asserted tendency" had been established, it would be appropriate for me to rule that the "asserted tendency" was not to be relied upon for the purposes of demonstrating knowledge of the falsity of the information which had been supplied. Accepting that agreement by the Prosecutor that the "asserted tendency" would not be relied upon to support the mens rea element of the offences charged pursuant to s 144AA(2), only on that basis am I satisfied that it is appropriate to conclude that the "asserted tendency" has been established. Of course, if the mens rea element of those offences is not established and the Prosecutor submits that s 144AA(2A) should result in convictions for offences pursuant to s 144AA(1), that is not a path precluded by the earlier noted agreement by the Prosecutor.
By analogy, the reasoning in El‑Haddad - that all the necessary parallel elements being present - I am satisfied that, for the charge laid against the Company pursuant to s 144AA(1), the "asserted tendency", has substantial probative value.
The consequence of these conclusions is that the Prosecutor should be granted the requested evidentiary ruling pursuant to s 192A of the Evidence Act with respect to the charges laid against the Company if the tests in ss 101(2), 135 and 137 of the Evidence Act do not act to bar it.

Probative value v danger of unfair prejudice

I now turn to assess the "asserted tendency" against s 101(2) for the charges laid against the Company.
I have earlier set out the definition of "probative value" contained in the Dictionary to the Evidence Act. I have also earlier noted, at [101], that the Prosecutor cited the decision of the Court of Criminal Appeal in Shamouil. In that decision, Spigelman CJ addressed the question of the tension between the decision of the High Court in Adam v The Queen (2001) 207 CLR 96; [2001] HCA 57 and Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 as to how the definition of "probative value" should be approached. The Chief Justice concluded, favouring the position adopted by Gaudron J in Adam v The Queen, at [60] to [62]: 60. The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach. 61. In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, "the extent to which the evidence could rationally affect the assessment …". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has "probative value", as defined, if it is capable of supporting a verdict of guilty. 62. This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam supra, a "test" of 'rationality' also directs attention to capability rather than weight.
In this context, because the trial of the Company will be one by a judge alone (as is the case for all criminal trials in this Court), I am satisfied that the risk of the trial judge not having proper regard to necessary issues of reliability and credibility in assessing the probative value to be accorded to the "asserted tendency" is minimal and not one which would give rise to any potential unfair prejudice to the Company.

The ss 135(a) and 137 tests

Although it would be sufficient, in my assessment, to repeat the conclusion I have just reached concerning s 101(2), as being equally applicable to the further considerations in s 135(a) and s 137, it is also appropriate to note the further relevant observation by Spigelman CJ in Shamouil at [72]. His Honour's observation was in the following terms: 72. There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give [citation omitted].
In circumstances where, as earlier noted, the trial of the Company will be a judge‑alone one, without the involvement of a jury, I am satisfied that this process, assisted by competent and experienced counsel, as was here (and will be at trial) the case, there is no risk of misuse of the "asserted tendency" in a fashion which would cause prejudice to the Company in the fashion postulated by the statutory provisions.

The test in s 135(c) - a waste of time?

With respect to the question of whether the asserted falsity of the waste classification certificate should be admitted having regard to the test posed by s 135(c) of the Evidence Act, the written submissions for the Company said, at paragraph 42: 42. If the e‑mails including the waste certificate are admitted, there will have to be a collateral enquiry into the responsibility for the alleged doctoring or alteration of the waste certificate. Not only will that involve undue waste of time, and the pursuit of an entirely collateral issue, it will involve prejudice to ACE in having to defend itself on that entirely collateral issue. The EPA has not shown that any probative value of the e‑mails outweighs the prejudice of requiring the defendant to address this unrelated conduct dating back years. Alternatively, it would be liable to exclusion under s 135 as likely to lead to an undue waste of time.
The nature of the evidence set out in Mr Pasas's affidavit and the documents in support of it are illustrative of what would be required for the Company to respond to the knowledge element of the "asserted tendency" if the Prosecutor was permitted to rely upon it for the purposes of the mens rea element of the s 144AA(2) charge.
However, a s 136 ruling limiting the use of the "asserted tendency" would likely remove any necessity for the Company to explore the matters addressed in Mr Pasas's affidavit at trial. If, for some reason, it was necessary, I am satisfied that the foundational work demonstrated by Mr Pasas's affidavit as already having been conducted for the Company does not provide a basis why s 135(c) of the Evidence Act would warrant exclusion of the "asserted tendency" for which Prosecutor seeks a ruling.

A limitation ruling pursuant to s 136

With respect to the charges laid against the Company pursuant to s 144AA(2), the "asserted tendency" can have relevance to the foundational elements of these charges that do not relate to knowledge of the falsity of the information conveyed. Imposing a limitation on the use of the tendency pursuant to s 136 of the Evidence Act, I am satisfied, does provide a proper protection for the Company in this regard.

Conclusion

I am satisfied that: 1. The information in waste classification certificate E22847_WCC03 was false or misleading in a material respect; 2. The "asserted tendency" of the Company to convey such information to third parties in the course of dealing with waste has significant probative value; 3. The probative value of the tendency evidence outweighs the danger of unfair prejudice to the Company; 4. None of the bases in s 135 of the Evidence Act operate to require me to exclude the tendency evidence; 5. Similarly, I am satisfied that s 137 of the Evidence Act does not require me to refuse to admit the tendency evidence; however, 6. A limitation pursuant to s 136 of the Evidence Act on the use of the tendency evidence is appropriate to exclude it being used for the purpose of seeking to establish the Company knew that waste classification certificate E22847_WCC03, or any of the documents giving rise to the charges, was false or misleading in a material respect.

Rulings

For the foregoing reasons, I rule that: 1. The Prosecutor can rely upon evidence of three e‑mails sent by Mr Bachar Allam attaching waste classification certificate E22847_WCC03 as demonstrating ACE Demolition & Excavation Pty Ltd (the Defendant) had a tendency to supply information about waste to another person in the course of dealing with the waste, which information was false or misleading in a material respect; and 2. Pursuant to s 136(a) of the Evidence Act 1995 (NSW), the evidence in (1) is not to be used for the purpose of proving the Defendant knew that waste classification certificate E22847_WCC03, or any of the documents giving rise to the charges, was false or misleading in a material respect.

Annexure A Summary Table of Charges Charge No. Relevant POEO Sections Details of Email Pleaded particulars re false or misleading in a material request ACE- 2020/357465 ACE- 144AA(2) Email sent on 18 April 2017 at 7:23pm by Munaf Al Sarray to Peter Maroun (Top Pacific Construction Aust Pty Ltd) (i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Suez Elizabeth Drive Landfill - the dockets were not issued by Suez in relation to those circumstances; and/or Allam- 2020/357476 Allam- 169A (144AA(1)) (ii) In respect of 148 purported weighbridge dockets issued by Dial-A-Dump in relation to disposal of 148 truckloads of soil contaminated with asbestos from the Wolli Creek Premises to the Dial-A-Dump Landfill - 140 of the documents were not dockets issued by Dial-A-Dump in relation to those circumstances. ACE- 2020/357466 ACE- 144AA(2) Email sent on 2 June 2017 at 12:50pm by Munaf Al Sarray to Glen Allen (Westbourne Constructions Pty Ltd) (i) In respect of 70 documents purporting to be weighbridge dockets issued by SUEZ in relation to disposal of 70 truckloads of soil contaminated with asbestos from the Zetland Premises to the Suez Elizabeth Drive Landfill - those dockets were not issued by Suez in relation to those circumstances; and/or Allam- 2020/357475 Allam- 169A (144AA(1)) (ii) In respect of 147 purported weighbridge dockets issued by Dial-A-Dump in relation to disposal of 147 truckloads of soil contaminated with asbestos from the Zetland Premises to the Dial-A-Dump Landfill - 134 of the documents were not dockets issued by Dial-A-Dump in relation to those circumstances. (i) In respect of 48 dockets purporting to be weighbridge disposal dockets issued by SUEZ purporting to contain info re disposal of 48 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill - the dockets were not issued by SUEZ in relation to those circumstances; and/or ACE- 2020/357467 ACE- 144AA(1) Email sent on 12 June 2017 at 11:24am by "sami@acedemolition.com.au" to Eric Gerges (El Australia Pty Ltd) (ii) In respect of an Excel spreadsheet titled "Ace 120217 to 300317" purporting to contain info re disposal of 70 truckloads of soil contaminated with asbestos from Wolli Creek Premises to Suez Elizabeth Drive Landfill - the 70 truckloads were not related to disposal of soil from Wolli Creek to Suez; and/or (iii) In respect of 153 purported weighbridge dockets issued by Dial-A-Dump re disposal of 153 truckloads of waste material from Wolli Creek Premises to the Dial-A-Dump Landfill - 141 of these were not dockets issued by Dial-A-Dump in relation to those circumstances; and/or (iv) In respect of an Excel spreadsheet titled "Wolli Creek Summary" purporting to contain info re disposal of 95 truckloads of soil contaminated with asbestos from Wolli Creek Premises to the Dial-A-Dump Landfill - 89 of these truckloads were not related to those circumstances. ACE- 2020/357468 ACE- 144AA(2) Email sent on 2 December 2017 at 1:53pm by Ameer Sidawi to Eric Gerges (El Australia Pty Ltd) In respect of a document titled 'Wolli Creek Summary' purportedly created by Besmaw purporting to contain information regarding the disposal of approximately 622 truckloads of waste material from the Wolli Creek Premises to the Holt Landfill - that document was not created by Besmaw, and none of the truckloads referred to in the document were related to the disposal of waste material from Wolli Creek Premises to the Holt Landfill. Allam- 2020/357477 Allam- 169A (144AA(1))

Annexure B In the Land and Environment Court EPA v ACE Demolition & Excavation Pty Ltd & Allam 2020/357465-8 and 2020/357475-7 Preliminary Hearings - Evidence of the parties Marked Documents Prosecution Exhibit A - Annotated spreadsheet as to text messages Exhibit B - Agreed Summary Table of Charges Exhibit C - Agreed Statement of Facts Defence Exhibit 1 - Letter from EPA to Clayton Utz dated 2 August 2021 Prosecution evidence - tendered on all applications • Affidavit evidence:

Elizabeth Emily Spain affidavit affirmed 15 July 2021- in folder 2 of USB, item 1
Elizabeth Emily Spain affidavit affirmed 30 July- in folder 3 of USB, item 1
Carney Gar Leung Yu affidavit- in folder 3 of USB, item 2
Kate Bleakman affidavit- in folder 3 of USB, item 3
Benjamin James Dales affidavit- in folder 3 of USB, item 5 • Exhibits:
EES-1 to Spain 15 July affidavit- in folder 2 of USB, item 2
KB-1 to Bleakman affidavit- in folder 3 of USB, item 4
BJD-1 to Dales affidavit- in folder 3 of USB, item 5 • Aide memoires:
Spreadsheet as to text messages - in folder 4 of USB, item 1 [which is an extract from spreadsheet in tab 16 of ex EES-1- also from tab 2 of ex BJD1 and tab 2 of ex KB1] Defence evidence - tendered on all applications • Affidavit evidence:
Elodie Jane Cheesman affirmed 16 July 2021 pghs [1]-[4], [21] [35] only- in Folder B Folder 1 of Defendants' USB
George Paul Pasas sworn 30 July 2021- in Folder B Folder 1 of Defendants' USB
Roberto Antonio Pupo sworn 23 June 2020 paragraphs [125] [126] only- in Folder C of Defendants' USB
Carney Gar Leung Yu affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
Kate Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
Benjamin James Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor) • Exhibits:
EJC-1 to Cheesman affidavit pages 21-125 only in Folder B Folder 1 of Defendants' USB
GP-1 to Pasas affidavit- in Folder B Folder 1 of Defendants' USB
RAP-01 to Pupo affidavit Tab 5 Table 7 - in Folder C of Defendants' USB
RAP-09 Tab 28 Folder "Sami Allam's Phone Extracts" - in Folder C of Defendants' USB (and not "Natives" folder in Tab 28)
KB-1 to Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
BJD-1 to Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor) Annexure C - Clayton Utz-EPA - 28 July 21 letter (1561816, pdf)

Amendments 12 May 2022 - Citation for Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 43 of is incorrect. The correction citation is [2022] NSWLEC 45. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2022

o 2) (2012) 301 ALR 494; [2012] FCA 1403 Texts Cited: Macquarie Dictionary Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor) ACE Demolition & Excavation Pty Ltd (Defendant) Representation: Counsel: Mr D Buchanan SC/Ms F Graham, barrister (Prosecutor) Mr J Potts SC/Ms K Morris, barrister (Defendant)

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