Environment Protection Authority v Allam

Introduction

1. ACE Demolition & Excavation Pty Ltd (the Company), as its name implies, provides demolition and excavation services to developers operating in the construction industry. As part of the Company's activities, it removes and disposes of waste generated by its activities at those 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 contaminated by the presence of asbestos). Other waste generated and removed for disposal can be regarded as clean and is to be described 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 described as general solid waste (referred to in shorthand terms as GSW). There are also a number of other classifications of waste - it is not necessary to set out an exhaustive list.
2. The various sites where the Company's activities were, at times relevant to these proceedings, undertaken are identified by a shorthand descriptor referring either to the geographic location of the site or the name of the developer to whom the Company was contracted. The Company's activities on those sites were undertaken by plant and plant operators allocated to the site through the Company's business arrangements. Whether the plant was owned by the Company and operated by a Company employee or was independently owned and operated by a contractor is not a matter relevant for present purposes.
3. Waste generated by the Company's activities requiring to be transported to a facility licensed to receive it for disposal was carried out by tipper trucks (with or without dog trailers being irrelevant for present purposes). As with the plant operating on the sites, some of the trucks were owned by the Company and driven by its employees, whilst others were operated by individuals or entities contracted to the Company. The status of any individual truck and the nature of its relationship to the Company is also not a matter of relevance for present purposes.

The charges against the Company

1. The Prosecutor has laid four charges against the Company for alleged breaches of the Protection of the Environment Operations Act 1997 (the POEO Act). The Summonses set out the terms of each of these charges. A summary of the charges is set out in Annexure A to this decision (the full terms of the Summonses do not require reproduction - the summary is sufficient).
2. To provide further context in understanding the nature of the Company's activities and the general waste disposal process with which it was involved, it is convenient to set out an extract from the Prosecutor's opening that gives, in an uncontroversial fashion as I understood it, an outline of general matters relevant to these charges (Transcript 4 August 2021, page 12, line 39 to page 13, line 33): PROSECUTOR: …, the waste concerned in each case came from one of two premises. The development concerned in each case was, firstly a development site at 40 to 50 Arncliffe Street, Wolli Creek, the developer being Westbourne Constructions Pty Limited, and a development site at 105 to 115 Portman Street, Zetland, the developer being Top Pacific Constructions Pty Limited. In each case the developer had contracted with ACE for it to carry out substantial excavation works and to remove the waste generated by that excavation. In each case, the defendant Sami Allam had negotiated the contract on behalf of the corporate defendant. The evidence will be that ACE hired truck drivers to cart the waste from each site to a waste facility selected by ACE. The defendant Allam negotiated with the various waste facilities for waste to be disposed of at those facilities from the different development sites at which ACE operated. Under part 3 of the Protection of the Environment Operations (Waste) Regulation 2014, the occupiers of waste facilities were required, amongst other things, 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, such as whether it was contaminated by asbestos, its waste stream, such as construction and demolition waste, the date and time the delivery was made, and the registration number of the vehicle used to make the delivery. The way waste facilities typically did this was by electronically recording the data, using weighbridges over which the trucks passed to enter and leave the facilities. The facility operators generated waste disposal dockets which included much of this data. In practice, a copy of the weighbridge disposal docket would either or both be supplied to the truck driver bringing the waste to the facility or the entity disposing of it and/or providing to the entity - in this case, ACE - disposing of the waste at the time of providing the waste facility's invoice to that entity. In the case of both development sites, Wolli Creek and Zetland, ACE was contractually obliged to account to the developer for the removal of the waste concerned. The developer needed to prove to the local council which issued the development consent for the site that all waste generated by the development was disposed of lawfully. A typical way this could be done was by ACE providing the developer or its agent with originals or copies of the weighbridge disposal dockets ACE had received for disposing of the waste from that developer's site. Those weighbridge disposal dockets would then correspond with waste classification certificates or other reports generated in relation to a site to indicate the volume and types of waste to be excavated and disposed of from the site. Sometimes ACE would also provide spreadsheets or summaries of the occasions of waste disposal to particular waste facilities. In addition, waste facilities sometimes provided summaries of their records of the occasions of ACE's trucks disposing of waste to their facilities, which they would provide to ACE, which ACE could then provide to the developer clients or their agent.

Mr Sami Allam's role with the Company

1. Mr Sami Allam is the sole director, sole shareholder, and CEO of the Company. This description of Mr Allam's roles with the Company is confirmed, as can later be seen in the Statement of Agreed Facts (Exhibit C).
2. Given that there are other relevant persons who share Mr Sami Allam's surname, it is convenient to refer to him, without intending any disrespect, as "Sami".
3. Sami was interviewed by an officer of the Prosecutor. This interview took place on 8 February 2018. It is not necessary to set out the questions to, and answers from, Sami concerning his role. The record of interview is in evidence at Tab 17 to Exhibit EES‑1 to the affidavit of 15 July 2021 of Ms Elizabeth Emily Spain (Ms Spain), a solicitor employed by the Prosecutor.

The charges against Sami

1. The Prosecutor has laid three charges against Sami for alleged breaches of the POEO Act. The charges against Sami are ones characterised as executive liability charges, that is, charges where conduct charged against the Company is statutorily imputed to Sami as its director. The Summonses set out the terms of each of these charges. The summary of the charges set out in Annexure A to this decision - in conjunction with a reading of (the later set out) s 169A of the POEO Act - is also sufficient to provide a proper contextual understanding of the charges against Sami.
2. At the conclusion of the Prosecutor's reply submissions on 5 August 2021, he summarised the three aspects of the case mounted against Sami on each of the charges. It is convenient, by way of general introduction, to quote that aspect of the Prosecutor's submissions as an introductory outline of the framework of the offences alleged by the prosecution against Sami (Transcript 5 August 2021, page 117, lines 7 to 18): The first aspect of the case against Mr Allam on the three charge he faces is the conduct element comprising the conduct of a company. The second aspect is his constructive knowledge, what he ought reasonably to have known about the conduct of the company a the conduct of him in inculcating a culture of supplying information about waste to outsiders which is false and misleading is the sort of thing which would necessarily alert him to the fact that where information is being supplied, as it necessarily must be, by employees about waste to outsiders to account for it. There is a risk that it['s going to be false or misleading. That is our case. That is the second aspect of our case against the defendant, Allam, which we say this tendency evidence has a tendency to prove. The third element is the element of failing to take reasonable steps to prevent the commission of the offence.

The Prosecutor's tendency notice

1. The Prosecutor has served a notice on Sami pursuant to s 97(1)(a) of the Evidence Act 1995 (the Evidence Act) of the Prosecutor's intention to rely on 16 groups of text messages to or from Sami as establishing a tendency upon which the Prosecutor proposed to rely in support of the executive liability charges laid against Sami.
2. Following the setting out of the information described above, the notice given to Sami then set out the terms of the tendency said to arise as being demonstrated by the 16 groups of text messages. That tendency was set out in paragraph 5 of the notice as being that: … the Defendant had a tendency to act in a particular way, namely a tendency: • to promote a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste.
3. Sami's legal representatives do not contest that the requirements of s 97(1)(a) of the Evidence Act for the giving of notice were satisfied by the tendency notice served on Sami and becoming the subject of these proceedings (Transcript 4 August 2021, page 26, lines 49 and 50).

The Prosecutor seeks a tendency ruling

1. On 16 July 2021, the Prosecutor filed a Notice of Motion seeking a ruling concerning the proposed tendency evidence. The order sought by the Prosecutor was 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 2 of Exhibit EES‑1 to the Affidavit of Elizabeth Emily Spain dated 15 July 2021, is admissible.
2. The basis upon which the Prosecutor proposed that each group of text messages was said to illustrate the "asserted tendency" was set out in that notice. Separate explanations were provided with respect to each of the 16 groups of text messages.
3. It will be necessary, later, to set out the detail of the messages in 16 groups of text messages and, with respect to each of the groups, relevant details of what the Prosecutor claims is to be drawn from that group. However, for these introductory purposes, the above is a sufficient explanation to understand the framework of the notice given to Sami for the purposes of s 97(1)(a) of the Evidence Act.

The Notice of Motion for Sami

1. On 16 July 2021, a Notice of Motion was also filed for, relevantly, Sami seeking to have the material upon which the Prosecutor proposed to rely for the "asserted tendency" (and also for non‑tendency purposes) rejected. The relevant elements of the Notice of Motion filed on Sami's behalf are in the following terms: Section 192A Advance Evidentiary Rulings 2 Pursuant to s 192A of the Evidence Act, a ruling or finding that the evidence served by the prosecutor referred to in Schedule "A" is inadmissible, or liable to exclusion on discretionary grounds, and will be rejected if tendered on the basis that: a) the evidence is tendency evidence under Part 3.6 of the Evidence Act and does not have significant probative value, or its probative value does not significantly outweigh the prejudicial effect on the defendants; and, or alternatively b) the evidence should not be admitted because it is unfairly prejudicial; would cause or result in undue waste of time; or its probative value is outweighed by the danger of unfair prejudice to the defendants under ss 135 and 137 of the Evidence Act;

The related interlocutory decisions

1. 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 Sami'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 by the Prosecutor (Environment Protection Authority v Allam [2021] NSWLEC 103 (Allam No 1)).
2. Two further interlocutory decisions have been given simultaneously with this decision. These decisions are Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 44 (the Company decision) and Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 (the extra messages decision).
3. 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).

Representation

1. The Prosecutor was represented by Mr D Buchanan SC and Ms F Graham, barrister. The Company and Sami were represented by Mr J Potts SC and Ms K Morris, barrister. The advocates for the parties each provided comprehensive written submissions in support of the respective positions advanced by them.

The hearing

1. The hearings dealing with all interlocutory matters were held over six days, with an approximately two-week break between the second and third days and a further break of approximately one month between the fourth and fifth days as a result of when there was judicial availability at the time when these preliminary determinations were set down and allocated hearing days.
2. The hearings were conducted remotely in accordance with the Court's then applicable COVID‑19 Pandemic Arrangements Policy.

The discontinued charge against Sami

1. At the commencement of the hearing on 4 August 2021, the Prosecutor sought, and was granted, leave to discontinue proceedings 2021/78283, being a prosecution commenced by the Prosecutor against Sami for a breach of s 144AA(1) of the POEO Act. That leave was granted and the file marked to reflect the discontinuance of the proceedings.

The issues to be addressed for this phase of the interlocutory hearings

1. The next matter arising on the first day of the hearing which warrants being recorded is the outlining by the Prosecutor of the nature of the preliminary issues requiring to be addressed in this phase of these interlocutory proceedings. The Prosecutor's summary of those matters was (Transcript 4 August 2021, page 3, line 37 to page 4, line 31): PROSECUTOR: Firstly, the prosecutor's tendency evidence application in proceedings 2020/357475 to 477 against Mr Allam in relation to certain text messages. … PROSECUTOR: Secondly, if the text messages are admissible as tendency evidence, then determination of the defendants' application to exclude them. This is prayer to A in the defendants' notice of motion, and subject to my friend and to your Honour, realistically the competing applications in the first and the second hearings should be dealt with together. … PROSECUTOR: If the text messages - thirdly, if the text messages are inadmissible for a tendency purposes, then determination of the defendants' application to exclude them. This, it might be noted, will necessitate consideration of the prosecutor's asserted non‑tendency purpose for the text messages' evidence. … PROSECUTOR: This is the defendants' notice of motion prayer 2B. … PROSECUTOR: Fourthly, the defendants' application to exclude evidence of text messages on the ground that they were obtained in breach of s 212(3) Protection of the Environment Operations Act. … PROSECUTOR: That is the defendants' notice of motion prayer 2C. … PROSECUTOR: Then finally, the prosecutor's tendency evidence application in proceedings 2020/357465 through to 468 against Ace Demolition & Excavation Pty Ltd.

The retrieved messages are not excluded

1. It is to be observed that the fourth matter outlined above was, in effect, an application which would have, if concluded in Sami's favour, ended consideration of matters relating to text messages and WhatsApp conversations, as all of that material (whether or not subject to the Prosecutor's applications in these various proceedings) would have been rendered inadmissible on the basis that it had been unlawfully obtained. Because of the importance of that determination, I addressed that contention pressed on behalf of Sami in my decision, Allam No 1, where I held that the various messages obtained by the Prosecutor accessing Sami's mobile phone had not been obtained unlawfully.

The matters to be determined

1. Of the matters earlier listed, the first, second, third and fifth of the matters remained to be determined. This decision addresses the first, second and third of them. My decision concerning the fifth of the matters set out by the Prosecutor is addressed in the Company decision, one delivered simultaneously with this one.
2. Finally, it is to be noted that a significant further interlocutory application was made by Notice of Motion filed on behalf of Sami and the Company arising out of the service by the Prosecutor of a further large number of text messages and WhatsApp conversations that had been selected by the Prosecutor from those retrieved from Sami's mobile phone. The selected messages and conversations, some nearly 1,700 in number, were divided by the Prosecutor into 17 different categories, with the Prosecutor identifying the proposition for which the messages assigned to that category was said to provide support. Those matters were the subject of the fifth and sixth days of the interlocutory hearings.
3. Also simultaneously with this decision, I have given my decision concerning the Notice of Motion filed on behalf of the Company and Sami concerning those 17 categories of text and WhatsApp message conversations (see the joint message decision).

The evidence

1. For the purposes of this phase of the interlocutory hearings, virtually the entirety of the material relied upon for the Prosecutor or for the Company and Sami was provided electronically. The electronic material was provided on two USB sticks (one from the Prosecutor and one on behalf of the Company and Sami). The material provided electronically comprised the entirety of the evidentiary material for all the proceedings, with only limited elements of the material requiring consideration at this preliminary stage. The parties provided a list of the electronically tendered material necessary for my consideration in these preliminary decisions, a list which is at Annexure B to this decision.
2. The evidentiary material tendered was extensive and included a deal of video footage. It was agreed that, to the extent relevant, what needed to be drawn from that video footage was encapsulated in summaries that had been incorporated in, or annexed to, affidavit evidence. It was agreed that there was no need to play any of the video footage during the course of the proceedings. Nor was there any need for me to spend time in chambers viewing any of that footage.
3. In addition, a document which had been provided electronically (a table setting out 87 text messages exchanged between Sami and one or other of three nominated employees of the Company) was separately tendered, becoming Exhibit A. Exhibit A comprised a document which had been included in the electronic material tendered by the Prosecutor but which had had additional annotations made to it in order to explain aspects of the table. These aspects were:

• the division of the text messages into 16 groups, with these groups, in turn, being allocated into two categories relied upon by the Prosecutor for these preliminary proceedings. No group of messages was included in both categories;
• tagging of the first of those categories with the appellation "Provide false/misleading info (Dishonesty)" (repeated simply as "Dishonesty" for subsequent items in this category); and
• tagging of the second of those categories with the appellation "Fail to direct to be honest (Dishonesty inferred)" (repeated simply as "Dishonesty inferred" for subsequent items in this category).

1. These terms are shorthand descriptors of the purposes for which the Prosecutor sought to be permitted to rely on as tendency evidence concerning Sami's behaviour for the purposes of the executive liability charges which have been laid against him. In this context, attaching those descriptors to the groupings of text messages in each category in Exhibit A are submissions made by the Prosecutor and are not evidence of the truth of what is submitted by that descriptor relevant to that group of text messages.
2. As later noted in my discussion of the detail of some of the evidence, the 87 text messages tendered in Exhibit A were amongst a total of over 15,000 text messages retrieved by the Prosecutor from a phone lawfully obtained from Sami as part of the Prosecutor's investigation process. It will later be appropriate to reproduce the material from Exhibit A in two tranches. Those tranches will comprise the messages in the various groups designated by the Prosecutor as being appropriately described as demonstrating actual "dishonesty" and the groups said by the Prosecutor to be appropriately described as demonstrating "inferred dishonesty". When later reproduced, the participants in each exchange will be identified, but it will not be necessary to reproduce the mobile telephone number of the sender or the recipient for each of those messages.
3. It is to be noted that none of the over 1,200 WhatsApp message conversations retrieved from Sami's mobile phone are included in the message conversations listed in Exhibit A.

Introduction

1. Elements from four statutes require to be addressed in this judgment. Elements of two of them, the POEO Act and the Evidence Act and their interrelationship with respect to the charges laid by the Prosecutor against the Company and Sami, are the primary focus of these proceedings. Provisions in other later listed statutes and cases concerning interpretation of their provisions were relied upon by the Prosecutor as providing a proper understanding of how the Prosecutor submitted Sami should be regarded as having constructive knowledge of the offending conduct alleged against the Company.

The POEO Act provisions

1. The first relevant provision of the POEO Act is that giving rise to the charges against the Company. That provision is s 144AA, the relevant elements of which are in the following terms: 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.
2. The second relevant provision of the POEO Act is that which provides the basis for the charges laid against Sami arising from his roles with the Company. This provision, s 169A, creates an offence of executive liability for a person carrying out one of the roles defined in the provision and where that person can be demonstrated to satisfy one of the tests which would cause knowledge of the enterprise's conduct to be imputed to that person. Relevantly for present purposes, s 169A is in the following terms: 169A Liability of directors etc for offences by corporation - offences attracting executive liability generally (1) For the purposes of this section, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation - … (l) section 144AA (1), … (2) A person commits an offence against this section if - (a) a corporation commits an executive liability offence, and (b) the person is - (i) a director of the corporation, or (ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and (c) the person - (i) knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and (ii) fails to take all reasonable steps to prevent or stop the commission of that offence. Maximum penalty - The maximum penalty for the executive liability offence if committed by an individual. (3) The prosecution bears the legal burden of proving the elements of the offence against this section. (4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

The Evidence Act

1. The Evidence Act permits, through s 192A, the making of advance evidentiary rulings concerning evidence which might, if sought to be relied upon at trial, result in contests as to admissibility and, hence, delay in the speedy conduct of a trial. The 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.
2. In these proceedings, both the Prosecutor and Sami's legal representatives seek advance evidentiary rulings concerning the text messages. As might be expected, in general terms, the Prosecutor seeks that they be ruled as admissible as demonstrative of a tendency asserted to be held by Sami or, if not so admissible, are admissible for non‑tendency purposes.
3. The rulings sought on Sami's behalf were earlier set out in the Notice of Motion elements at [17].
4. Five further provisions of the Evidence Act require consideration in these proceedings. The first further provision is s 97(1), the provision dealing with tendency evidence. It is applicable in both criminal and civil proceedings. This 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.
5. The second further provision requiring consideration in these proceedings is s 101, a provision relating to potential tendency evidence in criminal proceedings. Additional protection is available to a defendant when a prosecutor seeks a ruling that would permit it to rely on an "asserted tendency". The relevant elements of this provision are: 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.
6. The third further provision requiring consideration in these proceedings is s 135, a provision in the following terms: 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.
7. The fourth further provision requiring consideration in these proceedings is s136, a provision in the following terms: 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.
8. The fifth provision requiring consideration in these proceedings is s 137, a provision 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.
9. The final relevant matter is the definition of "probative value" in the Dictionary to the Evidence Act. The 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 "knows, or ought reasonably know" provisions

1. The Prosecutor relies on judicial consideration of the terms in other criminal and civil legislation where the concept of "knows, or ought reasonably know" provisions exist as providing illustrative understanding as to how the attribution of constructive knowledge to Sami by virtue of his role in the Company arises (on the Prosecutor's case).
2. It is unnecessary to set out the details of these provisions, provisions contained in the following legislation: 1. the Criminal Code Act 1924 (Tasmania); 2. the Crimes Act 1900 (NSW); and 3. the Copyright Act 1968 (Cwth) - at the time of its judicial consideration.

Introduction

1. For the purposes of this decision, there are four persons who are employees of the Company to whom it will be necessary to make reference. They are: 1. Sami; 2. Mr Bachar Allam; 3. Mr Kassem Allam; and 4. Mr Ali Reza
2. It is not known by me whether Sami, Bachar Allam and Kassem Allam have any familial relationship. In any event, if they share any such ties other than a common surname, it is irrelevant in the context with which I need to consider their activities as part of the Company's operations. However, for clarity in identifying the various matters which need to be discussed, I shall (without disrespect to them) refer to the others sharing Sami's surname as "Bachar" or "Kassem" as appropriate.
3. The three further employees and their roles are set out below.

Bachar's role with the Company

1. Bachar's role with the Company can be described as having responsibility for allocating work carried out as part of the Company's activities. His primary role was the organisation of the trucks and drivers who performed waste disposal roles transporting material from construction sites where the Company was operating to waste disposal facilities at which the material would be deposited. This was required to fulfil the Company's contractual obligations with the developer of the site from which the waste had been generated.
2. Bachar was interviewed by an officer of the Prosecutor on 19 December 2019. A transcript of that interview is in evidence in these proceedings. The transcript sets out Bachar's description of the nature of the activities he undertook, on behalf of the Company (at answer to Q 43). The relevant passage from the transcript is set out below: …, I'm just organising the trucks and following the instruction take this material from here and dump it there and that's it, I don't deal with the tips, I don't deal with the job, I don't - like, I'm dealing always with the foreman he ask me I need five trucks and they will give them the address where to dump and where to pick up.

Kassem's role with the Company

1. Kassem's role can be described as an allocator (Kassem's record of interview of 10 July 2019 at pages 3 and 4). His role, primarily, was the allocation of plant and their operators to the various development sites where the Company was undertaking excavation or demolition activities on behalf of the developer of that site. From time to time, when Bachar was unavailable to perform his duties, Kassem also undertook Bachar's role.

Ali Reza's role with the Company

1. Mr Ali Reza was employed as a foreman, managing the Company's operations on any site to which he was assigned.

The Statement of Agreed Facts

1. On 24 August 2021, a Statement of Agreed Facts was tendered, becoming Exhibit C. The Statement of Agreed Facts was 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 & 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 & Excavation phases of planned development works. Those phases often included the removal from the development site of the Demolition & 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 "Prosecutor's Further Revised Draft Statement of Facts"

1. I have set out above the terms of the Statement of Agreed Facts that became Exhibit C. In its printed terms, it is 8.5 pages long. In the Prosecutor's written and oral submissions, reference is made to a document entitled "Prosecutor's Further Revised Draft Statement of Facts", a document dated 9 July 2021. This document has not been adopted by Sami or the Company. This document is one of some 36.5 pages. Although tendered in the Prosecutor's material, and referenced as noted, references in it are taken by me to be, to the extent that the terms of this document differs from, or expands materially upon, Exhibit C, as being submissions on behalf the Prosecutor rather than facts upon which I am required to rely as a matter of evidence.

Introduction

1. The Prosecutor had seized a mobile phone from Sami pursuant to a search warrant. Examination of that mobile phone showed that Sami had, during the periods relevant to which the Prosecutor's tendency notice applies, used this phone extensively for electronic messaging purposes. The process by which the Prosecutor was able to access and retrieve these messages is set out at [6] in my first decision (Allam No 1) in this series of interlocutory decisions arising from the prosecutions of the Company and/or Mr Allam.
2. A significant number of messages were sent using the text messaging facility provided by the phone, whilst a further significant number of messages were sent using the WhatsApp messaging app downloaded to the phone. It is from within the messages sent using the first of these apps that the 16 groups of messages have been extracted to provide the basis for the "asserted tendency" in the notice served by the Prosecutor on Sami pursuant to s 97(1)(a) of the Evidence Act.
3. I do not understand that the Prosecutor cavils with the numerical analysis I set out in the following sections concerning Sami's messaging activities. Acceptance of the numerical accuracy, of course, does not imply any acceptance of what conclusions might be advanced on Sami's behalf as to be drawn from those numbers.

Introduction

1. The 16 groups of text messages, the subject of the Prosecutor's notice pursuant to s 97(1)(a) of the Evidence Act, are, themselves, divided into two tranches by the Prosecutor.
2. In his opening submissions, the Prosecutor explained the two categories of groups of messages in Exhibit A. The two categories were described by the Prosecutor in the following terms (Transcript 4 August 2021, page 18, lines 3 to 15): One is a category of outright dishonesty; that is to say, providing information which is false or misleading in a material respect; that is, we submit, are capable of being discerned on the face of the exchange of the messages. The second category is a category that can be called, for labelling purposes, failed to direct to tell the truth; that is to say that the dishonesty or the contribution that the message exchange to the truth of the "asserted tendency" doesn't leap out at one from the messages exchanged to the same degree as the first category but is a situation where we say the employee was asking Allam a question as to what the employee should ensure is told to the waste facilities about particular waste. Whilst Mr Allam responded to the effect of "tell them what you've just told me", he did not - and we say this is forensically significant - direct the employee, "just tell the truth about it, why are you asking me", sort of thing.
3. The spreadsheet which became Exhibit A was subsequently annotated so as to differentiate those messages which were said by the Prosecutor to fall within the first of the above categories from those which were said to fall within the second of them.
4. I enquired of the Prosecutor, with respect to the various groups of text messages, whether I was being asked to draw the relevant inference for the purposes of s 97(1)(b) of the Evidence Act concerning the groups of messages in each category, on a global basis. The Prosecutor assured me that this was not the position advanced and that I potentially needed to make 16 separate rulings across the total groups of messages in the two categories.
5. Similarly, it will be appropriate to separate the two categories for the purposes of my examination as to whether the tendency asserted by the Prosecutor was established with respect to any or all of the groups of messages in each of those categories.
6. The first category is said by the Prosecutor to demonstrate that Sami gave an instruction to act dishonestly in the conveying of information concerning waste which was false in a material respect. This category comprised nine of the 16 groups of messages.
7. The second category of messages is said by the Prosecutor to make it clear that Sami gave instructions to an employee to tell the truth as to how waste should be described (as to source and/or composition) because there was an established practice whereby such information would not automatically be conveyed truthfully to the recipient of it.
8. With respect to both these tranches of text messages, the Prosecutor submits that there was a statutory obligation that the information conveyed to the recipient of it was truthful and not false or misleading in any material respect.
9. I consider later, separately, all of the groups of messages in each of those categories in order to determine whether the Prosecutor's "asserted tendency" was to be drawn from each of the groups of messages in that category.

The extent of Sami's text messaging

1. The period during which the text messages relied upon by the Prosecutor were sent by Sami to a wide range of recipients was 24 June 2016 to 22 December 2017. There were over 15,000 text messages retrieved from Sami's mobile phone. The 16 groups relied upon by the Prosecutor comprise only 87 of those messages.
2. I have earlier set out, at [50] to [56], the names and roles of the three employees of the Company to whom Sami had sent, variously, the messages pressed by the Prosecutor. In this regard, I was invited by Mr Potts to have regard to three aspects of this text messaging activity. These were: 1. That the total of 87 text messages set out in the spreadsheet in Exhibit A were sent over a period of ~ 650 days; 2. The messages sent to/from the three employees comprised a small subset only of this total messaging activity. In particular, he observed that: 1. during the period of the text messaging, 1,785 messages were exchanged between Sami and Bachar; 1,104 messages were exchanged between Sami and Kassem; and 173 messages were exchanged between Sami and Mr Ali Reza; and 2. the number of messages exchanged between Sami and Bachar which formed part of the basis for the "asserted tendency" comprised only a minuscule portion of Sami's total text messaging activity and, more particularly, comprised a minor portion of the text messaging exchanges between Sami and Bachar.

Sami's WhatsApp messaging

1. In addition to the retrieved text messages, over 1,200 WhatsApp conversations were also retrieved from Sami's mobile phone. It is to be noted that the Prosecutor does not seek to rely, for this tendency purpose, on any of the message exchanges in the WhatsApp conversations retrieved from Sami's mobile phone.
2. The Prosecutor tendered a spreadsheet of these WhatsApp conversations. In at least one instance (to which I will later refer), several WhatsApp messages can be seen to be an (uncontroversial) extension of one of the 16 text message groups advanced by the Prosecutor as supporting the "asserted tendency" set out in the notice given to Sami.
3. Mr Potts submitted that it was also appropriate that I have regard to the overall total of Sami's messaging activity in both formats. This submission, and the context within which I should address it in these proceedings, are dealt with later in this judgment.

The structure for setting out the submissions

1. In conventional terms (only subject to any application which might be made to reopen), a prosecutor will outline the entirety of the case advanced before there will be any response on behalf of a defendant. When (as is the position here) there is a combination of written submissions and countervailing applications on behalf of a defendant, the prosecutor may respond in anticipation to the defendant's submissions as part of a composite and complete presentation.
2. Here, the Prosecutor has addressed matters in this fashion. To understand how the Prosecutor has responded in anticipation to submissions to be advanced on behalf of Sami, I have deferred (until after the submissions on his behalf) my setting out of the responsive submissions on behalf of the Prosecutor (although they did not, in a strictly temporal fashion, follow those to which they are in response).

Introduction

1. The first day of the hearing (apart from administrative matters at its commencement) was primarily given over to the Prosecutor taking me through the list of groups of messages set out in Exhibit A as to the inferences which the Prosecutor said should be understood to arise from the various messages. What follows in this decision is a limited setting out of what I consider to be relevant elements of the Prosecutor's submissions that were interwoven with the discussion of the groups of messages.
2. The Prosecutor drew attention to the fact that, for each of the executive liability offences that are charged against Sami, s 169A(2)(c)(1) would require, for a finding that Sami was guilty, that he knew or ought reasonably to have known that the offence charged against the Company would be, or was being, committed. That mental element was noted by the Prosecutor as being relevant to my consideration of matters arising in this preliminary hearing (Prosecutor's opening at Transcript 4 August 2021, page 11, lines 17 to 19).
3. The Prosecutor outlined 14 propositions that were said to provide proper foundations for the charges which had been laid against the Company and Sami. Those relevant to the Prosecutor's "asserted tendency" dealt with in this decision were the twelfth and thirteenth of those points. These were outlined as being (Transcript 4 August 2021, page 14, lines 36 to 43): Twelfth, that Mr Allam promoted and therefore was aware of a culture and/or a practice and/or a system of work in ACE which involved dishonesty and deception in the course of dealing with waste. Thirteenth, that Mr Allam had a tendency to promote a culture and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information about waste to other people in the course of dealing with the waste, and was aware of such a culture of dishonesty and deceit.
4. The Prosecutor explained the roles of the three employees of the Company with whom Sami had exchanged the text messages which had been the subject of the groupings of text messages said to provide the foundation for the tendency asserted by the Prosecutor's notice pursuant to s 97(1) of the Evidence Act.
5. The Prosecutor commenced the explanation of how it was said that the two categories of text messages in Exhibit A were to be considered, in the context of s 97(1)(b) requiring me to conclude that the proposed tendency evidence will have significant probative value. In support of the proposition that I should be so satisfied, the Prosecutor relied on the decision of the High Court in Hughes v The Queen (2017) CLR 338; [2017] HCA 20 (Hughes), at [41], submitting (Transcript 4 August 2021, page 27, lines 10 to 19): In the case of Hughes v R, … the High Court said, "The assessment of whether evidence has significant probative value in relation to each charge involves consideration of two interrelated but separate matters; (a) the extent to which the evidence supports the "asserted tendency"; (b) the extent to which the tendency makes more likely the facts making up the alleged offence." Their Honours went on, "In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
6. Although the groups of text messages in Exhibit A had been divided into two categories as earlier explained, the Prosecutor submitted that, properly understood, the groups of messages in each of the categories, although having different attributes in the various fashions earlier explained, all provided evidence supporting the "asserted tendency".
7. The Prosecutor submitted that the text messages relied upon in Exhibit A, as providing the foundation for the "asserted tendency", satisfied the tests which had been set out by the High Court in Hughes, as noted above.
8. At the conclusion of the Prosecutor's explaining to me of how the Prosecutor said the various groups of messages in Exhibit A should be understood, the Prosecutor then turned to address the role that tendency evidence might play as a general proposition. He submitted that a tendency, if established, would have utility for a prosecutor in being able to establish guilt of what might be regarded as the foundational offences where the tendency is said to reinforce the probability of the commission of those offences (citing Hughes and R v Bauer [2018] 266 CLR 56).
9. The balance of the first day was spent by the Prosecutor addressing the basis upon which the Prosecutor proposed to rely upon the "asserted tendency" and why, in the Prosecutor's submission, being permitted to rely on the "asserted tendency" would not be inappropriately prejudicial to Sami. During this process, the Prosecutor did not address the terms in which the "asserted tendency" had been framed.
10. During the course of questioning from me as to how I was to understand what the Prosecutor submitted should be drawn from the second category of messages in Exhibit A, the Prosecutor said (Transcript 4 August 2021, page 28, lines 32 to 44): BUCHANAN: No, we're not saying that he was telling them to do that. The significance is that in the context of these the messages, it is clear that the employees concerned felt they needed guidance as to whether to tell the troth or not. There should, in our submission, have been no need for Mr Kassem Allam to ring or to text Mr Sami Allam. All he had to do was write on the docket that it was not clear but instead he rings Allam to find out what he should do. This is indicative of, we submit, one will infer, at the end of the day, a corporate culture or system of work whereby employees believed that sometimes Allam wants them to be dishonest and sometimes he does not but they need to check with him if they are in any doubt as to the information that should be supplied about the waste to the waste facility. This message gives rise, in our submission, to that inference, faintly, by itself but more strongly when combined with all the other messages in this application.
11. As can be seen from the concluding sentence of the above passage, as I understood this element of the Prosecutor's submissions, the second category of groups of messages in Exhibit A were to be taken together (as a combined bundle, as it were, as well as individually) for the purpose of me concluding that s 97(1)(b) was satisfied as providing a basis to establish the asserted "tendency" having a proper foundation in those groups of messages.
12. The Prosecutor explained why the tendency asserted in the notice served on Sami provided support to the offences based on the conduct of two other employees of the Company. The Prosecutor said (Transcript 4 August 2021, page 31, lines 28 to 32): That is, that the conduct element of the executive liability offences was performed by employees, and the conduct is more likely to occur in a company where the boss has a tendency to promote a culture or practice or system of work that involves supplying information about waste to others, which information is false or misleading.
13. The Prosecutor submitted (written submissions at paragraph 32) that the first category of groups of text messages in Exhibit A prove, for the "asserted tendency", on the occasions evidenced by those groups of text messages (being occasions that are not the subject of the charges against Sami), that: 1. Sami directed or encouraged Company employees 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.

1. The Prosecutor's written submissions in support of the tendency application then proposed, at paragraph 33: 33. It is significant to their probative value that, in the case of numerous of the above text message exchanges, the Defendant knew that the employee knew what the true information was in relation to the waste concerned. In other words, the Defendant knew that, by his conduct, he was promoting a culture and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information about waste to other people in the course of dealing with the waste.
2. A footnote to this paragraph identifies that the eight of the nine groups of text messages in the first category in Exhibit A fall within the submission in this paragraph.
3. The Prosecutor submitted that:

• if information provided to another person during the course of dealing with waste, when the information is false or misleading in a material respect, this should be regarded as unusual in the context of ordinary commercial experience (citing, in a different but an analogous context, Hughes at [57]);
• this provided, the Prosecutor submitted, a contribution to concluding that text messages which met this description have significant probative value, and
• this will be influential in the context of fact-finding in relation to the charged offences, primarily in relation to the element of constructive knowledge under s 169A(2)(c)(i) of the POEO Act.

1. With respect to the groups of text messages in the second category in Exhibit A, the Prosecutor submitted (written submissions at paragraph 34): 34 The text messages evidence itemised in par 11 above proves that, on occasions other than the occasions charged: • in responding to inquiries by employees of the company responsible for organising the disposal of waste and the supply to waste facilities of information about the waste; • the inquiries being either or both as to how the waste should be described and/or what should be said as to the source of the waste; • the Defendant did not direct the employee to truthfully describe the waste as they understood or believed it to be when the employee already had the necessary information to truthfully describe the waste before the Defendant's direction; or • the Defendant did not direct the employee to truthfully identify the location of the source of the waste as they knew or understood it to be when the employee already had the necessary information to truthfully identify the location of the source of the waste before the Defendant's direction; or • in the case of items 7 and 11, the Defendant did not direct the employee to truthfully identify the location of the source of the waste as they knew or understood it to be when the employee already had the necessary information to truthfully identify the location of the source of the waste before the Defendant's direction, and given that the nature of the employee's question meant the employee understood that they would sometimes be directed, or were required, not to be truthful.

The relationship between the messages and the charges against Sami

1. In paragraph 35 of the Prosecutor's written submissions, the Prosecutor addressed the question of matters of dissimilarity between the messages advanced in Exhibit A as demonstrating the "asserted tendency" and the nature of the conduct pressed by the Prosecutor in the charges actually laid which give rise to Sami's alleged "executive liability". The Prosecutor's written submissions, in this regard, said: 35 Dissimilarities between the "asserted tendency" evidence and the matters the subject of the charges against the Defendant may be identified. An obvious one is that, on their face, the text message exchanges were about the information about waste to be supplied to waste facilities while the executive liability offences concern information about waste supplied to developer clients or their agents. However, a focus on the dissimilarities in the acts involved, and circumstances in which they occurred, of the text messages the Defendant sent his employees compared to the subject-matter of the executive liability offences, impermissibly ignores the tendency they are adduced to prove.

Sami's record of interview

1. In oral submissions, the Prosecutor referred to the transcript of a record of interview with Sami. That interview, conducted by officers of the Prosecutor, had taken place on 8 February 2018. The Prosecutor drew my attention to a number of questions and answers in the record of interview (the transcript being in evidence at Tab 17 to Exhibit EES‑1 to the affidavit of Ms Spain).
2. The Prosecutor set out the nature of the eight separate topics that the Prosecutor submitted were addressed at various identified points in Sami's record of interview as being relevant contextual material in support of the Prosecutor's contention that the messages in Exhibit A should be taken to establish the tendency sought to be relied upon by the Prosecutor. It is appropriate to set out the terms of this passage from the transcript in its entirety. The passage was in the following terms (Transcript 4 August 2021, page 44, line 25 to page 45, line 19): PROSECUTOR: …. We would ask your Honour to take into account the text messages evidence, the evidence which we contend is tendency evidence, in light of a number of matters contained in the transcript of that interview with the defendant. Firstly, question and answer 45 to 47, see also questions and answers 66 to 68 and 94 to 95. Admissions by the defendant as to his involvement in the running of the company, in particular, "Just overall manage the people, manage the whole show, I manage the estimators, the project managers, the site manager." Secondly, this is question and answer 126 to 137, admissions as to being very involved in managing waste and organising testing of materials for classification at the Zetland site. Thirdly, at question and answer 330 to 331, see also question and answer 661 to 664, admissions by Mr Allam that he chose the waste facility. So each waste was transported and disposed of on all occasions. Fourthly, question and answer 402 to 411, admissions that truck drivers were told by an Ace employee at the gate, that is to say the gate of the job site, "This is asbestos contaminated waste. Go to Dial A Dump then go to Bowral." This is Mr Allam giving an explanation of the sorts of - the way in which truck drivers received their instructions as to what they were carting and where to take it. Fifthly, at question and answer 451, Mr Allam said that he trusts Munaf Al Sarray. "You know the guy worked for me and he's been with me and I trust what he's doing." Now, in fairness to the defendant, I should say that was in response to a question about the fact that a statutory notice had been responded to on behalf of the company by Munaf Al Sarray and he was asked to comment on that response and his response basically was, "Well, I didn't read it. I relied on Munaf Al Sarray to say the right thing." And his explanation as to why he did that is what we rely upon. At, sixthly, question and answer 511 and 530 to 535, admission as to being involved in managing waste and personally organising testing of materials, so classification at the Wolli Creek premises. Seventhly, question and answer 855 to 858, admissions as to running a business, being motivated by cost. This was in the context of answering questions about why he chose a particular landfill for waste disposal. And finally, question and answer 220 to 222, Mr Allam told the EPA about ACE deciding where to dispose of material and "shopping around" - I've added "P‑I‑N‑G" to the word "shop" - "shop around," which we submit is part of the evidence showing that the defendant was, completely unsurprisingly, cost-conscious in the conduct of his business, but that is a feature of the prosecution case, which we say is important to understanding why the offences charged were committed.
3. It will be necessary, in my consideration of the Prosecutor's submissions in support of its seeking to rely on the "asserted tendency", to examine the transcript of Sami's record of interview, paying regard to the various questions and answers cited by the Prosecutor in the above passage.

Generality and the test of "substantive"

1. Mr Potts' submissions on behalf of Sami started at the beginning of the second day of the hearing. He commenced by asking me to return to the terms in which the tendency set out in paragraph 5 of the Prosecutor's tendency notice had been expressed. Mr Potts submitted (Transcript 5 August 2021, page 55, line 38 to page 56, line 1): … what I wanted to first draw to attention is in para 5 of the notice. It is here your Honour finds the description of the tendency which the prosecution seeks to prove by the tender of the Exhibit A text messages, and what we wish to first draw to attention is the highly-generalised manner in which that tendency has been framed, and so your Honour sees it suggests that the Exhibit A text material is adduced to prove that the defendant, in this case Mr Allam, had a tendency to act in a particular way, namely a tendency, or to use other language, a propensity, to promote a culture and/or a practice and/or a system of work in the company - that's of course ACE - which involved dishonesty and deception when supplying information to other people in the course of dealing with waste. What we say, your Honour, as a first point is the entirely general and very non-specific nature of that tendency, which the EPA seeks to prove, we submit has a direct bearing on your Honour's assessment of the probative value of the Exhibit A material, and whether your Honour can be satisfied that it is of significant probative value, being of course the statutory threshold for admissibility.

The terms of the proposed tendency

1. As earlier noted, the Prosecutor had not earlier addressed the terms in which the tendency alleged against Sami had been expressed. The Prosecutor's submissions had been confined to addressing the contents of the various messages upon which the Prosecutor sought to rely for tendency purposes; how the Prosecutor proposed that those messages should be interpreted; and the foundational legal basis which, the Prosecutor submitted, enabled the tendency to be established for the purposes of the proceedings against Sami.
2. In his submissions concerning what he proposed was the broad generality of the "asserted tendency" advanced on behalf of the Prosecutor, Mr Potts took me to the decision of Leeming JA in El‑Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10, at [70], where Leeming JA said: One way in which in which tendency evidence possesses significant probative value, turns on the degree of generality or specificity with which the tendency is stated. A tendency which is stated with too high a level of generality will prove a handicap to its having significant probative value.
3. Mr Potts developed this point further by reference to other passages in Leeming JA's reasons. He then concluded his submissions concerning the language of the "asserted tendency" and its generality by proposing that I should conclude that the level of generality in which it is expressed by the Prosecutor weighs against a conclusion that the "asserted tendency" could provide significant probative value at trial.
4. The primary thrust of Mr Potts written and oral submissions for Sami addressed the question of whether s 97(1)(b) of the Evidence Act had been satisfied for the messages and, if so, did s 101 act to exclude them, his proposition being that it had not for the reasons earlier outlined. However, overnight, between the first and second days of the hearing, as part of my review of that which had transpired on the first day, I reflected on the precise terms of the tendency which was being asserted by the Prosecutor as being available to be relied upon in the case against Sami. I raised my concern with Mr Potts, doing so in the following terms (Transcript 5 August 2021, page 57, line 49 to page 58, line 32): HIS HONOUR: Do you say anything - maybe I am anticipating. I apologise if I am and taking your train of thought out of order, but do you say anything arises from the fact that if one was to draw what one might describe as a flowchart of what is set out in para 5, it would be a multi-outcome flowchart, as opposed to there being a single specific tendency alleged? Do you understand what I'm saying? POTTS: I do your Honour. There are three - sorry, there are multiple limbs in that flowchart your Honour, and we say that does form an aspect of the generality with which this tendency is cast. It is cast at such a high level that there are a number of permutations and combinations, because each bit of culture, practice and system of work are jointed by what's been described in some cases in very unflattering terms as the "and/or phenomenon". I think there are multiple cases, including from the mid-20th century, deprecating the use of that form of expression, but it seems to have taken root at least in the legal profession in this country. But in any event, yes, we do make something of that because-- HIS HONOUR: I'm not raising it with you as to a matter of generality. It is as to whether you say anything to me about a lack of particularity. The multiple outcomes - at least this is what causes me to ask it - could potentially be regarded as providing a lack of specificity as to what the tendency is alleged to be. Not generality but specificity because you would get at the bottom of the flowchart multiple potential tendencies that were said to arise. POTTS: Yes, we do make something of that and it perhaps is the obverse of the point about generality; that it creates, at an output level, such a range of potential tendencies that in order for this particular tendency in that particular form, to have significant probative value, our friends have to demonstrate that a tendering in the trial proper of the Exhibit A text messages, are capable of making out the tendencies for which they contend with those differing outcomes or differing limbs in the flowchart, and we say it is a relevant factor for your Honour in considering whether the evidence that our friends seek to adduce does have a significant probative value.

The limited number of messages relied upon by the Prosecutor

1. At this point, it is appropriate to note that, amongst the evidence tendered on behalf of Sami, were two Excel spreadsheets. The first of these was appended to the affidavit of Mr Benjamin Dales of 29 March 2021. Mr Dales was an analyst with the Prosecutor who prepared spreadsheet material concerning Sami's text and WhatsApp messaging. The Excel spreadsheet summaries of these messages were contained in tabs to the exhibit to Mr Dales' affidavit.
2. The first of those contains a series of rows, with each row providing information concerning an individual message. The message rows were numbered from 3 to 15,532. There were, thus, 15,530 text messages recovered from Sami's mobile phone.
3. The second set out information concerning each of the individual WhatsApp messages which were recovered from Sami's mobile phone. There was one row for each of those individual WhatsApp messages. These rows were numbered from 1 to 24,143. However, it is clear from the spreadsheet that multiple elements within an exchange were individually recorded and, as I understand it, the Prosecutor merely asserts that there were a total of 1,247 WhatsApp conversations which were recovered from Sami's mobile phone, with many of those conversations having multiple individual elements within them.
4. It is also to be observed that a number of the conversations were recorded as having contents in Arabic script rather than in English, but it is accepted that nothing turns on that in these proceedings.
5. The significant numerical volume of the text messages and the WhatsApp conversations, it was submitted, was one matter of relevance in the context of the Prosecutor's proposed reliance on what amounted to a very small sample drawn by the Prosecutor from the text and WhatsApp messages recovered from Sami's phone.
6. With respect to the number of groups of text messages specified by the Prosecutor in Exhibit A, when compared to the total number of text messages and WhatsApp conversations harvested by the Prosecutor from Sami's phone, the written submissions on behalf of Sami said in this regard, at paragraphs 14 to 16 (footnotes omitted): 14. The first obvious difficulty with the contention that the Text Messages are capable of proving the "asserted tendency", is that the evidence of the carefully selected Text Messages is to be assessed in light of the fact that the EPA has chosen to place reliance on only 16 specific messages, sent across an eighteen month period, when on the EPA's own evidence which it proposes to adduce at trial, Mr Allam's mobile phone reveals that he sent and received approximately 15,500 SMS text messages, and 24,000 Whatsapp messages over that eighteen month to two year period. That is nearly 40,000 messages in total. As a percentage of 40,000 messages, 16 messages comprise some 0.04 per cent of the total messages, or 1 in every 2,500 text messages. That some 16 of out 40,000 messages are alleged to reveal some sort of dishonesty or deception in dealing with waste, does not demonstrate any sort of a tendency to promote a culture, practice, or system of work within ACE. In fact, the very small number of the total pool of messages relied upon tends strongly against any conclusion that the Text Messages reveal any "tendency" on the part of Mr Allam to act in a particular way, and even more so, against a conclusion that the evidence has any significant probative value in the context of these proceedings. 15. As Reeves J observed in Richards v Macquarie Bank (No 2) (2012) 301 ALR 494 at [59]: "[W]hen that number of incidents is considered against the full nature and extent of Storm's corporate operations in this period, it is likely to represent such a miniscule fraction of all those occasions that I do not consider it can be regarded as being of any significance. It follows that this evidence does not, even on this basis, establish an underlying unity, system or pattern demonstrating the existence of "a company line" or "culture" in Storm as a corporate entity, such that Storm may have had a tendency …" 16. Given the sheer number of the text messages sent by Mr Allam in the period in question, the evidence sought to be adduced by the EPA of only sixteen of them is incapable of revealing a tendency, let alone a tendency of any significant probative value.
7. It is to be noted that, in paragraph 14 of the written submissions on behalf of Sami and the Company quoted above, in addition to the decision of Reeves J in Richards v Macquarie Bank (No 2) (2012) 301 ALR 494; [2012] FCA 1403 (Richards v Macquarie Bank (No 2)) discussed in paragraph 15, a footnote also cites Galea v Farrugia [2013] NSWCA 164 (Galea v Farrugia) at [85] to [89]. Although that footnote was not developed in oral submissions, it will be necessary to return to it in my consideration of this point.
8. Mr Potts took me through what he proposed were relevant elements of the records of interview of Bachar and Sami. The purpose of doing so, as I understood the submissions subsequently, was to enable me to understand the comparatively confined and office-based role which Bachar undertook within the Company and, second, the much higher (in an hierarchical sense) level of engagement of Sami in the running of what was a significant commercial enterprise (with a turnover of $90 million to $100 million per year; 170 to 200 employees; and operating 25 to 30 projects at any one time).
9. In the context of the overall number of text messages retrieved from Sami's phone, Mr Potts submitted (Transcript 5 August 2021, page 72, lines 17 to 27): … the fact that there might be frequent text communication between a boss and his subordinate is hardly unusual, it's commonplace, but your Honour will easily infer these were people highly familiar with one another and people that were involved in the day-to-day running of a large company and who, on a day-to-day basis, had to get their jobs done. And what one sees predominantly in the Exhibit A material are communications, first thing in the day, about what in truth were matters of daily logistics in the running of the company ACE. And we say, your Honour, it is commonplace for subordinate employees to seek instruction from or confirmation from a superior in a large corporate organisation, particularly one with 170 to 200 employees, working on 25 to 30 projects at a time and transporting waste on a very regular basis.
10. Mr Potts submitted that, having regard to the total number of text messages retrieved from Sami's phone, there were only some 87 message exchanges, in total, from 16 days over a period of 18 months, and those message exchanges relied upon were with only three employees out of the 170 to 200 employees of the Company.
11. Mr Potts then explained to me an analysis of the first 250 text messages in Mr Dales' spreadsheet of all the text messages. It is unnecessary to repeat that analysis, but the submission was made that a very significant number (likely a majority on the basis of this analysis) were business‑related.
12. To this information, Mr Potts submitted, should be added the fact that the Prosecutor had retrieved some 23,000 WhatsApp messages from Sami's mobile phone, covering a period that was only slightly longer than the period covered by the retrieved text messages. Mr Potts concluded (Transcript 5 August 2021, page 77, lines 13 to 223): When your Honour comes to consider whether the 16 groups of carefully selected text messages are incapable of constituting evidence of significant probative value, being we understand it is not necessarily a contest but as a matter or principle, that "significant" requires evidence that's of importance of consequence. We say it's highly significant that what the EPA has fastened upon is such a small and discrete number of messages sent over that long period. That small sample, we say, could hardly be representative - and it certainly wouldn't be statistically significant in mathematical terms - it's hardly indicative, of a tendency if it happens so seldomly out of a total period of time and a total (not transcribable) [of more than 15,000 messages].
13. Mr Potts later returned to the question of how the communications between Sami, on one hand, and Bachar, Kassem or Ali Reza, on the other, that are said to support the "asserted tendency", fitted in with the extent of text messaging overall between Sami and those individuals. Mr Potts advised me that, on the basis of the analysis undertaken for Sami, the following position was found (Transcript 5 August 2021, page 80, lines 18 to 21) providing the relevant numerical information: … in the text, only material in tab 2, communications to and from Bachar Allam, and between Mr Sami Allam and Bachar Allam, there are 1,785 messages. Between Mr Sami Allam and Mr Kassem Allam there are 1,104 messages. And between Mr Sami Allam and Mr Ali Reza, there are 173 messages.
14. He noted that there had been no attempt to ascertain how many of those messages might have been personal, as opposed to business (if any), but submitted that, even if the broader submission on behalf of Sami was not accepted concerning the total number of text messages retrieved, it was still the position that the number of text messages relied upon by the Prosecutor as supporting the "asserted tendency" was still only a small proportion of the messages retrieved, even if the analysis was confined to message exchanges between Sami and Bachar or Kassem or Ali Reza.
15. During the course of his submissions on 5 August 2021, Mr Potts advanced specific criticism of the Prosecutor's position concerning three of the groups of text messages in the "inferred dishonesty" category of groups of messages in Exhibit A. It is not necessary, at this point, to address those criticisms. They are set out in full in my later consideration of how each of those three groups of text messages are to be understood in the context of Sami's "asserted tendency" as advanced by the Prosecutor.
16. Mr Potts next took me to the decision of Ward CJ in Eq in Anthony v Morton [2018] NSWSC 1884 (Anthony v Morton). This case was relevant, he said, to my understanding of how evidence of business practices might (or might not) be used to demonstrate a tendency. He took me, first, to [200], which set out the tendency that was there said to be established. In general terms, the tendency was said to relate to Ms Anthony having a practice of entering into oral agency agreements with client authors in various nominated fashions.
17. Mr Potts then took me to [294]. Her Honour noted that the submitted defect in the tendency asserted in those proceedings was that the number of persons whose experience was said to support that tendency was only some 7% of the relevant class of persons. This, it was submitted, was "not enough to demonstrate a consistent and universal practice across" the entirety of the potential number of persons in the class. Mr Potts then took me to elements in Anthony v Morton where her Honour quoted a number of passages from the decision of Sackville J (writing for the Full Federal Court) in Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 (Jacara).
18. The passages cited by her Honour from Jacara to which Mr Potts drew attention were, in effect, as I understood them, to draw a distinction between matters which were a formalised business system involving systematic and structured representations as opposed to circumstances where what was suggested was a propensity to make representations of a more general kind within the class nominated in that tendency. The outcome of the passages cited from Jacara was that, in the circumstances with which her Honour was dealing, the impugned evidence was only potentially relevant if it was capable of establishing the tendency. This was because there was no indication of a structured and formalised business practice.
19. Applying the reasoning in Jacara, her Honour concluded that, on the basis of the tendency reasoning on the facts before her, the evidence should be rejected because it did not have significant probative value as required by s 97(1).
20. Mr Potts next moved to [316], in which her Honour explained why the evidence proposed as supporting the "asserted tendency" was incapable of establishing anything done invariably, or regularly, or habitually, other than in general terms, and that such evidence as was before her Honour contained factual differences, making it incapable of drawing the conclusion that there was the probability that a particular conversation on a particular occasion with the defendant in the proceedings.
21. After referring to her Honour's citation of passages from Hughes, Mr Potts next took me to [334] and [335] where, toward the conclusion of the second of these paragraphs, her Honour set out her reasons for rejecting the "asserted tendency" evidence. Her Honour set out two reasons for this conclusion. She said: 334 I have concluded that the impugned evidence in the present case does not have significant probative value. I accept that it establishes that Ms Anthony has made oral agreements with authors in the past and over a number of years which include the 15% ongoing commission term; and that she may even have done so often. However, I do not accept that such a tendency has significant probative value, because of the lack of striking similarity in the occurrence of those instances. The tendency must be viewed in light of the period of time during which Ms Anthony has operated as an agent; the significant number of authors with whom she must have had agreements (including those who may, for example, have terminated her services - as to whom (apart from Mr Thomson and Ms Williams) I heard and know nothing); and the differences in the accounts given by the various client authors and Ms Anthony's assistants as to what was said. 335 I am not satisfied that there is striking similarity in the way that Ms Anthony deals with those of her authors who have given evidence and I have no knowledge of how many other authors there are for whom Ms Anthony acts or has acted as agent over the years. This intersects with the difficulty as to the lack of coincidence in time of the evidence (had that problem been addressed, the evidence might have had greater probative value).
22. Mr Potts next took me to [337], where her Honour said: 337 Weighing this factor, together with the lack of coincidence in timing or striking similarity of the other instances, had the basis for admissibility rested on its quality as tendency/coincidence evidence I would have concluded that the evidence does not have significant probative value and would still have rejected it.
23. Mr Potts finally, with respect to Anthony v Morton, took me to [338], where her Honour made it clear that there were only limited similarities potentially rendering the evidence admissible (here, relevantly, as tendency evidence) and that this would not have altered her Honour's conclusion on the critical factual matter in contest in those proceedings.
24. Having taken me through all of that material, Mr Potts turned to how he submitted that which was discussed in Jacara and Anthony v Morton was relevant in the context of the communications between Sami and the three employees of the Company and Sami's "asserted tendency" on the case the Prosecutor advanced. He submitted (Transcript 5 August 2021, page 84, lines 1 to 13): Now, what we say in this case is, when one looks at the very small number of text messages, 87 out of whatever the appropriate denominator is, it is only communications with Mr Kassem Allam and Bachar Allam and Ali Reza. That's still something in the order of about 3,000 communications. We say it's broader than that. We say it's communications generally with employees in relation to the company, which is a much larger number. But on any view it's a very, very small proportion of the whole of the conduct and on any view it is a very small dealing with a very small number of employees out of a total of 170 to 200. And we say, taken at its highest, the isolated 87 text messages on 16 days out of a potential 650 is not capable of being of significant probative value in either demonstrating the tendency contended for in para 5 of the notice, nor is that tendency, at the level of generality with which it is framed, capable of being significantly probative of any fact in issue.
25. Mr Potts next moved to make submissions concerning the temporal relationship between the dates giving rise to each of the three executive liability charges laid against Sami and the temporal context of the text messages in Exhibit A, said by the Prosecutor to found the "asserted tendency". The dates of the conduct said to give rise to the executive liability offences with which Sami has been charged were 18 April, 2 June and 2 December 2017.
26. Mr Potts pointed to the range of dates in the groups of text messages in Exhibit A, noting that the earliest (in item 1) was on 24 June 2016 (being nearly 10 months before the earliest of the alleged offences - Transcript 5 August 2021, page 84, lines 34 and 35) through to 22 December 2017 (item 16), a date which post‑dates the third of the dates providing the basis for the executive liability charges alleged against Sami. Mr Potts took me, in this context, to the precise terms of s 169A(1)(c), this requiring that the person charged: knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed,
27. Mr Potts submitted that the temporal context of each of the charges, when compared to that of the various groups of text messages in Exhibit A, could be used, as I understood him, to have all of the messages in Exhibit A be regarded as supporting the Prosecutor's "asserted tendency" as applying to all of the executive liability charges laid against Sami. In this regard, Mr Potts anticipated what he expected the Prosecutor's position would be in response to the point he raised and explained how that was responded to on behalf of Sami. Mr Potts said (Transcript 5 August 2021, page 85, line 36 to page 86, line 8): … what we apprehend that our friends may say is, "Well, these text messages evidence a course of conduct and we'll ask the Court to infer that this was a consistent course of conduct over the entire period," so from 24 June 2016 all the way through to 22 December 2017. Now, if that's the submission, it will underlie a device in the attempt to do this by this form of material, because we would say this to your Honour. There is nothing that connects any one of the items which comprise the 16 individual communications or sets of communications - there's nothing that connects item 1 to 2, other than the fact they were text messages on Mr Allam's phone. They're not connected by subject matter; they're not connected by proximity in time. These are just 16 individually selected instances of individualised communications on random dates between the starting date and the ending date. And in that sense it underscores why, if they've been proffered to suggest that Mr Allam had a consistent tendency to connote the culture and/or practice and/or system of work in the company throughout that period, why in that sense it's important to look at the totality of his text messaging activity with all employees in that period. And it underscores, we say, in quite a significant way, why this material is not significantly probative of either the tendency asserted and additionally why that tendency asserted is incapable of being sufficiently significant in the probative value of making more likely a fact in issue..(not transcribable)..that charge.
28. Next, Mr Potts turned to what he described as the dissimilarity between the text messages in Exhibit A and the conduct which provided the foundation for each of the alleged offences for which Sami is said to have executive liability. First, Mr Potts pointed to the fact that the e‑mails said to provide the foundation for the charges against the Company (and, hence, against Sami) were not sent by Sami, Bachar, Kassem or Ali Reza. They were sent by either Mr Al Sarray or by Mr Sidawi.
29. Mr Potts noted that none of the 87 text messages in the groups, in Exhibit A, involved exchanges to which either Mr Al Sarray or Mr Sidawi was a party. The nature of the abbreviated text message exchanges in Exhibit A were quite different from the e‑mails said to found the charges and the voluminous documentation which had been attached to those e‑mails. Because of this lack of similarity, Mr Potts submitted that this provided an explanation as to why the Prosecutor's "asserted tendency" was in highly generalised terms, because it was only if expressed in such a fashion could these matters of dissimilarity be overcome.
30. Next, Mr Potts submitted (in the context of submissions with respect to the groups of text messages in the second category in Exhibit A - "dishonesty inferred") that they merely involved Sami instructing the recipient of the relevant messages to act in ways that, on their face, were entirely truthful. In support of this broad submission, Mr Potts took me through the context of a number of the groups of messages in their relevant time period disclosed from the full list of text messages set out in Tab 2 of the exhibit to Mr Dales' affidavit. It is not necessary to go through the detail of the spreadsheet examples to which Mr Potts took me. It is sufficient to note Mr Potts submitted that these groups of text messages, when viewed in the context of the framework of messages disclosed from the spreadsheet, demonstrated: There's nothing exceptional or unusual about these messages, in particular. They are messages of a mundane type being sent out as, we say a matter of routine (Transcript 5 August 2021, page 87, lines 34 to 36).
31. Although the above express submission was made in the context of one of the groups of text messages in the second category of those in Exhibit A, I understood Mr Potts to be saying that this broad conclusion should be regarded as equally applicable to other (if not all) of the groups of text messages in this second category.
32. Next, Mr Potts took me to a number of Sami's WhatsApp messages as needing to be viewed to provide contextual relevance to some of the groups of messages in Exhibit A. It is not necessary to go to the express examples to which Mr Potts took me, but what was exemplified by the particular instances was that (Transcript 5 August 2021, page 88, lines 20 to 25): First of all, Mr Allam used concurrently not only the SMS text function on his mobile phone but also the WhatsApp messaging function for business purposes. We say this is a good example which shows why it is perfectly appropriate and necessary the Court, in considering this application, to have regard to the totality of the messaging not simply in the SMSs but also in the WhatsApp messaging.
33. However, after making the above submission, Mr Potts took me to the conjunction of two WhatsApp messages sent immediately after item 5 in Exhibit A (being an "inferred dishonesty" group of text messages). He submitted that the WhatsApp messages sent immediately after, viewed as part of the totality of these messages, made it clear that the inference of dishonesty advanced by the Prosecutor lacked proper foundation.
34. The general proposition advanced by Mr Potts with respect to all of the "dishonesty inferred" text messages in Category 2 was (Transcript 5 August 2021, page 89, lines 2 to 10): There is no reason, we submit, either on the face of these text messages or in light of any other evidence that's been put before your Honour, to take very sinister view of the seven dishonesty inferred text messages the prosecution invites the Court to take. It would require reading into those text messages things that are just not there and that are simply not capable on their face, without something more by way of additional evidence, of giving rise to an inference which must be an inference of a tendency to promote a culture, practice or system of work involving dishonesty and deception.
35. Although Mr Potts took me back to a further analysis of the detail of item 5 in Category 2 in Exhibit A in support of this broad submission, it is unnecessary to return to that detail. It is sufficient to note that Mr Potts submitted that all of the groups of text messages in the "dishonesty inferred" category were not probative of (and certainly not significantly probative of) the existence of the tendency asserted by the Prosecutor in paragraph 5 of its notice pursuant to s 97 of the Evidence Act.
36. Mr Potts also submitted that it was relevant to have regard to the extent to which the text message groups relied upon by the Prosecutor as supporting the "asserted tendency" formed elements of relevant overall exchanges between Sami and Bachar, Kassem or Ali Reza. He set out these numbers, derived from the spreadsheet of text messages appended to Mr Dales' affidavit, as extracted by those instructing him. Those numbers were (Transcript 5 August 2021, page 80, lines 18 to 21): Between Mr Sami Allam and Mr Kassem Allam there are 1,104 messages. And between Mr Sami Allam and Mr Ali Reza, there are 173 messages.
37. His submission, following on immediately from the above transcript extract, advanced the proposition that, even on the basis of these numbers (it still being pressed that the relevant context was the overall number of text messages recovered), the total number of text messages relied upon by the Prosecutor, when compared to the total number of text messages in the various exchanges between Sami and Bachar, Kassem and Ali Reza, was still a very small proportion of that defined subset of messages.

The time period of the messages relied upon

1. The dates of the conduct said by the Prosecutor to give rise to the executive liability offences with which Sami has been charged were 18 April, 2 June and 2 December 2017. Mr Potts drew attention to the span of dates of the various groups of text messages in Exhibit A. He pointed to the fact that the first four groups of messages occurred between July and September 2016, with the last of these occurring some seven-and-a-half months prior to the first date of the alleged offending conduct.
2. He also pointed to the fact that the final two groups of text messages in Exhibit A occurred a number of weeks after the third of the dates upon which Sami's offending conduct was said to have taken place. In this context, Mr Potts took me to the terms of s 169A(2)(c)(i) which requires that the alleged offender knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be, or is being, committed.
3. Mr Potts submitted that the words "would be or is being committed" provided a temporal context arising from them. To understand the submission advanced as to how it was said that the disconnection in dates between the three instances when Sami was alleged to have committed the offending conduct and various messages was set out by Mr Potts (Transcript 5 August 2021, page 85, line 31 to page 86, line 8): We say your Honour will have some difficulty in understanding how, in relation to the first charge, for example, the conduct in the form of sending the text messages that postdate 18 April 2017 can be significantly probative of any element of the charge against Mr Allam which is said to have been completed on the day of the offence on 18 April. And that problem applies differentially to each of the three charges, because they're all of different dates, but what we apprehend that our friends may say is, "Well, these text messages evidence a course of conduct and we'll ask the Court to infer that this was a consistent course of conduct over the entire period," so from 24 June 2016 all the way through to 22 December 2017. Now, if that's the submission, it will underlie a device in the attempt to do this by this form of material, because we would say this to your Honour. There is nothing that connects any one of the items which comprise the 16 individual communications or sets of communications - there's nothing that connects item 1 to 2, other than the fact they were text messages on Mr Allam's phone. They're not connected by subject matter; they're not connected by proximity in time. These are just 16 individually selected instances of individualised communications on random dates between the starting date and the ending date. And in that sense it underscores why, if they've been proffered to suggest that Mr Allam had a consistent tendency to connote the culture and/or practice and/or system of work in the company throughout that period, why in that sense it's important to look at the totality of his text messaging activity with all employees in that period. And it underscores, we say, in quite a significant way, why this material is not significantly probative of either the tendency asserted and additionally why that tendency asserted is incapable of being sufficiently significant in the probative value of making more likely a fact in issue..(not transcribable)..that charge.
4. As can be seen, this is one element of the submissions on behalf of Sami as to why neither s 97(1)(b) and s 101(2) was satisfied.

The difference between the charged conduct and the "asserted tendency"

1. Mr Potts noted that the communications that had had the allegedly falsified or misleading documents attached to them were sent by other employees of the Company. Mr Potts also noted that none of the three e‑mails were sent by any of the four persons who were participants in any of the text message groups listed in Exhibit A. In two of the three cases, they were sent by Mr Al Sarray, with the third one involving an e‑mail sent by Mr Sidawi.
2. He submitted that the content of the text messages bore no similarity to the material in the e‑mails or the documents attached to them. This dissimilarity gave rise to the Prosecutor formulating the "asserted tendency" at what Mr Potts described as "being in highly generalised terms". He submitted that this formulation was rendered necessary because of the dissimilarity between the "asserted tendency" derived from those groups of text messages and the conduct which has given rise to the charges laid against Sami.

The consequence of rejection of the "inferred dishonesty" groups of messages

1. If I was to conclude that the "inferred dishonesty" groups of text messages should not be accepted as providing a proper basis to support the tendency asserted by the Prosecutor, Mr Potts submitted that the reduction in the number of groups of text messages that would potentially remain for consideration was a factor to be taken into account as to whether the remaining material could be significantly probative of the "asserted tendency" advanced by the Prosecutor. In this context, he submitted that should only nine groups of text messages remain, that would not be a sufficient number of instances to provide a basis for demonstrating the "asserted tendency".

The "dishonesty" groups of messages

1. After he concluded his submissions dealing with matters of detail arising from the "dishonesty inferred" category, Mr Potts next turned to matters of detail concerning groups of messages in the items categorised by the Prosecutor as "dishonesty" (that is, as demonstrating actual dishonesty) in support of the tendency asserted by the Prosecutor. It is not necessary to set out, at this time, the detailed submissions made by Mr Potts concerning individual items within this category. I turn to those specific comments in my later consideration of each of the items in the two categories.

The question of prejudice

1. Mr Potts submitted that any probative value that might be able to be obtained by the Prosecutor by reliance on the "asserted tendency" could not outweigh the prejudice that would be occasioned to Sami if the Prosecutor was to be permitted to do so.

The test in s 101 of the Evidence Act

1. After outlining the various elements in the present proceedings and how they fitted within the scope of s 101 of the Evidence Act, Mr Potts turned to address the question of unfairness to Sami arising because these were criminal proceedings to which s 101 applied (thus imposing a further, cumulative test concerning admissibility of the "asserted tendency"). Mr Potts submitted that the provision made no differentiation between jury trials and trials by judge‑alone. He submitted that the possibility of unfair prejudice (being an undefined term) was capable of arising in the context of a judge‑alone trial. In this context, he submitted (Transcript 5 August 2021, page 96, line 47 to page 97, line 4): One cannot entirely discount, we submit, the possibility of a subconscious effect in a prejudicial way, even on a judge sitting alone, of evidence of other alleged instances of criminality or, in this case, unrelated dishonesty. The possibility of a subconscious or an unconscious effect possibly tainting unconsciously a judge's consideration, is, we say, not a novel concept. To take an example, it's for that reason that great care is usually taken in most cases to ensure a trial judge does not see legally professionally privileged material in disputed access cases.
2. Mr Potts submitted that there were two aspects of the potential for unfair prejudice requiring to be assessed concerning the text messages relied upon by the Prosecutor as supporting the "asserted tendency".
3. The first of these was that, because the matters arising from the groups of text messages (if admitted) would arise concerning unrelated acts of dishonesty, this gave rise to the risk of unfair prejudice, even in a judge‑alone trial. In the present context, the groups of text messages relied upon by the Prosecutor could not be regarded as being "particularly probative, highly probative and compelling" so that the probative value here could not outweigh the risk of unfair prejudice to Sami.
4. The second element of unfair prejudice advanced by Mr Potts was that admitting the text message groups in Exhibit A as the basis for establishing the "asserted tendency" would impose a significant and prejudicial burden on Sami and his legal advisers in preparation of Sami's defence. This burden, he submitted, would require Sami and those advising him to address not merely the individual groups of messages in order to seek to address their context to establish whether there was some benign explanation for them in the overall structure of Sami's text and WhatsApp messaging, and that having that burden imposed was unfairly prejudicial. In summary, on this point, he said (Transcript 5 August 2021, page 98, lines 7 to 12): That has a real impact on whether or not that's capable of proving a tendency. In terms of the prejudice, yes there might only be 16 days, but there's 16 days going back to five years, where, while on any view, might be taken to a routine text message communication about mundane matters of waste logistics, are now being summoned up to suggest habitual dishonesty. And to have to meet that allegation is a significant prejudice.
5. In this context, Mr Potts took me to the decision in Hughes, particularly the final sentence in [17] where the plurality said: And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
6. At this point in his submissions, Mr Potts acknowledged the difference between the terms of s 101(2) of the Evidence Act as applicable for the purposes of Hughes (the test then applicable being that the probative value of the evidence substantially outweighs any prejudicial effect), when compared to the position that now applies as a consequence of the passage of the Evidence Amendment (Tendency and Coincidence) Act 2020, where test now applicable has had the word "substantially" removed so that it now reads that "the probative value of the evidence outweighs the danger of unfair prejudice". Mr Potts submitted that this change did not alter the position in Hughes, as cited above, as it would be applied in the circumstances where Sami now found himself. This is because, he submitted, the burden would be placed on Sami of being forced to explain the context of the groups of text messages in Exhibit A. This would require Sami to explain and respond to what would be "a collateral enquiry conducted" at the trial of the charges which Sami faces as to his behaviour on 16 separate occasions, these being the dates to which the groups of text messages in Exhibit A relate. In this context, Mr Potts concluded his submissions concerning s 101(2), saying (Transcript 5 August 2021, page 98, line 48 to page 99, line 3): It shouldn't be permitted, unless the evidence of those other occasions is sufficiently probative of some fact in issue, on the question of his guilt, under the three charges that have been made against him. And it's simply not. And for that additional reason, we say, your Honour, the prosecution hasn't met the requirements of s 101 sub 2, and the evidence is not admissible.
7. For all the above reasons, Mr Potts submitted that the outcome of my determination concerning the proposed evidence in Exhibit A should not be admitted as providing a basis to establish the tendency asserted by the Prosecutor in its notice given pursuant to s 97(1) of the Evidence Act. In response to enquiries from me, Mr Potts confirmed that the primary position on behalf of Sami was that the test in s 97(2) was not satisfied but that, if I found in favour of the Prosecutor on that point, s 101(2) was separately fatal to the application made by the Prosecutor.
8. Although the trial of the Company and Sami will be one by judge‑alone, as I understood his submissions, Mr Potts proposed that, even in those circumstances, there was a significant risk of unfair prejudice to Sami if the "asserted tendency" was permitted to be relied upon by the Prosecutor.
9. It is not necessary to set out these submissions in further detail, given the conclusion which I have reached concerning the comparatively limited extent to which the Prosecutor could rely on the "asserted tendency" and the specific nature of the six groups of text messages (confined to the "direct dishonesty" category) which I have found provide the limited basis to establish the Prosecutor's "asserted tendency".
10. I later explain why I am satisfied that, in the context of the processes in this Court, Sami will not be exposed to the risk of unfair prejudice if the six text message groups are admitted as establishing the "asserted tendency".

Introduction

1. At the conclusion of Mr Potts' submissions, the Prosecutor responded to matters put on Sami's behalf. I now turn to set out the Prosecutor's propositions in reply to that which has been advanced on behalf of Sami.
2. During the course of his opening submissions, the Prosecutor had addressed, in anticipation, several matters which he expected, arising from the written submissions on behalf of Sami, needed a response. I set out those anticipatory submissions at the commencement of the section of this judgment dealing with the Prosecutor's submissions in reply.

On the issue of the small numbers of messages relied upon by the Prosecutor

1. I have earlier set out the submissions advanced on behalf of Sami proposing that, in comparative terms, the small numbers of groups of text messages sought to be relied on by the Prosecutor, when compared to the total number of messages harvested from Sami's phone, could not provide support for the tendency asserted by the Prosecutor. In this context, as could earlier be seen, reliance was placed on the decision of Reeves J in the Federal Court in Richards v Macquarie Bank (No 2).
2. The Prosecutor's submission concerning this reliance on Richards v Macquarie Bank (No 2) was dealt with in the course of the Prosecutor's oral submissions (Transcript 4 August 2021, page 46, line 34 to page 47, line 9): Your Honour, we submit that that case should be distinguished or, in the alternative, not followed. Firstly, as is probably obvious, his Honour was not propounding a holding of law but rather his approach to the particular facts of that case. Secondly, in Richards, his Honour was considering the behaviour of a corporation rather than, on this application, the behaviour of an individual. A corporation, your Honour, comprising, for the sake of argument, many different brains in many different locations, is a much more amorphous entity than an individual with one brain. In this case before your Honour, the messages tell you about one individual's tendency. Reeves J had difficulty with imputing to the corporation, in the Richards v Macquarie Bank (No 2) decision, a tendency from evidence of what particular representatives had said to different customers at different times. Your Honour, we submit that a tendency to act in a particular way or to have a particular character does not have to be inveterate behaviour or even behaviour for any given proportion of time to be a tendency within the meaning of s 97(1). Rather, we'd submit that a tendency is a partiality or the result of a partiality exercised according to the individual's wish, when the individual thinks that it's appropriate or that circumstances call for it. The "asserted tendency" here, your Honour, is supported by evidence of conduct involving what we'd submit are quite brazen instructions to employees to be dishonest. We'd ask your Honour to just file away in your mind that none of the employees seem to think that there was anything wrong with that. It was obvious to the employees that they were being instructed to be dishonest. That conduct, to instruct them to be dishonest in the information they supply to entities outside the company about the company's product and it's the same type of information in each case is quite outside, we would submit, the bounds of accepted business standards.

The timing of the groups of messages

1. The Prosecutor made brief submissions concerning the timing of the various messages in Exhibit A and their relationship to the dates of the offences with which Sami is charged, acknowledging that I was required to consider the evidence proposed to support the "asserted tendency" with respect to each of the three executive liability charges laid against Sami. The Prosecutor submitted that the "asserted tendency" was demonstrated, no matter what the temporal relationship between the dates of the e‑mails founding the charges and the date of the text messages sought to be relied upon by the Prosecutor in support of the "asserted tendency". In this context, the Prosecutor submitted that the operation of the tendency evidence could be retrospective (citing RH v R [2014] NSWCCA 71 per Ward JA at [115] to [117], [129] to [130]; TB v R [2019] NSWCCA 224 per White JA at [100] to [103]).
2. The Prosecutor submitted that the overlapping of time of the text messages relied upon to support the "asserted tendency" with the times of the alleged offences meant that, at a level of generality, Company employees would supply false or misleading information about waste (Transcript 5 August 2021, page 105, lines 25 to 27): This is because they were at the time of the alleged offences, we submit, labouring under a culture of dishonesty promoted by the boss and which, relevantly, the boss had a tendency to promote at and around that time.
3. This broad temporal coincidence of the text message conversations with the three dates of the alleged offending conduct charged made: … it more likely that Mr Allam ought reasonably to have known that the executive liability offences were being committed, because his own tendency was to promote a culture of dishonesty, and the fact of this promotion of that culture pre-existed and was still operative. Coincided with, was contemporaneous with, the timing of the conduct comprising the executive liability offences. (Transcript 5 August 2021, page 105, lines 34 to 38).
4. This coincidence of timing provided appropriate support for the further "asserted tendency" element, namely, that Sami had failed to prevent commission of the offences by the employees in their alleged sending of false or misleading information concerning the disposal of waste.
5. With respect to the proposition that the transmitted information giving rise to the charges was to external parties (developer clients), whilst the text message exchanges in Exhibit A were with the Company's employees, the Prosecutor submitted that the "asserted tendency" of having employees provide, information concerning waste which was false or misleading was common between the charged conduct and the text message exchanges in Exhibit A.
6. The Prosecutor next turned to respond, specifically, to submissions made with respect to a number of the text message exchanges in Exhibit A. I set out the detail of these responses in my later consideration of the specific text message exchanges.

On the issue of generality versus specificity of the tendency

1. In response to the proposition advanced that the "asserted tendency" was highly generalised and non‑specific, the Prosecutor submitted that the contrary conclusion should be drawn. The conclusion that the tendency was specific, it was submitted, was established because the groups of text messages upon which the Prosecutor relied were confined to those between Sami, on one hand, and Bachar, Kassem or Ali Reza, on the other.
2. First, it was put, as I understood the Prosecutor's position, that in addition to those three employees of the Company, Mr Al Sarray and Mr Sidawi also fell into the limited class of employees of the Company who were involved in making decisions about what information was to be conveyed to third parties concerning the disposal of waste. To the extent that some contrary proposition was said to arise with respect to Bachar, the Prosecutor drew attention to eight of the groups of text messages in Exhibit A where the conversations demonstrated that Bachar dealt with more than merely VENM or ENM. In this context, to the extent that that might be inconsistent with Bachar's record of interview, that was potentially a matter capable of being addressed by the Prosecutor seeking leave to cross‑examine him pursuant to s 38 of the Evidence Act (assuming notice had been given of that intention).
3. The Prosecutor submitted that, in the context of the overall number of employees of the Company who carried out a disparate range of tasks, those who were involved in the alleged offending conduct were (supplying of information to others concerning waste dealt with by the Company) were an insignificant number. In this regard, the Prosecutor submitted (Transcript 5 August 2021, page 100, lines 44 to 50): The first aspect of the prosecutor's case which is probative is that by the conduct of employees, Ace supplied information on behalf of the company about waste that was false or misleading in material respect. So it is not just a case of the general business of the company. It is the particular business of the company the subject of the charges which ha the quality of being false or misleading in material respect, of which we submit this evidence in the text messages is highly probative.
4. I should be satisfied, on the material arising in these preliminary proceedings, that Sami had the "asserted tendency" because he promoted, to those employees whose role was to supply information to third parties about the disposal of waste, the practice of supplying information which, as a matter of fact, was false or misleading in a material respect. In summary, the Prosecutor submitted (Transcript 5 August 2021, page 101, lines 26 to 31): So we do submit, your Honour, that it's not a case of the tendency being too highly generalised; indeed, not too generalised at all. In fact, it is highly specific to a particular aspect of the conduct of its business by ACE, via its employees, relevantly, of course, because it is amongst the employees that the tendency, we submit, is to inculcate a culture or a work practice or system of work to supply information which is false or misleading in a material respect.
5. The Prosecutor next submitted that the specificity of the evidence supporting the "asserted tendency" and the evidence proposed to be relied upon at the substantive hearing were sufficiently specifically comparable that the distinction drawn by Leeming JA, in El-Haddad, of moving from a broader characterisation of conduct to a more specific characterisation of conduct was not here appropriate.
6. Following this submission there was an exchange between me and the Prosecutor covering several pages of the transcript, concerning how I should regard the groups of text messages relied upon in Exhibit A as a proportion of the overall numbers of text messages that had been retrieved by the Prosecutor from Sami's mobile phone. In this context, as I understood the conclusion of this exchange (Transcript 5 August 2021, pages 102 and 103), the Prosecutor accepted that, with the exception of the groups of text messages comprising exchanges between Sami and Bachar in Exhibit A, that: I could readily assume that none of the others dealt with the topic of provision of information to third parties about waste disposal operations by the Company, where it is said that the information is false and evidencing of the tendency. (Transcript 5 August 2021, page 103, lines 23 to 30).
7. The next matter to which the Prosecutor turned, concerning the proportion of the messages relied upon in support of the "asserted tendency" when compared to the overall number of messages, was to consider the terms of the "asserted tendency". The Prosecutor submitted that the nature of Sami's conduct, able to be seen by his use of messaging giving the instructions to Bachar, Kassem or Ali Reza, demonstrated, by its brazenness, "a quality of conduct rather different to the types of conduct" to which my attention was drawn in relevant authorities cited by Mr Potts.. The "asserted tendency" arose, the Prosecutor submitted, only in the limited text message exchanges in Exhibit A and not on every occasion when the Company was providing information concerning its dealings in waste, merely on those occasions when the Company was doing so by providing false or misleading information.
8. The Prosecutor next turned to responding to the submissions made by Mr Potts about the dates of the conduct founding the charges against the Company and the relevant dates of the various groups of text messages in Exhibit A. The broad proposition advanced by the Prosecutor on this point was in the following terms (Transcript 5 August 2021, page 104, lines 7 to 13): The period concerned corresponds to a period in the lead-up to each of the alleged offences such that, in our submission, the tendency and the corresponding culture existed before the alleged offences and corresponds to a relevant period during and surrounding the alleged offences such that the tendency and corresponding culture existed at the time of each alleged offence in April, June and December 2017.

No suggestion of general dishonesty

1. The Prosecutor also made a clarifying submission in reply as to the scope of what was alleged against Sami was not general dishonesty (Transcript 5 August 2021, page 108, lines 23 to 39): … it does need to be understood, your Honour, that we're not imputing general dishonesty to Sami Allam. That is not anything which is part of the "asserted tendency", general dishonesty. But rather, it is dishonesty - a tendency to inculcate dishonesty in others in a specific type of behaviour, namely when they deal with third parties. So bearing in mind and keeping in mind, if your Honour would be so good, that the charged offences, the executive liability offences, were committed by the company, we say, because of the conduct of particular employees sending information to the outside world on a particular subject that had a particular quality about waste. The important thing to recall, in our respectful submission, is that when considering its probative value, your Honour considers that it's not just being dishonest; it is, as we say, have submitted, a tendency to do things which would inculcate a culture of dishonesty in employees who perform the conduct which the employees in the charged offences, so far as concerns the executive liability offences are concerned, carried out. It's when supplying information externally about the waste with which the company is dealing.

Unfair prejudice

1. The Prosecutor next turned to address, after the specific submissions concerning individual groups of text messages in Exhibit A, as later discussed at the relevant locations, the matters raised on behalf of Sami concerning the operation of s 101(2) of the Evidence Act.
2. The Prosecutor responded to the submission of the risk of unfair prejudice to Sami by subconscious effect of the trial judge being exposed to this material. In this regard, the Prosecutor submitted (Transcript 5 August 2021, page 110, lines 28 to 30): We do submit, your Honour, that the defendant has not identified anything of significance in the circumstances of these up to 16 instances of unrelated acts of dishonesty that would in any way unduly prejudice the hearing judge.
3. The Prosecutor next turned to address the proposition advanced on behalf of Sami that there would be an unfair prejudicial effect placed on him by requiring him to turn back to address matters arising from text message conversations commencing in June 2016. The Prosecutor's response to this proposition was that there was no evidence on Sami's behalf to support that submission and that it should not be given any credence as a consequence.
4. The Prosecutor next responded to the proposition that the "asserted tendency" evidence suggested habitual dishonesty. In oral submissions, the Prosecutor referred to the written submissions as demonstrating that this was not a purpose for which the tendency was proposed to be used. The proposed matters said to arise were (written submissions at paragraph 30 - footnotes omitted): 1. the role the Defendant played in, and his knowledge of, the Company's disposal of waste; 2. the role the Defendant played in, and his knowledge of, accounting to developer clients for the waste which the Company removed from their premises; 3. the relationship the Defendant had with employees of the Company who were involved in decision-making and/or decision-communicating in relation to the disposal of waste, and his knowledge of what they did when it came to accounting for the waste removed by the Company from development sites; and 4. the knowledge the Defendant ought reasonably to have had.
5. Continuing on this point, the Prosecutor submitted that Sami was not being required to answer uncharged conduct which had taken place over many years and/or some years ago. The necessity to address that which is adduced in evidence to support the "asserted tendency", if admitted, necessarily gives rise to the requirement that that evidence would form part of the case which Sami would need to meet.

Introduction

1. I am satisfied that the appropriate sequence for my decision‑making concerning the Prosecutor's "asserted tendency" should be: 1. The level of generality in the fashion addressed in El-Haddad; 2. Addressing the broad propositions advanced on behalf of Sami based on what was submitted to arise from the small proportion of the text messages relied upon when compared to, first, the total number of text and WhatsApp messages retrieved from Sami's mobile phone and, second, as a fallback position, the proportion of those messages involving messaging conversations between Sami and Bachar, Kassem or Ali Reza; 3. In the event that those broad submissions are unsuccessful, to turn to consider whether the various groups of messages in the two categories in Exhibit A support a factual finding of "dishonesty", or "inferred dishonesty", on Sami's part as proposed by the Prosecutor - although the individual groups of messages reproduced later appear in different shadings of blue, there is no significance of that shading. The shading was applied to the groups of messages by the Prosecutor as part of an alternating shading sequence in order to facilitate differentiation between consecutive groups as appearing in Exhibit A); 4. With respect to such messages as might remain after the above steps are completed, whether those remaining message groups satisfy the test in s 97(1)(b) of the Evidence Act; and 5. If the test in s 97(1)(b) is satisfied, are the further tests in ss 101(2), 135 or 137 engaged in a fashion which would warrant exclusion of such groups of recovered text messages which have survived the earlier steps in this decision‑making sequence.

The generality of the "asserted tendency"

1. I have earlier set out, at [12], the "asserted tendency" upon which the Prosecutor seeks to rely. It has been submitted for Sami that this "asserted tendency" is cast in such broad terms of generality as not to provide any possible basis upon which it could be said to have significant probative value concerning facts that will be in issue when the charges come to trial.
2. I had also raised the question of whether the terms in which the "asserted tendency" was framed lacked precision if it was to be permitted to be relied upon by the Prosecutor. An exchange I had with Mr Potts on this latter point was earlier set out.
3. The approach which I have determined should be taken to this point is derived from the conclusion arising from the individual outcomes I have reached with respect to the 16 groups of text messages upon which the Prosecutor has sought to rely in support of the "asserted tendency". For reasons later explained with respect to each of the items in the two categories of text messages in Exhibit A, I have concluded that only six items in the "direct dishonesty" category are capable of supporting the "asserted tendency". When the "asserted tendency" is considered in a context confined to, and framed by, only those six groups of text messages, I am satisfied that the "asserted tendency" is not cast in such a wide fashion as to be incapable of having significant probative value.
4. Also, confined to the context of those six text message groups I have concluded do support the "asserted tendency", I am also satisfied that the "asserted tendency" does not lack precision when viewed in the light of those groups of text messages.

The proportion of Sami's messaging relied upon by the Prosecutor

General

1. In the context of this discussion, it is to be noted that I have not undertaken any detailed examination of the many thousands of text and WhatsApp messages that were recovered from Sami's mobile phone. I have, as will be dealt with in the next two sections of this judgment, paid close heed to the 87 text messages relied upon by the Prosecutor and the small number of additional messages to which I was taken by Mr Potts in his submissions concerning specific message conversations (as later dealt with). As I observed during the hearing, I have skimmed the other messages sufficiently to note that a number of them were in Arabic. That observation was plain from the nature of the distinctive Arabic script in those messages. I had not, however, undertaken even a superficial analysis of the content of any of the multiple thousands of other text or WhatsApp messages in the English language. In this context, it is to be noted that the Prosecutor and Mr Potts had both agreed that it was not necessary for me to undertake any such analysis.
2. I have earlier set out the submissions advanced on behalf of Sami as to why an understanding of the contextual numerical relationship of the 87 text messages relied upon by the Prosecutor as supporting the "asserted tendency" should not be accepted as capable of doing so because of the extremely small proportion they represented of the multiple thousand text and WhatsApp messages retrieved from Sami's mobile telephone.
3. The secondary proposition advanced on Sami's behalf of this nature was that those 87 text messages, when viewed solely as a proportion of the number of messages exchanged by Sami with either Bachar, Kassem or Ali Reza could not provide a basis for founding the tendency asserted by the Prosecutor.
4. In support of these propositions (the second, self-evidently, only arising if the first proposition is rejected), Mr Potts had submitted that support for so concluding was to be drawn from the decisions in Richards v Macquarie Bank (No 2) and Anthony v Morton (including, in the latter case, as supported by the decision of the Full Federal Court in Jacara). I am unable to accept either the primary or the secondary submission based purely on this numerical analysis.
5. With respect to the reasoning in Anthony v Morton (and Jacara), I am satisfied that they provide no support for the primary or secondary propositions concerning the relationship between the number of text messages relied upon by the Prosecutor, when compared to the totality of Sami's text messaging or those between Sami, on the one hand, and Bachar, Kassem or Ali Reza, on the other hand.
6. In Anthony v Morton (and in Jacara) the deficiency was said to arise because the evidentiary basis, in each instance, pleaded in support of the "asserted tendency" (the nature of the tendencies in each instance being irrelevant, I am satisfied) was only a limited proportion of the range of persons who would potentially have been able to give evidence concerning the conduct asserted as establishing the tendency. That is, that those who were said to be the counterparty of the conduct giving rise to the "asserted tendency" was so large, when compared to the evidence sought to be relied upon as establishing the tendency, that the conclusion that the "asserted tendency" existed was not established.
7. With respect to Sami's messaging, the Prosecutor does not assert that there were other relevantly similar messaging conversations by Sami that could have potentially been captured to be pleaded in support of the tendency here asserted. The class of recipients of messages asserted by the Prosecutor as supporting the tendency is a closed one, comprising Bachar, Kassem and Ali Reza.
8. The absence of additional counterparties, other than those three individuals, means that there is no evidentiary insufficiency for the purposes of the broad reasoning arising from Richards v Macquarie Bank (No 2), Anthony v Morton or Jacara. The lack of an evidentiary insufficiency at that broad and high‑level basis therefore does not arise to provide a reason to reject there being a proper foundation, as a first step, for the Prosecutor's "asserted tendency".
9. I have also earlier set out the submissions made on behalf of Sami and the response by the Prosecutor concerning the comparatively modest number of messages in the 16 groups of text messages in Exhibit A, when compared to the more than 15,000 text messages which had been recovered from Sami's phone. A cursory examination of them, however, shows that there are many messages that could be taken to relate to Sami's business activities and that there are many other messages that appear to be entirely irrelevant to those activities.
10. In making those broad comments, I am not attempting to quantify either of those other categories. That is because, in an exchange I had with the Prosecutor on this point, the Prosecutor made it clear that the text message groups selected by the Prosecutor for inclusion in Exhibit A were solely those sought to be relied upon as supporting the "asserted tendency" (Transcript 4 August 2021, page 48).
11. I have read the entirety of the decision of Reeves J in Richards v Macquarie Bank (No 2) cited in support of Sami's position. I am satisfied that the matters which required to be considered by his Honour in those proceedings as asserted to give rise to the tendency, which he rejected, have no application to what is advanced by the Prosecutor in support of the "asserted tendency" proposed in these proceedings.
12. In that decision, his Honour was dealing with representations said to have been made by multiple representatives to various different clients of Storm Financial Services (Storm), a corporation which had gone into liquidation. His Honour's consideration of the facts led him to the conclusion that the test in s 97(1)(b) of the Evidence Act was not satisfied. After considering the various representations made by the different Storm representatives (and the customers to whom they were made), his Honour concluded, with respect to all but one of them, there was not sufficient "striking similarity" for them to be evidence of a tendency.
13. That is not here the position. Although the groups of messages in Exhibit A do not all arise out of conversations between Sami and a singular individual, they are exchanges between Sami and the relevant one of the three identified employees of the Company. They are clearly message exchanges relating to an aspect of the conduct of the Company's operations in the disposal of waste as part of its activities. In this context, because of the confined nature of the bilateral exchanges in each of the message groups and the nature of the relationship which existed between Sami and each of the other participants, the fact that these exchanges are but a minuscule fraction (to use the language of Reeves J) of Sami's otherwise voluminous text messages does not mean that they should be excluded from the potentiality of establishing a tendency satisfying s 97(1)(b) of the Evidence Act (always subject to the further tests arising from ss 101(2), 135 and 137 of that Act).
14. I earlier recorded that a footnote in the written submissions on behalf of Sami and the Company had referenced the decision in Galea v Farrugia at [85]-[89]. A close reading of those paragraphs makes it clear that the evidentiary defect which precluded the appellants from establishing the tendency that they had sought to rely upon at first instance was not the sheer number of truck movements involved in those proceedings, but the inadequacy of the evidence concerning those truck movements and, particularly, in that context, the lack of an ability to demonstrate the commonality of the source of the waste upon which reliance was sought for the purposes of the tendency asserted in that case.
15. In these proceedings, there is no dispute as to the identity of the participants in the various text messages in the groups, nor is there any dispute, as I understand it, as to the content of any of those messages (whilst there may be a dispute as to what is to be derived from that content). I am satisfied that Galea v Farrugia does not provide any assistance to Sami and the Company in seeking to resist the Prosecutor's "asserted tendency" being established.

Sami's record of interview

1. I earlier noted that the Prosecutor had submitted that various identified points in Sami's record of interview were relevant contextual material in support of the Prosecutor's contention that the messages in Exhibit A should be taken to establish the tendency sought to be relied upon by the Prosecutor;
2. I have earlier set out an extract from the transcript where the Prosecutor advanced the eight propositions, relevant to the question of the "asserted tendency", said to be drawn from passages in Sami's Record of Interview of 8 February 2018. In the list of matters, the Prosecutor detailed the various questions and answers and the proposition which Sami's answers were said to support relevant to the "asserted tendency".
3. I have examined the transcript of that record of interview. It is necessary to make only a limited commentary with respect to the matters to which reference was made by the Prosecutor. I have read all the questions and answers which the Prosecutor nominated as being supportive of the relevant proposition advanced in the submissions. It is necessary to make only a limited commentary with respect to the matters to which reference was made by the Prosecutor.
4. With respect to the first proposition, the first and second extracts from Sami's record of interview confirm that Sami's role was a significant one in the running of the Company at a high management level. The third questions nominated by the Prosecutor (94 and 95) provide no assistance, particularly question 95 to which there was no verbal reply.
5. For the second matter, I am satisfied that the proposition advanced by the Prosecutor, that Sami admitted to being very involved in managing waste and organising testing of materials for classification at the Zetland site, is established by the questions and answers cited (although noting that it is necessary to go back to questions 111 and 112 and their answers to establish that the answers to the questions cited in support of this proposition were ones with respect to the Zetland site).
6. The third proposition advanced by the Prosecutor, being that Sami chose the waste facilities at which waste was disposed is established by the questions and answers to which the Prosecutor referred but it is to be noted that those questions and answers related to the Zetland site only and did not purport to be of general application.
7. The fourth proposition, said to be derived from questions and answers 402 to 411, was the fashion in which an ACE employee would direct a truck driver, at the time of departure from the site, as to where asbestos‑contaminated waste was to be taken for disposal. It is to be noted that questions 402 to 405, here cited by the Prosecutor, were ones to which the record of interview notes that Sami made no verbal reply. Nothing, obviously, is to be drawn from those unresponded‑to questions. That which was advanced as being derived from these questions and answers was established by the answered questions.
8. The fifth proposition advanced by the Prosecutor (Transcript 4 August 2021, page 44, lines 39 to 46) was in the following terms: Fifthly, at question and answer 451, Mr Allam said that he trusts Munaf Al Sarray. "You know the guy worked for me and he's been with me and I trust what he's doing." Now, in fairness to the defendant, I should say that was in response to a question about the fact that a statutory notice had been responded to on behalf of the company by Munaf Al Sarray and he was asked to comment on that response and his response basically was, "Well, I didn't read it. I relied on Munaf Al Sarray to say the right thing." And his explanation as to why he did that is what we rely upon.
9. In this context, my examination of Sami's record of interview shows, I consider, that this question falls within a series of questions and answers commencing with question 433 and concluding with the answer to question 453. These questions and answers were in the following terms: Q 433. Okay. So in respect - we touched briefly on the Notice response that Ace provided to the EPA and you're aware of that? A Yeah. Q 434. Yes. Did, did you review that response? A Not in detail and briefly and my contract administrator went through it with me and told me okay, this what it is this what it is this what it is but he'll get all the, the information and he went through what, whatever you're asking for okay and he told me, "We satisfy everything, we send and everything we send" and he put the - I didn't go through every single document no - - - Q 435. Okay. So first of all - - - A - - - and that's why I left it with him to, to make sure everything is collected. Q 436. Okay. So the response and who was that person that responded? A Munaf Sarray. Q 437. Okay. And who did he respond on behalf of? A ACE. Q 438. Okay. So in respect of that response and let's go through the information and the information that's the answers to the questions. Were you aware of the answers to the questions provided in that response? A Not a hundred percent. Q 439. Not a hundred percent? A (No verbal reply) Q 440. Was it your understanding that - Munaf was it? A Munaf. Q 441. Munaf. So the answers that Munaf provided you as a director of the company were you - was he authorised to do that? A Yes he was. Q 442. He was okay. And in respect of the records that was provided did you review any of those records? A No. Q 443. None at all? A No, I did, - - - Q 444. Sorry. A - - - I did because I didn't go in it and look at all details Q 445. No, no. So, so what records did you have a look at? A Just, just - I think every - everything, he went through it quickly you know what I mean - and briefly he went, went through it and showed me exactly what, what we're doing and everything else and I ticked it for him yes no problem. Q 446. Okay. So - - - A I reviewed it but like - and I didn't prepare it you know what I mean - - - Q 447. Yes. A - - - I review it yes. Q 448. So by you ticking it as the director of the company - - - A Yeah. Q 449. - - - you were satisfied - - - A A hundred percent. Q 450. - - - that the information provided was true and correct and the records were true and correct? A Look as I said it is - you can say 90 percent and not a hundred percent. Q 451. I don't understand what, "90 percent" means. A You know the guy work for me and he's been with me and I trust what he's doing. Q 452. Okay. So as the director - - - A Yeah. Q 453. - - - the, the question was, were you satisfied that the information and records provided were true and correct? A I would say, I would say yes.

1. It is to be noted that Mr Al Sarray is not one of the employees with respect to whom text message exchanges are set out in Exhibit A. Whilst I appreciate that, in the context of the charges laid against Sami and the Company, Mr Al Sarray has a significant role, his role does not arise in the context of the "asserted tendency". Question and answer 451 of Sami's record of interview needs to be understood in the context of questions in the record of interview commencing at question and answer 436 through to 453. Whilst matters arising out of that passage from the record of interview may be relevant to matters requiring consideration at trial (about which I am not to be taken to be expressing any opinion), I am unable to ascertain why the specific question and answer (or, indeed, the sequence of questions and answers within which it is located) provides assistance to the Prosecutor in the present context.
2. The sixth matter raised by the Prosecutor concerning Sami's record of interview was set out (Transcript 4 August 2021, page 44, lines 48 to 50) in the following terms: At, sixthly, question and answer 511 and 530 to 535, admission as to being involved in managing waste and personally organising testing of materials, so classification at the Wolli Creek premises.
3. The questions and answers noted in the above extract confirm that Sami was, in fact, involved in managing waste and organising the testing of the stockpiles of material at a job at Wolli Creek. The context of the questioning can be seen from question and answer 526, where Sami confirms that asbestos had been found at that site. However, in the context of the text messages contained in Exhibit A that are said to support the "asserted tendency", my reading of the questions and answers relied upon (and their wider context in Sami's record of interview) causes me to conclude that they do not provide assistance to the Prosecutor in demonstrating the existence of the "asserted tendency".
4. The seventh proposition was that, as part of Sami's running of the Company's business, he was motivated by cost in doing so. Although this is said to be derived from questions and answers 855 to 858 as establishing a general proposition, it is to be observed that the questioning was asked in a particular context, that of using the Arcadia site for disposal of waste when it was raining and that questions of cost were matters which might be taken into account under such circumstances. I am not satisfied that the seventh proposition advanced by the Prosecutor, as founded on the questions and answers cited, is, in fact, as broad as proposed when the questions and answers from 849 to 858 provide the appropriate context, not merely the more limited group of questions and answers cited by the Prosecutor. I am unable, in the circumstances, to draw the broader and general conclusion inferentially proposed by the Prosecutor from this passage. I am not satisfied that I can draw assistance from this to support the Prosecutor's "asserted tendency".
5. The final matter advanced by the Prosecutor was also related to Sami's alleged cost‑consciousness. The Prosecutor's submission was in the following terms: … "shop around," which we submit is part of the evidence showing that the defendant was, completely unsurprisingly, cost-conscious in the conduct of his business, but that is a feature of the prosecution case, which we say is important to understanding why the offences charged were committed.
6. The run of questions and answers within which questions 220 to 222 are located, on my examination of the record of interview, relates to the excavation of material that is potentially asbestos‑contaminated. This run of questions, in my assessment, can properly be seen to commence well before and beyond the questions cited by the Prosecutor (at least from question‑186 running through to the answer to question 227). Consideration of the three questions and answers cited by the Prosecutor in support of this final matter, when properly examined in the context of the entirety of this series of questions and answers, demonstrates that the use by Sami of the words "shop around" was not related to costs. It was only related to finding a site that was prepared to accept the potentially asbestos‑contaminated material that was generated from the site. That topic was the subject of the complete question and answer sequence to which I have referred as being the more appropriate setting within which to assess the use of those words by Sami. Reading the entire context leads to the conclusion that the contextual use of "shop around" related to preparedness to take the material for which a disposal location was being sought based on the nature of the material as classified rather than as to any issue of financial cost of that disposal process.
7. As a consequence, I am unable to accept that the proposition said by the Prosecutor to be derived from questions and answers 220 to 222 is correct - indeed, I am satisfied that it is incorrect.

Conclusion

1. As can be seen from my analysis of the various matters advanced by the Prosecutor as said to be appropriate to draw from Sami's record of interview, I am satisfied that they do not all provide support to the propositions said to be drawn from them. To the limited extent that, for reasons explained concerning some of the individual items, such support can be drawn, I am satisfied that it is of but limited utility in support of the Prosecutor's "asserted tendency".

Consideration of the "dishonesty" text conversations

Introduction

1. The material contained in the Prosecutor's summaries entitled, "Substance of evidence", for each group of text messages in both categories came from what was set out in the table at paragraph 3 of the Prosecutor's Notice of Intention to Adduce Tendency Evidence (Tab 2 of the Exhibit EES‑1 to the affidavit of Ms Spain).
2. The general submission, which Mr Potts made with respect to the groups of text messages in this category was that they were incapable of supporting the tendency advanced by the Prosecutor and that, if they were capable of providing support for the "asserted tendency", they were incapable of being significantly probative (Transcript 5 August 2021, page 92, lines 40 to 43).
3. However, having made that submission, Mr Potts next turned to address, without making any admissions or concessions, how some instances in the "dishonesty" category in the exhibit were (in my words) more problematic for Sami than others. In this regard, Mr Potts made it clear that, although no admissions or concessions were made concerning any of the specific matters to which he turned, he was addressing the potential probative value of the relevant groups of text messages, taking the Prosecutor's case in support of the "asserted tendency" at its highest.
4. In the context of addressing specific groups of text messages itemised by the Prosecutor as being in the "dishonesty" category in Exhibit A, Mr Potts observed (Transcript 5 August 2021, page 93, lines 22 to 39): POTTS: That is what I'm - item 3 is another one in the same camp as item 12, where your Honour's trying to determine what this evidence is capable of establishing, and I'd have to accept that on a reading of it, it's capable of establishing a form of dishonesty. Whether it's a relevant form of dishonesty is a separate matter, but on its face, I can't make the same submission about item 3 or item 12 that I have, for example, about item 6 or item 9. There are some, and those are two, where your Honour might be justified in saying, at its highest, those exchanges might be capable of revealing some form of dishonesty. But even if I'm completely wrong about all of that, and even if all nine in the dishonesty camp are capable on their face of revealing an instance of dishonesty, I don't accept that. But even if I'm completely wrong, for the sake of argument, that is not enough, we say, to render them of significant probative value. They still are incapable of establishing the tendency for which our friends contend. They still are incapable of having significant probative value in either establishing that tendency or in proving a fact in issue. Even taken at their absolute highest, even if all nine are capable of constituting a form of dishonesty, it is relevantly dissimilar, remote in time and such an isolated instance that it is not capable, even giving it its fullest possible effect and the most far-reaching inference based on the face of the document, they still don't get there. But I wouldn't wish your Honour to misapprehend that we say that in respect of all nine they're incapable. We say certain of the nine are incapable.
5. To the extent that Mr Potts or the Prosecutor made submissions concerning the detail of any of the groups of text messages in the "dishonesty" category, those submissions are set out below when I turn to the specifics of the particular Item in this category.

Item 1

1. The messages in item 1 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 1 Party Date Time Direction Message 24/06/2016 Good morning Sami 49 From: Bachar Allam 24/06/2016 6:34:51 am(UTC+10) Incoming Just to double check with you Can I use the job number to send the 2 loads from Burwood to Dial a dump ??? 50 To: Bachar Allam 24/06/2016 24/06/2016 Outgoing Use LeichhardT one better 6:35:37 am(UTC+10)

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 1 In a text message exchange on 24 June 2016, when Bachar Allam, an employee of ACE Demolition & Excavation Pty Ltd (the company), sought to "double check" whether he could use the job number to send 2 loads from Burwood to Dial A Dump, the Defendant instructed him to use the job number from Leichardt instead, saying "Use LeichardTone better", even though the Defendant knew the waste came from Burwood and the Defendant knew that Bachar Allam knew the waste came from Burwood.

1. No further direct submissions were made by the Prosecutor concerning the messages in item 1. The Prosecutor's submission, therefore, is constituted by that which appears above as extracted from paragraph 3 of the Prosecutor's tendency notice.
2. No express submissions were made by Mr Potts in response to this message exchange.
3. I am satisfied that the exchange discloses an instruction from Sami to Bachar to dispose of waste in a fashion where an untruthful identification of the source of that waste was to be told to the facility at which it was to be disposed. This, I am satisfied, demonstrates dishonesty on Sami's behalf.

Item 3

1. The messages in item 3 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 3 Party Date Time Direction Message 2414 From: Bachar Allam 27/09/2016 27/09/2016 4:47:54 PM(UTC+10) Incoming Where you want me to take the asbestos from St Leonards 2415 To: Bachar Allam 27/09/2016 27/09/2016 4:57:40 PM(UTC+10) Outgoing Ask Munaf if he got job no, To Sita for sure but if we haven't got approval on time just dump it under Botany job no at Sita 2416 From: Bachar Allam 27/09/2016 27/09/2016 5:00:24 PM(UTC+10) Incoming I'm taking Asbestos soil tomorrow from Botany and from Leichardth 2417 To: Bachar Allam 27/09/2016 27/09/2016 5:01:21 PM(UTC+10) Outgoing How many load? 2418 To: Bachar Allam 27/09/2016 27/09/2016 5:02:06 PM(UTC+10) Outgoing In this situation you know what to do!! 2419 From: Bachar Allam 27/09/2016 27/09/2016 5:02:26 PM(UTC+10) Incoming Around 6 loads 2420 To: Bachar Allam 27/09/2016 27/09/2016 5:12:01 PM(UTC+10) Outgoing Take Leichhardt material to anywhere 2421 To: Bachar Allam 27/09/2016 27/09/2016 5:14:58 PM(UTC+10) Outgoing St Lennards material must go to sita 2422 From: Bachar Allam 27/09/2016 27/09/2016 5:16:11 PM(UTC+10) Incoming But Leichhardt and St Leonards for Richard Crooks. We can't take the same trucks 2423 To: Bachar Allam 27/09/2016 27/09/2016 5:17:04 PM(UTC+10) Outgoing That's okay should be fine

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 3 In a text message exchange on 27 September 2016, the Defendant directed Bachar Allam to dispose of asbestos contaminated material at a waste facility he called "Sita" (which refers to the waste facility Elizabeth Drive Waste Management Centre at Kemps Creek operated by SUEZ Recycling & Recovery Pty Ltd); and directed Bachar Allam to use a job number that indicated that the material came from Botany, even though the Defendant knew it came from St Leonards and the Defendant knew that Bachar Allam knew it came from St Leonards.

1. No further direct submissions were made by the Prosecutor concerning the messages in item 3. The Prosecutor's submission, therefore, is constituted by that which appears above as extracted from paragraph 3 of the Prosecutor's tendency notice.
2. I later set out, in my consideration of the various groups of text messages in this category, the submission advanced by Mr Potts concerning the text message from Sami to Bachar in item 12.
3. Mr Potts accepted that, with respect to item 3 (without making any admission or concession), this item might be susceptible to the same potential conclusion as item 12, saying (Transcript 5 August 2021, page 93, lines 17 to 22): … item 3 is another one in the same camp as item 12, where your Honour's trying to determine what this evidence is capable of establishing, and I'd have to accept that on a reading of it, it's capable of establishing a form of dishonesty. Whether it's a relevant form of dishonesty is a separate matter, but on its face, I can't make the same submission about item 3 or item 12 that I have, for example, about item 6 or item 9.
4. I am satisfied that messages 2414 and 2415 in this the exchange disclose an instruction from Sami to Bachar to dispose of waste in a fashion where an untruthful identification of the source of that waste might need to be told to a second‑preference facility at which it was to be disposed of if approval to use the first‑choice facility was not obtained in a timely fashion. This, I am satisfied, demonstrates dishonesty on Sami's behalf. The remainder of the messages in this item might be regarded as providing context to, but do not add to, the direct conclusion to be drawn from the first two messages in the Item.

Item 4

1. The messages in item 4 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 4 Party Date Time Direction Message 4292 From: Bachar Allam 22/12/2016 22/12/2016 7:31:59 am(UTC+10) Incoming The loads going out from Mascot full with Asbestos. To: Sami They rejected the load at Kurnell landfill 4294 From: Sami 22/12/2016 22/12/2016 7:33:14 am(UTC+10) Outgoing To dial a dump n tell them from GREENACRE To: Bachar Allam 4295 From: Sami 22/12/2016 22/12/2016 7:34:30 am(UTC+10) Outgoing Fix it if possible your way To: Bachar Allam 4296 From: Sami 22/12/2016 22/12/2016 7:34:55 am(UTC+10) Outgoing Just tell us what is going on if stuck to Dual a dump To: Bachar Allam

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 4 In a text message exchange on 22 December 2016, the Defendant directed Bachar Allam to dispose of asbestos contaminated material at Dial-A-Dump; and directed Bachar Allam to tell Dial-A-Dump that the waste came from Greenacre, even though the Defendant knew it came from Mascot and the Defendant knew that Bachar Allam knew it came from Mascot.

1. No further direct submissions were made by the Prosecutor concerning the messages in item 4. The Prosecutor's submission, therefore, is constituted by that which appears above as extracted from paragraph 3 of the Prosecutor's tendency notice.
2. No express submissions were made by Mr Potts in response to this message exchange.
3. I am satisfied that messages 4292 and 4294 disclose an instruction from Sami to Bachar to dispose of waste in a fashion where an untruthful identification of the source of that waste was to be told to the facility at which it was to be disposed. This, I am satisfied, demonstrates dishonesty on Sami's behalf.

Item 6

1. The messages in item 6 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 6 Party Date Time Direction Message 6500 From: Bachar Allam 20/03/2017 20/03/2017 6:08:06 am(UTC+10) Incoming Good morning Sami To: Sami What's the job number for asbestos from Wolli Creek please ? 6501 From: Sami 20/03/2017 20/03/2017 6:12:16 am(UTC+10) Outgoing Job number is 8692 To: Bachar Allam 6502 From: Bachar Allam 20/03/2017 20/03/2017 6:14:02 am(UTC+10) Incoming This one for Zetland gsw not Asbestos from Wolli Creek To: Sami 6503 From: Sami 20/03/2017 20/03/2017 6:16:36 am(UTC+10) Outgoing Ask James To: Bachar Allam 6504 From: Sami 20/03/2017 20/03/2017 6:18:35 am(UTC+10) Outgoing Should be for Wolli Creek To: Bachar Allam 6505 From: Sami 20/03/2017 20/03/2017 6:18:41 am(UTC+10) Outgoing Asbestos To: Bachar Allam 6506 From: Sami 20/03/2017 20/03/2017 6:19:23 am(UTC+10) Outgoing Use it n ask James later To: Bachar Allam 6509 From: Bachar Allam 20/03/2017 20/03/2017 6:29:53 am(UTC+10) Incoming They don't have a job number for Wolli Creek To: Sami 6511 From: Sami 20/03/2017 20/03/2017 6:33:20 am(UTC+10) Outgoing I'm talking to James to sort iTout. To: Bachar Allam 6512 From: Sami 20/03/2017 20/03/2017 6:33:31 am(UTC+10) Outgoing Just send them To: Bachar Allam 6513 From: Sami 20/03/2017 20/03/2017 6:36:28 am(UTC+10) Outgoing How many loads? To: Bachar Allam 6514 From: Sami 20/03/2017 20/03/2017 6:37:44 am(UTC+10) Outgoing Can't you send them to paul by the way? Are they bad? To: Bachar Allam 6515 From: Bachar Allam 20/03/2017 20/03/2017 6:38:19 am(UTC+10) Incoming very smelly To: Sami 6516 From: Sami 20/03/2017 20/03/2017 6:38:32 am(UTC+10) Outgoing Ok fair enough To: Bachar Allam 6517 From: Sami 20/03/2017 20/03/2017 6:38:49 am(UTC+10) Outgoing How many loads? To: Bachar Allam 6518 From: Bachar Allam 20/03/2017 20/03/2017 6:39:05 am(UTC+10) Incoming Around 5 To: Sami

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 6 In a text message exchange on 20 March 2017, Bachar Allam asked the Defendant for the job number for asbestos from Wolli Creek. When the Defendant responded, providing a number, Bachar Allam replied: "This one for Zetland gsw not Asbestos from Wolli Creek" ("gsw" being a reference to General Solid Waste). Subsequently the Defendant directed Bachar Allam to use that job number anyway and send the waste, without checking whether it was the correct job number, even though the Defendant knew it was the incorrect job number and the Defendant knew that Bachar Allam knew it was the incorrect job number.

1. No further direct submissions were made by the Prosecutor concerning the messages in item 6. The Prosecutor's submission, therefore, is constituted by that which appears above as extracted from paragraph 3 of the Prosecutor's tendency notice.
2. With respect to this group of text messages, Mr Potts submitted (Transcript 5 August 2021, page 92, lines 29 to 37): POTTS: In item 6 at the foot of the page, here we have communications on 20 March 2017, and we say, when your Honour reads that, on a fair reading, what that shows is that Mr Sami Allam didn't accept what Mr Bachar Allam was saying about Mr Sami Allam having made a mistake in the job number. In line 6502, Mr Bachar Allam is attempting to tell Mr Sami Allam he's got the wrong job number, and the response is well ask James. 6504 should be for Wolli Creek. That's Mr Sami Allam saying well that should be a job number for Wolli Creek. Then the following text exchange are entirely explicable on that basis.
3. Contrary to Mr Potts submissions set out above, I am satisfied that the messages disclose a preparedness on Sami's behalf to direct the disposal of contaminated waste, whether or not a correct job authorisation was held for it for the purposes of identifying the source of the waste, to the disposal facility. This, I am satisfied, demonstrates dishonesty on Sami's behalf.

Item 9

1. The messages in item 9 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 9 Party Date Time Direction Message 8029 From: Sami 24/05/2017 24/05/2017 6:43:43 am(UTC+10) Outgoing Dial a dump Blacktown job number 9136 for asbestos soil To: Bachar Allam Send them 5 load 8030 From: Bachar Allam 24/05/2017 24/05/2017 6:49:35 am(UTC+10) Incoming and the rest to Bowral ? To: Sami 8031 From: Sami 24/05/2017 24/05/2017 7:04:59 am(UTC+10) Outgoing To Suez To: Bachar Allam 8032 From: Bachar Allam 24/05/2017 24/05/2017 7:05:24 am(UTC+10) Incoming I sent them to Bowral To: Sami 8033 From: Sami 24/05/2017 24/05/2017 7:05:41 am(UTC+10) Outgoing Are removing any from Summer Hill today to Bowral? To: Bachar Allam 8034 From: Bachar Allam To: Sami 24/05/2017 24/05/2017 7:06:11 am(UTC+10) Incoming No it's too wet inside the job 8035 From: Sami To: Bachar Allam 24/05/2017 24/05/2017 7:07:10 am(UTC+10) Outgoing Send few loads to Suez then 8036 From: Bachar Allam To: Sami 24/05/2017 24/05/2017 7:07:42 am(UTC+10) Incoming What they have say ? Any job number ? 8037 From: Sami To: Bachar Allam 24/05/2017 24/05/2017 7:08:36 am(UTC+10) Outgoing I emailed it to you this morning 8046 From: Bachar Allam To: Sami 24/05/2017 24/05/2017 12:24:16 PM(UTC+10) Incoming What's the job number 8047 From: Sami To: Bachar Allam 24/05/2017 24/05/2017 12:24:38 PM(UTC+10) Outgoing Coming soon 8048 From: Sami To: Bachar Allam 24/05/2017 24/05/2017 12:25:28 PM(UTC+10) Outgoing Just send them n tell them top soil from Parramatta 8049 From: Sami To: Bachar Allam 24/05/2017 24/05/2017 12:33:04 PM(UTC+10) Outgoing GSWR -job no 9138 Parramatta 8050 From: Sami To: Bachar Allam 24/05/2017 24/05/2017 12:34:14 PM(UTC+10) Outgoing Just the good soil 8051 From: Bachar Allam To: Sami 24/05/2017 24/05/2017 12:35:06 PM(UTC+10) Incoming Ok

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 9 In a text message exchange on 24 May 2017, the Defendant directed Bachar Allam to send a few loads of asbestos-contaminated waste from Blacktown to a waste facility called SUEZ and directed him to describe them as "top soil from Parramatta", and provided a job number for Parramatta, even though the Defendant knew the waste was asbestos-contaminated waste and it came from Blacktown and the Defendant knew that Bachar Allam knew those matters too.

1. With respect to this group of text messages, Mr Potts submitted (Transcript 5 August 2021, page 59, lines 8 to 16): I should note at the outset, and I will come back to this, but we do say that item 9 - which is on p 2 of annexure A, which were text messages sent on Wednesday 24 May 2017 - on any fair reading, actually comprises two entirely separate conversations, or communications, which occurred over five hours apart. And your Honour can see that, the first ends at row 8037, the next begins at 8046. So the first ends at 7.08am, the next begins at 12.24pm. And your Honour will tell, from the fact that the row numbers are not continuous, or don't go from 8037 to 8038, there's a series of intervening unrelated text messages.
2. As noted above, Mr Potts had foreshadowed the submission that the messages in item 9 should be regarded as comprising two separate chains of communication at different times of the day. He pointed to the fact that there were intervening conversations disclosed in the spreadsheet as taking place between the elements of the message chains in item 9. He took me through not only the timing of the messages that are set out in this item, but also the intervening messages occurring between 7.08 am, at the conclusion of the first exchange of messages, and 12.24 pm, being the earliest time of the second set of messages. He submitted that this group of text messages should not be understood in the fashion advanced by the Prosecutor as providing support for the "asserted tendency".
3. Mr Potts later submitted that I should not draw the inference contended by the Prosecutor (Transcript 5 August 2021, page 92, lines 14 to 21): Given the background your Honour has about the nature of this business and nature of the roles, your Honour shouldn't infer without something more that they're talking about the same thing because they're not talking about the same thing and these are two discrete separate conversations. They don't, on their face, give rise to any inference of dishonesty and they don't reveal any potential significant probative value in proving the "asserted tendency" or in proving that tendency would be significantly probative of any fact in issue.
4. The Prosecutor's submission in reply (including exchanges with me) with respect to this group of messages was (Transcript 5 August 2021, page 107, line 37 to page 108, line 16): PROSECUTOR: In item 9, my learned friend took your Honour to this as being two separate conversations and whether one regards it as two separate conversations or one conversation with a large gap in between, I'm instructed there are no text messages in the spreadsheet at tab 2 between Bachar Allam and Sami Allam in between 8037 and 8046. So I just ask your Honour - I would ask your Honour to not speculate they might have been talking about other things because there is no evidence of that. HIS HONOUR: So do you say I should read the second comment in 8036 together with that which is in 8037 and that which is in 8046, constitutes Bachar saying to Sami inferentially "If you emailed it to me this morning, I didn't get it" or "You may have thought you emailed it and you didn't and I still need to have it." Is that how you are asking me to read it? PROSECUTOR: Yes, your Honour. It's consistent with a person realising that there's an unanswered text on their phone somewhat late in the day. HIS HONOUR: Yes. PROSECUTOR: I'm not saying that's the construction your Honour should put on it. It's just that there are logical explanations consistent with human nature. HIS HONOUR: I take it you put it to me that I do not need to conclude that it's two exchanged? PROSECUTOR: Your Honour does not need to but we don't submit that your Honour would inevitably find that they are two separate exchanges, or could only find that they are two separate exchanges. Rather, we submit that your Honour will be satisfied that essentially it's a conversation with a large interval between exchanges.
5. Although the Prosecutor submitted that I would find it appropriate to conclude that this group of messages comprised a single exchange with a large gap (of over five hours) between the two parts because there was a "logical explanation consistent with human nature", I am not satisfied that such a conclusion is inevitable and therefore necessary to be drawn. There are other "logical explanations consistent with human nature" (these including that I have no evidence as to whether or not Sami used his mobile phone for voice calls to Bachar).
6. It would require an unsafe leap of reasoning on my part to assume that there was no other communication between Sami and Bachar of any nature during the intervening period. The conclusion proposed by Mr Potts is equally available, I am satisfied, and I have no rational basis to choose between them. I am unable to conclude that item 9 demonstrates dishonesty on Sami's part.

Item 10

1. The messages in item 10 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 10 Party Date Time Direction Message 8379 From: allam kassem 6/06/2017 6/06/2017 6:48:42 am(UTC+10) Incoming We are loading bad materials from jannali To: Sami Do you wanna know how many load will be ? 8380 From: Sami 6/06/2017 6/06/2017 6:49:11 am(UTC+10) Outgoing Asbestos? To: allam kassem 8381 From: allam kassem 6/06/2017 6/06/2017 6:49:24 am(UTC+10) Incoming Yes To: Sami 8382 From: Sami 6/06/2017 6/06/2017 6:49:53 am(UTC+10) Outgoing No, where is it going to? To: allam kassem 8383 From: allam kassem 6/06/2017 6/06/2017 6:50:25 am(UTC+10) Incoming H Q To: Sami 8384 From: Sami 6/06/2017 6/06/2017 6:50:46 am(UTC+10) Outgoing Okay fine To: allam kassem 8385 From: Sami 6/06/2017 6/06/2017 6:51:45 am(UTC+10) Outgoing Do not record it as asbestos, To: allam kassem Just record it as fill material only.

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 10 In a text message exchange on 6 June 2017 to Kassem Allam, the Defendant directed Kassem Allam to describe asbestos not as asbestos when delivered to a waste facility, saying "Do not record it as asbestos. Just record it as fill material only.", even though the Defendant knew it was asbestos and the Defendant knew that Kassem Allam knew it was asbestos.

1. The exchange in item 10, particularly in messages 8384 and 8385 in combination, demonstrate that Sami instructed Kassem to record a false description for the purposes of disposal of asbestos‑contaminated waste to Hi‑Quality as a disposal facility in circumstances where Kassem and Sami were both aware that the waste was asbestos‑contaminated. This demonstrates dishonesty on Sami's behalf.

Item 12

1. The message in item 12 alleged to disclose direct dishonesty on Sami's behalf has been extracted from Exhibit A and is reproduced below: Item 12 Party Date Time Direction Message From: Sami Hi Kassem 9487 To: allam kassem 17/07/2017 17/07/2017 6:51:14 am(UTC+10) Outgoing There is few loads of GSW material at Summer Hill Ali site, I want to send it to Hi Quality but drivers must say from Zetland site Zetland site with no mistake and they must bring dockets to office today. Regards

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how this message is to be understood. Item Substance of evidence 12 In a text message to Kassem Allam on 17 July 2017, the Defendant said that drivers should tell a waste facility that GSW came from premises at Zetland, saying "drivers must say from Zetland site

1. Mr Potts' comment concerning the single text message in item 12 was that it represented what he considered might be the "high water mark in blue from the EPA's perspective". He said (Transcript 5 August 2021, page 92, line 50 to page 93, line 4): We would have to accept, and I just say I make no admission or concession about this in any formal way. I simply put it in my submission that your Honour - it would be open to your Honour, in taking note at its highest, to conclude it might provide some inference of the instance of dishonesty.
2. This single message, despite there being no concession by Mr Potts (and I consider the message on that basis), clearly discloses an instruction from Sami to Kassem to require drivers disposing of waste at Hi‑Quality deliberately to falsely identify the source of that waste. I am satisfied that this demonstrates dishonesty on Sami's behalf.

Item 14

1. Although this group of messages had more entries originally, the additional entries have been deleted as they were not pressed by the Prosecutor. The messages remaining in item 14 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 14 Party Date Time Direction Message 12559 From: Bachar Allam 11/12/2017 11/12/2017 9:29:44 PM(UTC+10) Incoming I don't have Enm tips To: Sami 12560 From: Sami 11/12/2017 11/12/2017 9:31:30 PM(UTC+10) Outgoing We must tell client material is going to an approved tip, To: Bachar Allam Where are they going anyway? 12561 From: Bachar Allam 11/12/2017 11/12/2017 9:31:58 PM(UTC+10) Incoming Marsden Park To: Sami 12562 From: Sami 11/12/2017 11/12/2017 9:32:50 PM(UTC+10) Outgoing Just tell them Penrith for now. To: Bachar Allam By the way Howard takes ENM and Penrith use to

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 14 On 11 December 2017, the Defendant exchanged text messages with Bachar Allam including saying "We must tell client material is going to an approved tip, Where are they going anyway?" When Bachar Allam responded "Marsden Park", the Defendant replied "Just tell them Penrith for now", even though the Defendant knew the material was going to Marsden Park (not an authorised waste facility), and the Defendant knew that Bachar Allam knew the material was going to Marsden Park.

1. During the course the hearing, I indicated to Mr Potts that my reading of the text messages in this item potentially posed difficulties for Sami concerning the tendency asserted by the Prosecutor. In response to me raising that with him, Mr Potts submitted (Transcript 5 August 2021, page 93, line 46 to page 94, line 50): POTTS: Perhaps I should address that one your Honour, because that is one where we would dispute that it gives rise to that inference. Let me explain to your Honour what I mean by that. Item 14, the first text is 12559. That's Mr Bachar Allam saying he doesn't have NM tips, and your Honour knows, from the evidence I took your Honour to a little while ago, one of his jobs is to find NM tips. Then we have Mr Sami Allam saying in two paragraphs, "We must tell client material is going to an approved tip." Then he asks, "Where are they going anyway?" The response is "Marsden Park". The answer is then, "Just tell them Penrith for now." The dishonesty inference assumes the "them" is a reference to the client in the first line of the 12560 text. It assumes that's a reference to that. We say the inference that should be drawn is it's a reference to where Mr Bachar Allam is to tell the drivers to take the material. Just tell them to take it, so you've been told it's going to Marsden Park. What he's in fact saying is tell them to take it to Penrith. He says, "By the way Howard takes them and Penrith" - I think it means "used", U-S-E-D rather than used to, or perhaps it's an attempt to meme that - and then then response from Bachar is, "When we were doing Deli Road" - which your Honour would infer is another job-- HIS HONOUR: No, they're out. The Deli Road line and the-- POTTS: Sorry, they may be but there's still an exhibit - it's convenient for me to refer them here rather than take your Honour to tab 2. HIS HONOUR: All right, but they're the matters that, for the purposes of Exhibit A, I have marked as "not pressed". POTTS: I'm sorry, your Honour's quite right and they're not pressed as part of a tendency, but your Honour's permitted under s 67 - sorry, s 97 - to have regard to any other evidence to be adduced by the party tendering this material. Even though I could take your Honour to tab 2, scroll through down to these lines, your Honour's entitled to have regard to the subsequent text messages in working out what the ones that the prosecution seeks to tender mean. I maybe haven't made that clear. Your Honour is not confined in determining whether those lines that are now pressed up to 12562 - your Honour's not confined to look only at those on their face. Your Honour, under s 97, can have regard to any other evidence that is to be tendered by the EPA in working out whether or not this has significant probative value. HIS HONOUR: Yes, right. POTTS: I'm sorry, what I've put in your Honour's version may still appear, but it is significant in determining whether the sinister meaning is open, the sinister meaning of "them" in line 12562, but if you look at what used to be in the table, which would now derive from tab 2 of Mr Dales' affidavit, it used to be 12566. It's referring to the fact of a Penrith DA allowed them to if they want. That's clearly, we say..(not transcribable).. at Penrith, whatever the tipping site is, and a DA that was going to allow the dumping..(not transcribable).. if they wanted to take it. And we say reading that way, the reference to "them" is tell them, i.e. tell the people taking it not to take it to Marsden Park, take it to Penrith. Reading it that way there's no dishonesty all.
2. The Prosecutor's submission in reply with respect to this group of messages was (Transcript 5 August 2021, page 106, lines 13 to 29): PROSECUTOR: … I'm reminded of the - that the exception to the identity, or of the type of recipient of the text messages, was item 14. The others, on their face, are all about what information is to be supplied to waste facilities. But item 14, we'd submit, your Honour, you would be satisfied that it is Mr Allam saying that the client is to be told that the waste is going to Penrith, rather than where it's actually going, to Marsden Park. But we would submit, your Honour, that is apparent not just - well, I'm sorry. What - one needs to read message 12562, in conjunction with message 12560. What is in Mr Sami Allam's mind, is what must be told to the client. He makes that clear, that the material is going to an approved tip. Then the question is, what's it going to anyway - he's told it's Marsden Park, and then seems to think that that's not meeting his criterion of being an approved tip. So, just tell them, Penrith, for now. "Them", we'd submit, being almost necessarily inferentially, the client. Otherwise, we ask your Honour to not read into the pleaded tendency in the para 5 of the tendency notice. A tendency which we do not assert, as to, for example, identity of the recipient of the information which is false or misleading.
3. As Mr Potts pointed out, there were four messages which had originally been tendered by the Prosecutor as part of item 14. These were subsequently not pressed but they remained part of Exhibit A.
4. I am satisfied that a proper reading of all of these messages, taken together, makes the proposition advanced by Mr Potts (that the word "them" in message 12562 is equally capable of being construed as ordering a direction to be given to the drivers who were removing the material from the site the subject of this message exchange) is also available to be adopted. Under those circumstances, I am not satisfied that that I can conclude that item 14 demonstrates dishonesty on Sami's part.

Item 15

1. The messages in item 15 alleged to disclose direct dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 15 Party Date Time Direction Message 12677 From: Bachar Allam 15/12/2017 15/12/2017 8:31:11 am(UTC+10) Incoming I have to say from Badgery Creek at the tip? To: Sami 12678 From: Sami 15/12/2017 15/12/2017 8:32:20 am(UTC+10) Outgoing Say Mascot To: Bachar Allam 12680 From: Bachar Allam 15/12/2017 15/12/2017 8:33:32 am(UTC+10) Incoming What about Badgery Creek? To: Sami The guy keep asking me for the dockets 12683 From: Sami 15/12/2017 15/12/2017 8:34:31 am(UTC+10) Outgoing Say asbestos soil To: Bachar Allam 12684 From: Sami 15/12/2017 15/12/2017 8:35:06 am(UTC+10) Outgoing I will give him a copy later, To: Bachar Allam Do not worry about it 12685 From: Bachar Allam 15/12/2017 15/12/2017 8:36:16 am(UTC+10) Incoming Ok To: Sami

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 15 On 15 December 2017, in a text message exchange, Bachar Allam asked the Defendant "I have to say from Badgery Creek at the tip?" and the Defendant responded "Say Mascot". Bachar Allam replied "What about Badgery Creek? The guy keep asking me for the dockets". The Defendant responded "Say asbestos soil".

1. This group of messages does not commence with any information concerning the source of the waste that is proposed to be disposed of at a facility. The first message, from Bachar to Sami, provides no actual contextual information of this nature. Without having such contextual information, it is not possible to conclude that the instruction from Sami to Bachar in message 12678 is an instruction to provide false information. It is equally possible, it seems to me, that Bachar is potentially suggesting the provision of false information whilst Sami is instructing him to tell the truth.
2. The Prosecutor relies on this group of messages as demonstrating actual dishonesty. Given the uncertainty as to the context in which the exchange takes place, I am unable to reach that conclusion.

Consideration of the "dishonesty inferred" text conversations

Introduction

1. The difficulty I have with item 2 (a difficulty in common with other items in the category, "dishonesty inferred", proposed by the Prosecutor) is that the items in the "direct dishonesty" category with which I have already dealt are ones where, in the six instances where I have upheld the Prosecutor's submission, it is clear that Sami is prepared to require (or countenance) the provision of false information concerning the disposal of waste.
2. The selection of messages in the seven items in this category are ones where the Prosecutor asks me to infer that, in the circumstances of the various message exchanges, Sami has failed to give an express instruction that correct information is to be conveyed. In circumstances where it is not contested, as I understand the position, that Sami has used his mobile phone for many thousand business‑related text messages or WhatsApp conversations, I am concerned at the nature of the inference that I am asked to draw with respect to the limited range of items in this category.
3. I should also note that, in my earlier discussion of Sami's record of interview, the sixth matter raised by the Prosecutor as arising from it referenced questions 511 and 530 to 535. This comprises the only evidence to which I have been directed as to who supervised and had responsibility for testing of waste. There is certainly nothing in the Statement of Agreed Facts earlier reproduced that provides any evidence that anybody other than Sami has knowledge of any testing that may have been undertaken in order to determine how waste was to be classified.
4. I have certainly not trawled through the remainder of the evidentiary material to see whether there is other evidence of any nature (whether text messages, WhatsApp conversations or other documentary material) demonstrating that somebody other than Sami had responsibility for the testing of waste and thus identifying how it should be described for the purposes of its disposal.
5. In such circumstances, given that the Prosecutor is required to establish the inference of dishonesty in this group of seven items, it seems to me that, where a question is asked of Sami as to how waste is to be described for the purposes of its disposal, it is at least possible that Sami might be the only person with the knowledge of the relevant and necessary sampling and testing results that enable such a question to be answered.
6. Specifically, I have no evidence drawn to my attention that would suggest that Bachar or Kassem (where relevant) had any role in attending sites or had any direct knowledge of testing regimes (or results to be derived from them) for the purposes of identifying waste typologies.

Item 2

1. The messages in item 2 alleged as supporting the "asserted tendency" on the basis of the inference of dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 2 Party Date Time Direction Message 322 From: Kassem Allocator 2/07/2016 2/07/2016 7:01:22 am(UTC+10) Incoming Sami The materia at Willi creek not clean 323 From: Kassem Allocator 2/07/2016 2/07/2016 7:01:33 am(UTC+10) Incoming Sorry at Bronte 324 To: Kassem Allocator 2/07/2016 2/07/2016 7:02:55 am(UTC+10) Outgoing That's okay just ask boys to write on docket is not clean 325 From: Kassem Allocator 2/07/2016 2/07/2016 7:03:30 am(UTC+10) Incoming But where can I take it 326 To: Kassem Allocator 2/07/2016 2/07/2016 7:04:22 am(UTC+10) Outgoing To Leichhardt Waked job

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 2 In a text message exchange on 2 July 2016, Kassem Allam, an employee of the company, informed the Defendant that the material at Wolli Creek or Bronte was "not clean" and, instead of directing him to ensure that the waste was described truthfully on the weighbridge docket, or directing him to ensure that waste was always described truthfully on the weighbridge docket, the Defendant directed Kassem Allam as to how the waste should be described on the weighbridge docket saying "That's okay just ask boys to write on docket is not clean". (The Prosecutor relies upon this exchange, together with the other exchanges, to show by inference that the Defendant did not always direct employees to describe waste truthfully on the weighbridge docket, or did not always direct employees to ensure that waste was described truthfully on the weighbridge docket, by pointedly directing an employee to be truthful when the employee already had the necessary information to truthfully describe the waste before the Defendant's direction.)

1. No specific submissions were made with respect to item 2. The instruction given by Sami to Bachar was one to require Bashar to have "the boys" (presumably, the drivers) correctly identify the nature of the waste to be dispatched for disposal. In this fashion, rather than being an instruction directed to Bachar's conduct (that being an aspect that arose in a number of instances in the "direct dishonesty" category), I cannot be satisfied that the nature of this instruction should be regarded as anything other than an ordinarily cautious one to ensure that proper processes were followed by third persons (the truck drivers) rather than an instruction to Bachar that he had to tell the truth in circumstances where there have been other exchanges demonstrating an acceptance of Bachar telling untruths.
2. I am not able to accept that item 2 supports the inference proposed by the Prosecutor.

Item 5

1. The messages in item 5 alleged as supporting the "asserted tendency" on the basis of the inference of dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 5 Party Date Time Direction Message 5500 From: Bachar Allam 9/02/2017 9/02/2017 6:15:58 am(UTC+10) Incoming Can you send me number for Gsw and tip for Sydney university job please To: Sami 5501 From: Sami 9/02/2017 9/02/2017 6:17:04 am(UTC+10) Outgoing Send them to Kurnell landfill n say from Uni To: Bachar Allam I will ask Ian to send the no

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 5 In a text message exchange on 9 February 2017 with Bachar Allam, after being told that the waste came from Sydney University, the Defendant directed Bachar Allam to send general solid waste (GSW) from Sydney University to the Kurnell waste facility and, instead of directing him to describe, or to always describe, the source of the waste truthfully, directed him to say that the waste was from Sydney University. (The Prosecutor relies upon this exchange, together with the other exchanges, to show by inference that the Defendant did not always direct employees to describe waste truthfully on the weighbridge docket, or did not always direct employees to ensure that waste was described truthfully on the weighbridge docket, by pointedly directing an employee to be truthful when the employee already had the necessary information to truthfully describe the waste before the Defendant's direction.)

1. Mr Potts took me to a range of messages in the text and WhatsApp message spreadsheets that had been exhibited to Mr Dales' affidavit to understand a broader context in which the two messages in item 5 had been sent. The detailed range of messages relied upon by Mr Potts in this context were set out in the transcript of 5 August 2021 at page 87, line 7 to page 88, line 35: Can I take item 5, which is the fifth group of the 16 groups of text messages relied upon. Your Honour sees that's in the dishonesty inferred camp. It comprises two text messages sent on 9 February 2017, one from Mr Bachar Allam and one to Mr Bachar Allam in response. Sorry if it's going to be an inconvenience, but can I ask your Honour to find those in tab 2 of Mr Dales' exhibit. Your Honour will do that by scrolling in the spreadsheet row number down to 5500, is where they're found. … POTTS: One sees that on this day, it's the first message of the day, sent at 6.15am, and there's a response two minutes later. It's certainly not the only message of the day. Your Honour keeps scrolling down, your Honour sees these messages continue. At 5503 is further messages to Kassem. 5504, further messages to Bachar. There's nothing exceptional or unusual about these messages in particular. They are messages of a mundane type being sent out as, we say, a matter of routine. It's also apparent from Exhibit A, but in column D, your Honour sees in 5500, sent at 6.15; response is 6.17. Before I leave that part of tab 2, your Honour will see, going down the page, there were I think something in the order of 39 text messages sent that day, 9 February. They go down to row 5539. This is not some isolated incident that there's a text message on this day. The text messages come thick and fast all day. I then need - I may have to help your Honour open it again - to go to the WhatsApp messages in tab 34. HIS HONOUR: I'm there. POTTS: If I could ask your Honour to go all the way down to row 15,176. HIS HONOUR: Yes, I'm there. POTTS: In row 15,176, in the column marked "timestamp", which we understand to be the relevant time, your Honour will see this was a message sent at 6.18am on 9 February. It's sent by Sami to someone called Ian. Your Honour will see the body of the message: "Good morning, Ian...running material today." That's exactly what Mr Sami Allam had promised Mr Bachar Allam he would do in the text at 6.17am, which is the second text in item 5, if your Honour wants to come back to Exhibit A. Your Honour will see, at 6.17am he promised Bachar he would ask Ian to send the number. A minute later, he does just that through the WhatsApp. Would your Honour go in the WhatsApp messages to row 17,462. HIS HONOUR: Yes, I'm there. POTTS: There in the column "timestamp/time", your Honour would see 6.24am on 9 February 2017, and this is a message that's sent to someone who seems to be described as "Foreman Ray". In the "body" column, your Honour sees this statement: "Good morning, Ray...uni job, please." What we submit to your Honour that these additional WhatsApp messages, which were sent immediately after the two texts relied upon by the EPA in item 5 of Exhibit A, make apparent are a number of things. First of all, Mr Allam used concurrently not only the SMS text function on his mobile phone but also the WhatsApp messaging function for business purposes. We say this is a good example which shows why it is perfectly appropriate and necessary the Court, in considering this application, to have regard to the totality of the messaging not simply in the SMSs but also in the WhatsApp messaging. HIS HONOUR: I'll just stop you there, just briefly. You're not suggesting that I need myself to go away and try and pair up the two spreadsheets with Exhibit A? POTTS: No, we rest on that example, but we say the example shows that, in matters of business, Mr Allam was quite happy to use one or the other virtually concurrently.
2. This contextual framework relating to the two messages in item 5 disclosed, Mr Potts submitted, that, between the time of the sending of the first message at 6.15 am on the relevant day through to 6.24 am on that day, there were a series of related text and WhatsApp messages, in addition to the two upon which the Prosecutor relies as supporting the "asserted tendency". The combination of all of these text messages and WhatsApp messages made it clear, he said, that Sami used text messaging and WhatsApp messaging interchangeably for his business purposes. This, Mr Potts submitted, meant that it was necessary for me to have regard to the totality of the messaging across the two platforms for the purposes of understanding their overall context.
3. With specific respect to the text messages in item 5, he submitted that the complete context thus disclosed was (Transcript 5 August 2021, page 88, line 47 to page 89, line 10): … clear there's absolutely nothing improper about the single text message that Mr Sami Allam, sent on 9 February 2017 in row 5501, which is part of item 5 in Exhibit A. There's a serious allegation your Honour should infer dishonesty from that. What one sees from the WhatsApp messages is, these were routine matters of everyday logistics and administration. There is no reason, we submit, either on the face of these text messages or in light of any other evidence that's been put before your Honour, to take very sinister view of the seven dishonesty inferred text messages the prosecution invites the Court to take. It would require reading into those text messages things that are just not there and that are simply not capable on their face, without something more by way of additional evidence, of giving rise to an inference which must be an inference of a tendency to promote a culture, practice or system of work involving dishonesty and deception.
4. Mr Potts then turned to address, expressly, what is set out above in the Prosecutor's summary in the tendency notice as to how this group of text messages in Exhibit A should be understood. In this context, Mr Potts submitted that, given the nature of the role that Bachar performed for the Company (where he had to arrange for waste to be transported), he had to make logistical arrangements and that, in seeking information from Sami to enable him to do so, it was inappropriate to infer some sinister or dishonest overtone.
5. Mr Potts used his submissions with respect to the text messages in item 5 of Exhibit A to found not only his specific submissions concerning those messages, but also as a basis to attack all of the groups of text messages falling in the "dishonesty inferred" category in Exhibit A. The specific submissions concerning the item 5 messages were (Transcript 5 August 2021, page 89, lines 35 to 49): To put a sinister overtone over him asking his direct superior for a job number for a particular category of waste for a particular job, we say will require significantly more evidence than simply asking your Honour to infer it on its face. It is not an inference, we say, that is open on the face of those two text messages as they appear in Exhibit A. It pays no regard to the evidence about Mr Bachar Allam, it pays no regard to the two subsequent WhatsApp text messages where Mr Sami Allam put into execution the things he indicated to Mr Bachar Allam he will do. The EPA makes no attempt to adduce any evidence about Mr Bachar Allam's state of knowledge on that day in relation to that subject matter. It is simply not possible for your Honour to infer that these failures, in the language of the EPA, to direct employees to ensure waste is described truthfully. It is not possible to infer that that failure is able to either be probative at all or significantly probative of the existence of the tendency for which the EPA contends in para 5 of that notice; it's simply not possible. We say that applies to all of the seven dishonesty-inferred examples in this Exhibit A.
6. Adopting the process of reasoning derived from the item 5 text messages, I understood it to be said to be appropriate that the final elements of the above‑quoted submissions applied to all of the other groups of messages in this category.
7. The Prosecutor's submission in reply (including exchanges with me) with respect to this group of messages was (Transcript 5 August 2021, page 106, line 32 to page 107, line 33): We'd submit that in the context of message 5500, when Mr Sami Allam says, in 5501, "Send them to Kurnell landfill and say from uni", he is saying something that he wouldn't need to say, if he didn't think that there was a chance that the employee would say something else. Why would he need to say what the landfill needs to be told, as to where it comes from, if the employee communicating with him has told him where it's coming from? Unless, the person who's speaking, Mr Sami Allam, thinks, this employee will reasonably understand that they have a choice. They can say that it comes from the known source site, or they can say that it comes from somewhere else. And what I'm going to do, is make sure they make the correct choice, as far as I'm concerned, at this stage. They can make - they should say that it comes from the source site. There's just no explanation as to why he needed to say those words, unless he thought there was a risk that if not instructed to tell the truth, the employee may well not. …. HIS HONOUR: I have to have regard to that, do I not, to those two messages as Mr Potts took me to - I think it was to the WhatsApp messages, 17461 and 17462, in exchange between foreman Ray and Sami Allam. So that they have to be read for appropriate context as a sequence of five if you like melded together messages rather than as the two messages in four messages melded together rather than the two that are together in item 5. BUCHANAN: We don't say otherwise, your Honour. I'm not in a position to say otherwise. HIS HONOUR: Well, if you say somehow that the message 17462 to foreman Ray doesn't in any way qualify the conclusion you ask me to draw about 5500 coupled with 5501? It's a very wide spreadsheet so I don't have all of the timings immediately available to me to look at in this context. I'll endeavour to close up a gap and see if I can do that. It appears to be a message delivered to foreman Ray at 6.24. In that message he is saying to foreman Ray, "Good morning Ray. Keep good record of trucks at Uni job, please." Which is, is it not, capable adding an innocent dimension to the remainder of the exchange? BUCHANAN: No, your Honour, I might have missed your Honour's point. The fact that he told him to tell the truth is not, in our submission to the point here. Rather, it is that he say anything about it at all. HIS HONOUR: He had a choice to tell the truth, you say, and he's been instructed on this occasion to tell the truth. BUCHANAN: No. No, sorry, your Honour. HIS HONOUR: No? BUCHANAN: No. There was no need to advert to the subject matter of what to say about where the waste came from unless in his mind, the defendant's mind, there was a chance that Bachar Allam would think that he should say something other than the truth, and he's saying "On this occasion, tell the truth."
8. I am satisfied that the broad propositions advanced by Mr Potts with respect to the two messages in item 5 are to be preferred to the construction placed on them by the Prosecutor.
9. On the morning of 9 February 2017, being the date of the text message exchange between Bachar and Sami (Bachar texting to Sammy at 6.15 am and Sami responding at 6.17 am as can be seen from the extracted items at the beginning of this group, there were, as subsequently noted, a relevant WhatsApp exchange between Sami and Foreman Ray. In the first of those WhatsApp messages (17460 at 6.24 am on that day), Sami messages Foreman Ray saying: good morning Ray keep good records for trucks at uni job please.
10. At 6.26 am, Foreman Ray replies by WhatsApp saying: no worries.
11. It is to be observed, as well, that at 6.27 am and 6.28 am that day, Sami sent two further text messages (unrelated to the University job - messages 5502 and 5503) that were also, in the present context, uncontentious.
12. I am not satisfied that the Prosecutor's inference is to be drawn from the complete context within which item 5 is appropriate to be viewed.
13. In addition, as with the messages in item 2, the word "them" is potentially capable of being inferred as a reference to the drivers of the loads rather than merely the loads themselves. If that inference was appropriate to be drawn (and I do not need to conclude that I should draw that inference), this message exchange would also lead to the same conclusion I have earlier set out with respect to item 2.
14. I am unable to accept that item 5 supports the inference of dishonesty on Sami's behalf said by the Prosecutor to arise from these messages.

Item 7

1. The messages in item 7 alleged as supporting the "asserted tendency" on the basis of the inference of dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 7 Party Date Time Direction Message 7420 From: Bachar Allam 25/04/2017 25/04/2017 2:02:32 PM(UTC+10) Incoming Can we load the asbestos from St Peters tomorrow ? To: Sami 7421 From: Sami 25/04/2017 25/04/2017 2:17:31 PM(UTC+10) Outgoing Yep To: Bachar Allam 7422 From: Bachar Allam 25/04/2017 25/04/2017 2:18:04 PM(UTC+10) Incoming What's the job number To: Sami 7423 From: Sami 25/04/2017 25/04/2017 2:18:47 PM(UTC+10) Outgoing Can we send them to M Dib? To: Bachar Allam 7424 From: Bachar Allam 25/04/2017 25/04/2017 2:19:26 PM(UTC+10) Incoming What do you want me to say ? To: Sami 7425 From: Sami 25/04/2017 25/04/2017 2:19:44 PM(UTC+10) Outgoing Say St Peters To: Bachar Allam

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 7 In a text message exchange on 25 April 2017, Bachar Allam asked the Defendant for instructions in relation to the loading of asbestos from St Peters and how to describe the waste, saying "What do you want me to say ?" and the Defendant responded "Say St Peters", and the Defendant failed to direct Bachar Allam to ensure that the type of waste and the source of waste were described truthfully, or always described truthfully. (The Prosecutor relies upon this exchange, together with the other exchanges, to show by inference that the Defendant did not always direct employees to describe waste and the source of waste truthfully, or did not always direct employees to ensure that waste and the source of waste was described truthfully, given that the nature of the employee's question meant the employee understood that they would sometimes be directed not to be truthful.)

1. No additional specific submissions were made concerning the messages in item 7. The word "them" in message 7423 from Sami to Bachar is also capable of referring to instructions to the drivers rather than to the waste material in the loads to be transported.
2. In this context, as I set out at the commencement of my consideration of this category, I have general reservations about how these messages should be interpreted in a fashion where, it is to be assumed, there are many thousand text messages and multiple WhatsApp conversations utilised by Sami for the running of the Company's business. I am not comfortable, in the overall context of the messages relied upon for this item in the second category (of "inferred dishonesty"), to draw the proposed inference in support of the Prosecutor's "asserted tendency".

Item 8

1. The messages in item 8 alleged as supporting the "asserted tendency" on the basis of the inference of dishonesty on Sami's behalf have been extracted from Exhibit A. This group of messages is the only one involving an exchange between Sami and Ali Reza, a foreman employed by the Company. These two messages are set out: Item 8 Party Date Time Direction Message From: Ali Reza Foreman Good morning 7507 To: Sami 28/04/2017 28/04/2017 7:38:07 am(UTC+10) Incoming They are telling me to send the resTof the material as asbestos to Dial a Dump All good to do that? 7508 From: Sami 28/04/2017 28/04/2017 8:00:52 am(UTC+10) Outgoing Yes if they instruct you to. To: Ali Reza Foreman

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood.
2. Item 8 in Exhibit A is an outlier in the "dishonesty inferred" category. Rather than including any general descriptor sentence, the Prosecutor's comments are more concise, being those set out in the text box below. Item Substance of evidence 8 In a text message exchange on 28 April 2017, Ali Reza, an employee of the company, asked the Defendant for instructions in relation to the disposal of waste and how to describe the waste, and the Defendant failed to direct Ali Reza to ensure that the waste was described truthfully, or that waste being disposed of was always described truthfully.

1. Item 8 was the subject of an exchange between me and the Prosecutor during the course of the hearing. The exchange is recorded in the transcript of 4 August 2021 at page 34, lines 24 to 49 in the following terms: PROSECUTOR: … You will note that the information that Mr Reza is providing the defendant is to send the rest of the material as asbestos. In other words, what is the label to be given to this material. HIS HONOUR: He's asked - he asks - he says something that is in two parts, doesn't it? It's not only the description of the material but where it's going to, and the answer is if they instruct you to could be equally as applicable - perhaps I suppose Mr Potts may say to me later even more applicable - to where it's to go to, rather than as to how it's to be described. PROSECUTOR: Yes, your Honour. HIS HONOUR: If there are - on the assumption that other facilities, whether it's Holt at Kurnell or Suez or DADI or wherever, are able to accept waste of the type subject of that discussion, that is equally capable of an innocent conclusion as it is of a guilty one; is it not? PROSECUTOR: Except that your Honour it's the whole of - the combined set of information that Reza gives to the defendant. The rest of the material as asbestos to Dial a Dump, and so what the defendant's responding to is both pieces of information or both parts of the pieces of information, asbestos and Dial a Dump.
2. As can be seen from the terms of the messages, Ali Reza advises Sami that he has been instructed as to two matters. The first is that the waste is to be identified as asbestos, whilst the second is that it is to be disposed of by delivery to Dial‑A‑Dump. Ali Reza seeks Sami's confirmation as to those instructions by asking: All good to do that?
3. Sami replies: Yes, if they instruct you to.
4. Sami's confirmation is of both elements put to him by Ali Reza. There is no basis upon which it would be possible or appropriate to assume that the instruction related to the identification of the classification of the waste, rather than as to both its classification and its destination for disposal. As a consequence, I am not satisfied that what the Prosecutor describes as the "substance of evidence", in the above extract from the table at paragraph 3 of the tendency notice, accurately reflects what is addressed in the exchange between Ali Reza and Sami. The Prosecutor appears to be assuming that the confirmation given by Sami should be regarded as being confined to the classification of the waste rather than to the combination of the classification of the waste and the destination to which it is to be taken for disposal.
5. The inference proposed by the Prosecutor to be drawn from these messages is, I am satisfied, not unequivocally to be drawn from them in the fashion proposed and, thus, this group of messages cannot support the "asserted tendency".

Item 11

1. The messages in item 11 alleged as supporting the "asserted tendency" on the basis of the inference of dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 11 Party Date Time Direction Message 8881 From: allam kassem 24/06/2017 24/06/2017 5:44:51 am(UTC+10) Incoming I have 1 load T&d of asbestos at jannali I take to Bowral To: Sami And say S . Hill 8882 From: Sami 24/06/2017 24/06/2017 5:50:44 am(UTC+10) Outgoing Okay send it and say Jannali To: allam kassem 8883 From: Sami 24/06/2017 24/06/2017 5:51:18 am(UTC+10) Outgoing Say Asbestos soil To: allam kassem

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 11 In a text message exchange on 24 June 2017, Kassem Allam wrote to the Defendant indicating his understanding in relation to a load of asbestos from Jannali, that he should take it to Bowral and say it was from Summer Hill, and, instead of directing Kassem Allam that he should never lie about the source of waste being disposed of, or that he should always tell the truth about the source of waste when disposing of it, the Defendant responded that Kassem Allam should say it was from Jannali. (The Prosecutor relies upon this exchange, together with the other exchanges, to show by inference that the Defendant did not always direct employees to describe waste and the source of waste truthfully, or did not always direct employees to ensure that waste and the source of waste was described truthfully, given that the nature of the employee's initial expressed understanding of his directions involved dishonesty about the source of waste when disposing of it.)

1. A question from me, and the Prosecutor's response in reply, with respect to this group of messages was (Transcript 5 August 2021, page 109, lines 33 to 42): Do you say that the first message in item 11 evidences Kassem Allam proposing to falsify information by describing waste as coming from Summer Hill, despite the fact that it is coming from Jannali, as evidence of Mr Kassem Allam operating consistent with the culture that is pleaded in the tendency notice? PROSECUTOR: Yes, your Honour. And we submit your Honour would draw the inference that the reason he was doing that was because that culture had been - and I keep on using the word "inculcated" - created by the defendant. But it's his tendency, not the existence of the culture here which is important.
2. The "asserted tendency" pressed by the Prosecutor was set out at [12]. It is a tendency which is directed by its terms to activities of Sami rather than of other individuals. Although, in the first of the above messages (as reflected in my exchange with the Prosecutor reproduced above), there is the inference to be drawn that Kassem may have been proposing to provide information to a disposal site at Bowral, concerning the source of the waste to be disposed of at that site, that potentially evidences conduct on Kassem's behalf only.
3. However, Sami, instructing him in a fashion consistent with the truth, does not say anything, in this context, concerning Sami's behaviour to suggest that Kassem's initial proposed falsehood arose from anything arising from Sami's past conduct. I am unable to accept that the inference of dishonesty is to be drawn from this short message exchange.

Item 13

1. The messages in item 13 alleged as supporting the "asserted tendency" on the basis of the inference of dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 13 Party Date Time Direction Message 11322 From: Bachar Allam To: Sami 26/10/2017 26/10/2017 5:46:15 am(UTC+10) Incoming Good morning At Bowral we have to say GSW or asbestos 11323 From: Sami To: Bachar Allam 26/10/2017 26/10/2017 5:46:49 am(UTC+10) Outgoing Asbestos

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 13 In a text message exchange on 26 October 2017, in relation to disposal of waste at Bowral, Bachar Allam asked the Defendant whether "we have to say GSW or asbestos" and, instead of directing Bachar Allam to tell the truth, or to always tell the truth, about the type of waste being disposed of, the Defendant responded saying Bachar Allam should say it was asbestos. (The Prosecutor relies upon this exchange, together with the other exchanges, to show by inference that the Defendant did not always direct employees to describe waste and the source of waste truthfully, or did not always direct employees to ensure that waste and the source of waste was described truthfully, given that the nature of the employee's question meant the employee understood that they would sometimes be directed not to be truthful.)

1. No additional specific submissions were made concerning the messages in item 13.
2. As set out at the commencement of my discussion of the items in this broad category, I referred to the limited extent of the evidence that I have had drawn to my attention concerning who in the Company's operations had direct knowledge of waste sampling test results and how questions concerning identification of the waste classification might legitimately arise on the basis that Sami, rather than Bachar, was the custodian of such information. That is precisely the circumstances which potentially apply with respect to the messages in item 13.
3. For the reasons earlier outlined at the commencement of my consideration of this category of messages, I am unable to draw the inference advanced by the Prosecutor as said to arise from these messages in support of the "asserted tendency".

Item 16

1. The messages in item 16 alleged as supporting the "asserted tendency" on the basis of the inference of dishonesty on Sami's behalf have been extracted from Exhibit A and are reproduced below: Item 16 Party Date Time Direction Message 12894 From: Bachar Allam 22/12/2017 22/12/2017 6:46:59 am(UTC+10) Incoming is the material from Leichhardt going as gsw or asbestos ? To: Sami 12895 From: Sami 22/12/2017 22/12/2017 6:47:12 am(UTC+10) Outgoing Gsw To: Bachar Allam

1. The comments below are taken from the table in paragraph 3 of the Prosecutor's tendency notice and provide the specific submission made by the Prosecutor as to how these messages are to be understood. Item Substance of evidence 16 On 22 December 2017, in a text message exchange, Bachar Allam asked the Defendant "is the material from Leichardt going as gsw or asbestos?" and, instead of directing Bachar Allam to tell the truth, or to always tell the truth, about the type of waste being disposed of, the Defendant replied "Gsw". (The Prosecutor relies upon this exchange, together with the other exchanges, to show by inference, that the Defendant did not always direct employees to describe waste truthfully, or did not always direct employees to ensure that waste was described truthfully, given that the nature of the employee's question meant the employee understood that they would sometimes be directed not to be truthful.)

1. Mr Potts drew attention to the fact that the messages in item 16 were an exchange which took place on the Friday before Christmas, submitting that these should be viewed in the context of what would be regarded as the usual Christmas shutdown. With respect to the messages in item 16, Mr Potts said (Transcript 5 August 2021, page 91, lines 35 to 50): POTTS: The fact it's a Friday, we say, is significant because on any view Friday before Christmas is usually the end of a normal working year and notwithstanding that we accept that from certain of the text messages in tab 2 and tab 34 it would be evident that Mr Sami Allam is of the Muslim faith. We say it's a matter of no variety but in Australia business usually tends to shut down for Christmas. We have the last working day before Christmas. I won't take your Honour back to I but your Honour might note that in tab 2 at row 12982 which is two before the first item in item 16, item 16 row 12984 is not the first text of the day. The first text of the day is at 4.32am. Clearly, people are up early trying to get things done before the shutdown. Coming back to row 12984, which is item 16, there's a simple question from Mr Bachar Allam, "Is it going to as form of waste or another?" He's given an answer. As I've said before, there's no basis without evidence, of which there is none, that Mr Bachar Allam knew at 6.46am on the Friday before Christmas this was in fact one or the other and he's asking for a direction to be fraudulent about it. There is simply no warrant for making that inference.
2. It is unnecessary to address the matters raised by Mr Potts with respect to the messages in item 16. My comments with respect to the messages in item 13 are equally applicable to the messages in item 16, and the same conclusion is to be drawn with respect to them.

The "direct dishonesty" items

1. I am satisfied that items 1, 3, 4, 6, 10 and 12 in this category support the "asserted tendency" sought to be relied upon by the Prosecutor. I am satisfied, for reasons explained, that items 9, 14 and 15 do not.

The "inferred dishonesty" items

1. I am satisfied that, for the reasons given with respect to each of the items in the "inferred dishonesty" category, that none of them provide support for the "asserted tendency" in the fashion advanced for each of them by the Prosecutor.

The concluding defence submission on s 97(1)(b)

1. Mr Potts concluded his submissions concerning matters I needed to consider as arising from the test in s 97(1)(b) of the Evidence Act by addressing "the extent to which the evidence in Exhibit A and the asserted tendency is capable of sufficiently rationally affecting the likelihood of any fact making up the actual offence". It is appropriate to set out his submission in this regard, in full (Transcript 5 August 2021, page 95, lines 14 to 34): When one looks at this text message traffic in Exhibit A, your Honour would be left to wonder what the chain of reasoning would be for a trial judge as to how this would be applied making more likely any element of the charged offences against Mr Allam. The reasoning would have to be something like on 16 occasions or perhaps only nine, depending on what your Honour determines, or perhaps even a subset of nine, Mr Sami Allam, on occasion, directed up to three employees to do something dishonest. Then there would have to be some form of inferential extrapolation of that to say that culture somehow permeated other aspects of the company, ACE, and other employees and therefore - as we apprehend what our learned friend puts - the Court can more readily find that Mr Allam ought to have known that the sending of the three emails, the subject of his charges, were false or misleading in a material respect and therefore the executive liability was being committed. What that seems to be amount to in terms or in substance is because he's told lies allegedly to employees on a limited number of occasions that would permit, by a rational process of reasoning a conclusion that he ought to have known at any time any one of his 170 to 200 employees did something wrong by communicating a false or misleading statement about waste. We submit that mode of reasoning is so tangential and frankly lacking in a compelling logic or force that it's simply incapable of being of significant probative value.
2. On the basis of the six items in the "direct dishonesty" category in Exhibit A where I have, for the reasons explained in each instance, found that the text message conversations provide support for the "asserted tendency", I am satisfied that these messages provide an appropriate basis upon which I can find that the "asserted tendency" has significant probative value (but only founded on, and confined to, those six text message conversations) as required by s 97(1)(b) of the Evidence Act.
3. In the context of those six text message conversations, it is next appropriate to consider whether any of the potentially exclusionary provisions in the Evidence Act should operate to exclude those conversations.

Probative value versus danger of unfair prejudice

1. I now turn to assess the "asserted tendency" against s 101(2) for the charges laid against the Company.
2. In R v Droudis, Johnson J noted, at [91], that a difference between jury trials and judge‑alone trials was that judges were required to give reasons for interlocutory decisions (as is here the case). His Honour continued, saying at [92] and [94]: 92 The obligation to give reasons is, of course, a fundamental difference between criminal trials by jury and trials by Judge alone. This obligation serves a number of purposes, which include a practical demonstration as to how the Court has guarded against "prejudicial effect" (s.101) or "unfair prejudice" (s.137) which might have a stronger foundation at a jury trial. As Martin CJ observed in Arthurs v State of Western Australia at [89], the duty of the trial Judge to give reasons will allow the parties, the community and (where necessary) an appeal court to evaluate whether emotion may have influenced the Court's decision. 93 … 94 Of course, the adequacy and correctness of reasons remain to be considered in the particular case. The point in mentioning these statements here is to emphasise the important differences between trial by jury and trial by Judge alone flowing from the judicial duty to give reasons.
3. For present purposes, I am satisfied that the necessity in these proceedings to give reasons for the conclusions which I have reached concerning potential engagement of s 101(2) of the Evidence Act sufficiently protect Sami's interests from the risks which might otherwise arise were these charges to be dealt with by jury trial.
4. I have earlier set out the definition of "probative value" contained in the Dictionary to the Evidence Act. In the Company decision, I considered the decision of the Court of Criminal Appeal in R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 (Shamouil) (a decision which had been cited, in submissions, by the Prosecutor). The matters that were addressed by me in that decision as arising from that case are equally relevant to my consideration concerning the Prosecutor's "asserted tendency" addressed in these proceedings and the submissions advanced for Sami that the prejudice to Sami, of permitting the Prosecutor to rely on the "asserted tendency", outweighed the probative value of the evidence of the "asserted tendency" if I did so.
5. In Shamouil, 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.
6. In this context, because the trial of Sami 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 Sami.

The ss 135(a) and 137 tests

1. 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].
2. In circumstances where, as earlier noted, Sami's trial 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 Sami in the fashion postulated by the statutory provisions.

The Prosecutor's proposed non‑tendency use of the text message evidence

Introduction

1. I have earlier set out, at [12], the "asserted tendency" for which the Prosecutor sought an advance ruling pursuant to s 192A of the Evidence Act that the groups of text messages in the two categories set out in Exhibit A were admissible to prove that Sami had a tendency in the fashion asserted by the Prosecutor.
2. To the extent that I have been satisfied that only some of the groups of text messages in the "direct dishonesty" category of messages in Exhibit A support the "asserted tendency" proposed by the Prosecutor, the "asserted tendency" becomes a matter upon which the Prosecutor can now rely for the purposes of s 169A(2)(c)(1) of the POEO Act.
3. To the extent that some of the text messages were not held by me as able to be used for the tendency purpose proposed by the Prosecutor, the Prosecutor seeks, in the alternative, a ruling permitting reliance upon those messages for the purpose of proving constructive knowledge pursuant to s 169A(2)(c)(1) of the POEO Act.
4. I have earlier set out why items 9, 14 and 15 in the "direct dishonesty" category in Exhibit A and why all the message conversations in the "inferred dishonesty" category in Exhibit A did not provide support for the "asserted tendency" advanced by the Prosecutor.
5. An examination of my explanations for rejecting all of those message conversations discloses that, although there are a variety of differing reasons depending on the item being considered, none of them provide any potential probative utility in the fashion now advanced by the Prosecutor in support of the Prosecutor's proposed non‑tendency use of the messages in Exhibit A.
6. For that reason, I reject the non‑tendency use of any of those groups of message conversations.
7. It therefore requires me to consider whether items 1, 3, 4, 6, 10 and 12 in the "direct dishonesty" category in Exhibit A should be permitted to be used for the non‑tendency evidentiary purpose sought by the Prosecutor.

The Prosecutor's submissions

1. The Prosecutor also indicated an intention to tender any excluded text message evidence for non‑tendency purposes. Such a tender would be for the purposes of the element of the offences charged against Sami of the element in s 169A(2)(c)(1) of the second alternative path in that provision where the Prosecutor submits Sami ought reasonably to have known that the Company was committing the offences with which it had been charged.
2. This was addressed in the Prosecutor's written submissions, under the heading "Non‑Tendency Purpose of the Text Messages Evidence, Constructive Knowledge". The written submissions on this point were in the following terms (footnotes omitted): 12 In this case, aside from its use for a tendency purpose, the text message evidence is relied upon by the Prosecutor to assist in proving constructive knowledge under s 169A(2)(c)(i) Protection of the Environment Operations Act 1997 - that is, that the Defendant ought reasonably to have known that the executive liability offences concerned would be or were being committed. On the authorities, it is sufficient for the Prosecutor to prove that the Defendant had knowledge of facts from which a reasonable person would have believed that the executive liability offences concerned would be or were being committed. 13 But s 169A(2)(c)(i) allows regard also to be had to the knowledge, capacity and circumstances of the Defendant. An assessment is to be made as to whether he, not some other person, "ought reasonably to have known".5 In that sense, the Court will be asked to decide whether the circumstances were such that the Defendant himself (not some hypothetical person), with the knowledge and capacity he possessed, ought to have thought about the information being supplied by the company, the subject of the executive liability offences, and ought to have appreciated that it would be or was false or misleading.6 The way the Defendant was conducting his business around the time of his alleged offences is relevant to determining what he knew or ought reasonably to have known about the executive liability offences. 14 It is the Prosecutor's case that these text messages allow the Court to conclude that the Defendant, having in fact promoted a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste: • ought to have known that the executive liability offences would be or were being committed by the company through its employees, and • that, if he did not check or intervene, the offences would actually be committed. 15 This is different from using the text message evidence to prove that the Defendant had a tendency to promote a culture, and/or a practice and/or a system of work in the company which involved dishonesty and deception when supplying information to other people in the course of dealing with waste. The "asserted tendency" evidence tends to prove the Defendant had a tendency by way not just of conduct but also his character. But separately from any tendency, taken with the rest of the evidence, the text message evidence will also prove: (a) there was during the relevant time period during which the executive liability offences were committed, a culture, and/or a practice and/or a system of work in the company whereby false or misleading information about waste was supplied in the course of dealing with the waste; and (b) that multiple employees were influenced by the culture and/or participated in the practice and/or system of work in the company whereby false or misleading information about waste was supplied in the course of dealing with the waste; (c) that knowledge of the existence of the culture, practice and/or system of work and that multiple employees were so influenced and/or participated can be imputed to the Defendant because he had in fact promoted such a culture, practice and/or system of work by his text message communications with multiple employees; (d) the Defendant brazenly gave written directions on a number of occasions over 18 months to employees to provide to another person false or misleading information about waste types and/or waste sources and in circumstances where it was obvious to the employee that they were being directed to be dishonest; and (e) such that the Defendant ought reasonably to have known the executive liability offences would be or were being committed.
3. In his oral submissions, the Prosecutor summarised this by saying (Transcript 5 August 2021, page 111, lines 23 to 31): I need to make something clear; whilst we rely upon the text messages evidence constructive knowledge in Allam, we rely upon the text messages in the case against ACE as well not to prove a tendency but to it insists [assist] in proving that the employees of the company would be more likely do what they did, we submit, on the three occasions the subject of the charges against Mr Allam; on the four occasions, the subject of the charges against ACT [ACE] because of the culture that we say had been implicated of dishonesty. It is about the existence of the culture.
4. I have earlier noted a diverse range of statutes to which the Prosecutor referred where the concept of "ought to have known" formed a potential matter requiring consideration. The Prosecutor took me to a series of decisions by the High Court or intermediate appellate courts concerning how such an expression was to be understood. The decisions to which the Prosecutor made reference were:

• Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88
• Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29
• Simpson v The Queen (1998) 194 CLR 228; [1998] HCA 46
• Adam v R (2014) 246 A Crim R 232; [2014] NSWCCA 265
• R v Pullen [2018] NSWCCA 264

1. Although in markedly different factual circumstances compared to what is in contention in these proceedings and in, also, markedly different statutory regimes, each of the decisions to which the Prosecutor took me did provide relevant guidance on how the words "ought to have known" might be approached in understanding their statutory context, not only in the framework of the specific legislation addressed in each decision, but also in a broader, more general and widely applicable statutory context.
2. It is unnecessary to traverse the terms of any of those decisions. It is sufficient, for present purposes to observe that those decisions each made it clear that, when assessing whether or not an individual "ought to have known" about the likely outcome of the individual's actions, such an assessment was to be undertaken having regard to the circumstances of that individual and not by reference to the notional knowledge and capacity of some hypothetical person.
3. As to the applicability of constructive knowledge in the circumstances of the "asserted tendency" on Sami's part here being considered, the Prosecutor submitted that (Transcript 5 August 2021, page 116, line 50 to page 117, line 5): It's relevant because an element of the offences with which the defendant is charged is constructive knowledge and we submit that the tendency to instruct employees or rather to create a culture or system of work whereby employees send off to outside people information about the waste the company's dealing with in the course of dealing with the waste which is false or misleading includes the necessity to prove that the defendant - that the element of constructive knowledge, knowledge or constructive knowledge, has been proved.
4. In the context of the Prosecutor's assertion of constructive knowledge on Sami's behalf, the Prosecutor submitted that, with respect to the "direct dishonesty" messages in Exhibit A, Sami was either directing his employees to be dishonest or was countenancing them being so, whilst, with respect to those in the "dishonesty inferred" category, Sami was to be regarded as "mulling the options as to whether dishonesty should be employed on the particular occasion or not".
5. Next, the Prosecutor submitted that, because Sami knew that he promoted or countenanced a practice in the Company's operation that involved dishonesty in the Company's waste disposal activities, Sami needed to be aware of and responsive to the risk that the Company's employees "would engage in such behaviour when supplying information to third parties about the waste with which the Company was dealing".
6. This meant, in the context of communications by the Company's employees that provided information to third parties, he needed to ensure that these did not contain information that was false or misleading in a material respect. That is, the Prosecutor submitted, he had an obligation to stop or prevent the commission of the offences with which the Company has been charged.
7. The Prosecutor also submitted (Transcript 24 August 2021, page 126, lines 37 to 46): And we submit that in the case of the offences with which Mr Allam is charged, the text messages also tend to prove the commission of the executive liability offences by the company. It is more likely that employees of the company would engage we submit in the conduct on behalf of the company of supplying information to third parties about waste with which the company was dealing, which information was false and misleading where the circumstances are that the boss has been promoting amongst employees a culture or work practice or system of work of using or countenancing dishonesty when supplying information to third parties about the waste with which the company was dealing.

The submissions for Sami on non‑tendency use of the messages

1. Mr Potts submitted that, for the purposes of my consideration of the Prosecutor's reliance on Sami having constructive knowledge of each of the offences, those elements in Exhibit A, if relied upon for a non‑tendency purpose, were incapable of being relied upon for that purpose if those messages post‑dated any of the three executive liability charges laid against Sami. In this context, I had the following exchange with Mr Potts (Transcript 5 August 2021, page 119, lines 18 to 22): HIS HONOUR: So I assume you would say to me that if I was looking at Exhibit A for that purpose, there would be three temporal cut-off lines that you would say I would draw differing for the three charges? POTTS: Exactly, your Honour, yes.
2. Mr Potts submitted that the Exhibit A material (and any associated material) could only be relevant if it is admitted for a tendency purpose and, if not, is otherwise irrelevant and inadmissible. He further submitted that, if I was to be satisfied that, even if I concluded that the material had some relevance, it should be excluded pursuant to either ss 135 or 137 of the Evidence Act.
3. With respect to the possible use of the material in Exhibit A for non‑tendency purposes arising from s 169A(2)(c)(ii), Mr Potts submitted that this required compartmentalisation of the text messages so that I considered, for each of the relevant charge dates shown in Annexure A, only those groupings of text messages which occurred prior to the charge dates set out in Annexure A.
4. In this context, I had the following exchange with Mr Potts (Transcript 24 August 2021, page 144, lines 4 to 44): HIS HONOUR: … Does that mean that, for example, I am required to give four separate rulings based on those four separate temporal groupings of text messages? POTTS: With respect, yes, your Honour, because we say, for example, in trying to work out what Mr Allam ought reasonably to have known on 18 April 2017, we say as a matter of logic and, therefore, admissibility, item 16 in Exhibit A, which is a text exchange on 22 December 2017, we say that's logically incapable of saying anything relevant about what Mr Allam ought to have known back in April 2017, and so this is not text message material where there's said to be some admission made by Mr Allam about something he knew on 18 April or 2 June or 2 December. This is not material where it's said he touches on the subject matter of the charges or that he makes an admission about his state of knowledge being the ultimate fact in issue or some contextual fact of which he had knowledge at the relevant dates. These are simply text messages which the prosecutor says evidence other, what we would characterise as unrelated, instances of dishonesty in the case of the blue items or inferred dishonesty in the case of the green items on other unrelated occasions, and the question HIS HONOUR: I understand how you can say to me that for the purposes of 169A(2)(c)(i), because "would be" or "is being" committed, at least as you advance it, does not permit a retrospective examination of text messages. That's what I understand you put to me, is it not? POTTS: We say what that means is he has to appreciate either that the offence is going to be committed, so some time in advance of 18 April, he ought reasonably to appreciate that, or, at the latest, he has to appreciate on 18 April 2017 at about 7.23pm that email is being sent. After 7.23pm on 18 April 2017, if he later knows the offence has been committed or comes to have knowledge which means he ought reasonably to have known it's been committed, that's not enough to constitute the element of the offence. He has to know, at the latest, by 18 April 2017 at 7.23pm that the offence is being committed and we say logically, given the content of the Exhibit A text messages, any text message sent after the time and date of the offences charged against Mr Allam is incapable of rationally affecting the question of whether or not he ought to have known either prior to or at the time of the commission of the executive liability offence it's incapable, if you have a text message that comes after that, of affecting that question, because the subject matter of these texts is not any form of admission or conversation about his state of mind or things he knew prior to 7.23pm on 18 April 2017, for example.
5. In summary, Mr Potts submitted that any text messages in Exhibit A, which took place after the date of any of the alleged offences, are not logically capable of affecting whether or not Sami ought to have known of the offending conduct as at the relevant date charged.
6. The next matter of a temporal nature pressed by Mr Potts was his submission that it was appropriate to have regard to the dates of the alleged offending conduct and of the subsequent text messages. The subsequent messages could not be looked at in a retrospective fashion to impute to Sami knowledge of the commission by the Company of an executive liability offence, Mr Potts submitted (Transcript 24 August 2021, page 146, lines 10 to 18): We say, looked at properly, if it's not being deployed to prove a tendency, it's incapable of rationally affecting the factual question of whether Mr Allam ought reasonably to have known that the particular executive liability offence alleged by Ace would be, or is being, committed, and we put that submission in those stark terms, that proof of the text messages ..(not transcribable).. this way, not able to be used as tendency, not able to be used as coincidence, is incapable of logically affecting the existence of that fact in issue. These text messages are, therefore, irrelevant on that asserted basis.
7. Mr Potts next turned to address what he described as the second asserted basis for which the Prosecutor proposed to use the text messages in Exhibit A for non‑tendency purposes in support of the executive liability charges laid against Sami. In this context, Mr Potts acknowledged that it was accepted:

• each of the e‑mails were sent on the dates and at the times recorded in items 1, 2 and 4 in Annexure A - the summary of the charges;
• authorship of the e‑mails was not in dispute;
• that the e‑mails constituted supply of information about waste was not in dispute;
• that the information was supplied to another person in the course of dealing with the waste was also not in dispute.

1. However, Mr Potts observed that the questions of:

• whether or not the material was false or misleading; and
• whether or not the conduct of Mr Al Sarray and/or Mr Sidawi should be regarded as conduct of the Company were in issue.

1. Mr Potts submitted that the content of the text messages in Exhibit A was incapable of assisting in resolving each of the two matters nominated above as remaining in dispute. In this fashion, Mr Potts submitted, the material in Exhibit A was thus not capable of being relevant to prove any of the three executive liability charges laid by the Prosecutor against Sami.

Consideration

1. The Prosecutor had submitted that the text messages in Exhibit A also should be permitted to be admitted for non‑tendency purposes. This position was, as set out in my analysis of the submissions for Sami discussed above, resisted on Sami's behalf.
2. Although, if I was minded to conclude that any of the three excluded text message conversations in the "direct dishonesty" category or any of the rejected text message conversations in the "inferred dishonesty" category were capable of having substantive probative value with respect to any fact genuinely in issue at the trial, it would be necessary for me to consider whether any basis existed in the Evidence Act to provide a foundation for admissibility. It is unnecessary to do so. I have concluded that none of the messages in Exhibit A (other than the six text message conversations I have held provide a proper basis for permitting the Prosecutor to rely on the "asserted tendency") could, in even the most tangential fashion, be regarded as going to the proof of any fact in issue in either the proceedings against the Company or the proceedings against Sami.
3. I therefore rule that the excluded text message conversations in Exhibit A are not admissible.
4. I now turn to the non‑tendency use of the six remaining text message conversations in Exhibit A - the conversations where I have determined they do provide a foundation for the "asserted tendency". This requires me to consider whether, on the basis of these six conversations, Sami ought to have known that the Company's alleged offences would take place.
5. First, I observe that I am satisfied that these messages constitute business records of Sami (s 69 of the Evidence Act) and are therefore admissible, despite the hearsay rule.
6. The first of the six text message conversations (item 1) in the "direct dishonesty" category which I have held provided a basis for the Prosecutor's "asserted tendency" took place on 24 June 2016, some nearly nine months or so prior to the date of the first of the offences with which the Company is charged and with respect to which Sami is said to have an executive liability.
7. The second of them (item 3) took place on 27 September 2016, some six months or so prior to the first of the offences.
8. Item 4 is a conversation which took place on 22 December 2016, some four months or so prior to the first of the offences.
9. The text message conversation in item 6 took place on 20 March 2017, about one month before the first of the offences with which the Company has been charged and with respect to which Sami is said to have an executive liability took place.
10. All four of these conversations, taking place as they did prior to the first and second offence are potentially capable of demonstrating that Sami ought to have known that such an offence might be committed.
11. The text messages in item 10 took place on 6 June 2017, four days after the second of the offences with which the Company has been charged and for which Sami is said to have executive liability and some six months prior to the third offence. Therefore, there are five of the six text message conversations are potentially capable of demonstrating that Sami ought to have known that the third offence might be committed.
12. The final group of text messages, item 12, took place on 17 July 2017. This text message conversation took place about a month‑and‑a‑half after the date of the second of the offences, but some four‑and‑a half months prior to the final offence with which the Company is charged and for which Sami is said to have executive liability (this offence being said to have taken place on 2 December 2017).
13. There is no doubt that the inference may be available with respect to the offences which took place after the relevant text message conversations occurred. None of them took place after the date of the third offence. To the extent that items 10 and 12 took place after the second offence, the text message conversation in item 10 could also have retrospectant evidentiary relevance to the alleged offending conduct of 2 June 2017.

Conclusions

1. First, as requested by the Prosecutor (Transcript 4 August 2021, page 27, lines 1 to 3), with there being no complaint by Mr Potts as to satisfaction of the notice requirement in s 97(1)(a) of the Evidence Act, I find that the Prosecutor has given reasonable notice in writing of the Prosecutor's intention to seek to adduce evidence of the "asserted tendency".
2. For the matters requiring determination, I have concluded as follows: 1. with respect to the "dishonesty" groups of text messages in Exhibit A which were said by the Prosecutor to demonstrate that Sami had the "asserted tendency" set out at [12] of this judgment, I am satisfied that six of nine of those message groups demonstrate that tendency and that three do not; 2. with respect to the groups of messages in Exhibit A said by the Prosecutor to demonstrate "dishonesty inferred" and thus that Sami had the tendency set out at [12], I am satisfied that none of those message groups are capable of establishing that Sami had the "asserted tendency"; 3. with respect to the six messages noted in (a) above, I am satisfied that the tendency they demonstrate has significant probative value and this probative value is not outweighed by any prejudice to Sami of the admission of those messages as evidencing that Sami held that tendency; and 4. with respect of the Prosecutor's proposal that the messages referred to above in (b) should be admitted for purposes other than establishing that Sami had the tendency set out at [12], I am satisfied that the Prosecutor should be permitted to seek to rely, for non‑tendency purposes, on only those groups of messages in Exhibit A that were also found to support the "asserted tendency".

Directions

1. To give effect to the differing conclusions which I have reached with respect to the various elements advanced on behalf of the Prosecutor in support of the tendency asserted to be held by Sami, it is necessary to formalise those outcomes by orders addressing the elements of the Prosecutor's Notice of Motion filed on 16 July 2021 and the responsive Notice of Motion which was also filed on behalf of Sami on 16 July 2021. 1. To permit this to happen, the parties are directed to settle orders reflecting the determinations I have made in this decision; and 2. If the parties are unable to agree, the directions given in Environment Protection Authority v ACE Demolition & Excavation Pty Ltd; Allam [2022] NSWLEC 45 provide the mechanism by which the matter can be brought back for determination of any dispute concerning the necessary orders.

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:

1. Elizabeth Emily Spain affidavit affirmed 15 July 2021- in folder 2 of USB, item 1
2. Elizabeth Emily Spain affidavit affirmed 30 July- in folder 3 of USB, item 1
3. Carney Gar Leung Yu affidavit- in folder 3 of USB, item 2
4. Kate Bleakman affidavit- in folder 3 of USB, item 3
5. Benjamin James Dales affidavit- in folder 3 of USB, item 5 • Exhibits:
6. EES-1 to Spain 15 July affidavit- in folder 2 of USB, item 2
7. KB-1 to Bleakman affidavit- in folder 3 of USB, item 4
8. BJD-1 to Dales affidavit- in folder 3 of USB, item 5 • Aide memoires:
9. 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:
10. Elodie Jane Cheesman affirmed 16 July 2021 pghs [1]-[4], [21]­ [35] only- in Folder B Folder 1 of Defendants' USB
11. George Paul Pasas sworn 30 July 2021- in Folder B Folder 1 of Defendants' USB
12. Roberto Antonio Pupo sworn 23 June 2020 paragraphs [125]­ [126] only- in Folder C of Defendants' USB
13. Carney Gar Leung Yu affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
14. Kate Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
15. Benjamin James Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor) • Exhibits:
16. EJC-1 to Cheesman affidavit pages 21-125 only in Folder B Folder 1 of Defendants' USB
17. GP-1 to Pasas affidavit- in Folder B Folder 1 of Defendants' USB
18. RAP-01 to Pupo affidavit Tab 5 Table 7 - in Folder C of Defendants' USB
19. RAP-09 Tab 28 Folder "Sami Allam's Phone Extracts" - in Folder C of Defendants' USB (and not "Natives" folder in Tab 28)
20. KB-1 to Bleakman affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)
21. BJD-1 to Dales affidavit - in Folder C of Defendants' USB (also tendered by Prosecutor)

Amendments 12 May 2022 - Incorrect citation of Environment Protection Authority v ACE Demolition & Excavation Pty Ltd [2022] NSWLEC 43 should properly be [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